Federal National Mortgage Corporation v. Wilson et al
ORDER granting 10 Plaintiff Federal National Mortgage Corporation's Motion to Remand. Defendants' Motion to Strike Plaintiffs' Motion for Remand 14 is DENIED. The Clerk of Court is DIRECTED to transmit a certified copy of this Order to the Clerk of the Circuit Court of the Twentieth Judicial Circuit in and for Charlotte County, Florida. The Clerk of Court is DIRECTED to terminate pending motions and deadlines, and close the case. Signed by Judge Sheri Polster Chappell on 2/12/2018. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FEDERAL NATIONAL MORTGAGE
Case No: 2:17-cv-719-FtM-38MRM
ROBERT T. WILSON, SR. and
OPINION AND ORDER1
Before the Court is Plaintiff Federal National Mortgage Corporation’s Motion to
Remand. (Doc. 10). Defendants Robert T. Wilson, Sr. and Leslie Wilson, appearing pro
se, have moved to Strike Plaintiff’s Motion to Remand (Doc. 14), which the Court
construes as their opposition to Plaintiff’s motion. They have also moved to amend the
Complaint (Doc. 13), to which Plaintiff has not responded. For the following reasons, the
Court grants Plaintiff’s motion to remand and denies Defendants’ motion to amend the
Complaint as moot.
This mortgage foreclosure action started over five years ago when Defendants
defaulted on their mortgage. Plaintiff sued them in Florida state court and received a final
judgment in its favor. (Doc. 10-5). Defendants appealed but lost. (Doc. 10-7). Facing
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an imminent foreclosure sale, Defendants removed the case to this Court. (Doc. 1). As
best the Court can tell, Defendants invoke the Court’s federal question jurisdiction as the
basis for removal. Plaintiff moves, however, to remand the case to the state court.
District courts have original jurisdiction over all civil actions arising under federal
laws. 28 U.S.C. § 1331.2 If a case over which district courts have original jurisdiction is
filed in state court, the defendant may remove it to federal court. 28 U.S.C. § 1441(a). A
defendant must remove a case “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.” 28 U.S.C. § 1446(b)(1). The thirty-day period
is strictly construed. See Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir. 1999)
(stating failure to comply with the statutory requirements for removal renders removal
“defective” and justifies a remand).
“A removing defendant bears the burden of proving proper federal jurisdiction.”
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). “Thus, to meet their
burden, the defendants must show that the plaintiffs’ complaint, as it existed at the time
of removal, provides an adequate basis for the exercise of federal jurisdiction.” Adventure
Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1295 (11th Cir. 2008). Courts narrowly
construe removal jurisdiction, and “all doubts about jurisdiction should be resolved in favor
of remand to state court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th
District courts also have original jurisdiction over all civil actions in which the amount in controversy
exceeds $75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C.
§ 1332. This jurisdiction is not at issue here.
Plaintiffs argue the Notice of Removal fails to establish how this Court has subject
matter jurisdiction. According to the “Complaint” Defendants attached to their Notice of
Removal (Doc. 2), it appears they are claiming federal question jurisdiction by asserting
the foreclosure action violates the Fair Debt Collection Practices Act (“FDCPA”). This is
problematic for several reasons. First, Plaintiff neither alleged a violation of the FDCPA
nor any other federal law in the foreclosure complaint. See Blab T.V. of Mobile, Inc. v.
Comcast Cable Commc’ns, 182 F.3d 851, 854 (11th Cir. 1999) (“A case thus may be
removed based on federal question jurisdiction ‘only when the plaintiff’s statement of his
own cause of action shows that it is based’ on federal law.” (citation omitted)). Without
showing the foreclosure action presented a federal question, Defendants have no basis
to remove this case. Second, even considering Defendants’ improper “Complaint,” it
contains no cause of action under the FDCPA. Defendants do nothing more than relitigate issues from the foreclosure action. Third, Defendants cannot plead the FDCPA
violation as a counterclaim to trigger jurisdiction. Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (“[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.”).
Not only is Defendants’ removal jurisdictionally defective, but it is also procedurally
defective. Defendants failed to timely remove this case. They filed the Notice of Removal
over five years after being served with the foreclosure complaint. See HSBC Bank USA,
N.A. v. Anderson, No. 6:12-cv-Orl-22DAB, 2012 WL 4896686, at *2 (M.D. Fla. Sept. 24,
2012) (“To the extent [d]efendants purport to remove the original mortgage foreclosure
complaint, such removal is untimely as it occurred years after the commencement of the
If the jurisdictional and procedural defectives are not enough, the Rooker-Feldman
also bars Defendants’ removal. “The Rooker-Feldman doctrine makes clear that 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). Defendants’ removal falls squarely under
the Rooker-Feldman doctrine. They appear to use hypothetical FDCPA claims to attack
the state court’s final foreclosure judgment in an attempt to re-litigate the foreclosure
action and to stop the foreclosure sale. See Nicholson v. Shafe, 558 F.3d 1266, 1271
(11th Cir. 2009) (stating federal district courts have “no authority to review final judgments
of a state court” (internal quotations omitted)). Defendants’ bid to move the foreclosure
action to this forum, after unsuccessfully fighting it in state court for several years, is
Because Defendants’ Notice of Removal fails to show the Court has subject matter
jurisdiction, remand is required. Without jurisdiction, the Court cannot grant Defendants’
Motion to Amended Complaint (Doc. 13). It thus will deny Defendants’ motion as moot.
Accordingly, it is now
(1) Plaintiff Federal National Mortgage Corporation’s Motion to Remand. (Doc. 10)
(2) Defendants’ Motion to Strike Plaintiffs’ Motion for Remand (Doc. 14) is
(3) The Clerk of Court is DIRECTED to transmit a certified copy of this Order to the
Clerk of the Circuit Court of the Twentieth Judicial Circuit in and for Charlotte
(4) The Clerk of Court is DIRECTED to terminate pending motions and deadlines,
and close the case.
DONE and ORDERED in Fort Myers, Florida this 12th day of February 2018.
Copies: All Parties of Record
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