United Citizens Bank of Southern Kentucky v. Hudson et al

Filing 7

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 1/29/2015. For the foregoing reasons, the Court will dismiss the notice of removal and summarily remand the action to the Russell Circuit Court pursuant to 28 U.S.C. § 1447(c) by separate Order of Remand. Defendants' application to proceed without prepayment of filing fee is DENIED as moot. cc: Defendants Jimmy Hudson & Patty Hudson, pro se; Counsel of Record; Russell Circuit Court (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
CIVIL ACTION NO. 1:14CV-174-GNS

UNITED CITIZENS BANK OF SOUTHERN KENTUCKY

PLAINTIFF

v.
JIMMY HUDSON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a notice of removal filed by Defendants Jimmy
Hudson and Patty Hudson (DN 1). For the reasons stated herein, the Court will remand the
action to the Russell Circuit Court.
Defendants also filed an application to proceed without the prepayment of the filing fee.
However, because this case will be remanded to state court, IT IS ORDERED that the
application (DN 2) is DENIED as moot.
I.
Plaintiff United Citizens Bank of Southern Kentucky filed a mortgage foreclosure action
against Defendants Jimmy Hudson and Patsy Hudson in Russell Circuit Court. Defendants filed
a pro se notice of removal purporting to remove the foreclosure action to this Court. In support
of removal, Defendants state that this Court has jurisdiction over the action “because it involves
disputes arising under the Title 15 of the United States Code, specifically, the Fair Debt
Collection Practices Act and the Fair Credit Reporting Act, along with Virginia versions of these
same statutes.”1

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Defendants also cite the standard for dismissal under Fed R. Civ. P. 12(b)(6), but it is unclear if they are seeking
dismissal.

II.
Federal courts are under an independent obligation to examine their own jurisdiction.
United States v. Hays, 515 U.S. 737, 742 (1995). Rule 12(h)(3) of the Federal Rules of Civil
Procedure provides that, if a court “determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Section 1441 of Title 28 of the United States Code 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 or the defendants, to the district court of the United States for
the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a)
(emphasis added). Therefore, a civil action may be removed from a state court only when the
district court has original jurisdiction over the state court action.
A federal district court may have jurisdiction over such a case in one of two ways. First,
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This statute confers on
the federal district courts what is known as “federal-question jurisdiction.” Second, pursuant to
28 U.S.C. § 1332, diversity jurisdiction arises when the matter is between citizens of different
states and the amount in controversy exceeds $75,000. If a matter over which this Court lacks
subject-matter jurisdiction is removed to this Court, “the case shall be remanded[,]” and the
“State court may thereupon proceed with such case.” 28 U.S.C. § 1447(c).
The party seeking to remove an action to federal court has the burden of establishing that
the district court has original jurisdiction. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757
(6th Cir. 2000); Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989). Removal statutes
should be narrowly construed because federal courts are courts of limited jurisdiction and

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because removal of a case raises significant federalism concerns. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941); Palkow v. CSX Transp., Inc., 431 F.3d 543, 555 (6th Cir.
2005). The Sixth Circuit Court of Appeals follows a policy that “[a]ll doubts as to the propriety
of removal are resolved in favor of remand.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th
Cir. 1999) (citation omitted).
In order to determine whether the case arises under federal law, a court looks only at the
plaintiff’s well-pleaded complaint. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 10 (1983); see also Gentek Bldg. Prods., Inc. v. Steel Peel Litig. Trust, 491 F.3d 320, 325
(6th Cir. 2007). “If the complaint relies only on state law, the district court generally lacks
subject-matter jurisdiction, and the action is not removable. This makes the plaintiff the master
of the complaint; the plaintiff may simply avoid federal jurisdiction by relying exclusively on
state law.” Gentek Bldg. Prods., Inc., 491 F.3d at 325 (citations omitted). Generally, a state law
claim cannot be re-characterized as a federal claim for the purpose of removal. Loftis v. United
Parcel Serv., Inc., 342 F.3d 509, 515 (6th Cir. 2003). Similarly, a case may not be removed to
federal court on the basis of a federal defense, even when both parties concede that the federal
defense is the only real question at issue. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).
A defendant has no inherent right to a federal forum for adjudication of federal rights absent
exclusive federal jurisdiction. Franchise Tax Bd., 463 U.S. at 10.
Plaintiff’s complaint against Defendants is a mortgage foreclosure action which raises no
federal claims. See Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir. 2007)
(finding that a “foreclosure action relied exclusively upon state law and could not reasonably be
construed as supporting federal question jurisdiction”); Fed. Nat’l Mortg. Assoc. v. Le Crone,
868 F.2d 190, 194 (6th Cir. 1989) (“FNMA’s complaint for foreclosure of LeCrone’s mortgage

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raises no federal issues and thus the suit between FNMA and LeCrone does not present a federal
question for removal analysis.”) Therefore, as the complaint raises no federal claims, this Court
lacks federal-question jurisdiction over the matter.
Defendants argue that the Fair Debt Collections Practices Act (FDCPA) and the Fair
Credit Reporting Act (FCRA) establish this Court’s jurisdiction. While the complaint contains a
section appended to the end of the complaint, captioned “FEDERAL FAIR DEBT
COLLECTION PRACTICES ACT NOTICE,” such a notice does not confer subject-matter
jurisdiction over a mortgage foreclosure action. See Chase Manhattan Mortg. Corp., 507 F.3d at
915 (finding that a FDCPA notice “simply notifies the Smiths of their right to information under
federal law” and does not raise a federal claim). Moreover, to the extent Defendants may argue
that they can assert a defense to the foreclosure action under the FDCPA or FCRA, once again,
the existence of a federal defense does not confer federal jurisdiction. Caterpillar Inc., 482 U.S.
at 393; Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Likewise, any federal
counterclaim Defendants may raise does not confer federal jurisdiction. Holmes Group, Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
Finally, Defendants cannot establish diversity jurisdiction under 28 U.S.C. § 1332
because there is no diversity of citizenship among Plaintiff and Defendants. The complaint
shows that Plaintiff and Defendants are all citizens of Kentucky.

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III.
For the foregoing reasons, the Court will dismiss the notice of removal and summarily
remand the action to the Russell Circuit Court pursuant to 28 U.S.C. § 1447(c) by separate Order
of Remand.
Date:

January 29, 2015

Defendants Jimmy Hudson and Patty Hudson, pro se
Counsel of record
Russell Circuit Court
4416.010

cc:

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