PALL v. WELLS FARGO BANK, NA
Filing
9
OPINION. Signed by Judge Anne E. Thompson on 10/12/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Klara Pall
Plaintiff,
Civil No. 11-2883 (AET)
v.
OPINION
Wells Fargo Bank, N.A., as Trustee for Option
One Mortgage Loan Trust 2006-3 Asset
Backed Certificates, Series 2006-3,
Defendant.
THOMPSON, U.S.D.J.
I.
INTRODUCTION
This matter comes before the Court upon Defendant’s Wells Fargo Bank, N.A., as
Trustee for Option One Mortgage Loan Trust 2006-3 Asset Backed Certificates, Series 2006-3’s
(“Wells Fargo”) Motion to Remand and Dismiss Plaintiff’s Complaint pursuant to 28 U.S.C. §
1447 [docket #5]. Plaintiff Klara Pall opposes the motion [8].
The Court has decided the motion after taking into consideration the parties’ submissions
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set
forth below, Defendant’s Motion to Remand is GRANTED.
II.
BACKGROUND
This matter arises from a mortgage foreclosure action filed in the Superior Court of New
Jersey Chancery Division of Mercer County (“Superior Court”) on August 28, 2007 by Wells
Fargo against Plaintiff regarding a residential property located in Trenton, New Jersey. In her
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answer to the state court action on December 12, 2007, Plaintiff, among her affirmative defenses,
alleged that Wells Fargo did not comply with the provisions of the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692. (Def’s Mot. to Remand, Ex. B, at 9).
On February 23, 2008, Wells Fargo filed a motion for summary judgment seeking to
dismiss Plaintiff’s Answer. (Id., Ex. C). The Superior Court granted Wells Fargo’s Motion for
Summary Judgment by Order dated March 28, 2008. (Id., Ex. D). Plaintiff filed a Motion for
Reconsideration of the Order granting summary judgment, which was denied. (Id., Ex. E). On
September 9, 2008, an uncontested judgment in foreclosure was entered in favor of Wells Fargo.
(Id., at 3). On January 28, 2009, the Property was sold at a Sheriff’s sale. (Id.) Plaintiff moved
to vacate the Sheriff’s Sale, repeating allegations that the foreclosure was invalid due to
violations of a number of consumer protection laws, including the FDCPA. (Id., Ex. F). On June
24, 2009, the Superior Court denied that motion, noting that it would not “entertain these
arguments again as the Court has previously ruled on there [sic] motions.” (Id., Ex. G, at 3).
After the Sheriff’s Sale, Plaintiff filed an Emergent Application to Stay Removal of
Occupant, (Id., Ex. H), which the Superior Court denied on May 17, 2011, noting that Plaintiff
had the right to pursue an appeal in this matter with the Appellate Division (Id., Ex. H).
Subsequently on May 20, 2011, Plaintiff filed a Notice of Removal and Federal Stay of Eviction
pursuant to 28 U.S.C. § 1446(a) in this Court. [1].
III.
DISCUSSION
Defendants have a statutory right to remove “any civil action brought in a state court of
which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). A
defendant seeking to remove a case must file a “notice of removal . . . containing a short and
plain statement of the grounds for removal, together with a copy of all process, pleadings, and
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orders served.” See 28 U.S.C. § 1446(a). When confronted with a motion to remand, the
removing party has the burden of establishing the propriety of removal. See F.D.I.C. v, Wissel &
Sons Constr. Co., Inc., 881 F. Supp, 119, 122 (D.N.J, 1995). Moreover, the removal statute is
generally “strictly construed against removal and all doubts should be resolved in favor of
remand.” Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (quotation and citation
omitted).
An action that has been removed to federal court may be remanded to state court pursuant
to 28 U.S.C. § 1447(c) on the grounds of a defect in the removal procedure. For example, failure
to file a notice of removal within the time period provided by the removal statutes is a sufficient
ground on which to remand. See Wissel & Sons Constr. Co., 881 F. Supp. at 122; Mountain
Ridge State Bank v. Investor Funding Corp., 763 F. Supp. 1282, 1288 (D.N.J. 1991). The
defendant bears the burden of establishing removal jurisdiction and demonstrating compliance
with all pertinent procedural requirements. See, e.g., Boyer v. Snap-On Tools Corp., 913 F.2d
108, 111 (3d Cir. 1990); see also Capone v. Harris Com., 694 F. Supp. 111, 112 (E.D. Pa. 1988).
In the instant case, Plaintiff seeks to remove an action that is almost four years old to this
Court without providing any justification for why removal is appropriate. Plaintiff has not cited any
authority for the proposition that her ability to remove extends beyond the thirty day period specified
by statute. See 28 U.S.C. § 1446(a). Nor has Plaintiff complied with any of the procedural
requirements of 28 U.S.C. § 1446, including attaching a copy of any process, pleadings or orders
to her Notice of Removal. While this Court is not unsympathetic to Plaintiff’s circumstances, these
procedural deficiencies alone warrant remand to the Superior Court. The Court notes that
Plaintiff retains the right to pursue an appeal in this matter as described in the Superior Court’s
May 17, 2011 Order.
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IV.
CONCLUSION
For the above reasons, and for good cause shown, the Defendant’s Motion to
Remand is granted. An appropriate order will follow.
_/s/ Anne E. Thompson________
ANNE E. THOMPSON, U.S.D.J.
Dated_October 12, 2011_____
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