Wilmington Savings Fund Society, FSB v. Ogumbo et al
OPINION AND ORDER overruling Defendants Douglas Ogumbo and Marlene I. Spence's Answer to the Order and Final Report 5 , construed as their Objections to the R&R, adopting Magistrate Judge Janet F. King's Final Report and Recommendation 2 and remanding this action to the Magistrate Court of Newton County, Georgia. Signed by Judge William S. Duffey, Jr on 11/9/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
WILMINGTON SAVINGS FUND
SOCIETY, FSB, d/b/a Christiana
DOUGLAS OGUMBO, et al.,
OPINION AND ORDER
This matter is before the Court on Defendants Douglas Ogumbo and
Marlene I. Spence’s (together, “Defendants”) “Answer to the Order and Final
Report” , which the Court construes as their Objections to Magistrate Judge
Janet F. King’s Final Report and Recommendation  (“R&R”). The Magistrate
Judge recommends that this action be remanded to the Magistrate Court of Newton
On August 28, 2017, Plaintiff Wilmington Savings Fund Society, FSB,
doing business as Christiana Trust, initiated a dispossessory proceeding against
Defendants in the Magistrate Court of Newton County, Georgia.1 The Complaint
alleges that Defendants are tenants at sufferance following foreclosure, and seeks
possession of the premises currently occupied by Defendants.
On September 14, 2017, Defendants, proceeding pro se, removed the
Newton County Action to this Court by filing a Notice of Removal and an
application to proceed in forma pauperis (“IFP”) . Defendants assert that there
is federal subject matter jurisdiction because there is a question of federal law in
this action. Defendants claim that Plaintiff violated the Fair Debt Collection
Practices Act and the Uniform Commercial Code. (Notice of Removal at 2-4).
Defendants also appear to argue that the Court has subject matter jurisdiction based
on diversity of citizenship. (Id. at 4).
On September 19, 2017, Magistrate Judge King granted Defendants’
application to proceed IFP and considered, sua sponte, whether the Court has
subject matter jurisdiction over this case. (R&R ). The Magistrate Judge found
that federal subject matter jurisdiction was not present and recommended that the
Court remand the case to the Magistrate Court of Newton County. The Magistrate
Judge found that the Complaint filed in Magistrate Court asserts a state court
dispossessory action and does not allege federal law claims. Because a federal law
defense or counterclaim does not confer federal jurisdiction, the Magistrate Judge
concluded that the Court does not have federal question jurisdiction over this
matter. The Magistrate Judge also found that Defendants failed to allege any facts
to show that the parties’ citizenship is completely diverse, or that the amount in
controversy exceeds $75,000. The Magistrate Judge concluded that the Court does
not have diversity jurisdiction over this matter and that this case is required to be
remanded to the state court.
On October 3, 2017, Defendants filed their Objections to the R&R.
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or modify a magistrate judge’s
report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) cert. denied, 459 U.S. 1112 (1983). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). With respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a plain error review of
the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
In their Objections, Defendants assert that Plaintiff violated 18 U.S.C.
§§ 241, 242, the Fair Debt Collection Practices Act, and various Georgia laws by
foreclosing on their home and initiating the dispossessory proceeding. (See Objs.
at 7-9). Plaintiff’s Complaint is a dispossessory action which is based solely on
state law. See O.C.G.A. § 44-7-50; Carter v. Butts Cty., 821 F.3d 1310, 1322
(11th Cir. 2006) (quoting Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843, 848
(Ga. Ct. App. 2009)) (“[U]nder Georgia law, ‘[w]here former owners of real
property remain in possession after a foreclosure sale, they become tenants at
sufferance,’” and are thus subject to a dispossessory proceeding under O.C.G.A.
§ 44-7-50, which “provide[s] the exclusive method by which a landlord may evict
the tenant”). No federal question is presented on the face of Plaintiff’s Complaint.
That Defendants assert defenses or counterclaims based on federal law cannot
confer subject-matter jurisdiction over this action. See Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 6 (2003); Holmes Grp., Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 830-32 (2002); Caterpiller Inc. v. Williams, 482 U.S. 386,
392-93 (1987) (“The presence of a federal defense does not make the case
removable . . . .”). Defendants fail to show that the Court has federal question
jurisdiction over this action and their objection is overruled.
The record does not show that Plaintiff and Defendants are citizens of
different states, and even if they are, there is no evidence to support that the
amount in controversy exceeds the statutory threshold of $75,000. See 28 U.S.C.
§ 1332(a); Fed. Home Loan Mortg. Corp. v. Williams, Nos. 1:07-cv-2864-RWS,
1:07-cv-2865-RWS, 2008 WL 115096, at *2 (N.D. Ga. Jan. 29, 2008) (“[A]
dispossessory proceeding under Georgia law is not an ownership dispute, but
rather only a dispute over the limited right to possession, title to property is not at
issue and, accordingly, the removing Defendant may not rely on the value of the
property as a whole to satisfy the amount in controversy requirement.”). To the
extent Defendants “assert a counterclaim against Plaintiff for wrongful
dispossessory action, and damages in the amount of $427,000.00” (Obj. at 4), a
“counterclaim may not be used to calculate the jurisdictional amount in
controversy when a defendant removes a case from a state court.” First Guaranty
Bank & Trust Co. v. Reeves, 86 F. Supp. 2d 1147, 1150 (M.D. Fla. 2000);
Citimortgage, Inc. v. Dhinoja, 705 F.2d 1378, 1382 (N.D. Ga. 2010); cf. Anderson,
539 U.S. at 6. Defendants fail to show that the Court has diversity jurisdiction
over this action and their objection is overruled.
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to the Magistrate Court of Newton County. See
28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”).
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants Douglas Ogumbo and
Marlene I. Spence’s “Answer to the Order and Final Report” , construed as their
Objections to the R&R, is OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation  is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Newton County, Georgia.
SO ORDERED this 9th day of November, 2017.
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