GMAC MORTGAGE LLC v. EATON

Filing 36

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/03/2012. ORDERED that, in light of this Court's lack of subject-matter jurisdiction, this case is REMANDED to the General Court of Justice, Superior Court Division, Guilfor d County, North Carolina. FURTHER ORDERED that, in light of the remand of this case to state court for lack of subject-matter jurisdiction, the Clerk's Office shall TERMINATE AS MOOT the Motion to Dismiss Counterclaims filed by Shapiro & Ingle LLP (Docket Entry 13 ), the Motion to Remand to State Court filed by GMAC Mortgage LLC (Docket Entry 16 ), and the Motion to Dismiss Counterclaims filed by GMAC Mortgage LLC (Docket Entry 18 ).FURTHER ORDERED that this Order is STAYED for 21 days because "[a] party may serve and file objections to the [O]rder within 14 days after being served with a copy. A party may not assign as error a defect in the [O]rder not timely objected to. The district judge in the case must consider timely ob jections and modify or set aside any part of the [O]rder that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). If any party timely objects to this Order, the 21day stay shall continue in effect until further order, but, absent any timely objection, at the end of the 21day period, the Clerks Office shall send a certified copy of this Order to the Clerk of the General Court of Justice, Superior Court Division, Guilford County, North Carolina. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GMAC MORTGAGE LLC and
SHAPIRO & INGLE LLP,
Plaintiffs and
Counter Defendants,
v.
DARIUS BILLY EATON and
JOYCE PRICE EATON,
Defendants and
Counter Claimants.

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1:12CV270

MEMORANDUM OPINION AND ORDER
This case came before the Court on July 30, 2012, for a
hearing on all pending motions, which, at the time of the issuance
of the Notice of Hearing (Docket Entry 32), included a Motion to
Dismiss Counterclaims filed by Shapiro & Ingle LLP (Docket Entry
13), a Motion to Remand to State Court filed by GMAC Mortgage LLC
(Docket Entry 16), and a Motion to Dismiss Counterclaims filed by
GMAC Mortgage LLC (Docket Entry 18).

For the reasons that follow,

the Court will remand this case to state court for lack of subjectmatter jurisdiction.
BACKGROUND
This case commenced in this Court as a result of a Notice of
Removal from Guilford County State Court filed by Darius Billy
Eaton and Joyce Price Eaton (collectively, “the Eatons”).

(Docket

Entry 2.)

The Eatons thereafter filed documents that purported to

assert counterclaims against GMAC Mortgage LLC and Shapiro & Ingle
LLP, including under the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq.
4.)

Shapiro

&

(Docket Entry 5 at 3-4; Docket Entry 8 at 3-

Ingle

LLP

thereafter

moved

to

dismiss

the

counterclaims, including on the ground that the Court lacked
subject-matter jurisdiction.

(Docket Entry 13 at 1-2.)

GMAC

Mortgage LLC also filed motions to dismiss the counterclaims
(Docket Entry 18) and for remand to state court on grounds of lack
of subject-matter jurisdiction (Docket Entry 16 at 1).
After the Eatons responded to the foregoing motions (see
Docket Entries 28, 29, 30), the Court noticed a hearing for July
30, 2012 (Docket Entry 32).

Shortly before the hearing, GMAC

Mortgage LLC filed a Notice of Bankruptcy Filing and Supplemental
Servicing Order (Docket Entry 35), asserting that an order from the
United States Bankruptcy Court for the Southern District of New
York

precluded

the

Eatons

from

pursuing

their

counterclaims against GMAC Mortgage LLC (id. ¶ 7).

purported
Counsel for

GMAC Mortgage LLC also informed the Clerk’s Office that GMAC
Mortgage LLC would not pursue its pending Motion to Remand to State
Court due to the bankruptcy case in New York.
dated July 27, 2012.)

(See Docket Entry

At the hearing, counsel for Shapiro & Ingle

LLP appeared, but neither the Eatons nor counsel for GMAC Mortgage
LLC appeared.

(See Docket Entry dated July 30, 2012.)
2

DISCUSSION
“A federal court has an independent obligation to assess its
subject-matter jurisdiction . . . .”

Constantine v. Rectors &

Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005).
“The burden of establishing federal jurisdiction is placed upon the
party seeking removal.”

Mulcahey v. Columbia Organic Chems. Co.,

29 F.3d 148, 151 (4th Cir. 1994).

The Eatons’ removal notice

asserted that “[j]urisdiction has been established pursuant to 28
U.S.C. [§§] 1331, 1332 and 1441.”

(Docket Entry 2 at 1.)

The

Court lacks subject-matter jurisdiction under those statutes.
The state case the Eatons purported to remove is a foreclosure
action.

(See id. at 2.)

exists under Section 1331.

No federal question jurisdiction thus
See Trustee Servs. of Carolina, LLC v.

Rivera, No. 3:12CV146, 2012 WL 1645534, at *2 (W.D.N.C. May 2,
2012) (unpublished) (“As a matter of law, foreclosure actions
brought under state law do not give rise to federal question
subject matter jurisdiction.”); Vecchione v. Option One Mortg. Co.,
No. 1:09CV380, 2009 WL 3435166, at *1 (M.D.N.C. Oct. 16, 2009)
(unpublished) (“The underlying action is a state court action for
foreclosure. The complaint in the action raised no federal issues.
The fact that [the plaintiff] now seeks to raise federal issues in
this action and in his removal petition does not make the action
removable on the basis of a federal question.

It is axiomatic that

a federal question must appear on the face of the well-pleaded
3

complaint, and raising a federal counterclaim or defense does not
make the action removable on the basis of a federal question.”
(internal

quotation

marks

omitted));

In

the

Matter

of

the

Foreclosure of the Deed of Trust Dated Feb. 8, 1999, No. 1:03CV527,
2003 WL 21664204, at *2 (M.D.N.C. July 14, 2003) (unpublished)
(“[B]ecause the state court action that [the respondents] are
attempting to remove is a foreclosure proceeding, there is no
federal question jurisdiction that arises in the instant matter.”).
Nor does diversity jurisdiction exist under Section 1332,
given that the removal notice acknowledges facts establishing that
the Eatons and Shapiro & Ingle LLP are both citizens of North
Carolina (see Docket Entry 2 at 1, 3).

See, e.g., Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“[T]he
presence in the action of a single plaintiff from the same State as
a

single

defendant

deprives

the

district

court

of

original

diversity jurisdiction over the entire action.”); Sanderlin v.
Hutchens,

Senter

&

Britton,

(W.D.N.C.

2011)

diversity

requirement.

Hutchens,

Senter &

(“Plaintiffs

P.A.,
have

783
not

Specifically

Britton,

P.A.

F.

Supp.

satisfied

Plaintiffs

are both

2d
the
and

citizens

798,

801

complete
Defendant
of North

Carolina.”). Finally, Section 1441 provides for removal only where
the federal court would have had “original jurisdiction,” see 28
U.S.C. § 1441(a), which (for reasons noted) this Court would not.

4

CONCLUSION
This Court lacks subject-matter jurisdiction.

As a result,

“[t]his civil action was improperly removed from the state courts
and must be returned to the proper court.”
3435166, at *1.

Vecchione, 2009 WL

For reasons stated in William E. Smith Trucking,

Inc. v. Rush Trucking Ctrs. of N.C., Inc., No. 1:11CV887, 2012 WL
214155,

at

*2–6

(M.D.N.C.

Jan.

24,

2012)

(unpublished),

the

undersigned United States Magistrate Judge opts to enter an order
rather than a recommendation regarding remand.
IT IS THEREFORE ORDERED that, in light of this Court’s lack of
subject-matter jurisdiction, this case is REMANDED to the General
Court of Justice, Superior Court Division, Guilford County, North
Carolina.
IT IS FURTHER ORDERED that, in light of the remand of this
case to state court for lack of subject-matter jurisdiction, the
Clerk’s Office shall TERMINATE AS MOOT the Motion to Dismiss
Counterclaims filed by Shapiro & Ingle LLP (Docket Entry 13), the
Motion to Remand to State Court filed by GMAC Mortgage LLC (Docket
Entry 16), and the Motion to Dismiss Counterclaims filed by GMAC
Mortgage LLC (Docket Entry 18).
IT IS FURTHER ORDERED that this Order is STAYED for 21 days
because “[a] party may serve and file objections to the [O]rder
within 14 days after being served with a copy.

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A party may not

assign as error a defect in the [O]rder not timely objected to.
The district judge in the case must consider timely objections and
modify or set aside any part of the [O]rder that is clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a).

If any

party timely objects to this Order, the 21–day stay shall continue
in effect until further order, but, absent any timely objection, at
the end of the 21–day period, the Clerk’s Office shall send a
certified copy of this Order to the Clerk of the General Court of
Justice, Superior Court Division, Guilford County, North Carolina.
This the 3rd day of August, 2012.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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