Carter et al v. Deutsche Bank National Trust Company et al

Filing 21

MEMORANDUM AND ORDER - The Findings and Recommendation 18 are adopted in part and not adopted in part as follows: a. The Findings and Recommendation are adopted as to the recommendation that the Motion to Remand be denied; and b. Otherwise not adop ted. The Plaintiffs' Motion to Remand 14 is denied as moot without prejudice to reassertion. The Defendants' Joint Motion for More Definite Statement 15 is denied as moot without prejudice to reassertion. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN M. CARTER, AND KRISTINA M.
CARTER,
8:16CV52
Plaintiffs,
vs.

MEMORANDUM
AND ORDER

SELECT PORTFOLIO SERVICING, INC.,
DEUTSCHE BANK NATIONAL TRUST
COMPANY, Trust 2004-HE4, Mortgage
Pass Through Certificates Series 2004HE4, as Trustee for; J.P. MORGAN
CHASE BANK, N.A., DOES 1-10,
INCLUSIVE, AND MORGAN STANLEY
ABS CAPITAL I INC.,
Defendants.

This Matter is before the Court on Magistrate Judge Gossett’s Findings and
Recommendation (Filing No. 18) (“Findings and Recommendation”), Plaintiffs’ Motion to
Remand (Filing No. 14), and Defendants’ Joint Motion for More Definite Statement
(Filing No. 15) (collectively “Motions”). For the reasons discussed below, the Findings
and Recommendation will be adopted in part and not adopted in part, and the Motions
will be denied as moot without prejudice to reassertion.
BACKGROUND
Plaintiffs filed this action in the District Court of Douglas County, Nebraska, on
December 21, 2015, alleging various fraudulent and predatory real estate lending
practices on the part of Defendants, including violations of the Fair Debt Collections
Practices Act, 15 U.S.C. §§ 1692–1692p (“FDCPA”) and the Real Estate Settlement
Procedures Act, 12 U.S.C. §§ 2601–2617 (“RESPA”).

(See Filing No. 1-1.)

Defendants removed the action to this Court on January 27, 2016, asserting this Court’s

jurisdiction, pursuant to both a federal question appearing on the face of Plaintiffs’
Complaint and the Parties’ complete diversity of citizenship.

(See Filing No. 1.)

Plaintiffs filed their Motion to Remand on February 27, 2016.

(See Filing No. 14.)

Defendants filed their Joint Motion for More Definite Statement on March 4, 2016,
alleging that Plaintiffs’ Complaint failed to identify all defendants, failed to specify which
allegations pertained to which defendants, and, as to the Complaint’s allegations of
fraud, failed to meet the heightened pleading standards required by Federal Rule of
Civil Procedure 9(b). (See Filing No. 15 at 1); see also Fed. R. Civ. P. 9(b) (“In alleging
fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake.”).
As to the Motion to Remand, Judge Gossett determined that, while the Notice of
Removal did not identify the citizenship of the Parties so as to establish diversity
jurisdiction, it did demonstrate the presence of a federal question because the
Complaint alleged violations of federal statutes. (Filing No. 18 at 3–4.) Thus, Judge
Gossett recommended that the Motion to Remand be denied. (Id.)
Regarding Defendants’ Joint Motion for More Definite Statement, Judge Gossett
found that all the allegations in the Complaint were pled with sufficient specificity with
the exception of those claims alleging fraud, that are subject to Rule 9(b)’s heightened
pleading standard. (Filing No. 18 at 4–6.) Consequently, Judge Gossett recommended
that the Joint Motion be granted in part and denied in part.
The Findings and Recommendation initially recommended that the Court allow
Plaintiffs to file an amended complaint by April 22, 2016, but, on Judge Gossett’s own
motion, the Findings and Recommendation were amended to recommend that the Court
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allow Plaintiffs to file an amended complaint within fourteen days of the adoption of the
Findings and Recommendation. (See Filing Nos. 18 at 6; 19.) On April 22, 2016,
before the expiration of the period in which the parties could object to the Findings and
Recommendation, Plaintiffs filed an amended complaint (Filing No. 20) (“Amended
Complaint”).

As one cause of action, the Amended Complaint alleges a RESPA

violation. (Filing No. 20 at ECF 24–26.)
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), the Court may accept, reject, or modify, in whole or
in part, the Magistrate Judge's findings or recommendation.

The Court may also

receive further evidence or remand the matter to the Magistrate Judge with instructions.
Id.; Fed. R. Civ. P. 72(b).
DISCUSSION
The Court has conducted a de novo review and concludes that that the filing of
the Amended Complaint moots both Motions and those related issues addressed in the
Findings and Recommendation. The Amended Complaint expressly seeks relief under
RESPA. Thus, this Court has subject matter jurisdiction, and the Court will not require
Defendants to file an amended notice of removal. Further, Plaintiffs have voluntarily
complied with Judge Gossett’s recommendation that they file an amended complaint.
Because any remaining issues are moot, the Court need not await the expiration of the
period in which the parties may object to the Findings and Recommendation.
Accordingly,

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IT IS ORDERED:
1. The Findings and Recommendation (Filing No. 18) are adopted in part and
not adopted in part as follows:
a. The Findings and Recommendation are adopted as
recommendation that the Motion to Remand be denied; and

to

the

b. Otherwise not adopted;
2. The Plaintiffs’ Motion to Remand (Filing No. 14) is denied as moot without
prejudice to reassertion; and
3. The Defendants’ Joint Motion for More Definite Statement (Filing No. 15) is
denied as moot without prejudice to reassertion.

Dated this 26th day of April, 2016
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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