SunTrust Bank v. Hawley et al

Filing 13

ORDER. This matter is REMANDED to the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the Court of the Twentieth Judicial Circuit in and for Lee County, Florida. The Clerk is directed to CLOSE this case and terminate any and all previously scheduling deadlines and other pending motions as moot. Signed by Judge Sheri Polster Chappell on 3/12/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SUNTRUST BANK,
Plaintiff,
v.

Case No: 2:14-cv-71-FtM-38CM

LINDA D. HAWLEY, PHILLIP E.
HAWLEY, MARY L. PIKULIK, RIVA
DEL LAGO CONDOMINIUM
ASSOCIATION, INC., UNKNOWN
TENANT NO. 1, UNKNOWN
TENANT NO. 2, UNKNOWN
SPOUSE OF LINDA H. HAWLEY,
UNKNOWN SPOUSE OF MARY L.
PIKULIK and UNKNOWN SPOUSE
OF PHILLIP E. HAWLEY,
Defendants.
/
ORDER1
This matter comes before the Court on review of the docket. Plaintiff SunTrust
Bank initiated an action against Defendants in the Circuit Court of the Twentieth Judicial
Circuit in and for Lee County, Florida to foreclose a mortgage on real property pursuant
to Section 26.012 of the Florida Statutes. (Doc. #1-1). It appears that the Complaint was
filed in state court on December 30, 2013. (Doc. #1-1, at 4). On February 7, 2014, Linda
D. Hawley and Phillip E. Hawley (hereinafter “Hawley Defendants”) filed a Notice of

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Removal within this Court.2 (Doc. #1). The Hawley Defendants state this Notice of
Removal was filed within 30 days of the date that they were served with the Summons or
Complaint. (Doc. #1, at 3).
The Hawley Defendants originally asserted that the Court has jurisdiction of this
matter pursuant to diversity jurisdiction. (Doc. #1, at 1). The Court, however, in its Order
to Show Cause found the Hawley Defendants did not properly allege that the Parties were
completely diverse in this matter and therefore, the Court does not have subject matter
jurisdiction based on diversity. (Doc. #7). The Court gave the Hawley Defendants an
opportunity to show why this case should not be remanded for failure to establish subject
matter jurisdiction based on the presence of diversity jurisdiction at the time of removal.
(Doc. #7, at 4).
The Hawley Defendants have filed a response to this Court’s Order. (Doc. #12).
Now, the Hawley Defendants recognize that their reliance on diversity jurisdiction was
misplaced. (Doc. #12, at 7). The Hawley Defendants, however, request that the Court
exercise subject matter jurisdiction pursuant to federal question jurisdiction. Specifically,
the Hawley Defendants state their defense to the foreclosure action pursuant to 15 U.S.C.
§ 1640(k) arises under federal question because at their closing SunTrust Bank did not
provide the Hawley Defendants with the written final disclosure under TILA as required
by 15 U.S.C. § 1631(b). (Doc. #12, at 8). The Hawley Defendants’ contention is misplaced
because they are relying on their defense in an attempt to assert federal question litigation
in this matter; and this is inappropriate. Caterpillar Inc. v. Williams, 482 U.S. 386, 393

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Linda D. Hawley and Phillip E. Hawley indicate that they are husband and wife in the Notice of Removal.
(Doc. #1, at 2). Therefore, it appears that Defendant Unknown Spouse of Linda D. Hawley and Defendant
Unknown Spouse of Phillip E. Hawley are listed redundantly in the caption.

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(1987) (“a case may not be removed to federal court on the basis of a federal defense”)
(citing Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for
Southern California, 463 U.S. 1, 12 (1983)); Bollea v. Clem, 937 F. Supp. 2d 1344, 1353
n. 6 (M.D. Fla. 2013) (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th
Cir. 2010) (a defense that presents a federal question cannot create removal jurisdiction,
even if the defense is valid.)). Further, the original complaint does not present a federal
question but instead only presents a state question. (Doc. #2, at 1). Upon review of the
original complaint and the subsequent filings in this matter, the Court finds it does not
have subject matter jurisdiction over this matter. Therefore, this matter is due to be
remanded.
Accordingly, it is now ORDERED:
1. This matter is REMANDED to the Circuit Court of the Twentieth Judicial Circuit
in and for Lee County, Florida.
2. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the
Court of the Twentieth Judicial Circuit in and for Lee County, Florida.
3. The Clerk is directed to CLOSE this case and terminate any and all previously
scheduling deadlines and other pending motions as moot.
DONE and ORDERED in Fort Myers, Florida this 12th day of March, 2014.

Copies: All Parties of Record

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