Henderson, Jr. et al v. Aurora Loan Services, LLC et al

Filing 22

ORDER REMANDING STATE-LAW CLAIMS. Signed by District Judge Avern Cohn. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

E. MAURICE HENDERSON, JR., and
TERRIE W. HENDERSON,
Plaintiffs,
v.

Case No. 12-11484
HON. AVERN COHN

AURORA LOAN SERVICES, LLC. and
UNKNOWN TRUSTEE,
Defendants.
___________________________________/
ORDER REMANDING STATE-LAW CLAIMS
This is a case challenging foreclosure proceedings. Plaintiffs have named
Aurora Home Loan Services, LLC (Aurora) and an “Unknown Trustee as trustee on
behalf of the asset-backed-security in which the Mortgage at issue was pooled” as
defendants. The complaint asserts several claims under state law and one claim under
federal law, as follows:
Count 1

No Proof of Ownership of Loan/Authority to Foreclose

Count 2

MI Foreclosure by Advertisement Statute

Count 3

MI Statutory Modification Law

Count 4

Tortious Interference with Contractual Relations

Count 5

Civil Conspiracy

Count 6

Declaratory Relief - Foreclosure Barred by Unclean Hands

Count 7

Breach of Contract - Implied Duty of Good Faith and Fair Dealing

Count 8

Intentional Fraud

Count 9

Constructive Fraud

Count 10

Promissory Estoppel

Count 11

Unjust Enrichment

Count 12

Federal Fair Debt Collection Practices Act

Count 141

MI Fair Debt Collection Practices Act

Count 15

Accounting

Aurora removed the case to federal court on the grounds of diversity of
citizenship under 28 U.S.C. § 1441(b) and federal question under 28 U.S.C. § 1441(a).
Thereafter, Aurora filed a Counter Complaint and Third-Party Complaint for Judicial
Foreclosure against plaintiffs and naming Mortgage Electronic Registration System as a
third-party defendant.2
Before the Court is plaintiffs’ motion to remand on the grounds that (1) removal
was improper because the “Unknown Trustee” did not consent to the removal, and (2)
Aurora has not demonstrated diversity of citizenship under 28 U.S.C. §1332. Aurora
filed a response, contending that (1) the “Unknown Trustee” was not properly served
and therefore no consent was necessary and (2) removal was proper based on federal
question jurisdiction.

1

The complaint does not contain a Count 13.

2

In the motion to remand, plaintiffs requested that the Court, among other things,
relieve them of their obligation to answer the counter complaint until the motion to
remand was resolved. This was a reasonable request under the circumstances.
However, before the Court could consider the request, Aurora requested Clerk’s entries
of defaults against plaintiffs for not timely answering the Counter Complaint.
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III.
Putting aside whether the “Unknown Trustee” was properly served such that its
consent was required for removal, or whether its citizenship is sufficient to establish
diversity jurisdiction, the latter of which is not certain from the record, it is clear that the
complaint presents a federal question which confers jurisdiction.
However, the sole federal claim asserts a violation of the Fair Debt Collection
Practices Act, is against Aurora only. Although supplemental jurisdiction exists over the
state-law claims under 28 U.S.C. § 1367(a), a district court may decline to exercise
supplemental jurisdiction if the state-law claims raise “novel or complex” issues of state
law, “substantially predominate[] over the claim or claims over which the district court
has original jurisdiction,” or if “there are other compelling reasons for declining
jurisdiction.” Id. § 1367(c)(1), (c)(2), (c)(4). Here, plaintiffs’ state-law claims present
novel issues of state law, substantially predominate over the federal claim, and would
be more appropriately adjudicated by a state court. See Padilla v. City of Saginaw, 867
F. Supp. 1309, 1315 (E.D. Mich. 1994). Thus, the Court declines to exercise
supplemental jurisdiction over plaintiff's state-law claims. Accordingly, Counts 1-11, and
14-15 are REMANDED to Wayne County Circuit Court.
SO ORDERED.
____
Dated: June 29, 2012

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, June 29, 2012, by electronic and/or ordinary mail.
S/Tanya Bankston on behalf of s/Julie Owens
Case Manager, [phone]
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