Gordon v. Larumbe et al
Filing
18
OPINION AND ORDER remanding this case the Superior Court of DeKalb County, Georgia. Signed by Judge William S. Duffey, Jr on 7/21/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARY GORDON,
Plaintiff,
v.
1:17-cv-00013-WSD
CLAUDIO LARUMBE,
DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee for
FFMLT Trust 2004-FF3, Mortgage
Pass-Through Certificates, Series
2004-FF3, OCWEN LOAN
SERVICING, LLC,
GS MORTGAGE SECURITIES
CORPORATION, MANHATTEN
MORTGAGE CORPORATION,
FIRST FRANKLIN LOAN TRUST,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Deutsche Bank National Trust
Company, as Trustee for FFMLT Trust 2004-FF3, Mortgage-Pass Through
Certificates, Series 2004-FF3’s (“Deutsche Bank”) and Ocwen Loan Servicing,
LLC’s (“Ocwen”) (together, the “Removing Defendants”) Notice of Removal [1].
I.
BACKGROUND
In 1997, Plaintiff Mary Gordon (“Plaintiff”) purchased real property located
at 82 Bates Avenue, Atlanta, Georgia (the “Property”). (Compl. [1.1] at 3).
Plaintiff alleges that the Property “was solely held in [P]laintiff’s name until
2004, subject to a Note and Deed of Trust solely in [P]laintiff’s name.” (Id. at 4).
In 1998, Plaintiff married Claudio Larumbe (“Larumbe”) and, she alleges,
the Property “thereafter was treated as jointly held and owned.” (Id. at 3).
In 2004, Plaintiff “intended to refinance [the mortgage]” on the Property.
(Id. at 4). Plaintiff alleges that the “new note and mortgage called for the title
holder under the warranty deed to be Claudio Larumbe, only as of 2004. Plaintiff
was not obligated under the refinance agreement.” (Id.). Repayment of the
refinanced loan was secured by a deed (“Security Deed”) to the Property.
Larumbe executed the Security Deed in favor of First Franklin Financial Corp.
(“First Franklin”). (Security Deed [1.3] at 1-3). Plaintiff is not a party to the
Security Deed.
In 2006, Larumbe again refinanced the mortgage “as the exclusive note
holder under warranty deed, excluding again [P]laintiff Gordon from title or
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obligation.” (Compl. at 19).1 Plaintiff does not identify the lender or servicer of
the refinanced loan.
Plaintiff and Larumbe later divorced. On August 15, 2006, Plaintiff and
Larumbe executed a Marital Settlement Agreement “calling for [Plaintiff] to take
ownership, and payment duties and obligations under the Note and [S]ecurity
[Deed].” (Id. at 19-20). Plaintiff and Larumbe agreed that Plaintiff “thereafter
would become the obligor under the existing Note and mortgage in place of
Larumbe who . . . divested himself of all title ownership and duties under the Note
and Mortgage in place and instead assigning and transferring those rights to
[Plaintiff].” (Id. at 4). The Marital Settlement Agreement was approved by the
Superior Court of DeKalb County, Georgia. (Id. at 20).
Plaintiff asserts that “final payment [on the mortgage for the Property] was
tendered by [Plaintiff] in or about July, 2007 when the final payoff was tendered to
J.P. Morgan Chase Bank, N.A., who acknowledged the payment was received and
credited in its books and records and by letter to [P]laintiff Gordon dated on or
about July 15, 2007.” (Id. at 5-6). Plaintiff alleges, however, that beginning in
1
Plaintiff does not allege, and there does not appear to be, a separate security
deed for the Property recorded in connection with the alleged 2006 refinance.
3
2012, Deutsche Bank2 claimed that Plaintiff “was in arrears thousands of dollars,
which she was not.” (Id. at 6).
On October 17, 2016, Plaintiff, a citizen of Georgia, proceeding pro se, filed
her Complaint in the Superior Court of DeKalb County, Georgia. Plaintiff asserts
state-law claims for breach of contract, breach of the duty of good faith and fair
dealing, fraud and deceit, demand for accounting, quiet title, specific performance,
and negligence against Larumbe, the Removing Defendants, GS Mortgage
Securities Corporation, Manhatten Mortgage Corporation and First Franklin
(collectively, “Defendants”). Plaintiff also asserts against Deutsche Bank and
Larumbe a claim for specific performance to enforce the Marital Settlement
Agreement and declare Plaintiff “the true title holder of the [P]roperty and no one
else.” (Id. at 20). Plaintiff seeks, among others, to “reform all deeds in favor of
Plaintiff’s name” and to quiet title to the Property. (Id. at 23).
On January 3, 2017, Deutsche Bank and Ocwen removed the DeKalb
County action to this Court based on diversity jurisdiction. They assert that
complete diversity exists among the parties because Larumbe, the only in-state
defendant, was fraudulently joined to defeat federal subject matter jurisdiction.
(Notice of Removal [1] ¶¶ 11-13).
2
The basis for Deutsche Bank’s claimed interest in the mortgage is not clear.
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II.
DISCUSSION
A.
Subject Matter Jurisdiction
Federal courts “have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). The Eleventh Circuit
consistently has held that “a court should inquire into whether it has subject matter
jurisdiction at the earliest possible stage in the proceedings. Indeed, it is well
settled that a federal court is obligated to inquire into subject matter jurisdiction
sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999).
28 U.S.C. § 1441(a) provides that “any civil action brought in a State court
of which the district courts of the United States have original jurisdiction, may be
removed by the defendant” to federal court. The Court’s jurisdiction in this case is
premised on diversity of citizenship, which authorizes federal jurisdiction over
suits between citizens of different states where the amount in controversy exceeds
$75,000. 28 U.S.C. § 1332(a). “Diversity jurisdiction, as a general rule, requires
complete diversity—every plaintiff must be diverse from every defendant.”
Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564 (11th Cir. 1994).
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Here, Plaintiff’s Complaint asserts only state-law claims and the Court could
have only diversity jurisdiction over the action. The Removing Defendants assert
that there is complete diversity in this action because Larumbe, even though he
shares Georgia citizenship with Plaintiff, was fraudulently joined to defeat federal
subject-matter jurisdiction because “Plaintiff is not seeking any relief against
Larumbe but is instead, attempting to cancel Deutsche Bank’s secured interest in
the Property.” (Notice of Removal ¶¶ 11-13).
The Court disagrees. The Eleventh Circuit has stated:
When alleging fraudulent joinder, the removing party has the burden
of proving that either: (1) there is no possibility the plaintiff can
establish a cause of action against the resident defendant; or (2) the
plaintiff has fraudulently pled jurisdictional facts to bring the resident
defendant into state court. We have emphasized that the burden on
the removing party is a heavy one. The determination of whether a
resident defendant has been fraudulently joined must be based upon
the plaintiff’s pleadings at the time of removal, supplemented by any
affidavits and deposition transcripts submitted by the parties. The
district court must evaluate the factual allegations in the light most
favorable to the plaintiff and must resolve any uncertainties in the
substantive law in favor of the plaintiff. If there is even a possibility
that a state court would find that the complaint states a cause of
action against any one of the resident defendants, the federal court
must find that joinder was proper and remand the case to the state
court. Thus, when considering a motion for remand, federal courts
are not to weigh the merits of a plaintiff’s claim beyond determining
whether it is an arguable one under state law.
Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 F. App’x 888, 890
(11th Cir. 2011) (internal quotations and citations omitted) (emphasis added).
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In Count Five, Plaintiff asserts a claim to quiet title to the Property,
including to have the Security Deed cancelled. It is well-settled that the essential
parties to a quiet title action include the grantor and grantee of the deed or
instrument sought to be cancelled. See Maxco, Inc. v. Volpe, 274 S.E.2d 561,
564-65 (Ga. 1981); Planters Cotton Oil Co. v. McCurley, 33 S.E.2d 270, 271
(Ga. 1945) (“The essential result sought in the petition [brought by Sula McCurley]
is the cancellation of H.W. McCurley’s deed to the Planters Cotton Oil Company
as a cloud on [Sula McCurley’s] title. In such a case, the grantor [H.W. McCurley]
as well as the grantee [Planters Cotton] is an essential party.”). Because Larumbe
is the grantor under the Security Deed, Larumbe is required to be a party to this
action. See Maxco, 274 S.E.2d at 564-65; Planters Cotton Oil, 33 S.E.2d at 271.
The Removing Defendants fail to show that there is no possibility that a Georgia
state court could find that Plaintiff adequately pleaded a viable claim against
Larumbe. Complete diversity does not exist among the parties and the Court lacks
subject matter jurisdiction over Plaintiff’s Complaint. This action is required to be
remanded to the Superior Court of DeKalb County. See 28 U.S.C. § 1447(c).
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that this action is REMANDED to the
Superior Court of DeKalb County, Georgia.
SO ORDERED this 21st day of July, 2017.
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