Yun v. Bank of America et al
Filing
3
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 12/16/2016. (bg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GLORIA SUN JUNG YUN,
:
Plaintiff
: CIVIL ACTION NO. 3:16-2416
v
:
BANK OF AMERICA, N.A., et al.,
(JUDGE MANNION)
:
:
Defendants
MEMORANDUM
On December 1, 2016, plaintiff Gloria Sun Jung Yun, filed pro se a
complaint against the Bank of America (“BOA”) and several other defendants,
including 1000 John and Jane Doe defendants. (Doc. 1). The plaintiff alleges
violations of her constitutional rights by various state and federal officials,
including county court judges and two judges of this court in regards to a
mortgage foreclosure action commenced against her in 2012 by BOA in
Monroe County Court. Plaintiff has not yet paid the required filing fee or filed
a motion to proceed in forma pauperis. Plaintiff has also filed a notice of
removal seeking to remove BOA’s Monroe County Court foreclosure case
number 2012-5227 to this federal court. (Doc. 1-2). Additionally, plaintiff filed
an emergency motion for preliminary injunction requesting this court to enjoin
her eviction from her foreclosed upon property. (Doc. 2). Upon review of the
complaint, the motion and the materials attached to them, the court will DENY
the emergency injunction motion and DISMISS this action.
I.
BACKGROUND
On December 9, 2016, plaintiff filed an emergency motion for
preliminary injunction in which she requests an injunction preventing the
Monroe County Sheriff from evicting her from her property located in Middle
Smithfield Township, Monroe County, Pennsylvania and challenging a recent
foreclosure sale of her property held on July 28, 2016.1 (Doc. 2). Plaintiff
states that her “property was sold in an auction and BOA et[.] al[.] bought [her]
property with close to 1 percent of [her] property value.” As an exhibit
attached to her motion, plaintiff submitted a copy of the Monroe County
Sheriff’s Deed dated August 26, 2016 transferring title to her property from the
Sheriff to Wilmington Savings Fund Society for $6,247.02. (Doc. 2 at 8-9).
The Deed indicates that plaintiff’s property was transferred to the Sheriff on
July 28, 2016 “after due advertisement according to law, under and by virtue
of a Writ of Execution issued on April 28, 2015” in the Monroe County Court
1
On April 27, 2016, plaintiff Gloria Sun Jung Yun previously filed a
nearly identical action with this court that was docket as Civil No. 16-704,
M.D.Pa. The case was assigned to Judge Mehalchick and Judge Mariani. On
December 5, 2016, Judge Mariani issued an order dismissing the case after
plaintiff filed a notice of voluntary dismissal of her case under Fed.R.Civ.P. 41.
The court notes that all of the judicial defendants in this case are
entitled to absolute immunity from suit. The judges, including Judges
Mehalchick and Mariani, are protected by absolute immunity for all judicial
acts except those made in the clear absence of jurisdiction. Cleavinger v.
Saxner, 474 U.S. 193, 199, 106 S.Ct. 496 (1985); Stump v. Sparkman, 435
U.S. 349, 356–67, 98 S.Ct. 1099 (1978); Clark v. Conahan, 737 F.Supp.2d
239, 255-256 (M.D.Pa. 2010). “Judicial immunity provides complete immunity
from suit, not merely from an ultimate assessment of damages.” Smith v.
Laster,787 F.Supp.2d at 319 (citing Mireles v. Waco, 502 U.S. 9, 11, 112
S.Ct. 286 (1991)).
2
in civil case number 2012-5227 initiated by BOA, successor by merger to
“BAC Home Loans Servicing, L.P., F/K/A Countrywide Home Loans Servicing,
L.P.” Plaintiff states that she filed a counterclaim in Monroe County Court on
October 11, 2016 and an amended counterclaim on October 25, 2016, since
she just learned that her property was sold and defendants failed to notify her.
Plaintiff states that defendants refused to work out her counterclaim and,
instead, filed a “new case” against her in Monroe County Court on October
20, 2016, case number 5227-CV-2012, to enforce her ejectment from her
property. From the case number, it appears that defendants filed their motion
in the original foreclosure action and did not commence a new case against
plaintiff.
Thus, the Writ of Ejectment recently filed by BOA is still pending in
Monroe County Court as well as plaintiff’s counterclaims, including her
counterclaim to quiet title. Plaintiff appears to be trying to remove the ongoing
ejectment action BOA filed in the Monroe County Court in civil case number
2012-5227 as well as her claim to quiet title to this court. (Doc. 1-2). Plaintiff
alleges that defendants are conspiring to violate her due process rights by
unlawfully taking her property. Plaintiff indicates that her constitutional rights
under the Fourth and Fourteenth Amendments were violated by the taking of
her property without due process.2 Plaintiff appears to allege in part that the
2
“The seizure of property implicates two explicit textual sources of
constitutional protection, the Fourth Amendment and the Fifth.” U.S. v. James
Daniel Good Real Prop., 510 U.S. 43, 50, 114 S.Ct. 492 (1993) (the court
noted that the Fourth Amendment applied to the seizure of a four-acre parcel
(continued...)
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Mortgage and Promissory Note on her property were held by Countrywide
Bank and that BOA had no authority to commence the mortgage foreclosure
action against her since it could not produce and verify the original Mortgage
and Note. She also alleges that the Monroe County Court is “not a competent
court” and seemingly lacked jurisdiction to enter the foreclosure judgment
against her.
As indicated, on April 28, 2015 the Monroe County Court issued a Writ
of Execution after entering judgment in favor of BOA in its mortgage
foreclosure action filed against plaintiff in civil case number 2012-5227
despite plaintiff’s claim that the county court had no jurisdiction over her as an
“American National.” Specifically, plaintiff states that she is a “Non-U.S.
Citizen” and is “a living woman on the republic land” of “the people of the
Pennsylvania republic nation.” (Doc. 2 at 2-4). She further states that “[I] am
the people of Pennsylvania and not a corporate U.S. person” and that
Pennsylvania is a sovereign. (Doc. 1-2). However, she claims that she is not
a resident of the Commonwealth of Pennsylvania or Monroe County.
In her instant motion, (Doc. 2), plaintiff states that the foreclosure
judgment was unlawfully entered by the Monroe County Court, that the
foreclosure sale of her property was invalid and, that the deed to her property
2
(...continued)
of land with a house); Soldal v. Cook County, Illinois, 506 U.S. 56, 70, 113
S.Ct. 538 (1992) (court held that a “seizure ... occurs when ‘there is some
meaningful interference with an individual's possessory interests in that
property’”). Plaintiff’s claims under the Fourth Amendment are applicable to
the actions of the state via the Fourteenth Amendment.
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was fraudulently conveyed. She also states that the pending ejectment action
BOA filed is unlawful since BOA did not have standing at the outset to file the
mortgage foreclosure action and to foreclose on her property since it never
“verified the [mortgage] contract” and could not prove “evidence of debt”
because it was not the holder of the genuine Promissory Note and Mortgage
Note. As such, plaintiff states that since BOA never held the Notes and did
not verify them, it could not legally foreclose on them and that the foreclosure
action BOA filed and the foreclosure judgment the Monroe County Court
entered against her were invalid. Thus, she seeks to remove BOA’s ongoing
Monroe County Court case number 2012-5227 to this federal court and she
requests this court to issue an emergency injunction to stop the recent
ejectment action BOA filed against her on October 20, 2016, and to stop
defendants from enforcing the “fraudulent lien” on her property.
II.
STANDARDS
Under 28 U.S.C. §1441(a), "any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
removed by the defendant . . . to the district court of the United States." Thus,
a defendant may remove from state court to federal court any civil case
arising under federal law. See 28 U.S.C. §1441(b).
Upon a motion to remand a removed action, the removing party bears
the burden of demonstrating that removal was proper. Scanlin v. Utica First
Ins. Co., 426 F. Supp. 2d 243, 246 (M.D. Pa. 2006) (citing Boyer v. Snap-On
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Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). "The party asserting
jurisdiction bears the burden of showing the action is properly before the
federal court." Id.
The notice of removal must be filed within thirty days of the defendant’s
receipt of the initial pleading setting forth the claim for relief. 28 U.S.C.
§1446(b). The court does not have discretion to extent this thirty (30) day
period. Crawford v. Fargo, 341 F.Supp. 762, 763 (M.D. Fla. 1972), citing Peter
Holding Co. v. Leroy Foods, Inc., 107 F.Supp. 56 (D.C.N.J. 1942).
Moreover, ruling on the removal of any action is the prerogative of the
federal courts. Id. (citing Harrison v. St. Louis & S.F.R. Co., 232 U.S. 318, 329
(1914) (“as the right given to remove by the United States law is paramount,
it results that it is also of the essence of the right to remove, that when an
issue of whether a prayer for removal was rightfully asked arises, a Federal
Question results which is determinable by the courts of the United States free
from limitation or interference arising from an exertion of state power”)).
Injunctions may issue in only exceptional and extraordinary
circumstances. Parent v. Whinston, 347 F. Supp. 471, 472 (E.D. Pa. 1972)
(citing Miller v. Standard Nut Margarin Co., 284 U.S. 498 (1932)). The grant
or denial of a motion for injunctive relief is within the sound discretion of the
district judge. Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982)
(citing Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d
120, 136 (3d Cir. 1978), cert. denied, 449 U.S. 1014 (1980). Injunctive relief
is not granted as a matter of right. Id.
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In order to obtain injunctive relief, the moving party must demonstrate:
(1) the likelihood of success on the merits; (2) that the party will suffer
irreparable harm by the denial of the injunction; (3) that granting the relief will
not result in even greater harm to the other interested party; and (4) the public
interest will not be adversely affected by the granting of relief. Ecri v.
McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987); In Re Arthur Treacher’s
Franchise Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). “[A] failure to show
a likelihood of success or a failure to demonstrate irreparable injury must
necessarily result in the denial of a preliminary injunction.” Arthur Treacher’s,
689 F.2d at 1143.
III.
DISCUSSION
As discussed above, the facts clearly necessitate this court to decline
the removal of this case from the Court of Common Pleas of Monroe County
in light of the plaintiff’s failure to comply with the 30 day requirement of 28
U.S.C. 1446(b). Four years have passed between the filing of the mortgage
foreclosure action by BOA in 2012 in Monroe County Court and the filing of
the notice of removal by plaintiff on December 1, 2016. (Doc. 1-2). As such,
the plaintiff has not even approached the removal requirement time limit and,
accordingly, this court will not remove the proceedings from the Monroe
County Court based on plaintiff’s defective removal.
Moreover, plaintiff seeks injunctive relief in the form of an order barring
the transfer of the deed to her Monroe County property to the Sheriff and
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barring her eviction from the property. As stated, the eviction action BOA
recently filed along with plaintiff’s counterclaim to quiet title are still pending
in the Monroe County Court.
The court finds that plaintiff has not shown a likelihood of success on
the merits since she had adequate state court remedies to challenge the
foreclosure judgment and the Writ of Execution issued on April 28, 2015 by
the Monroe County Court and the foreclosure sale of her property held on July
28, 2016. Plaintiff could have filed motions in state court to set aside the
Sheriff’s sale and to strike the August 27, 2016 deed conveying her property
to the Sheriff. She could have also appealed the foreclosure judgment
entered by the county court as well as the Writ of Execution entered on April
28, 2015 and the recent foreclosure sale of her property to the Pennsylvania
Superior Court. Further, if BOA prevails in its recent ejectment action it filed
against her on October 20, 2016 in her ongoing foreclosure action, plaintiff
can file for relief with the Superior Court to prevent her ejectment.
Since plaintiff has available state court remedies to challenge the
foreclosure sale of her property as well as her ejectment, by filing an appeal,
she fails to state a Fourth Amendment due process claim at this time.
Additionally, plaintiff has not shown immediate irreparable harm since
monetary damages would be adequate to compensate her if, for some
reason, the foreclosure sale was invalidated.
Thus, plaintiff’s motion for an emergency injunction, (Doc. 2), will be
DENIED.
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Additionally, the court finds it lacks subject matter jurisdiction over
plaintiff’s complaint that is filed pursuant to 28 U.S.C. §1331. The court can
raise sua sponte subject matter jurisdiction issues. See Nesbit v. Gears
Unlimited, Inc. 347 F.3d 72, 77 (3d Cir. 2003). Plaintiff’s claims clearly relate
to the foreclosure action BOA filed and the judgment entered against her by
the Monroe County Court. Essentially, she invites this court to conduct
appellate review of the Orders, Writs and Judgment issued against her in the
Monroe County Court of Common Pleas. This court, a federal district court,
does not have jurisdiction to review state court final actions under the RookerFeldman doctrine. The Rooker-Feldman doctrine “is a judicially-created
doctrine that bars lower federal courts from reviewing certain state court
actions.” Goodson v. Maggi, 797 F.Supp.2d 587, 597 (W.D.Pa.2011). The
doctrine arose in the wake of two Supreme Court Cases, Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983), and stands for the proposition that
a United States District Court has no subject matter jurisdiction to
review final judgments of a state court, because only the Supreme
Court has jurisdiction to review state court judgments under 28
U.S.C. §1257. Goodson, 797 F.Supp.2d at 597 (citing Feldman,
460 U.S. at 482). . . . “This doctrine applies even where the
challenges to the state court judgment allege that the state court’s
action was unconstitutional, such as a deprivation of due process
and equal protection rights.” Goodson, 797 F.Supp.2d at 597
(citing Feldman, 460 U.S. at 485-86 (citation omitted)).
Conklin v. Anthou, No. 1:10-CV-2501, 2012 WL 124989, at *2 (M.D. Pa. Jan.
17, 2012), aff'd, 495 F. Appx. 257 (3d Cir. 2012). There are four factors that
must be satisfied for the Rooker-Feldman doctrine to apply:
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(1)
(2)
(3)
(4)
the federal plaintiff lost in state court;
the plaintiff “complain[s] of injuries caused by [the]
state-court judgments”;
those judgments were rendered before the federal
suit was filed; and
the plaintiff is inviting the district court to review and
reject the state judgments.
Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d
Cir. 2010) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005)).
Here, the plaintiff complains about an adverse foreclosure judgment
from state court, as well as the Writ of Execution, the Sheriff’s sale of her
property, and the pending ejectment action recently filed by BOA to evict her
from the property. Next, the motion for an emergency injunction clearly
qualifies as a complaint about the potential “irreparable” injury that the state
court decisions and orders will cause. The Writ of Execution regarding the
foreclosure judgment BOA obtained against plaintiff was issued on April 28,
2015 by the Monroe County Court. All the requirements for the RookerFeldman doctrine are satisfied, and this court, therefore, does not have
subject-matter jurisdiction over the plaintiff’s claims. See Kawh v. PHH
Mortgage Corp., 2016 WL 7163086 (E.D.Pa. Feb. 2, 2016) (“[The court] may
not revisit the state court determinations underlying Plaintiff’s instant
Complaint nor may [it] interfere with Plaintiff’s pending state court
appeals.”)(citing Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192-93
(3d Cir. 2006) (“[I]f a plaintiff’s claim in federal court is inextricably intertwined
with a previous state court adjudication, the district court lacks jurisdiction
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over the claim even if it was not raised in the state court.”); Moncrief v. Chase
Manhattan Mortgage Corp., 275 Fed.Appx. 149, 153 (3d Cir. 2008) (“[T]o the
extent that [Plaintiff] seeks to ‘appeal from’ the state court’s foreclosure
judgment, the District Court correctly dismissed the claim under
Rooker-Feldman.”); Reiter v. Washington Mut. Bank, 2011 WL 2670949
(E.D.Pa. July 5, 2011), aff’d 455 Fed.Appx. 188 (3d Cir. 2011)(“The
Rooker–Feldman doctrine prevents the lower federal courts from exercising
jurisdiction over cases brought by ‘state-court losers’ challenging ‘state-court
judgments
rendered
before
the
district
court
proceedings
commenced.’”)(citations omitted).
Moreover, the Anti-Injunction Act, 28 U.S.C. §2283, also applies and
precludes the court from granting injunctive relief in this case. The AntiInjunction Act deprives federal district courts the ability to “grant an injunction
to stay proceedings in a State court.” §2283. There are three narrow
exceptions that allow a federal court to grant equitable relief, but the court
finds that all three are inapplicable to the present case. See Reiter, supra.
Because the court lacks jurisdiction to hear the plaintiff’s claims and
also lacks authority to grant the relief that the plaintiff requests, this case must
be dismissed.
Therefore, the plaintiff’s motion for an emergency injunction will be
denied and the complaint will be dismissed because the court lacks
jurisdiction and authority to provide relief. An appropriate order shall follow.
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III.
CONCLUSION
In light of the above, the plaintiff’s motion for an emergency injunction,
(Doc. 2), is DENIED. Plaintiff’s case is DISMISSED for lack of subject matter
jurisdiction. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: December 16, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2416-01.wpd
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