M&T BANK et al v. WOODARD et al

Filing 38

ENTRY - Home Bank's Motion to Remand (Dkt. 34 ) is GRANTED. M&T Bank's Motion for Summary Judgment (Dkt. 16 ) and Home Bank's Motion for Summary Judgment (Dkt. 29 ) are terminated as MOOT and can be refiled in the state court. This case is REMANDED to the Bartholomew Superior Court. Signed by Judge Tanya Walton Pratt on 9/13/2013. Copies Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HOME BANK, S.B.,
Plaintiff,
v.
WESLEY SCOTT WOODARD,
DINA WOODARD,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
THE LENDING CONNECTION, INC.,
Defendants.
______________________________________
M&T BANK,
Counter Claimant,
v.
HOME BANK, S.B.,
Counter Defendants.
______________________________________
M&T BANK,
Cross Claimant,
v.
WESLEY SCOTT WOODARD,
DINA WOODARD,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC.,
LENDING CONNECTION, INC.,
Cross Defendants.

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ENTRY
This matter is before the Court on Plaintiff Home Bank, S.B.’s (“Home Bank”) Motion to
Remand and Response to Woodards’ Notice of Removal (Dkt. 34). Home Bank and Counter
Claimant M&T Bank filed the instant foreclosure actions in the Bartholomew Superior Court in
Bartholomew County, Indiana. The actions were removed to this Court by Defendants Wesley
Scott Woodard and Dina Woodard (collectively, “the Woodards”) on the basis of diversity
jurisdiction. See 28 U.S.C. § 1332(a). Home Bank has filed this Motion to Remand asserting
that because it is a citizen of Indiana, complete diversity does not exist. Finding there is not
complete diversity among the parties, Home Bank’s Motion (Dkt. 34) is GRANTED.
I. DISCUSSION
“For a case to be within the diversity jurisdiction of the federal courts, diversity of
citizenship must be ‘complete’ meaning that no plaintiff may be a citizen of the same state as any
defendant.” Fidelity & Deposit Co. of Md. v. Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir.
1983). In their filings, the Woodards assert that they are citizens of the United States of
America, citizens of the State of Indiana, and residents of Bartholomew County, Indiana (Dkt.
11)1. In their supplemental Jurisdictional Statement (Dkt. 9), the Woodards allege that “Home
Bank is incorporated in the State of California and its principal place of business is California”
and allege that “M&T Bank is incorporated in the State of New York and its principal place of
business is in New York.” Home Bank now asserts in compliance with Local Rule 81-1 that it is
not a citizen of California, but is, in fact, incorporated and has its principal place of business in
Indiana—the state of which the Woodards are citizens. In support of its assertions, Home Bank
has presented an affidavit from Dan L. Moore, the President and Chief Executive Officer of
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In his Notice of Unauthorized Appearance (Dkt. 25), Mr. Woodard asserts that this Court lacks jurisdiction and
that his filing “in no way should be construed as consent to jurisdiction.” He does not, however, deny that he is a
citizen of Indiana.

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Home Bank and its Certificate of Existence filed with the Secretary of State of Indiana. (See
Dkt. 35 and 35-1.) The Woodards did not respond to the Motion to Remand and, thus, have not
demonstrated that there is complete diversity between the Plaintiff and all defendants, a burden
that is theirs. See Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 (7th Cir. 2012)
(“party invoking federal jurisdiction bears the burden of demonstrating its existence”). In light
of the evidence, the Court finds that like the Woodards, Home Bank is also a citizen of Indiana,
which destroys complete diversity among the parties. See 28 U.S.C. 1332(c).
Further, the fact that M&T Bank is not a citizen of Indiana does not save the Woodards’
removal to federal court. 28 U.S.C. § 1441(b) does not permit removal “if any of the parties in
interest properly joined and served as defendants is a citizen of the State in which such action is
brought.” Given that the Woodards are citizens of Indiana and the foreclosure actions were filed
in an Indiana state court, 28 U.S.C. § 1441(b) bars removal.
II. CONCLUSION
Accordingly, Home Bank’s Motion to Remand (Dkt. 34) is GRANTED. M&T Bank’s
Motion for Summary Judgment (Dkt. 16) and Home Bank’s Motion for Summary Judgment
(Dkt. 29) are terminated as MOOT and can be refiled in the state court.

This case is

REMANDED to the Bartholomew Superior Court.

SO ORDERED.

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

09/13/2013
Date: __________________

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DISTRIBUTION:
Dina Woodard
10381 West Pond Drive
Columbus, Indiana 47201
Wesley Scott Woodard
10381 West Pond Drive
Columbus, Indiana 47201
Rodric D. Bray
BRAY BRAY & BRAY
[e-mail]
Jeffrey Steven Wilson
FEIWELL & HANNOY, P.C.
[e-mail]
Leslie Ann Wagers
FEIWELL & HANNOY, P.C.
251 North Illinois Street, Suite 1700
Indianapolis, Indiana 46024

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