Ocwen Loan Servicing, LLC v. Kyles et al

Filing 11

WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 2/16/2012:For the reasons below, the Plaintiff's motion to remand is granted 7 . (For further detail see written opinion). Mailed notice(smm)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

CASE NUMBER

Sitting Judge if Other
than Assigned Judge

11 C 8145

DATE

2/16/2012

Ocwen Loan Servicing, LLC vs. Vashan Kyles

CASE
TITLE
DOCKET ENTRY TEXT

For the reasons below, the Plaintiff’s motion to remand is GRANTED.

O[ For further details see text below.]

Notices mailed by Judicial staff.
Mailed AO 450 form.

STATEMENT
The
(“Ocwen”)
County of
motion to

instant suit involves Plaintiff Ocwen Loan Servicing, LLC’s
motion to remand this mortgage foreclosure action to the Cook
Illinois Circuit Court. For the following reasons, Plaintiff’s
remand is GRANTED.
I. BACKGROUND

Plaintiff, Ocwen Loan Servicing, LLC, commenced this mortgage
foreclosure action in the Circuit Court of Cook County, Illinois, on
October 7, 2011. Ocwen Loan Servicing LLC, et al., v. VaShan Kyles, et
al., 11 CH 35040.
Defendant VaShan Kyles (“Kyles”) removed the mortgage foreclosure
action to the United States District Court, Northern District of Illinois
pursuant to 28 U.S.C. § 1332, 1441 and 1446, arguing that there is
complete diversity. Defendant also argues removal is proper because her
notice of removal alleges a counterclaim arising under federal law,
specifically 42 USC § 1983.
Defendant alleges, and Plaintiff does not
dispute, that for purposes of diversity, Plaintiff is a citizen of
Florida and Alabama while Defendant Kyles is a citizen of Illinois.
Plaintiff contends removal is improper because it named “unknown
owners” and non-record claimaints as defendants, which it says destroys
diversity jurisdiction because such parties might have the same
citizenship as Plaintiff. Defendant Kyles says such parties are nominal
defendants and may be ignored for diversity purposes.

11C8145 Ocwen Loan Servicing, LLC vs. Vashan Kyles

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STATEMENT

II. LEGAL STANDARD
Federal district courts have subject matter jurisdiction over cases
arising under the Constitution, laws or treaties of the United States.
28 U.S.C. § 1331. They also have subject matter jurisdiction in state law
cases where the parties are citizens of different states and the amount
in controversy exceeds $75,000.
28 U.S.C. § 1332.
Where there is
complete diversity of citizenship, a defendant may remove an action to
federal court, and “the citizenship of defendants sued under fictitious
names shall be disregarded” for diversity purposes. 28 U.S.C. § 1441.
See also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). There must be
complete diversity of parties at the time of removal. Id. at 61. If the
federal court lacks subject matter jurisdiction at any time before the
final judgment, the district court must grant a motion to remand.
28
U.S.C. § 1447(c).
28 U.S.C. § 1441(b) provides: “Any civil action of which the
district courts have original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of the United States
shall be removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none of the
parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought.” (emphasis added).
This section was recently amended but retains the same thrust:
defendants sued in their own state may not remove solely on diversity
grounds.
Also clear is the mandate of Salton, Inc. v. Philips Domestic
Appliances and Personal Care B.V.: “[C]laims in a counterclaim cannot
confer federal jurisdiction over a case.”
391 F.3d 871, 875 (7th Cir.
2004).
III. ANALYSIS
Because 28 U.S.C. § 1441(b) is clear that defendants sued in their
own state may not remove a case solely on diversity grounds, we need not
wade into the “unknown owner” thicket.
Even if there is complete
diversity here as Defendant alleges, removal is improper because of the
statute.
Nor does Defendant’s addition of an “arising under” § 1983 claim
change the outcome.
The law is clear that answers, defenses and
counterclaims cannot, in and of themselves, confer federal jurisdiction.
IV. CONCLUSION
For the reasons stated above, the Court finds it has no subject
matter jurisdiction in this case and the Plaintiff’s Motion to remand is
GRANTED under 28 U.S.C. § 1447.

11C8145 Ocwen Loan Servicing, LLC vs. Vashan Kyles

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