Cummings v. Bank of America NA et al

Filing 22

MEMORANDUM DECISION denying 5 Motion to Remove; granting 7 Plaintiff Federal National Mortgage Association's Motion to Remand; denying 19 Motion to Strike. Signed by Judge Ted Stewart on 12/12/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MICHAEL R. CUMMINGS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON MOTIONS

vs.

BANK OF AMERICA, N.A.,
RECONTRUST CO., N.A.; BAC HOME
LOANS SERVICING, L.P.;
COUNTRYWIDE HOME LOANS, INC.;
AMERICA’S WHOLESALE LENDER
STUART T. MATHESON; UTAH
FUNDING,

Case No. 2:11-CV-272 TS

Defendants.

This matter is before the Court on Plaintiff Federal National Mortgage Association’s
(“FNAM”) Motion to Remand. Also before the Court are Defendant Michael R. Cummings’s
Motion to Strike and Motion to Remove.
I. BACKGROUND
FNAM filed an action in state court to have Defendant Cummings evicted from property
it had acquired by means of a trustee sale. Cummings removed the action to this Court and
sought to join it with another action in which he was pursuing federal claims against FNAM and
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others in connection with the foreclosure of his home. The Court will remand the eviction action
against Cummings to state court. Cummings’s Complaint1 against FNAM and other defendants
will remain before the Court.
II. DISCUSSION
A.

MOTION TO REMAND
Cummings asserts that removal is proper because the Court has both diversity and

federal question jurisdiction, while Defendant contends that neither basis for jurisdiction is
satisfied. The Court agrees with FNAM. In LSF6 Mercury Reo Investments Trust Series 2008-1
v. Ellertson,2 this Court squarely addressed the issues raised by Plaintiff here as to diversity and
federal question jurisdiction. The Court will thus rely on the reasoning of Ellertson to grant
FNAM’s motion to remand.
Moreover, even if Cummings’s removal notice is construed as a motion to consolidate the
state action with Defendant’s federal suit under Fed.R.Civ.P. 42, the Motion must be denied.
This rule allows the Court to join actions before it if they involve a “common question of law or
fact.” As a preliminary requirement, the similar actions must be properly before the court. Here,
the state action is not properly before the Court and thus cannot be consolidated with Cummings’
federal suit.3
1

Docket No. 1.

2

2010 WL 5536349, at *3 (D. Utah Dec. 14, 2010), reasoning adopted by 2011 WL
43243 (D. Utah Jan. 5, 2011).
3

See Desai v. Panguitch Main St., Inc., 2009 WL 54291, at *1 (D. Utah Jan. 8, 2009)
(citing Xinagyuan Zhu v. Countrywide Realty Co., 160 F. Supp. 2d 1210, 1227 (D. Kan. 2001)).
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B.

MOTION TO STRIKE
Cummings has filed what purports to be a motion to strike, which contains his arguments

against remand. In light of the discussion above, the Court will deny the motion to strike.
C.

MOTION TO REMOVE
What Plaintiff has called a “Petition (Motion) to Remove and Joinder Civil Case . . . to

Federal Court Case” is still pending before the Court. Removal is a process that is undertaken at
a defendant’s option. The defendant is required to (1) file notice with the district court to which
removal is sought; (2) give written notice to all adverse parties; and (3) file a copy of the notice
of removal with the clerk of the state court from which the action is to be removed.4 Completion
of the third step “shall effect the removal.”5 Defendant was not required to file a motion to
remove with this Court and the Court has no jurisdiction over such a motion. Accordingly, the
Court will deny the Motion for lack of jurisdiction.
III. CONCLUSION
In light of the foregoing, that part of this matter relating to the eviction action against
Cummings is remanded to the Third District Court. Cummings’s complaint against FNMA and
others remains before the Court. In is therefore
ORDERED that Plaintiff Federal National Mortgage Association’s Motion to Remand
(Docket No. 7) is GRANTED. It is further

4

28 U.S.C. § 1446(a), (d).

5

Id. § 1446(d).
3

ORDERED that Defendant Cummings’s Motion to Strike (Docket No. 19) is DENIED.
It is further
ORDERED that Defendant Cummings’s Petition (Motion) to Remove (Docket No. 5) is
DENIED for lack of jurisdiction. The Clerk of the Court is directed to remand the eviction
action to the Third District Court, Summit County, Utah.
DATED December 12, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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