Mullins v. Bank of America Corp.

Filing 14

REPORT AND RECOMMENDATIONS - For the foregoing reasons, the Motion to Remand 10 should be granted. Objections to R&R due by 7/9/2012. Signed by Magistrate Judge Michael R Merz on 6/22/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES R. MULLINS, JR.,
Plaintiff,

Case No. 3:12-cv-131
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
BANK OF AMERICA CORP.,
Defendant.

REPORT AND RECOMMENDATIONS

This case is before the Court on the First Motion to Remand of Bank of America Corp.
(Doc. No. 10) to which James Mullins has responded (Doc. No. 13).
Bank of America filed this case as a foreclosure action in the Preble County Common Pleas
Court and served Mr. Mullins with process on December 4, 2009, as he admits (Answer to Motion,
Doc. No. 13, PageID 142). The earliest date on which Mr. Mullins attempted to remove the case
to this Court was April 26, 2012.1 Mr. Mullins claims this case became removable on March 30,
2012, the date he received notice that the Common Pleas Court had dismissed his March 7, 2012,
counterclaim in the foreclosure action. Id. at PageID 143.
After the Common Pleas Court dismissed his counterclaim or denied him leave to add one,
all that was left in the case were the claims originally made by Bank of America at the outset of the
case. If those were claims over which this Court would have had original jurisdiction, then
removal had to occur within thirty days of service of process, or not later than January 3, 2009.
Nothing was added to the case to make it removable by the state court’s action in late March, 2012.
1 He explains in his Response to the Order to Removing Party (Doc. No.8), he had a number of confusing
conversations with different deputy clerks about the requirements for removal. The date of April 26 gives him the
benefit of the earliest date he claims.

Mr. Mullins asserts that
[T]he State Court has no jurisdiction over the fraud committed by
defendant against plaintiff. The Federal Courts has [sic] that
jurisdiction alone. Therefore, the plaintiff filed a Motion to
Remove the case from State Court to U.S. District Court. This case
is not just a simple matter of a foreclosure. This is a matter of the
defendnat [sic] violating plaintiff’s 2 constitutional rights by
intentionally using fraud and deceit to conduct their scam while
using the American Court system to aid them.

(Answer to Motion to Remand, Doc. No. 13, PageID 143.) With respect, the state courts certainly
do have jurisdiction over fraud claims and indeed over asserted violations of constitutional rights.
But even if they did not, that would not make the case removable, although it might support a
motion to dismiss for lack of jurisdiction in the state court. Therefore the removal was untimely
and the case should be remanded to the Preble County Common Pleas Court.
In addition to being untimely, the removal was not concurred in by all the Defendants as
required by 28 U.S.C. § 1446(b)(2)(A). While Kate Mullins concurred, no concurrence was
obtained from the Federal Home Loan Bank Board of Cincinnati or the Preble County Treasurer.
Mr. Mullins argues that the Federal Home Loan Bank Board of Cincinnati does not have to concur,
relying on Mendrala v. Crown Mortg. Co., 955 F.2d 1132 (7th Cir. 1992). Mr. Mullins confuses
the Federal Home Loan Bank of Cincinnati with the Federal Home Loan Mortgage Corporation,
which is popularly known as Freddie Mac. Freddie Mac is not a defendant in this case; the
Mendrala case applies to Freddie Mac and in any event does not hold that it does not have to
concur in a removal to federal court in a case in which it is actually a defendant. And Mr. Mullins
cites no authority for the proposition that the Preble County Treasurer can be ignored in the
removal process.
For the foregoing reasons, the Motion to Remand should be granted.
2 Despite the fact that he is a defendant in the state court action and only defendants can remove a case to federal
court, Mr. Mullins refers to himself in his motion papers as “plaintiff” and included in his removal papers a purported
complaint in which he is named as Plaintiff and Bank of America as a defendant. The Magistrate Judge takes no
position on whether Mr. Mullins could bring an original suit in this Court against Bank of America.

June 22, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).