Vicks et al v. Wells Fargo et al

Filing 5

ORDER granting 3 Motion to Remand to State Court; FURTHER ORDERED that Plaintiffs shall have fourteen (14) days from the date of this Order to show why an award of attorney fees and costs should not be entered against them given the prior decisions of the North Carolina Court of Appeals cautioning against further veiled attempts to collaterally attack the validity of a state ordered foreclosure. Signed by Chief Judge Frank D. Whitney on 6/22/2016. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00269-FDW
JASON BRIAN VICKS and MEKEISHA )
VICKS,
)
)
Plaintiffs,
)
)
vs.
)
)
WELLS FARGOS BANK, N.A., as Trustee )
for Soundview Home Loan Trust 2007- )
OPT1, Asset Back Certificates, Series 2007- )
OPT1, and OCWEN LOAN SERVICING, )
LLC,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court upon Defendants’ Motion to Remand to State Court.
(Doc. No. 3). As explained below, the pending motion to remand is GRANTED.
Removal on the basis of diversity jurisdiction is flatly prohibited if sought more than one
year after the commencement of the action unless the plaintiff’s bad faith prevented removal. 28
U.S.C. § 1446(c). The party seeking to remove a case to federal court has the burden of
demonstrating both the court’s jurisdiction over the matter and that the attempted removal is
timely. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
Principles of federalism require that doubt over the propriety of removal must be resolved in
favor of remand to the state courts. See id. at 151.
Plaintiffs seek removal based on diversity jurisdiction conveyed by 28 U.S.C. §1332.
(Doc. No. 1, pp. 3-4). Plaintiffs filed their notice of removal on May 27, 2016, id. at 5, well more
than one year after the commencement of the action in 2011, id. at 1. Indeed, the first page of
Plaintiff’s Notice of Removal acknowledges that the state court action commenced “[o]n or
1

about April 15, 2011.” Id. at 1. Plaintiffs’ own pleadings, therefore, establish on their face that
removal of this action was untimely unless some bad faith on the part of Defendants can be
shown as the cause for this unreasonable delay.
The state court record is utterly devoid of evidence of Defendants’ bad faith. To the
contrary, Plaintiffs received a reprimand from the Clerk of the North Carolina Court of Appeals
for their inappropriate actions. (Doc. No. 1, p. 30) (“[Plaintiffs] are cautioned not to file any
further motions or petitions with this Court seeking a stay in these foreclosure proceedings, as
that relief has already been denied by this Court repeatedly, and warned that sanctions may be
imposed upon them if they do.”) Plaintiffs’ contention that they lacked proper notice of the
foreclosure proceedings has already been ruled upon and denied by the North Carolina Court of
Appeals. Id. at 31-33. Thus, no basis—equitable or otherwise—exists for excepting Plaintiffs’
attempted removal from the plain timeliness requirements of 28 U.S.C. § 1446(c).
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Remand (Doc. No. 3) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs shall have fourteen (14) days from the date
of this Order to show why an award of attorney fees and costs should not be entered against them
given the prior decisions of the North Carolina Court of Appeals cautioning against further
veiled attempts to collaterally attack the validity of a state ordered foreclosure. Failure to
comply with this Order may result in the award of fees and costs Defendants incurred in
this litigation.
IT IS SO ORDERED.

Signed: June 22, 2016

2