Bank of America, N.A v. HoSang

Filing 28

ORDER adopting #26 Report and Recommendations. #20 Plaintiff Bank of America, N.A.'s Amended Motion to Dismiss 'Initial Brief' and Response to Motion for Summary Judgment is GRANTED to extent that this case is REMANDED. #11 Motion for Summary Judgment, #21 Defendant's Rule 12(b)(6) Motion to Dismiss, and #22 Emergency Motion for Stay Pending Review are MOOT. All proceedings in state action after 10/22/2014 and before receipt of this Order by the state court are VACATED and VOID AB INITIO. Once remand has been effected, the Clerk should close the file. Signed by Judge Timothy J. Corrigan on 6/23/2015. (Attachments: #1 State trial court docket sheet, #2 State appellate court docket sheet, #3 Order Striking Defendant's Notice of Removal) (BJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BANK OF AMERICA, N.A,
Plaintiff,
v.

Case No. 5:14-cv-574-Oc-32PRL

ASTOR HOSANG,
Defendant.
ORDER
This case is before the Court on Defendant Astor HoSang’s Motion for Summary
Judgment (Doc. 11), Plaintiff Bank of America, N.A.’s Amended Motion to Dismiss
‘Initial Brief’ and Response to Motion for Summary Judgment (Doc. 20), HoSang’s Rule
12(b)(6) Motion to Dismiss (Doc. 21), and his Emergency Motion for Stay Pending
Review (Doc. 22). Upon referral from the undersigned, on May 15, 2015, the assigned
United States Magistrate Judge issued a Report and Recommendation on all pending
motions that recommended Bank of America’s motion to dismiss be granted to the
extent that the case should be remanded to state court and that all other motions be
denied due to a lack of subject-matter jurisdiction. (Doc. 26.)
On June 1, 2015, HoSang filed written objections to the Report and
Recommendation. (Doc. 27.) Bank of America has filed no response to the objections,
and the time in which to do so has passed. See Fed. R. Civ. P. 72(b)(2); M.D. Fla. R.
6.02(a). The matter is now before the undersigned for de novo review. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b)(3). 1
Upon de novo review, the undersigned accepts and adopts the Report and
Recommendation and rejects each of HoSang’s objections. In his first objection,
HoSang takes issue with the Magistrate Judge’s description of his claims as
“unspecified” and “convoluted.” He contends that the allegations in the complaint,
when held to the less stringent standard for pro se pleadings, clearly implicate federal
jurisdiction because they involve banking, securities trading, and violation of his
rights under the Sixth and Eleventh Amendments to the United States Constitution
and because grounds for diversity jurisdiction under 28 U.S.C. § 1332 exist. Assuming
for the moment that his contentions are correct, the undersigned concludes that
Magistrate Judge still properly recommends remand because HoSang’s attempted
removal was untimely pursuant to 28 U.S.C. § 1446(b)(1). (See Doc. 26 at 5-6.)
To rebut this recommendation, HoSang contends this Court has exclusive
jurisdiction over this case and then extrapolates from the valid principle that subjectmatter jurisdiction can be challenged at any time to reach the invalid conclusion that
he could therefore remove this case at any time. (Doc. 27 at 3-4 (citing Basso v. Utah
Power & Light Co., 495 F.2d 906, 910 (10th Cir. 1974).) But HoSang mistakes
“original” jurisdiction for “exclusive” jurisdiction. 28 U.S.C. §§ 1331, 1332, and 1343
grant federal district courts original jurisdiction over certain matters, but the general

HoSang purports to make his objections pursuant to Federal Rule of Civil
Procedure 59, which deals with requests for new trial and to alter or amend judgments,
not objections to a magistrate judge’s reports and recommendations. Judgment has
not been entered, however, and the Court will instead accept his objections for review
pursuant to the authority cited here.
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rule is that state courts maintain concurrent jurisdiction over such matters unless
Congress has given federal courts exclusive jurisdiction or until the case has been
properly removed. See Haywood v. Drown, 556 U.S. 729, 734-35 (2009) (stressing that
concurrent jurisdiction is presumed and that “state courts as well as federal courts are
entrusted with providing a forum for the vindication of federal rights violated by state
or local officials acting under color of state law”). As noted above and in the Report and
Recommendation, HoSang has not timely removed this case. Moreover, neither the
plaintiff’s status as a bank nor HoSang’s vague statements that this foreclosure case
involves securities sufficiently invoke any congressional grant of exclusive
jurisdiction. The undersigned thus rejects HoSang’s contention that his removal was
proper and timely.
Moreover, the undersigned agrees with Magistrate Judge Lammens that
remand

is

proper

under

the

Rooker-Feldman

doctrine.

The

Report

and

Recommendation accurately classifies HoSang’s claims as “an attempt to revisit the
state court’s foreclosure judgment.” (Doc. 26 at 8.) This case falls squarely within the
class of cases covered by Rooker-Feldman: “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The case is due to be remanded on this basis, as well.
Unfortunately, this determination does not resolve things in this Court. 28
U.S.C. § 1446(d) states that providing adverse parties with the notice of removal and

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filing a copy with the clerk of the state court “shall effect the removal and the State
court shall proceed no further unless and until the case is remanded.” (emphasis
added). Yet, the state court proceedings did continue after removal. 2 Either at its
request or by its acquiescence, Bank of America allowed the state court to enter an
order purporting to “strike” the notice of removal and proceeded to sell HoSang’s
property at auction. The state court later denied a motion by HoSang to strike the sale.
HoSang appealed to the Florida Fifth District Court of Appeal, and his appeal remains
pending.
Pursuant to § 1446(d), the actions in the state court after the court received the
notice of removal are void ab initio. Maseda v. Honda Motor Co., 861 F.2d 1248, 125455 (11th Cir. 1988) (“[T]he filing of a removal petition terminates the state court's
jurisdiction until the case is remanded, even in a case improperly removed,” such that
“[a]ny subsequent proceedings in the state court on the case are void ab initio.”
(citations omitted)); Mills v. Target Corp., No. 5:10-cv-263-Oc-32TEM, 2010 WL
4646701, at *1 (M.D. Fla. Nov. 9, 2010) (finding state court’s grant of motion to dismiss
after removal to be a nullity); see Gen. Elec. Credit Corp. v. Smith, 484 So. 2d 75, 76
(Fla. 2d DCA 1986) (“The state court’s jurisdiction is suspended from the moment of
removal until the case is remanded to it by the federal court.”); also 28 U.S.C. § 2283
(“A court of the United States may not grant an injunction to stay proceedings in a
State court except as expressly authorized by Act of Congress, or where necessary in

The Court takes judicial notice of the proceedings in the state court. Fed. R.
Evid. 201(b)-(c). A copy of the state trial court docket sheet, the state appellate court
docket sheet, and the Order Striking Defendant’s Notice of Removal are attached.
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aid of its jurisdiction, or to protect or effectuate its judgments.” (emphasis added)).
Notwithstanding its (correct) view that HoSang’s notice of removal was untimely and
legally insufficient, the state court was without jurisdiction to strike the notice and to
continue with the case unless and until this Court remanded the case back to state
court. The Court will remand the case now, but (reluctantly) with the proviso that all
proceedings in the state court after October 22, 2014 are vacated and void ab initio. 3
Accordingly, it is hereby
ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 26) is

ADOPTED as the opinion of the Court.
2.

Plaintiff Bank of America, N.A.’s Amended Motion to Dismiss ‘Initial

Brief’ and Response to Motion for Summary Judgment (Doc. 20) is GRANTED to the
extent that this case is REMANDED to the Fifth Judicial Circuit in and for Citrus
County, Florida.
3.

The Motion for Summary Judgment (Doc. 11), Defendant’s Rule 12(b)(6)

Motion to Dismiss (Doc. 21), and the Emergency Motion for Stay Pending Review (Doc.
22) are MOOT.
4.

All proceedings in the state action after October 22, 2014 and before the

state court receives this Order of remand are VACATED and VOID AB INITIO.
5.

Once remand has been effected, the Clerk should close the case.

This unfortunate result, and the eight month delay in reaching it, could have
been avoided if Bank of America had simply filed a prompt motion to remand in this
Court upon receipt of HoSang’s notice of removal.
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DONE AND ORDERED in Jacksonville, Florida the 23rd day of June, 2015.

bjb
Copies to:
Honorable Philip R. Lammens
United States Magistrate Judge
Counsel of record
Pro se defendant
Attachments:

State trial court docket sheet, state appellate court docket sheet,
Order Striking Defendant’s Notice of Appeal

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