GREEN TREE SERVICING LLC v. DILLARD et al

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 7/7/2015. (dmr)(n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GREEN TREE SERVICING LLC,
Plaintiff,

HONORABLE JEROME B. SIMANDLE
Civil Action
No. 14-8058 (JBS/JS)

v.
RHONDA D. DILLARD and JOSEPH
KARL DILLARD, wife and
husband, BANK OF AMERICA,
N.A., BANK OF AMERICA
CORPORATION, and COUNTRYWIDE
HOME LOANS, INC.,

MEMORANDUM OPINION

Defendants.
SIMANDLE, Chief Judge:
In this foreclosure action, pro se Defendants Rhonda D.
Dillard and Joseph Karl Dillard (hereinafter, “Defendants”) move
for reconsideration of the Court’s February 27, 2015 Order
remanding this matter to the Superior Court of New Jersey,
Chancery Division, Camden County, Docket No. CAM-F-042641-14.
See generally Green Tree Servicing LLC v. Dillard, ___ F. Supp.
3d ____, 2015 WL 849044 (D.N.J. Feb. 27, 2015).

The Court finds

as follows:
1.

Plaintiff Green Tree Servicing LLC (hereinafter,

“Plaintiff”) filed its initial state court Complaint for
Mortgage Foreclosure on October 8, 2014.

[See Docket Item 1.]

In its Complaint, Plaintiff generally seeks to foreclose
Defendants’ interests in certain real property, as a result of

their failure to make timely mortgage payments.
Item 1-1 at 1-8.]

[See Docket

On December 29, 2014, Defendants removed this

action to this federal Court on the basis of federal question
jurisdiction under 28 U.S.C. § 1331 [see Docket Item 1],1 and
Plaintiff’s motion to remand followed on February 3, 2015.

[See

Docket Item 6.]
2.

In its February 27, 2015 decision on Plaintiff’s

motion, the Court found that the sole basis for removal
amounted, in essence, to Defendants’ position that Plaintiff
constituted a debt collector under the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692, et seq. (hereinafter, the
“FDCPA”) and/or that Plaintiff’s conduct relative to its
foreclosure action had, in some respect, violated the Consumer
Credit Cost Disclosure Act, 15 U.S.C. §§ 1601, et seq.
(hereinafter, the “CCCDA”).

See Green Tree Servicing LLC, ___

F. Supp. 3d ____, 2015 WL 849044, at *2.

The Court emphasized,

however, that the jurisdictional inquiry relative to removal
concerns only “the claims and theories specifically alleged in
the complaint.”

Id. (citation omitted).

Therefore, because

Plaintiff’s Complaint “relie[d] exclusively upon state law,” the

1

Defendants, did not allege, nor could they allege, that
diversity jurisdiction under 28 U.S.C. § 1332 provides an
independent basis for removal. See Green Tree Servicing LLC,
___ F. Supp. 3d ____, 2015 WL 849044, at *2 n.3 (discussing
diversity jurisdiction).
2 

Court found Defendants’ reliance upon a federal defense and/or a
federal counterclaim inadequate to create subject matter
jurisdiction.

Id.

The Court, accordingly, granted Plaintiff’s

motion, and remanded this action to state court.2
3.

See id.

In moving for reconsideration, Defendants argue, for

the second time, that Plaintiff’s Complaint “exude[s]” federal
questions under the FDCPA.

[Docket Item 11 at 4.]

Defendants

therefore submit that the Court should retain its “original
jurisdiction” pursuant to 28 U.S.C. §§ 1331 & 1441.
10.]

[Id. at

The Court, however, need not belabor Defendants’ position.
4.

Local Civil Rule 7.1(i) provides that a party moving

for reconsideration must set forth “concisely the matter or
controlling decisions which the party believes” the Court
“overlooked” in its prior decision, and must rely upon one of
the qualifying bases.

L. CIV. R. 7.1(i).

Defendants’

submission, however, fails to identify an intervening change in
controlling law, the presence of new, previously unavailable,
evidence, nor the need to correct a clear error of law or to
prevent manifest injustice, as required by the Local Rule.3

2

See

The Clerk of Court, in turn, transmitted a certified copy of
the Court’s Order to the Clerk of the Superior Court of New
Jersey for purposes of reinstating this action to the Superior
Court’s active docket. [See Docket Item 8.]
3 Indeed, Plaintiff opposes Defendants’ motion on precisely that
basis. [See Docket Item 12 at 1 (arguing that Defendant “raises
no legal argument” to provide any basis “for the Court to
disturb its prior decision”).]
3 

Max’s Seafood Café ex rel. Lou-Ann, Inc., v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999).

Rather, Defendants merely recapitulate

their prior position concerning the FDCPA, among other federal
statutes, and again claim that these defenses and/or
counterclaims provide this Court with original federal question
jurisdiction.4

[See generally Docket Item 11.]

Nevertheless, it

is well established that these sorts of assertions fail to
trigger federal question jurisdiction, see Green Tree Servicing
LLC, ___ F. Supp. 3d ____, 2015 WL 849044, at *2 (collecting
cases), and Defendants’ disagreement with the Court’s
application of this established law fails to make a case for
reconsideration under Local Civil Rule 7.1(i).

See Tishcio v.

Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998) (noting that
a motion for reconsideration constitutes an extremely limited
procedural vehicle, and does “not provide the parties with an

4

Defendants further assert that the notice of motion filed by
Plaintiff in connection with its motion to remand gave rise to a
contract that precluded this action from being remanded prior to
March 2, 2015. [See Docket Item 11 at 2-4, 10.] The Court,
however, finds this position without merit. Indeed, the
language in Plaintiff’s notice of motion [see Docket Item 6]
reflects its adherence to the Court’s procedural rules for
filing, not an expression of an intention to contract with
Defendants. See Doyle v. Turner, No. 86-2792, 1993 WL 183788,
at *14 n.12 (S.D.N.Y. 1993) (generally stating that a notice of
motion serves only to “announce” the movant’s “purpose” in
seeking relief). Nor, in any event, does it bear the requisite
indicia of an enforceable contract. See Gutwirth v. Woodford
Cedar Run Wildlife Refuge, 38 F. Supp. 3d 485, 491 (D.N.J. 2014)
(citation omitted) (setting forth the elements of a contract
under New Jersey law).
4 

opportunity for a second bite at the apple”); see also Schiano
v. MBNA Corp., No. 05–1771, 2006 WL 3831225, *2 (D.N.J. Dec. 28,
2006) (finding that mere disagreement “should be dealt with
through the normal appellate process”).
5.
denied.

For all of these reasons, Defendants’ motion will be
Defendants remain free to pursue their federal defenses

and/or counterclaims before the state court.

An accompanying

Order will be entered.

July 7, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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