Francis v. Atlantic Law Firm et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 11/27/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DENILIA FRANCIS,
Plaintiff,

v.
ATLANTIC LAW FIRM, et al.,

Civ. Action No. 17-1270-RGA
Superior Court of the State of
Delaware in and for New Castle County
Case# N16L-07-076 JRJ

Defendants.

Denilia Francis, New Castle, Delaware. Pro Se Plaintiff.
Joelle Eileen Polesky, Esquire, Stradley Ronon Stevens & Young, LLP, Wilmington,
Delaware. Counsel for Defendant Ocwen Loan Servicing, LLC.

MEMORANDUM OPINION

J..1,

2017
November
Wilmington, Delaware

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ANDREWS, U.S.

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On September 6, 2017, Denilia Francis commenced this action when she filed a
complaint against Defendants Atlantic Law Firm, Attorneys for Ocwen Loan Financing,
and Ocwen Loan Servicing. (D.I. 2). On October 16, 2017, Francis requested that the
case be treated as a notice of removal of Delaware State Court C.A. No. N16L-07-076JRJ. (D.I. 7). Francis appears prose and has been granted leave to proceed in forma
pauperis.

FACTUAL AND PROCEDURAL BACKGROUND
In her complaint, Francis alleges that debt collector Atlantic Law Firm is
attempting to foreclose her property and has violated bankruptcy laws and the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, by threatening to foreclose and
by harassing Francis and her family. (D.I. 2 at p.4). She seeks $540,000. (Id. at p.7).
After the complaint was filed, Francis filed a document titled, "Motion for Removal to
Federal Court I Motion to Stay State Court Case# N16L-07-076-JRJ." (D.I. 7).
The Court takes judicial notice that C.A. No. N16L-07-076-JRJ is a foreclosure
action filed on July 14, 2016, in the Superior Court of the State of Delaware in and for
New Castle County, Deutsche Bank Trust Co. v. Francis, C.A. No. N16L-07-076-JRJ.
Francis was served on December 28, 2016, and she answered and filed a
counterclaim. (Id. at D.I. 9 at Exs. F, G). In the counterclaim, Francis asserted claims
of fraud, violations of the FDCPA, Delaware's Deceptive Practices Act, and the Fair
Credit Reporting Act, as well as unlawful assignment of mortgage and extortion. (D.I.
11-7 at Ex. G at pp.4-5, 9-11 at mf 11, 15, 16, 22). On September 15, 2017, the

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Superior Court entered summary judgment in favor of Deutsche Bank in the amount of
$256, 158.41. (Id. at Ex. H). Francis filed a notice of appeal the same day. See

Francis, C.A. No. N16L-07-076-JRJ at BL-64, BL-65, BL-66. On October 17, 2017,
Francis filed a notice of removal in the Superior Court removing the case to this Court.

See id. at BL-67.
The Court takes judicial notice that on August 9, 2016, approximately one month
after the foreclosure action commenced, Francis filed an action against Ocwen
Financial Services, Inc. and its attorneys and Deutsche Bank Trust Company in the
Court of Chancery of the State of Delaware, Francis v. Ocwen Financial Services, Inc.,
C.A. No. 12661-VCMR. Francis appeared prose and was granted leave to proceed in

forma pauperis. Id. at BL-2. Francis sought to enjoin a trustee sale and/or sheriff
proceeding and alleged that the defendants might be in violation of the FDCPA, 15
U.S.C. § 1692, used deceptive tactics and misrepresentation, and had no authority or
legal standing to foreclose. See id. at BL-5.
The Chancery Court case was dismissed as frivolous on the grounds that
Francis failed to demonstrate any irreparable harm, failed to present a colorable claim
that supported enjoining foreclosure, failed to include Dozmitt Francis (also a record
owner and mortgagee of the property at issue) as a party, and the deficiencies asserted
by Francis were belied by the exhibits she submitted. Id. at BL-1, BL-3. When Francis
did not file any exceptions to the letter decision and order dismissing the complaint, the
letter decision and order were approved and adopted on September 9, 2016. Id. at BL11. Francis sought reconsideration and stated that the FDCPA has rules concerning

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debt collectors and creditors and that Ocwen is a debt collector acting outside the
scope its capacity. Id. at BL-12. The Chancery Court denied her motion on October
19, 2016, stating that it agreed with the previously entered letter decision and order. Id.
at BL-15.

REMOVAL
Legal Standard. The exercise of removal jurisdiction is governed by 28 U.S.C.
§ 1441 (a) which states that, in order to remove a civil action from state court to federal
court, a district court must have original jurisdiction by either a federal question or
diversity of citizenship. 28 U.S.C. §§ 1331, 1332, 1441 (a). Section 1441 (a) also
provides that the action may be removed by the defendant to the district court of the
United States. Id. at§ 1441 (a). The statute is strictly construed, requiring remand to
the state court if any doubt exists over whether removal was proper. Shamrock Oil &

Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941).
A court will remand a removed case "if at any time before final judgment it
appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c).
The party seeking removal bears the burden to establish federal jurisdiction. Steel

Valley Auth. v. Union Switch & Signal Div. Am. Standard, Inc., 809 F.2d 1006, 1010 (3d
Cir. 1987); Zoren v. Genesis Energy, L.P., 195 F. Supp. 2d 598, 602 (D. Del. 2002). In
determining whether remand based on improper removal is appropriate, the court "must
focus on the plaintiff's complaint at the time the petition for removal was filed," and
assume all factual allegations therein are true. Steel Valley Auth., 809 F.2d at 1010.
Upon a determination that a federal court lacks subject matter jurisdiction, the District

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Court is obligated to remand, sua sponte, to the state court from which it was removed.
See Scott v. New York Admin. for Children's Services, 678 F. App'x 56 (3d Cir. 2017).
Discussion. Francis commenced this matter as a civil action and then filed a

notice that the case was a removal case from the Delaware Superior Court, C.A. No.
N16L-07-076-JRJ, a case where she is a named co-defendant. Ocwen contends the
removal is procedurally defective and moves for remand on the grounds the Court lacks
jurisdiction, the removal was untimely, and Francis failed to obtain the consent to
removal from her co-defendant in the foreclosure action. (D.I. 8).
The removal statute requires that "a notice of removal of a civil action or
proceeding shall be filed within thirty days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within thirty days after the service of
summons upon the defendant if such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever period is shorter." See 28
U.S.C. § 1446(b). Here, the notice of removal is not timely, having been filed on
September 6, 2017, some nine months after service of C.A. No. N16L-07-076-JRJ, and
well after the thirty-day time requirement as set forth by 28 U.S.C. § 1446(b).
In addition, Francis failed to comply with the requisites for removal. She did not
provide for the Court's review any copies of process, pleadings, or orders from the
State proceedings. See 28 U.S.C. § 1446(a). Nor did Francis obtain the consent of
Delaware Superior Court co-defendant Dozmitt Francis as is required by 28 U.S.C.

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§ 1446(b)(2)(A). It is well-established that removal, subject to only a few exceptions,
requires unanimity among the defendants. See Balazik v. County of Dauphin, 44 F.3d
209, 213 (3d Cir. 1995).
Francis failed to timely file the notice of removal following service of the initial
pleading in C.A. No. N16L-07-076-JRJ and failed to comply with the requisites for
removal. This renders the removal procedurally defective. Therefore, the Court will
summarily remand the case to the Superior Court of the State of Delaware in and for
New Castle County. 1
SCREENING OF COMPLAINT
To the extent that Francis intended to file a new case (although that is far from
clear), the instant Complaint is very similar to the complaint Francis filed in the Court of
Chancery. Ocwen moves for dismissal on the grounds that the complaint fails to state
a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (D.I.
10). Given that Francis proceeds prose and has been granted leave to proceed in

forma pauperis, the Court will screen the case as is statutorily required under 28 U.S.C.

§ 1915(e)(2).
Legal Standard. A federal court may properly dismiss an action sua sponte
under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F .3d 448,
452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions). The
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The Court does not address the third ground for removal - jurisdiction - since the
removal is procedurally defective on other grounds.

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Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. Phillips v. County of Allegheny, 515 F.3d 224,
229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Francis
proceeds pro se, her pleading is liberally construed and her complaint, "however
inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94.
An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a

court may dismiss a complaint as frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.
Neitzke, 490 U.S. at 327-28; Wilson v. Rackmilf, 878 F.2d 772, 774 (3d Cir. 1989).

The legal standard for dismissing a complaint for failure to state a claim pursuant
to§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6)
motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before
dismissing a complaint or claims for failure to state a claim upon which relief may be
granted pursuant to the screening provisions of 28 U.S.C. § 1915, the Court must grant
Francis leave to amend her complaint unless amendment would be inequitable or futile.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. Corp. v. Twombly, 550 U.S. 544

(2007). A plaintiff must plead facts sufficient to show that a claim has substantive
plausibility. See Johnson v. City of Shelby, _U.S._, 135 S.Ct. 346, 347 (2014). A

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complaint may not dismissed, however, for imperfect statements of the legal theory
supporting the claim asserted. See id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take
note of the elements the plaintiff must plead to state a claim; (2) identify allegations
that, because they are no more than conclusions, are not entitled to the assumption of
truth; and (3) when there are well-pleaded factual allegations, assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief. Connelly v.
Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Elements are sufficiently alleged

when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556
U.S. at 679. Deciding whether a claim is plausible will be a "context-specific task that
requires the reviewing court to draw on its judicial experience and common sense." Id.
Res Judicata. Even were this Court to consider the claims raised by Francis in

her initial pleading (D.I. 2), they are barred by reason of res judicata, or claim
preclusion. Res judicata, or claim preclusion, applies where the party invoking it
establishes: "(1) a final judgment on the merits in a prior suit involving (2) the same
parties or their privies, and (3) a subsequent suit based on the same cause of action."
Duhaney v. Attorney Gen., 621 F.3d 340, 347 (3d Cir. 2010). Res judicata "bars not

only claims that were brought ... , but also claims that could have been brought." Id.
The Court takes judicial notice of the claims raised in the Court of Chancery
proceeding and finds that claims raised by Francis in the instant case are barred by res
judicata. In the Court of Chancery case, Francis named as defendants Ocwen
Financial Services and its attorneys (the same defendants as in the instant case) and

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Deutsche Bank Trust Company. Francis sought to enjoin a trustee sale and/or sheriff
proceeding and alleged that the defendants might be in violation of the FDCPA, 15
U.S.C. § 1692, used deceptive tactics and misrepresentation, and had no authority or
legal standing to foreclose. In the instant case Francis alleges an attempt to foreclose
her property and violations of bankruptcy laws and the FDCPA.
The Court of Chancery case, where Francis proceeded pro se and was granted
in forma pauperis status, was dismissed as frivolous. She proceeds in forma pauperis

in this Court. A dismissal under the in forma pauperis statute for frivolousness carries
preclusive effect for purposes of any future in forma pauperis actions. See Shockley v.
Hosterman, 279 F. App'x 98, 99 (3d Cir. 2008) (quoting Denton v. Hernandez, 504 U.S.

25, 34 (1992) (dismissal under§ 1915(e) "could ... have a res judicata effect on
frivolousness determinations for future in forma pauperis petitions"). The instant
Complaint is clearly based upon the same transactions and occurrences at the center
of Francis' Court of Chancery case. The claims do not differ in any significant way from
her prior claims and, notably, the Court of Chancery found those claims frivolous. The
Court concludes, therefore, that this action is barred by res judicata or claim preclusion.
Abstention. Ocwen seeks dismissal on the grounds that the claims now raised

by Francis are inextricably intertwined with the Superior Court foreclosure case and,
thus, are barred by the Rooker-Feldman Doctrine. Federal district courts are courts of
original jurisdiction and have no authority to review final judgments of a state court in
judicial proceedings. 2 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The Rooker2

The Rooker-Feldman doctrine refers to principles set forth by the Supreme
Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia

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Feldman doctrine applies in a case "brought by [a] state-court loser [] complaining of
injuries caused by the state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those
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judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
In light of the appeal filed by Francis, the foreclosure proceedings remain pending in
State Court. Therefore, the Court declines to apply the Rooker-Feldman doctrine.

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However, abstention is appropriate under the Younger abstention doctrine, which
provides that a federal district court must abstain from hearing a federal case which
interferes with certain state proceedings.

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See Younger v. Harris, 401 U.S. 37 (1971).

Abstention is proper when: (1) there are ongoing state proceedings that are judicial in
nature; (2) the state proceedings implicate important state interests; and (3) the state
proceedings provide an adequate opportunity to raise the federal claims. Lazaridis v.
Wehmer, 591 F.3d 666, 670 (3d Cir. 2010). The doctrine applies to proceedings until
all appellate remedies have been exhausted, unless the matter falls within one of the
Youngerexceptions. 4 Huffman v. Pursue Ltd., 420 U.S. 592, 608 (1975).

Court of Appeals v. Feldman, 460 U.S. 462 (1983). Because the doctrine divests the
court of subject matter jurisdiction, it may be raised at any time by the court sua sponte.
Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F .3d 411, 419 (3d Cir. 2003); Nesbit v.
Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003).
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The court may raise the issue of Younger abstention sua sponte. O'Neill v. City
of Philadelphia, 32 F.3d 785 n.1 (3d Cir. 1994).
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Exceptions to the Younger doctrine exist where irreparable injury is "both great
and immediate," Younger, 401 U.S. at 46, where the state law is "flagrantly and patently
violative of express constitutional prohibitions," id. at 53, or where there is a showing of
"bad faith, harassment, or ... other unusual circumstances that would call for equitable
relief." Id. at 54.

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The Younger elements have been are met and none of the exceptions apply.
First, there are on-going state proceedings for the foreclosure of real property, currently
on appeal. Second, Delaware has an important interest in resolving real estate issues,
and a ruling in the Delaware courts implicates the important interest of preserving the
authority of the state's judicial system. See, e.g., Almazan v. 151

2nd

Mortg. Co. of NJ,

Inc., 2011 WL 2670871 (D.N.J. June 2, 2011) (finding that the State has important

interests in the foreclosure of property under the Younger doctrine); Greg v. Pagano,
287 F. App'x 155 (3d Cir. 2008) (court abstained under the Younger doctrine where
plaintiffs sought a declaration that the judge was not authorized to nullify transfer of title
and for an order enjoining the sheriff from conducting a sheriff's sale.). Finally, Francis
has an adequate opportunity to raise any potential claims in state court. Accordingly,
pursuant to Younger and its progeny, the Court must abstain. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987) (stating that Younger abstention is favored even

after the plaintiffs failed to raise their federal claims in the ongoing state proceedings).
CONCLUSION
For the above reasons the Court will: (1) grant Ocwen's motion to remand (D.I.
8); (2) summarily remand the case to the Superior Court of the State of Delaware in and
for New Castle County; (3) dismiss as moot Ocwen's motion to dismiss (D.I. 1O);
(4) abstain under the Younger abstention doctrine and, in the alternative, dismiss the
Complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i). The Court finds
amendment futile.
An appropriate order will be entered.

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