SUNTRUST MORTGAGE, INC. et al v. THOMAS

Filing 11

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/12/2014 as set out herein. ORDERED that Defendant's Application for Leave to Proceed In Forma Pauperis (Docket Entry 1 ) is GRANTED FOR THELIMITED PURPOSE OF ALLOWING ENTRY OF AN ORDER REMANDING THIS CASE TO STATE COURT. FURTHER that Plaintiffs' Motion to Remand to State Court (Docket Entry 7 ) is GRANTED in that this case is REMANDED to the Hoke County Superior Court, Hoke County, North Carolina, for lack of subject-matter jurisdiction.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SUNTRUST MORTGAGE, INC.
and SUBSTITUTE TRUSTEE
SERVICES, INC. TRUSTEE
SERVICES,
Plaintiffs,
v.
ANGELA A. THOMAS,
Defendant.

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1:14CV608

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Defendant’s Motion for Removal (Docket Entry 2),
as well as on Plaintiffs’ Motion to Remand to State Court (Docket
Entry 7).

For the reasons that follow, the Court will grant

Defendant’s instant Application for the sole purpose of entering an
order remanding this case to state court for lack of subject-matter
jurisdiction.1
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee

1

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at *2-6 (M.D.N.C. Jan. 24, 2012) (unpublished), the undersigned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.

that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004). To address this concern, the in forma pauperis statute
provides that “the court shall dismiss the case at any time if the
court determines that – . . . (B) the action or appeal – (i) is
frivolous or malicious . . .”
The

United

States

28 U.S.C. § 1915(e)(2).

Supreme

Court

has

explained

that

“a

complaint, containing as it does both factual allegations and legal
conclusions, is frivolous where it lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
“The word ‘frivolous’ is inherently elastic and not susceptible to
categorical definition. . . .

The term’s capaciousness directs

lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.”

Nagy, 376 F.3d at 256-57 (some internal
2

quotation marks omitted).

In considering such matters, this Court

may “apply common sense.”

Nasim, 64 F.3d at 954.

Courts regularly remand removal cases at the required initial
review of in forma pauperis applications based on frivolousness due
to lack of subject matter jurisdiction.
Human

Servs.

v.

Davis,

No.

See, e.g., Wake Cnty.

5:12-CV-413-BO,

2012

WL

7856618

(E.D.N.C. Oct. 24, 2012) (unpublished), recommendation adopted,
2012 WL 7856619 (E.D.N.C. Dec. 12, 2012) (unpublished), aff’d, 530
F. App’x 272 (4th Cir. 2013); Rosproy v. Rosproy, No. 10-1417-SAC,
2010 WL 5479714 (D. Kan. Dec. 30, 2010) (unpublished); Franklin
Credit Mgmt. Corp. v. Bryson, Civil No. 1:09cv246, 2009 WL 2151052
(W.D.N.C. July 15, 2009) (unpublished); Fuller v. Evans, No.
1:05CV00013,
(unpublished).

2005

WL

1743955

(M.D.N.C.

Mar.

24,

2005)

In this case, such review merges with the analysis

of Plaintiff’s instant Motion to Remand, which contends, inter
alia, that this Court lacks subject-matter jurisdiction over the
matters at issue (Docket Entry 8 at 9-12).
“The burden of demonstrating jurisdiction resides with the
party seeking removal.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811,
816 (4th Cir. 2004) (en banc) (internal quotation marks omitted).
Moreover, this 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).
A

federal

court

must

“construe
3

removal

jurisdiction

strictly

because of the significant federalism concerns implicated.” Dixon,
369 F.3d at 816 (internal quotation marks omitted).

If federal

jurisdiction appears doubtful, then the federal court must remand
the action to state court.

Id.
DISCUSSION

Defendant’s removal notice states:
This is a civil action of which this [C]ourt has original
jurisdiction under 28 U.S.C. § 1331 and is one which may
be removed to this [C]ourt by [D]efenant pursuant to the
provision of 28 U.S.C. § 1441 in that it arises under
Federal Questions and resolution of [P]laintiffs [sic]
claims will require adjudication of disputed questions of
federal law.
(Docket Entry 2 at 1.)2

However, the Court lacks subject matter

jurisdiction under those statutes.

The state case Defendant

purported to remove is a foreclosure action.

(See id. at 2.)

federal question jurisdiction thus exists under Section 1331.

No
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
2

The instant Motion for Removal lists SunTrust Mortgage,
Inc., and “Substitute Trustee Services Trustee Services” as
plaintiffs and Angela A. Thomas as the defendant in the caption.
(Docket Entry 2 at 1.) However, the body refers to Ms. Thomas as
the plaintiff and SunTrust and Substitute Trustee Services as the
defendants. (See id. at 1-6.) This Order refers to SunTrust and
Substitute Trustee Services as “Plaintiffs” and Ms. Thomas as
“Defendant.”
4

(M.D.N.C. Oct. 16, 2009) (unpublished) (“The underlying action is
a state court action for foreclosure.
raised no federal issues.

The complaint in the action

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 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
defendants] are attempting to remove is a foreclosure proceeding,
there is no federal question jurisdiction that arises in the
instant matter.”).
Defendant’s

Motion

for

Removal

also

contends

that

“[Plaintiffs’] claims against [Defendant] are false; based on
fraud, negligent misrepresentation, and has [sic] violated both the
Fair Debt Collection Act 1692g.809 and [the Real Estate Settlement
Procedures Act (“RESPA”)].”

(Docket Entry 2 at 2.)

However,

[Section] 1331 federal question jurisdiction is limited
to actions in which the plaintiff’s well-pleaded
complaint raises an issue of federal law; actions in
which defendants merely claim a substantial federal
defense to a state-law claim do not raise a federal
question. In other words, a defendant may not defend his
5

way into federal court because a federal defense does not
create a federal question under § 1331.
In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir.
2006) (internal citation omitted). The fact that Defendant in this
case wants to present her own federal question to the Court does
not provide a basis for removal.

See Fuller, 2005 WL 1743955, at

*1.
Nor does diversity jurisdiction exist under Section 1332.
Although the removal notice contends that “[t]here is complete
diversity of citizenship between the parties” (Docket Entry 2 at
4), it acknowledges facts establishing that both Defendant and
Plaintiff Substitute Trustee Services qualify as citizens of North
Carolina (see id. at 4-5).

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, P.A., 783 F. Supp. 2d 798, 801 (W.D.N.C. 2011)
(“Plaintiffs have not satisfied the complete diversity requirement.
Specifically Plaintiffs and Defendant Hutchens, Senter & Britton,
P.A. are both citizens of North Carolina.”). Moreover, Defendant’s
North

Carolina

jurisdiction.

citizenship
See

28

U.S.C.

alone
§

deprives

1441(b)(2)

this
(“A

Court

civil

of

action

otherwise removable solely on the basis of the jurisdiction under
6

section 1332(a) of this title may not be removed if any of the
parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”).

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 above) this Court lacked.3
CONCLUSION
This Court lacks subject matter jurisdiction over this action.
IT IS THEREFORE ORDERED that Defendant’s Application for Leave
to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING ENTRY OF AN ORDER REMANDING THIS CASE
TO STATE COURT.

3

In addition, Defendant did not remove this action in a
timely manner.
“The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading . . . .” 28 U.S.C. § 1446(b)(1). The removal notice
indicates that Plaintiffs commenced the foreclosure action on or
about January 9, 2012 (Docket Entry 2 at 2) and Plaintiffs, after
failing to reach Defendant in person or by mail (see Docket Entry
8-6 at 2-6), posted notice of the action on the door of the
property (see id. at 7). See McArdle Corp. v. Patterson, 115 N.C.
App. 528, 532, 445 S.E.2d 604, 607 (1994) (“[I]f a party cannot
with due diligence be served by personal delivery or registered or
certified mail, service of the notice of [foreclosure] hearing may
be made by posting the notice on the property.”). Moreover, in
support of the removal notice, Defendant attached an exhibit titled
“Affidavit of FACT” that she apparently submitted as part of the
foreclosure proceeding on June 18, 2012 (Docket Entry 2-11), which
indicates she had notice of the proceeding at that time (see id. at
2). Defendant removed the action over two years after she received
the initial pleading. (See Docket Entry 2 at 6.)
7

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Remand to
State Court (Docket Entry 7) is GRANTED in that this case is
REMANDED to the Hoke County Superior Court, Hoke County, North
Carolina, for lack of subject-matter jurisdiction.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 12, 2014

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