Netco Title Insurance et al v. Cole

Filing 3

ORDER Remanding for lack of subject matter jurisdiction to the North Carolina General Court of Justice, Superior Court Division, for Mecklenburg County. Signed by Senior Judge Graham Mullen on 5/19/2017. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-00752-GCM
NETCO TITLE INSURANCE,
SUBSTITUTE TRUSTEE SERVICES,
INC.,
Plaintiffs,
v.
ELIZABETH COLE,
Defendant.

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ORDER

THIS MATTER is before the Court sua sponte on Pro Se Defendant’s Notice of Removal.
(Doc. No. 1). For the reasons stated below, this case is REMANDED to the North Carolina
General Court of Justice, Superior Court Division, for Mecklenburg County.
I.

Background
This civil action arises from foreclosure proceedings brought against pro se Defendant

Elizabeth Cole in the North Carolina General Court of Justice, Mecklenburg County Superior
Court, on June 23, 2015 as to real property located at 7120 B Somerset Springs Drive, Charlotte,
NC, 28262-3583 (the “Subject Property”). (Doc. No. 1). On February 25, 2016 the Superior
Court issued an order authorizing the foreclosure sale of the Subject Property. The court in its
findings of fact found that JBN held a promissory note that evidenced a valid debt and that note
was in default. Defendant and JBN entered into a valid contract in the form of a Deed of Trust.
The Deed of Trust secured a valid debt and gave the holder of the note, JBN, the right to
foreclose on the Subject Property under a power of sale. On October 31, 2016, the Defendant

removed the special proceeding civil action captioned In the Matter of the Foreclosure of Deed
of Trust to this Court. Since that time, there has been no further activity in this case.
II.

Analysis
The existence of subject matter jurisdiction is a threshold issue. While there is no pending

motion to dismiss this matter for lack of subject matter jurisdiction, “it is well-recognized in our
jurisprudence that the issue of subject matter jurisdiction may be raised sua sponte.” Unitrin
Auto and Home Ins. Co. v. Bastida, No. 3:09-cr-00217, 2009 WL 3591190, at *1 (W.D.N.C.
Oct. 26, 2009) (citing Contrick v. Ryan, 540 U.S. 443, 455 (2004)). “The 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)). Absent a proper basis
for subject matter jurisdiction, a case must be dismissed. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 96 (1998); accord Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.
1999); Evans v. B.F. Perkins Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The party
seeking federal jurisdiction has the burden of proving that subject matter jurisdiction exists.
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991).
This case arises out of a foreclosure conducted under Chapter 45 of the North Carolina
General Statutes. Foreclosure actions brought under state law do not give rise to federal question
subject matter jurisdiction. See e.g., Jennifer Belter Formichella, PLLC, 2012 WL 2501110, *2
(citing City of Durham v. Wadsworth, 2009 WL 186174 (M.D.N.C. 2009) (remanding tax
foreclosure action); McNelly 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”)); Trustee Services of Carolina, LLC v. Rivera, 2012 WL
1645534, *2 (W.D.N.C. May 2, 2012) (same)).
The crux of the Defendant’s action appears to the Court to be to prevent the Plaintiffs
from foreclosing on their property. The Plaintiffs are attempting to avoid the original jurisdiction
granted to the Clerk of Superior Court of Mecklenburg County, North Carolina.
III.

Conclusion
For the above reasons, this matter is REMANDED for lack of subject matter jurisdiction

to the North Carolina General Court of Justice, Superior Court Division, for Mecklenburg
County.
SO ORDERED.

Signed: May 19, 2017