Cohn et al v. Greene et al

Filing 17

MEMORANDUM OPINION (c/m to Kendal and Karen Greene 8/12/10 sat). Signed by Chief Judge Deborah K. Chasanow on 8/12/10. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EDWARD S. COHN, et al. v. KENDALL GREENE, et al. : : : : : MEMORANDUM OPINION Presently pending and ready for resolution in this Civil Action No. DKC 10-1820

foreclosure action is a motion filed by Plaintiffs Edward S. Cohn, Stephen N. Goldberg, Richard E. Solomon, and Richard J. Rogers (collectively, "Plaintiffs" or "Substitute Trustees") to remand this case to the Circuit Court for Montgomery County, Maryland. (Paper 14). The relevant issues have been briefed

and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. will be granted. I. Background On November 6, 2006, Defendants Kendall and Karen Greene executed a promissory note evidencing their obligation to repay a refinancing loan from Mortgage Lenders Network USA, Inc., in the amount of $559,200, and a deed of trust pledging as security their property located in Germantown, Maryland ("the Property"). (Paper 2, Attach. 3, 4). The loan was subsequently assigned to For the reasons that follow, the motion

The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the Certificate Holders, CWMBS 2007-6, CHL Mortgage Pass-Thru Trust"). Trust On 2007-6 19, Mortgage 2010, Pass-Thru Plaintiffs' Certificates law firm ("the

April

provided

Defendants with notice of the Trust's intent to foreclose on the Property due to their default on the mortgage, identifying the Trust as the assignee lender. (Id. at Attach. 1, 2). On June

7, the Trust appointed Plaintiffs as substitute trustees under the deed of trust (id. at attach. 6), and on or about June 14, Plaintiffs commenced a foreclosure action against Defendants in the Circuit Court for Montgomery County, Maryland (papers 2-7). On July 7, Defendants, proceeding pro se and identifying themselves as "counterclaimants," removed the action to this

court pursuant to 28 U.S.C. § 1441, asserting federal question jurisdiction under 28 U.S.C. § 1331. (Paper 1). Plaintiffs

filed the pending motion to remand on July 28. II. Standard of Review

(Paper 14).

It is well settled that the removing party bears the burden of proving removal is proper. 216 F.Supp.2d 519 (D.Md. See Greer v. Crown Title Corp., (citing Mulcahey v. Columbia On a

2002)

Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)).

motion to remand, the court must "strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court," which is indicative of the reluctance of federal 2

courts court."

"to

interfere

with

matters

properly

before

a

state

Richardson v. Philip Morris Inc., 950 F.Supp. 700, 701-

02 (D.Md. 1997) (internal quotation marks omitted). III. Analysis The removal statute provides, in relevant part: Except as otherwise expressly provided by Act of Congress, 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). jurisdiction Constitution, of laws, all or Federal district courts have "original civil treaties actions of the arising United under States." the 28

U.S.C. § 1331.

Such jurisdiction arises from "those cases in

which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial

question of federal law." Vacation Trust, 463 U.S.

Franchise Tax Bd. v. Constr. Laborers 1, 27-28 (1983); see also In re

Blackwater Security Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006) ("actions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question").

3

While

the

rambling

arguments

presented

by

Defendants

in

their notice of removal are difficult to discern, they appear to assert counterclaims based on federal law, which, they contend, serve as the basis for removal to this court. For example, they

cite the National Banking Act, 12 U.S.C. § 21, et seq., which established nationally chartered banks and vested them with

certain powers, as providing a basis for federal jurisdiction. The thrust of Defendants' argument appears to be that they have "no obligation of debt" because the Trust was "not the holder of a note" on the Property due to its participation in an "unlawful scheme acting under color of authority of statute and thus

committing frauds in regard[] to United States Banking Statutes and practices." (Paper 1, at 1).

In determining the propriety of removal, however, courts generally look to the face of the underlying pleading. Griffin v. Ford Consumer Finance Co., 812 F.Supp. 614, See 616

(M.D.N.C. 1993) (quoting American Fire and Casualty Co. v. Finn, 341 U.S. 6, 14 (1951)). presented by the Order to Here, there is no federal question Docket Foreclosure of Residential

Property or the accompanying papers filed by Plaintiffs in state court. under To the contrary, the pleading cites various provisions the Real Property Article of the Annotated Code of

Maryland and the Maryland Rules as grounds for the foreclosure action. (Paper 2, Attach. 1). 4 To the extent that Defendants

challenge Plaintiffs' ability to enforce the promissory note and deed of trust, such determinations are governed exclusively by Maryland law. See Md. Code Ann., Comm. Law §§ 3-101, et seq.

Moreover, any defensive claims Defendants may wish to present cannot provide a basis for removal jurisdiction. See In re

Blackwater Sec. Consulting, LLC, 460 F.3d at 584 ("a defendant may not defend his way into federal court because a federal defense does not create a federal question under § 1331").

Thus, the case cannot be sustained in this court on the basis of federal question jurisdiction. Because all parties are Maryland

residents, there is not complete diversity of citizenship such that jurisdiction could be proper under 28 U.S.C. § 1332.

Accordingly, the case was improperly removed by Defendants. IV. Conclusion For the foregoing reasons, Plaintiffs' motion to remand

will be granted.

A separate order will follow.

________/s/_________________ DEBORAH K. CHASANOW United States District Judge

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