National City Bank v. Bedasee et al
Filing
22
OPINION AND ORDER granting 12 plaintiff's Motion for Remand of Action to the State Circuit Court; denying as moot 3 Injunction to Set Aside Foreclosure and Deed; denying as moot 19 Motion to Consolidate; denying as moot 20 Applicatio n for Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief; denying as moot 21 Motion for an Order of Relief from the Related Case Order Entered on July 26, 2016 and Staying the Action Until the Court Rules on the Plaintiff 039;s Motion for Remand. The Clerk is directed to remand the case to the Circuit Court of the Twentieth Judicial Circuit, in and for Collier County, Florida, and to transmit a certified copy of this Opinion and Order to the Clerk of that Court. The Clerk is further directed to terminate all pending motions and deadlines and close this case. See Opinion and Order for details. Signed by Judge John E. Steele on 8/26/2016. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATIONAL CITY BANK,
Plaintiff,
v.
Case No: 2:16-cv-555-FtM-99MRM
OWEN
BEDASEE,
SANDIE
BEDASEE,
FIRST
FRANKLIN
FINANCIAL CORPORATION, JOHN
DOE, and JANE DOE,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Remand of Action to the State Circuit Court (Doc. #12) filed on
July 27, 2016, to which defendant Owen Bedasee filed a Response
(Doc.
#17)
on
August
11,
2016.
Also
before
the
Court
are
defendants Owen Bedasee and Sandie Bedasee’s1 Injunction to Set
Aside Foreclosure and Deed (Doc. #3) filed on July 14, 2016,
defendant Owen Bedasee’s Application for Temporary Restraining
Order, Preliminary Injunction, and Declaratory Relief (Doc. #20)
filed on August 22, 2016, and defendant Owen Bedasee’s Motion to
Consolidate (Doc. #19) filed on August 22, 2016.
1
Plaintiff filed
The Court notes that the Injunction to Set Aside Foreclosure
and Deed was filed by both Owen Bedasee and Sandie Bedasee, but
the case was removed solely by Owen Bedasee.
a Response to the Injunction to Set Aside Foreclosure (Doc. #13)
on July 27, 2016.
I.
The Complaint was originally filed in Collier County Circuit
Court
on
March
24,
2008,
seeking
to
recover
on
a
$320,000
promissory note secured by a mortgage on real property located in
Naples, Florida.
(Doc. #2.)
Defendants defaulted on or about
September 1, 2007, with a remaining balance of $311,421.16, plus
interest, late charges, and expenses.
(Id. at 1.)
On November
12, 2008, the magistrate judge granted summary judgment in the
amount of $352,618.12, plus attorney’s fees.
(Doc. #1-1, p. 2.)
On November 17, 2008, defendant Sandie Bedasee filed a Suggestion
of Bankruptcy.
(Id.)
On December 15, 2008, an Order was entered
denying the Recommended Order Granting Final Summary Judgment due
to the Suggestion of Bankruptcy.
(Id.)
Throughout the course of
the Collier County case, numerous appeals were made to the Second
District Court of Appeals and writs of mandamus to the Florida
Supreme
Court.
(Id.
at
1-12.)
All
of
which
were
either
dismissed, or an order was issued affirming the lower court.
In November of 2013, Summary Judgment was entered in favor of
National City Bank, and on August 12, 2014, a Final Judgment of
Foreclosure was entered on the docket and the foreclosure was
scheduled.
(Id. at 9; Doc. #12-2.)
The sale was cancelled and
rescheduled numerous times upon motion, and on September 9, 2014,
- 2 -
defendant Owen Bedasee filed a Suggestion of Bankruptcy, and on
July 28, 2015 Owen Bedasee and Sandie Bedasee filed Suggestions of
Bankruptcy, prompting further cancellation.2
12.)
Owen
Bedasee
and
Sandie
Bedasee
(Doc. #1-1, pp. 10filed
a
motion
for
rehearing/reconsideration of the grant of summary judgment, which
was denied by the circuit court. (Id. at 9.)
Owen Bedasee and
Sandie Bedasee then appealed the entry of final summary judgment
and the Second DCA denied the Bedasee’s Motion to Vacate/Void,
upholding the circuit court’s ruling.
(Id. at 12; Doc. #12-4.)
Following the Second DCA’s decision, Owen Bedasee removed the
case to the United States District Court for the Middle District
of Florida, Fort Myers Division.
(Doc. #1.)
The Notice of
Removal, filed by Owen Bedasee only, asserts removal on the basis
of diversity jurisdiction under 28 U.S.C. § 1332 and federal
question jurisdiction under 28 U.S.C. § 1331.
(Id.)
The Notice
of Removal also references a “Related Civil Case to be filed
imminently which seeks to test the Constitutionality of the current
Florida statutory scheme governing foreclosure proceedings” that
Mr. Bedasee seeks to have consolidated with this case.
2; Doc. #19.)
(Id. at
It appears that the related case Mr. Bedasee refers
2
Bankruptcy Orders Granting Relief/Dismissing Bankruptcy
Cases were docketed in the Collier County Circuit Court case on
April 23, 2015 and September 9, 2015. (Doc. #1-1, pp. 10-11.)
- 3 -
to was filed on July 25, 2016, Case No. 2:16-cv-00576-UA-MRM.
(Doc. #19.)
Plaintiff moves to remand the action to state court on the
following bases:
(1) defendant’s removal is untimely, (2) Mr.
Bedasee’s intention to file a new federal action does not cure the
untimeliness, (3) the Rooker-Feldman doctrine precludes lower
federal courts from engaging in appellate review of state court
orders, (4) Mr. Bedasee has failed to establish complete diversity
of citizenship, and (5) Mr. Bedasee has failed to establish federal
question jurisdiction. (Doc. #12.)
Defendant responds to plaintiff’s Motion to Remand by relying
on his separate federal lawsuit, arguing the state court did not
have jurisdiction over the foreclosure case, and that he has
alleged federal question jurisdiction in his notice of removal.
(Doc. #17.)
II.
On
a
motion
to
remand,
defendant
bears
the
burden
of
establishing proper subject-matter jurisdiction, Diaz v. Sheppard,
85 F.3d 1502, 1505 (11th Cir. 1996) (citing Tapscott v. MS Dealer
Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996)), and as defendant
is pro se, his pleadings will be liberally construed, Hope v.
Bureau of Prisons, 476 F. App’x 702, 704-05 (11th Cir. 2012)
(citation omitted).
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Generally, any civil action brought in a state court of which
the federal district court has “original jurisdiction” may be
removed by defendants to federal court.
28 U.S.C. § 1441(a).
The notice of removal of a civil action or proceeding
shall be filed within 30 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
30 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.
28 U.S.C. § 1446(b)(1).
If the case is not removable based on the
initial pleading, “a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, of
a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or
has become removable.”
Id. at § 1446(b)(3).
For cases removed
on the basis of diversity of citizenship, the case may not be
removed “more than 1 year after commencement of the action, unless
the district court finds that the plaintiff has acted in bad faith
in order to prevent a defendant from removing the action.”
Id. §
1446(c).
The Collier County action was filed on March 24, 2008.
#2.)
(Doc.
Defendant First Franklin Financial Corporation was served
in April 1, 2008 and defendants Owen Bedasee and Sandie Bedasee
were served on April 22, 2008.
(Doc. #1-1, p. 1.)
The Final
Judgment of Foreclosure was entered on August 12, 2014, and
- 5 -
following the Second DCA’s affirmance of the Final Judgment, Owen
Bedasee removed the case to federal court.
Upon information and
belief, the foreclosure sale has not yet occurred.
2016,
more
than
eight
years
after
the
action
was
On July 14,
filed
and
defendants were served, and almost two years after Final Judgment
was entered, defendant Owen Bedasee removed this action.
Defendant has failed to set forth any allegations as to when
he became aware that this action was removable, since it does not
appear that said basis is apparent from the face of the complaint,
nor allegations of bad faith on behalf of the plaintiff in order
to prevent defendant’s removal of the action.
Further, removal
after the entry of the final judgment of foreclosure is clearly
untimely.
In any event, defendant did not obtain the consent of
all defendants for the removal.
See 28 U.S.C. § 1446(b)(2)(A)
(“When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in
or consent to the removal of the action.”).
Further, even if
removal had been timely and consent had been obtained from all
defendants, Owen Bedasee has failed to establish diversity or
federal question jurisdiction.3
Accordingly, the Court finds that
defendant’s removal untimely.
3
Owen Bedasee only alleged his citizenship and not the
citizenship of the other defendants.
(See Doc. #1, p. 3)
(“Plaintiff is not, and was never a citizen/resident of the State
of Florida, while defendant is clearly a citizen and resident of
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In objecting to the motion to remand, Mr. Bedasee argues that
(1) he has filed a separate federal lawsuit on July 28, 2016, with
which the underlying case should be consolidated, (2) that the
state court lacked subject matter jurisdiction because National
City Bank is not the owner and holder of the note and therefore
did not have standing in the state court action, therefore, the
judgment entered by the state court is therefore void, and (3)
defendant
alleged
federal
question
jurisdiction
section 1331 in his notice of removal.
These arguments are rejected.
pursuant
to
(Doc. #17.)
First of all, the fact that
defendant has filed a separate case currently pending in federal
the
State
of
Florida,
which
constitute
diversity
of
citizenship.”). Without these allegations, Owen Bedasee has not
met his burden of establishing federal jurisdiction as the Court
cannot ascertain if there is complete diversity of citizenship
among the parties. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th
Cir. 1994).
Additionally, “federal jurisdiction generally exists only
when a federal question is presented on the face of the plaintiff's
properly pleaded complaint.”
Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (emphasis in
original) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)).
The Complaint presents no federal question, and no
amended pleading was filed presenting a federal question.
Therefore, there was no basis of removal based on any pleading or
other paper. See Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281
(1918) (“It is also settled that a case, arising under the laws of
the United States, nonremovable on the complaint, when commenced,
cannot be converted into a removable one by evidence of the
defendant . . . .”); Holmes Grp., 535 U.S. at 831 (“It follows
that a counterclaim—which appears as part of the defendant’s
answer, not as part of the plaintiff’s complaint—cannot serve as
the basis for “arising under” jurisdiction.” (citations omitted)).
- 7 -
court is not justification to remove a state court action in which
a final judgment has been entered.
Second, there is no indication
that a federal claim was presented in the Complaint, and no
indication why Mr. Bedasee could not raise any constitutional
arguments as a counterclaim or by motion in the state court
proceeding.
Third, contrary to Mr. Bedasee’s objection, state
courts have concurrent jurisdiction to hear federal claims, unless
Congress provides otherwise.
Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981).
The Rooker-Feldman1 doctrine “places limits on the subject
matter jurisdiction of federal district courts and courts of appeal
over certain matters related to previous state court litigation.”
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.
2001).
Under
the
Rooker–Feldman
doctrine,
“federal
district
courts cannot review state court final judgments because that task
is reserved for state appellate courts or, as a last resort, the
United States Supreme Court.”
Casale v. Tillman, 558 F.3d 1258,
1260 (11th Cir. 2009) (citation omitted).
Accordingly, a federal
district court lacks jurisdiction over “cases brought by statecourt
losers
complaining
of
injuries
caused
by
state-court
judgments rendered before the district court proceedings commenced
1See
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
- 8 -
and
inviting
judgments.”
district
court
review
and
rejection
of
those
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005).
The doctrine applies both to federal claims raised in
the state court and to those inextricably intertwined
with the state court's judgment, meaning that the
district court may not entertain claims that would
effectively nullify the state court judgment or . . .
succeed[] only to the extent that the state court wrongly
decided the issues.
Nivia v. Nation Star Mortg., LLC, 620 F. App’x 822, 824 (11th Cir.
2015) (alterations in original) (quoting Casale, 558 F.3d at 1260).
The sole relief sought in the Complaint, and by defendant in
the Notice of Removal, has been granted, rejected, or otherwise
concluded in the state court, and cannot now be re-litigated or
revisited in federal court.
Finding no federal jurisdiction, the
case will be remanded.
Accordingly, it is hereby
ORDERED:
1.
Plaintiff’s Motion for Remand of Action to the State
Circuit Court (Doc. #12) is GRANTED.
2.
Sandie
Foreclosure
and
and
Deed
Owen
Bedasee’s
(Doc.
#3),
Injunction
Owen
to
Bedasee’s
Set
Aside
Motion
to
Consolidate (Doc. #19), Owen Bedasee’s Application for Temporary
Restraining Order, Preliminary Injunction, and Declaratory Relief
(Doc. #20), and National City Bank’s Motion for an Order of Relief
from the Related Case Order Entered on July 26, 2016 and Staying
- 9 -
the Action Until the Court Rules on the Plaintiff’s Motion for
Remand (Doc. #21) are denied as moot.
3.
The Clerk is directed to remand the case to the Circuit
Court of the Twentieth Judicial Circuit, in and for Collier County,
Florida, and to transmit a certified copy of this Order to the
Clerk of that Court.
4.
The Clerk is further directed to terminate all pending
motions and deadlines and close this case.
DONE and ORDERED at Fort Myers, Florida, this __26th__ day of
August, 2016.
Copies:
Parties of Record
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