Trustee Services of Carolina, LLC v. Rivera

Filing 22

ORDER affirming 18 Memorandum and Recommendations; granting 6 Motion to Remand to State Court. Signed by District Judge Max O. Cogburn, Jr on 5/2/12. (Pro se litigant served by US Mail.)(com)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12cv121
TRUSTEE SERVICES OF
CAROLINA, LLC.,

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Plaintiff,
Vs.
ANGEL L. RIVERA,
Defendant/Counter
Claimant,
Vs.
BANK OF AMERICA, N.A.,
Cross Defendant.
_______________________________

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). Defendant/Counterclaimant,
who is proceeding pro se, has timely filed two objections: (1) the magistrate judge erred in
determining that the action was untimely removed as the time does not begin to run from
receipt of a notice of hearing in a foreclosure proceeding; and (2) the court has discretion to
retain subject matter jurisdiction even if there is a defect in removal. Objections (#20). Cross
Defendant has elected not to respond. (#21).
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
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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
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’s first objection is that the magistrate judge erred in
determining that the action was untimely removed as the time does not begin to run from
receipt of a notice of hearing of foreclosure. Under 28 U.S.C. § 1446(b), a removing party
must file a notice of removal “within thirty days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” Id. Chapter 45-21.1 et seq. of the North Carolina
General Statutes provides the procedure for foreclosure by power of sale under North
Carolina law. Foreclosures by power of sale are “special proceedings” under North Carolina
law, see Phil Mechanic Construction Company, Inc. v. Haywood, 72 N.C.App. 318, 322
(1985), which are initiated by the filing of a notice of hearing instead of a complaint and
summons. N.C. Gen.Stat. § 45-21.16. The record indicates that Defendant/Counterclaimant
received the Notice of Hearing – the initial pleading – on or about August 11, 2011. The
Petition for Removal was filed by him on February 23, 2012, more than thirty days after he
received the Notice of Hearing. Because removal was untimely under § 1446(b) as a matter
of law, the first objection is overruled.
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Defendant/Counterclaimant’s second objection is that the magistrate judge erred in
determining that the court lacked subject-matter jurisdiction because the court has discretion
to retain subject matter jurisdiction even if there is a defect in removal. Where removal is
procedurally improper, the court need not consider whether it has subject matter jurisdiction.
In re Foreclosure of a Deed of Trust Executed by Prodev, 2008 WL 5234301, at *2
(E.D.N.C. Dec. 15, 2008).

In any event, the existence of jurisdiction is not, as

Defendant/Counterclaimant contends, a matter of judicial discretion as “[t]he subject matter
jurisdiction of federal courts is limited and the federal courts may exercise only that
jurisdiction which Congress has prescribed.” Chris v. Tenet, 221 F.3d 648, 655 (4th Cir.
2000), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Inasmuch a diversity was not alleged as a basis for removal to this court, it was
Defendant/Counterclaimant’s burden to prove that this court had original or federal
jurisdiction over the state foreclosure proceeding. As a matter of law, 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 ”simple foreclosure action of real property ... suggests the
presence of a federal question”). This objection is, therefore, overruled.
After careful review, the court determines that the recommendation of the magistrate
judge is fully consistent with and supported by current law. Further, the factual background
and recitation of issues is supported by the applicable pleadings and the objections are
without merit as a matter of law. Based on such determinations, the court will fully affirm
the Memorandum and Recommendation and grant relief in accordance therewith.

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ORDER
IT IS, THEREFORE, ORDERED that Defendant/Counterclaimant’s Objections
(#20) are OVERRULED, the Memorandum and Recommendation (#18) is AFFIRMED,
Cross Defendant Bank of America, N.A.’s “Motion to Remand” (#6) is GRANTED and
this matter is REMANDED to the North Carolina General Court of Justice, Superior Court
Division, for Mecklenburg County.

All other motions filed in this court are terminated without prejudice.

Signed: May 2, 2012

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