Wells Fargo Bank N A v. Hunt et al
ORDER RULING ON REPORT AND RECOMMENDATION Accepting 7 Report and Recommendation, mooting 20 Motion to Strike filed by Wells Fargo Bank N A, mooting 13 Motion to Dismiss, filed by Eddie D Hunt, Teresa Hunt. Signed by Honorable Mary G Lewis on 11/22/13. (alew, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Wells Fargo Bank, N.A., successor to
Wachovia Bank, N.A., fka First Union
Eddie D. Hunt, et al.,
Civil Action No. 6:13-1333-MGL-KFM
Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) filed a mortgage foreclosure action against
mortgagors Eddie D. Hunt and Teresa Hunt (“the Hunt Defendants”) as well as subordinate lien
or junior interest claimants, Defendant United States of America and Defendant M.C.M.
Associates, in the Court of Common Pleas for Greenville County, South Carolina, on December,
10, 2012. (Doc. # 1-1). The Hunt Defendants were served by publication on January 17,
January 24, and January 31, 2013. (Doc. # 17-1). On May 16, 2013, the Hunt Defendants
removed the action to this Court on the asserted basis of federal question jurisdiction. (Doc. # 1).
The matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) filed by United States Magistrate Judge Kevin F. McDonald, to whom this case
had previously been assigned. In the Report, the Magistrate Judge recommends that the case be
remanded to the Court of Common Pleas for Greenville County.
(Doc. # 7).
Defendants filed an Objection to the Report, (Doc. # 11), to which the Plaintiff replied. (Doc. #
In conducting its review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections...The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the Report and Recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the
Report thus depends on whether or not objections have been filed, in either case,
the Court is free, after review, to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the Hunt Defendants’ Objection. Having reviewed the Report as well as the Objection
thereto, the Court ACCEPTS the Report. (Doc. # 7). The Hunt Defendants have not established
that either their asserted affirmative defense of federal preemption or their federal counterclaim,
contemplated in their Notice of Removal and pled following the issuance of the Report, provide
an adequate basis for removal under 28 U.S.C. § 1331.
Nor have the Hunt Defendants
adequately demonstrated compliance with the procedural requirements of the removal statute,
which requires both removal within thirty (30) days of service of the complaint and the consent
of all properly served defendants in the state court action. 28 U.S.C. § 1446(b)(2).
The matter is hereby remanded to the Court of Common Pleas, Greenville County, South
Carolina, and the Clerk of this Court is directed to mail a certified copy of the Order of Remand
to the Clerk of the Court of Common Pleas for Greenville County. This remand is without
prejudice to the right of the United States of America to remove this case pursuant to 28 U.S.C. §
1444 or § 2410. All pending motions in this case, (Docs. # 13 and # 20), are terminated as
IT IS SO ORDERED.
s/Mary G. Lewis____
United States District Judge
November 22, 2013
Spartanburg, South Carolina
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