Everson et al v. Ocwen Loan Servicing, LLC et al

Filing 14

MEMORANDUM AND ORDER - IT IS ORDERED: Defendant Brink's Request to be Removed as Defendant of Record (Filing No. 9 ) is denied as moot. This case is remanded to the District Court of Sarpy County, Nebraska. Ordered by Judge Robert F. Rossiter, Jr. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONALD K. EVERSON and KIMBERLY
C. EVERSON, Husband and Wife,
8:17CV171
Plaintiffs,
MEMORANDUM
AND ORDER

vs.
OCWEN LOAN SERVICING, LLC, as
Servicing Agent for the Deed of Trust;
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for CDC Mortgage
Capital Trust 2002-He1, Mortgage PassThrough Certificates, Series 2002-He1,
Successor to HomeGold, Inc.; and
EDWARD E. BRINK, as Successor Trustee
for the Deed of Trust,
Defendants.

This matter is before the Court on defendant Edward E. Brink’s (“Brink”) Request
to be Removed as Defendant of Record (Filing No. 9). For the reasons stated below, this
case is remanded to the District Court of Sarpy County, Nebraska (“Sarpy District
Court”), for lack of subject matter jurisdiction, and the Request is denied as moot.
I.

BACKGROUND
Plaintiffs Donald K. Everson and Kimberly C. Everson (collectively the

“Eversons”) are Nebraska citizens who own a piece of property, subject to a deed-of-trust
and promissory note, in Sarpy County, Nebraska.

Deutsche Bank National Trust

Company (“Deutsche”) is the current holder of the property’s deed-of-trust and
promissory note. Ocwen Loan Servicing, LLC (“Ocwen”) services the loan. Brink, also
a Nebraska citizen, is the trustee for the property’s deed-of-trust, and he scheduled a
trustee’s sale of the property after filing a notice of default in the Sarpy County deed
records.

The Eversons filed suit in Sarpy District Court against Deutsche, Ocwen, and
Brink on January 27, 2017. The Eversons claimed that Ocwen had committed various
misdeeds while servicing the loan, and they requested damages and an injunction
prohibiting the trustee’s sale.
The defendants removed the case to this Court. Although the parties were facially
non-diverse, the defendants claimed that Brink was fraudulently joined and the remaining
defendants were diverse. Brink moved to dismiss himself as a party, claiming he was
fraudulently joined. On March 17, 2017, this Court (1) denied Brink’s motion because
the Eversons had alleged a colorable claim against Brink and (2) remanded the case to
Sarpy District Court. Everson v. Deutsche Bank Nat’l Trust Co., No. 8:17CV35, 2017
WL 1047314, at *2 (D. Neb. March 17, 2017).
On remand, Brink filed a disclaimer of interest with the Sarpy District Court and
moved to be dismissed as a party. After holding a hearing on the matter, the Sarpy
District Court granted the motion. 1 Following Brink’s dismissal as a party, Ocwen and
Deutsche removed the case to federal court, attempting for the second time to evade the
Everson’s choice of forum. Brink subsequently requested to be removed as a defendant
of record. 2
II.

DISCUSSION
“Removal is entirely a creature of statute and ‘a suit commenced in a state court

must remain there until cause is shown for its transfer under some Act of Congress.’”
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great Northern R.
Co. v. Alexander, 246 U.S. 276, 280 (1918)). The relevant Act of Congress allows civil
actions brought in state court to be transferred to federal court when the federal district
1

It appears Brink did not mention this Court’s previous denial of his Motion to
Dismiss Party to the Sarpy District Court in his filing.
2

The Eversons did not respond to Brink’s Request to be Removed as Defendant of
Record (Filing No. 9).
2

court would have original jurisdiction over the case. 28 U.S.C. § 1441(a). Because this
case involves only state law claims, the only way this Court could have original
jurisdiction would be through complete diversity. See 28 U.S.C. § 1332(a)(1).
“In the case of a removed action, diversity [of citizenship] must exist both when
the state petition is filed and when the petition for removal is filed.” Knudson v. Sys.
Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011) (alteration in Knudson) (quoting Ryan
ex. rel. Ryan v. Schneider Nat’l Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001)). There
are two main exceptions to this rule. Id. The first exception occurs when “the plaintiff
voluntarily dismisses the diversity-destroying defendant.” Id. The second exception
occurs when the defendant who destroys diversity is fraudulently joined. Id. at 976.
The Eversons and Brink are all citizens of Nebraska. 3 Thus, Brink’s status as a
party when the state petition was filed precludes diversity jurisdiction unless an exception
applies.

The first exception does not apply because Brink’s dismissal was not

“accomplished by the voluntary amendment of [their] pleadings by the plaintiff[s].”
Alexander, 246 U.S. at 281. Brink was involuntarily dismissed by his own motion, not
because of any amendment by the Eversons. See Knudson, 634 F.3d at 976 (explaining
that a dismissal is involuntary if the defendant initiates the dismissal). The second
exception does not apply because this Court has already determined that Brink’s joinder
was not fraudulent. Because neither exception applies, nor have Ocwen and Deutsche
identified any others, this Court does not have jurisdiction over the removed action. 4

3

There is no dispute that Deutsche and Ocwen are citizens of states other than
Nebraska.
4

In their Notice of Removal, Ocwen and Deutsche cite Dale v. R.J. Reynolds
Tobacco Co., 478 F.3d 965, 969 (8th Cir. 2007) for the proposition that “federal
jurisdiction could be created by . . . an order dismissing a non diverse party.” This is
true, but it is limited to cases where an exception to the time-of-filing rule applies.
Knudson, 634 F.3d at 975-976.
3

III.

CONCLUSION
“If at any time before final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447. This Court possesses
the authority to make this determination sua sponte. In re Atlas Van Lines, Inc., 209 F.3d
1064, 1066 (8th Cir. 2000). Because the parties were not diverse at the time of filing, this
Court lacks subject-matter jurisdiction over the case. Accordingly,
IT IS ORDERED:
1.

Defendant Brink’s Request to be Removed as Defendant of Record (Filing
No. 9) is denied as moot.

2.

This case is remanded to the District Court of Sarpy County, Nebraska.

Dated this 27th day of June, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

4