David A. Simpson, P.C. v. Wilson

Filing 25

ORDER adopting 20 Memorandum and Recommendations; Defendants Objections (#24) are SUSTAINED in part and otherwise OVERRULED as herein provided; granting 16 Motion to Remand to State Court. This action is REMANDED to Union County Superior Court. Signed by District Judge Max O. Cogburn, Jr on 3/26/2012. (Pro se litigant served by US Mail.)(tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv576
DAVID A. SIMPSON, P.C.,
Substitute Trustee,
Plaintiff,
Vs.
JENNIFER L. WILSON,
Defendant/Counterclaimant,
Vs.
DAVID A. SIMPSON, P.C.; AURORA
LOAN SERVICES, LLC; AURORA
BANK FSB, and JOHN DOES 1-10,
Counterclaim Defendants.
_______________________________

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ORDER

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation, the
magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c).
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall
make a de novo determination of those portions of the report or specific proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis,
718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not
required by the statute “when a party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate judge’s proposed findings and
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recommendations.” Id. Moreover, the statute does not on its face require any review at all
of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985);
Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final
determination and outcome of the case, and accordingly the court has conducted a careful
review of the magistrate judge’s recommendation. Defendant/Counterclaimant Jennifer L.
Wilson (hereinafter “defendant”), who removed this action to this court, is proceeding pro
se.
Defendant’s first objection is that the magistrate judge incorrectly determined that she
failed to file a response to the plaintiff’s Motion to Remand. Such objection is sustained, as
it appears that defendant filed a response the day before the magistrate judge entered his
Memorandum and Recommendation. In all fairness, however, while defendant filed such
response on February 6, 2012, it appears that the Clerk of this Court did not docket such
response until February 7, 2012, the same day the magistrate judge entered his
recommendation. The court has, therefore, read defendant’s responsive brief alongside her
objections in reviewing the Magistrate Judge’s Memorandum and Recommendation.
Defendant’s second objection appears to claim some judicial bias on the part of the
magistrate judge based on his underlining of the term “pro se.” Such objection is overruled
as underlining Latin terms is simply an acceptable alternative for italicizing Latin terms used
in formal writing.
Defendant’s third objection appears to be that the magistrate judge lacked jurisdiction
to enter a recommendation because she refused to consent to a magistrate judge conducting
the trial in this matter. Defendant mistakes the consent provisions of 28 U.S.C. § 636(c) with
the delegations of duties allowed by Congress under § 636(b). Put succinctly, magistrate
judges are authorized as a matter of law to enter recommendations as to the disposition of
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dispositive motions without the consent of the parties. This court has fully delegated such
duties to magistrate judges. Such objection is overruled.
Defendant’s fourth objection is that she timely removed this action from state court.
Such objection is overruled as not only did she not timely remove the action, she failed to
satisfy the jurisdictional requirements for removal, which is a threshold determination. This
action involves the foreclosure of a deed of trust on real property located in Union County,
North Carolina. (hereinafter "real property"). On March 30, 2010, plaintiff commenced a
foreclosure proceeding in Union County Superior Court. On October 12, 2011, the state
Clerk of Court ordered a foreclosure sale. On October 21, 2011, defendant appealed to
Superior Court. On November 14, 2011, more than thirty days after her receipt of the initial
foreclosure notice, defendant filed a "Notice of Removal of Action” (#1) and "Counterclaim”
(#2) with the Clerk of this court.
In her notice of removal, defendant attempts to invoke this court's subject matter
jurisdiction by generally alleging the existence of federal question jurisdiction under 28
U.S.C. § 1331. In her Counterclaims, defendant asserts state law claims for
misrepresentation, breach of contract and “wrongful foreclosure.” While plaintiff argues
extensively in her objections that her removal was timely, the magistrate judge properly
considered whether subject matter jurisdiction existed as a threshold matter. Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 96 (1998). The magistrate judge determined that this
court lacked diversity or federal question jurisdiction over the removed claims. See Chris
v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000)(“The subject matter jurisdiction of federal courts
is limited and the federal courts may exercise only that jurisdiction which Congress has
prescribed”) (citation omitted). Such determination and recommendation is fully supported
as a matter of law.
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Moreover, as the magistrate judge found, foreclosure actions brought under state law
do not give rise to federal question subject matter jurisdiction. City of Durham v.
Wadsworth, 2009 WL 186174 (M.D.N.C 2009) (remanding tax foreclosure action); McNeely
v. Moab Tiara Cherokee Kituwah Nation Chief, 2008 WL 4166328 (W.D.N.C 2008)
(nothing in a “simple foreclosure action of real property ... suggests the presence of a federal
question”).
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After such review, the court determines that the recommendation of the magistrate
judge is fully consistent with and supported by current law. Further, the factual background
(with the exception of the finding concerning the timely filing of a response) and recitation
of issues is supported by the applicable pleadings. Based on such determinations, the court
will affirm the Memorandum and Recommendation and grant relief in accordance therewith.

ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#20) is AFFIRMED, defendant’s Objections (#24) are SUSTAINED in part and otherwise
OVERRULED as herein provided, the Motion to Remand (#16) is GRANTED, and this
action is REMANDED to the North Carolina General Court of Justice, Superior Court
Division, for Union County.

The Clerk of this court is instructed to send to the state Clerk of Court a certified or
true teste copy of this Order as provided by 28 U.S.C. § 1447(c).

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Signed: March 26, 2012

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