Smith v. Deutsche Bank National Trust Company
Judge Indira Talwani: ORDER entered denying 5 Motion for TRO; granting 7 Motion for Leave to Proceed in forma pauperis. This action is DISMISSED FOR LACK OF JURISDICTION. The dismissal is without prejudice to any relief plaintiff may seek in the bankruptcy court or in state court. (PSSA, 3) (Main Document 8 replaced on 8/24/2017) (PSSA, 3).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PATRICIA ARDELE SMITH,
DEUTSCHE BANK NATIONAL TRUST *
COMPANY, as Trustee for Soundview Home *
Loan Trust 2005-OPT4, Asset-Backed
Certificates, Series 205-OPT4,
Civil Action No. 17-cv-11572-NMG
MEMORANDUM AND ORDER
August 24, 2017
On August 21, 2017, Patricia Ardele Smith, who is proceeding pro se, filed her Original
Complaint/Writ to Vacate a Void Order Pursuant to Federal Rules of Civil procedure 60(B) [#1],
Emergency Motion for a Temporary Restraining Order and Preliminary Injunction [#5], and
Motion for Leave to Proceed in Forma Pauperis [#7]. Smith, a debtor in a bankruptcy
proceeding in the District of Massachusetts, seeks relief from an order of the bankruptcy court
lifting the automatic stay as to Deutsche Bank National Trust Company (“Deutsche Bank”), one
of Smith’s creditors. Smith represents that, because of the lift of the automatic stay, Deutsche
Bank has given notice that it will foreclose on her home on August 25, 2017. She asks that the
court immediately enjoin Deutsche Bank from foreclosing on her home. For the reasons set forth
below, the Motion for Leave to Proceed in Forma Pauperis [#7] is GRANTED, but the
Emergency Motion for a Temporary Restraining Order and Preliminary Injunction is DENIED
and the action is DISMISSED FOR LACK OF JURISDICTION. The dismissal is without
prejudice to any relief plaintiff may seek in the bankruptcy court or in state court.
On April 14, 2017, Plaintiff filed a Chapter 13 bankruptcy petition in the United States
Bankruptcy Court for the District of Massachusetts. See In re Patricia A. Smith, Case No. 1711351 (Bankr. D. Mass.). 1 Thereafter, the case was converted to a Chapter 7 petition. On June
15, 2017, Deutsche Bank filed a motion for relief from the automatic stay of imposed under 11
U.S.C. § 362, seeking to enforce a promissory note given by Plaintiff and secured by a mortgage
on Plaintiff’s real property.
On June 30, 2017, the bankruptcy court granted Deutsche Bank’s motion to lift the
automatic stay. On July 5, 2017, the bankruptcy court received Smith’s opposition to Deutsche
Bank’s motion, which the bankruptcy court deemed to be untimely. The bankruptcy court
returned the document to Smith with instructions to file it as a motion to vacate the order lifting
the automatic stay as to Deutsche Bank. Smith complied, and, on July 18, 2017, the bankruptcy
court held a hearing on the motion to vacate and denied it the same day. According to Plaintiff,
on August 5, 2017, she received a notice from a law firm representing Deutsche Bank,
“threatening to foreclose against [her] homestead on August 25, 2017.” Compl. [#1] ¶ 4.
On August 21, 2017, Plaintiff commenced the present action. In her complaint, Plaintiff
states that the lawsuit “involves a demand by [her] to set aside a void order issued by the
Bankruptcy Court of [Massachusetts] . . . and which void order will lead to the wrongful seizure
of [her] homestead and [her] eviction therefrom.” Compl. [#1] ¶ 6. She further contends that the
order was “procured by fraud on the part of Defendant Deutsche Bank and the judgment was
entered in violation of [her] due process rights.” Id. Plaintiff expresses her intent to “file an
Plaintiff attached a copy of the docket of the bankruptcy proceeding to her complaint. See
Compl. Ex. [#1-4] at 9-11.
adversary complaint in [her] bankruptcy case challenging the mortgage debt against [her]
homestead and asking the court to void the mortgage lien against [her] homestead.” Id. ¶ 17.
Motion for Leave to Proceed in Forma Pauperis
Upon review of Plaintiff’s motion for leave to proceed in forma pauperis, the court
concludes that she is without income or assets to pay the filing fee. Accordingly, the motion is
Review of the Complaint
When a plaintiff seeks to file a complaint without prepayment of the filing fee, the court
may conduct a preliminary screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2).
Further, a court has an obligation to inquire sua sponte into its own subject matter jurisdiction,
see McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004), and “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action,” Fed. R. Civ. P.
12(h)(3). In conducting this review, the court liberally construes the complaint because Plaintiff
is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Court’s Lack of Jurisdiction to Adjudicate the Matter as an Original
Plaintiff filed this action as a complaint or writ and represented on her civil cover sheet
that she is filing this action under Rule 60(b) of the Federal Rules of Civil Procedure. [#1-1]. The
court lacks jurisdiction over such an action.
Plaintiff states that this court has jurisdiction over this matter pursuant to 12 U.S.C.
§ 2605(f). This statute provides a private right of action against a servicer of a federally related
mortgage loan that fails to comply with requirements regarding notice to borrowers of the
assignment of the servicing of the loan or obligations concerning payments from escrow
accounts. See 12 U.S.C. § 2605. However, Plaintiff has failed to allege any facts that would
support such a claim.
Plaintiff also refers to 12 C.F.R. § 1024.41(a) as a basis for this court’s jurisdiction.
Section 1024.41 of Title 12 of the Code of Federal Regulations sets forth procedures a loan
servicer must follow if the servicer offers borrowers a loss mitigation option to avoid
foreclosure. Subsection (a) of this regulation allows a borrower to enforce its provisions pursuant
to 12 U.S.C. § 2605(f). But, Plaintiff has not made any allegations that Deutsche Bank offered
her a loss mitigation option but failed to follow the requirements of 12 C.F.R. § 1024.41. 2
Plaintiff further represents that jurisdiction exists under 28 U.S.C. § 1331 because “the
relief sought in this lawsuit is authorized by Federal Rules of Civil Procedure . . . Rule 60(d).”
Compl. [#1] ¶ 3. She states elsewhere in the complaint that she is bringing this action pursuant to
other subsections of Rule 60 of the Federal Rules of Civil Procedure (“Rule 60”), which is
entitled “Relief from a Judgment or Order.” See id. at 1 (referring to Rule 60(b), 60(b)(3),
60(b)(4), and 60(b)(6) in the caption of the pleading), id. ¶ 21 (referring twice to Rule 60(b)(3)),
id. ¶ 22 (referring to Rule 60(b)(6)), and id. ¶ 23 (referring to rule 60(b)(4)).
Under 28 U.S.C. § 1331 (“§ 1331”), federal district courts have “original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Although Rule 60 is a federal rule, a party’s invocation of this rule does not qualify an
action as one “arising under” federal law for purposes of § 1331. See Fed. R. Civ. P. 82 (stating
that the Federal Rules of Civil Procedure “do not extend or limit the jurisdiction of the district
courts”); see also Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) (“[I]t is
Moreover, the regulation specifically provides, “Nothing in § 1024.41 imposes a duty on a
servicer to provide any borrower with any specific loss mitigation option.” 12 C.F.R.
axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal
Court’s Lack of Jurisdiction to Entertain an Appeal
While a federal district court does have jurisdiction to entertain a properly-noticed appeal
of an order of a federal bankruptcy court, see 28 U.S.C. § 158(a), Plaintiff did not file a notice of
appeal or a motion for leave to appeal with the bankruptcy court, see Fed. R. Bankr. P. 8004.
Even if this court were to construe Plaintiff’s complaint as a notice of appeal of the order of the
bankruptcy court, the court would lack jurisdiction to entertain the appeal. Under the Federal
Rules of Bankruptcy Procedure, a notice of appeal must be filed with the bankruptcy clerk within
14 days after the entry of the judgment or order being appealed. See Fed. R. Bankr. P.
8002(a)(1). 3 That time may not be extended if the order appealed from grants relief from an
automatic stay under 11 U.S.C. § 362. See Fed. R. Bankr. P. 8002(d)(2)(A). Here, Smith
commenced this action more than fourteen days after the bankruptcy court orders granting the
motion lifting the motion to stay and denying Smith’s motion to reconsider the same. Because
the timely filing of a notice of appeal is a jurisdictional prerequisite for this court to review the
decision of the bankruptcy court, see In re Abdallah, 778 F.2d 75, 77 (1st Cir. 1985), the court
cannot entertain any “appeal” of the order lifting the automatic stay.
In the absence of any jurisdiction over this matter, whether treated as an original
complaint or an appeal of the order of the bankruptcy court, the court will deny the motion for a
temporary restraining order and a preliminary injunction. The court will also dismiss the action
without prejudice for lack of jurisdiction.
That a notice of appeal is mistakenly filed with a district court instead of with a bankruptcy
court is not fatal to the appeal. See Fed. R. Bankr. P. 8002(a)(4) (“If a notice of appeal is
mistakenly filed in a district court, BAP, or court of appeals, the clerk of that court must state on
the notice the date on which it was received and transmit it to the bankruptcy clerk. The notice of
appeal is then considered filed in the bankruptcy court on the date so stated.”).
Accordingly, for the foregoing reasons:
The Motion for Leave to Proceed in Forma Pauperis [#7] is GRANTED.
The Emergency Motion for a Temporary Restraining Order and Preliminary
Injunction [#5] is DENIED.
This action is DISMISSED FOR LACK OF JURISDICTION. The dismissal is
without prejudice to any relief plaintiff may seek in the bankruptcy court or in state court.
IT IS SO ORDERED.
August 24, 2017
/s/ Indira Talwani
United States District Judge
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