Wachovia Mortgage, FSB v. Brown

Filing 37

ORDER denying 31 Motion for Reconsideration ; denying 33 Motion for Reconsideration. Signed by Judge Charlene Edwards Honeywell on 9/15/2014. (AEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WACHOVIA MORTGAGE, FSB,
Plaintiff,
v.

Case No: 6:13-cv-1750-Orl-36DAB

KELLY K. BROWN, THE UNKNOWN
SPOUSE OF KELLY K. BROWN, JAMIE
A. BROWN, LAKE GRIFFIN ESTATES
HOMEOWNERS ASSOCIATION, INC.,
SUNTRUST BANK, ANY AND ALL
UNKNOWN PARTIES CLAIMING BY,
THROUGH, UNDER, AND AGAINST
THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT
KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN PARTIES
MAY CLAIM AN INTEREST, TENANT
’35;1, TENANT ’35;2, TENANT ’35;3,
TENANT ’35;4 and SARAH K. LOVEJOYSTORY,
Defendants.
___________________________________/
ORDER
This matter comes before the Court upon Defendant Kelly K. Brown’s Motion for
Reconsideration (Doc. 31), Defendant Kelly K. Brown’s Amended Motion for Reconsideration
(Doc. 33), Plaintiff’s Responses thereto (Docs. 32 and 35), and Defendant Kelly K. Brown’s
Judicial Notice to Plaintiff’s Response to Defendant’s Amended Motion for Reconsideration and
Clarity (Doc. 36). In the motion, Defendant Kelly K. Brown (“Brown”) states that this case should
not have been remanded to state court because she did not have fair notice or an opportunity to
respond to the Magistrate Judge's Report and Recommendation. The Court, having considered the
motion and being fully advised in the premises, will deny Brown’s Motion for Reconsideration.

I.

Background
This is a foreclosure action that was originally filed by Plaintiff Wachovia Mortgage, FSB

(“Wachiovia”) in November of 2009, in the Circuit Court of the Eighteenth Judicial Circuit in and
for Seminole County, Florida. See Doc. 7. The final judgment of foreclosure was entered by the
state court on March 20, 2012. See Doc. 15-10. This is the second time that pro se Defendant
Brown has removed the foreclosure action to this Court. Her first attempt was in Wachovia Bank,
FSB v. Kelly K Brown, No. 6:12-cv-00767-CEH-DAB (M.D. Fla.). See Doc. 15-1. In that action,
this Court remanded the foreclosure action back to the Eighteenth Judicial Circuit on June 18,
2012, for various reasons, including: (1) Wachovia's foreclosure complaint did not provide a basis
for removal; (2) Brown's notice of removal was untimely because Brown had filed the first notice
of removal after a final judgment was rendered by the Circuit Court and one day before her house
was to be sold at a public auction; and (3) Brown's allegations that Wachovia had "committed
multiple violations of Federal Law, including violations of TILA, RESPA and HOEPA Violations"
were not valid bases to provide this Court with jurisdiction over the foreclosure action. Id. Brown
then appealed the Order to the United States Court of Appeals for the Eleventh Circuit, which
resulted in a partial affirmance of the Order and partial dismissal of the appeal. See Wachovia
Mortgage, FSB v. Brown, 517 Fed. App'x 851, 852 (11th Cir. 2013).
On November 8, 2013, Brown filed a second Notice of Removal (Doc. 1), which caused
this action to be initiated in this Court. On December 4, 2013, Plaintiff filed a Motion for Remand
and for Imposition of Attorneys' Fees and Costs (Doc. 15). Brown filed an Objection to Plaintiff's
Motion for Remand and for Imposition of Attorneys' Fees and Costs with Embedded
Memorandum of Law (Doc. 19) on December 13, 2013. On February 25, 2014, Magistrate Judge
David A. Baker entered a Report and Recommendation (“R&R”) recommending that the case be

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remanded back to state court and that Plaintiff be awarded attorney's fees in the amount of $1,500.
See Doc. 26. On March 18, 2014, this Court adopted the Report and Recommendation after review
of the Report and an independent examination of the file. See Doc. 30.
Brown filed a motion for reconsideration on March 26, 2014, and then an amended motion
for reconsideration, of the remand order. See Docs. 31 and 33. In her motions, Brown claims that
she did not receive a copy of the R&R in a timely manner and, then, did not understand that the
R&R was an “order” under Fed. R. Civ. P. 59. Thus, she was not able to file timely objections to
the R&R.
II.

Legal Standard
Federal Rule of Civil Procedure 60(b) grants a district court the discretion to relieve a party

from a final judgment resulting from “mistake, inadvertence, surprise, or excusable neglect.” Fed.
R. Civ. P. 60(b)(1); see also United States v. Davenport, 668 F.3d 1316, 1324 (11th Cir. 2012).
For purposes of Rule 60(b), “excusable neglect” encompasses situations in which the failure to
comply with a filing deadline is attributable to negligence. See Davenport, 668 F.3d at 1324
(quoting Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996)). In
determining whether to grant relief, a court considers all of the relevant circumstances, including
factors such as “the danger of prejudice to the opposing party, the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was within
the reasonable control of the movant, and whether the movant acted in good faith.” Id. (quotation
marks and citation omitted).

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III.

Discussion
Even affording Brown wide latitude in light of her pro se status, see Grills v. Phillip Morris

USA, Inc., 645 F. Supp. 2d 1107, 1121-22 (M.D. Fla. 2009), the Court is not persuaded to
reconsider its order remanding the case.
First, Brown’s argument that she did not have an opportunity to file objections to the R&R
is not convincing. The R&R states that “[f]ailure to file written objections to the proposed findings
and recommendations contained in this report within fourteen (14) days from the date of its filing
shall bar an aggrieved party from attacking the factual findings on appeal.” Doc. 26 at p. 5. The
R&R was filed on February 25, 2014 and mailed to Brown on March 4, 2014. However, the Court
did not issue its Order adopting the R&R until March 18, 2014 – fourteen days after the R&R was
mailed to Brown and twenty-one days after it was filed. Brown did not attempt to submit objections
to the R&R in that time period and, in fact, has never submitted such an objection even though she
likely did not get notice of the Court’s ruling until March 19th or 20th. Certainly, if Brown had
intended to file objections within the fourteen-day window those should have been in the mail by
March 18th at the latest. Thus, there is no evidence that Brown either intended to or attempted to
object to the R&R before it was adopted.
Furthermore, even if Brown had filed an objection to the R&R, it would not have changed
the outcome of the case. As courts of limited jurisdiction, removal is appropriate for "all civil
actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §1331.
Alternatively, removal may be based upon diversity jurisdiction, where the parties are citizens of
different states and the amount in controversy exceeds $75,000. 28 U.S.C. §1332; US Bank Nat.
Ass'n v. Bradshaw, 2011 WL 1298100, *1 (M.D. Fla. 2011)(citing Morrison v. Allstate Indem.
Co., 228 F.3d 1255, 1261 (11th Cir. 2000). Federal courts must inquire into their jurisdiction at

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the earliest point in the proceeding. Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1279-80
(11th Cir. 2001). However, "if at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. §1447(c). Indeed, "a
federal district court must therefore remand to state court any case that was removed improvidently
or without the necessary jurisdiction." Estate of Ayres ex rel. Strugnell v. Beaver, 48 F.Supp.2d
1335, 1339 (M.D. Fla. 1999). The Court reviewed the record prior to adopting the R&R. The
removal in this case was defective for the same reasons that Brown’s previous removal was
defective. Regardless of any arguments Brown makes in her motions for reconsideration, or may
have made in an objection to the R&R, this Court simply cannot exercise jurisdiction over this
case because there is no basis for federal jurisdiction and, even if there was, the removal was not
timely. See Doc. 26 (quoting Wachovia v. Brown, Case No. 6:12-cv-767-36DAB, Doc. 13). Thus,
the Court’s Order remanding this action will not be reconsidered.
ORDERED AND ADJUDGED:
1.

Brown’s Motion for Reconsideration (Doc. 31) is DENIED; and

2.

Brown’s Amended Motion for Reconsideration (Doc. 33) is DENIED.

3.

Plaintiff’s request for attorney’s fees and costs (Doc. 35), embedded in its response

to Brown’s second motion for reconsideration is DENIED.
DONE AND ORDERED in Tampa, Florida on September 15, 2014.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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