Auld v. Reverse Mortgage Funding, LLC et al

Filing 10

MEMORANDUM AND ORDER finding as moot 3 Motion for Leave to Proceed in forma pauperis. ; granting 8 Motion to Remand. To the extent petitioner seeks anyaffirmative relief in his pleadings DE 6 & 9 such request is denied as moot; and the court approves an award of fees and costs to a maximum of $5,500. Signed by Chief Judge J. Thomas Marten on 4/13/2017. Mailed to Pro Se Plaintiff by regular USPS mail. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STUART N. AULD,
Plaintiff,
vs.

Case No. 17-2173-JTM

REVERSE MORTGAGE FUNDING, LLC., et al.,
Defendants.

MEMORANDUM AND ORDER

On March 23, 2017, in an apparent effort to delay mortgage foreclosure proceedings,
Stuart Auld filed a Notice of Removal of two Johnson County District Court cases, Nos. 11CV-04594 and 11-LA-06740. (Dkt. 1).1 This is the second time Auld has attempted to remove
these state cases. In Auld v. Sun West Mortgage, 13-2031-JTM, the court remanded the action,
and awarded $2500 in attorney fees for attempting to remove an action without any
objectively reasonable basis for federal jurisdiction.
Defendant Reverse Mortgage Funding, LLC, successor to the loan interest of Sun

The State court entered its order of foreclosure on June 13, 2016 and approved
an order for the property to be sold on September 1, 2016. One day before the sale, Auld
filed a Chapter 11 bankruptcy petition. The bankruptcy court granted Reverse Mortgage
relief from the the staty on Januayr 11, 2017. On February 2, 2017, the state court entered
a new Order of Sale, and scheduled a sheriff’s sale on March 23, 2017.
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West, has moved to remand the actions, and for sanctions in the amount of $5000 for
wrongful removal. (Dkt. 7). Appearing pro se, Auld has filed a lengthy pleading which
advances various rationales for attacking the state court’s conclusions, and asks for
injunctive relief vacating the orders of foreclosure and sale.
The court hereby grants the Motion to Remand. Auld is bound by the doctrines of
res judicata and collateral estoppel, as all of the arguments which he now seeks to advance
were or could have been resolved in the state court. More importantly, the court lacks
jurisdiction to entertain such arguments. In 2013, this court remanded the same state cases
on multiple grounds: (1) that, as the original plaintiff in the state cases, Auld could not
remove them, (2) that the January 16, 2013 Notice of Removal was untimely, since it was
filed more than 30 days after Sun West intervened in the action, and (3) in any event, Auld
had “waived his right to do so by actively litigating this case for more than ten months.”
(Dkt. 17, at 4). On appeal, the Tenth Circuit held that it was without jurisdiction to directly
review the order of remand, but, in affirming the award of sanctions, observed “[t]he
district court's reasons for concluding that removal was defective are well-supported and
correct,” and that Auld “clearly lacked an objectively reasonable basis for seeking
removal.” (No. 13-2031, Dkt. 37, at 4) (internal quotation marks omitted).
The court adopts and incorporates its conclusions in Auld v. Sun West. Each of the
grounds for remanding the actions in 2013 remain valid. After years of additional state
litigation, petitioner could not have any objectively reasonable basis for removal, and the
the court approves an award of attorney fees up to $5000.
2

IT IS ACCORDINGLY ORDERED this 13th day of April, 2017, that Reverse
Mortgage’s Motion to Remand (Dkt. 8) is granted; to the extent petitioner seeks any
affirmative relief in his pleadings (Dkt. 6, 9) such request is denied as moot; and the court
approves an award of fees and costs to a maximum of $5,500.

___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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