Nationstar Mortgage LLC, et al v. Daraja, et al
MEMORANDUM ORDER granting 10 Motion to Remand to State Court, and REMANDS this case to the Circuit Court for the City of Hampton, Virginia. Signed by District Judge Mark S. Davis and filed on 2/9/18. (tbro)
EASTERN DISTRICT OF VIRGINIA
Newport News Division
NATIONSTAR MORTGAGE LLC,
SAMUEL I .
SECRETARY OF HOUSING AND URBAN
Civil Action No: 4:17cvl22
KHAFRI DAUDA MUSTAFA ADUBIFA
DARAJA, a/k/a MAURICE O. TURNER, JR.,
TRUSTEE OF T&F HOLDINGS LAND TRUST;
DURWIN EUGENE TURNER, a/k/a EUGENE
TURNER, a/k/a AHMAD EUGENE TURNER,
TRUSTEE OF T&F HOLDINGS LAND TRUST;
DURWIN EUGENE TURNER, a/k/a EUGENE
TURNER, a/k/a EUGENE DURWIN TURNER,
a/k/a AHMAD EUGENE TURNER, INDIVIDUALLY;
T&F HOLDING LAND TRUST;
CAPITAL ONE BANK
MIDLAND FUNDING LLC,
Mustafa Adubifa Daraja's
Circuit Court for the City of Hampton, Virginia, ECF No. 1, and a
motion to remand filed by Nationstar Mortgage LLC, Samuel I. White,
P.C., Trustee, Secretary of Housing and Urban Development C'HUD")/
"Plaintiffs") , ECF No. 10.
Daraja removed on the basis of diversity
jurisdiction, pursuant to 28 U.S.C.
federal question jurisdiction, pursuant to 28 U.S.C.
Notice Removal 1-2, ECF No. 7.
Turner, Capital One Bank (USA), N.A.
§§ 1331 and
Defendants Durwin Eugene
("Capital One")/ T&F Holding
Land Trust, and Midland Fund LLC (''Midland") have not joined in the
Id. at 2-3 .
Plaintiffs seek remand on the ground that the
i s defective because a l l
Defendants other than
Daraja have not properly joined in or consented to the removal.
Pl.'s Mem. Supp. Remand 1, ECF No. 11.
Plaintiffs also assert that
the notice of removal does not include proper allegations regarding
diversity jurisdiction, and that a federal question does not exist
simply because HUD is a party to the suit.
I. FACTUAL AND PROCEDURAL HISTORY^
In September 2006, the T&F Holdings Land Trust ("T&F") acquired
real property (''the Property" ) located in Hampton, Virginia.
4, ECF No. 1-2. Daraja and Durwin Eugene Turner were then trustees
of T&F, and have remained so until the present.
Id. at 2-3.
months after acquiring the Property, T&F conveyed the Property by
deed of gift to the mother of Defendants Daraja and Durwin Euguene
Turner, Ida Mae Turner, "for and during her natural life."
^ The facts recited here are stated in the light most favorable to Plaintiff,
the party seeking remand.
See Venezuela v. Massimo Zanetti Beverage USA,
Inc. , 525 F. Supp. 2d 781, 783 n.l (E.D. Va. 2007) (citing Booth v. Furlough,
Inc. , 995 F. Supp. 629, 630 (E.D. Va. 1998); Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994))
("On a motion to remand, because the
burden to prove jurisdiction rests on the party opposing remand, the facts
are stated in the light most favorable to the party seeking remand.").
Ida Mae Turner thereafter lived at the Property as her principal
In December 2007, Ida Mae Turner applied for a reverse mortgage
loan in which she inaccurately stated that she owned the Property
in fee simple.
Later that month, the reverse mortgage loan was
approved for $318, 000, and Ida Mae Turner executed two deeds of trust
conveying her interest in the Property to trustees for HUD and Gateway
Funding Diversified Mortgage Services, LP.^
Id. at 5-7.
Turner directed that the loan proceeds be deposited into an account
owned by T&F. Id. at 9.
In May 2011,
Capital One docketed a judgment against Ida Mae
Turner in the principal amount of $3,907.41.
In February 2012,
Midland docketed a judgment against Ida Mae Turner in the principal
amount of $3,824.05.
In February 2017, Daraja prepared a quitclaim deed by which Ida
Mae Turner granted her interest in the Property to Ahmad Eugene
On March 18,
Ida Mae Turner died.
Eleven days later, the quitclaim deed was recorded.
numerous types of equitable and other relief related to the reverse
Id. at 1, 11-18.
In particular. Plaintiffs assert the
^ Gateway later assigned its interest in the deed of trust to Bank of America, who
then assigned its interest in the deed of trust to Nationstar in 2012.
(1) that the deed of gift and the deeds of trust should
be reformed to reflect that the Property was conveyed in fee simple
to Ida Mae Turner, id. at 11-13; (2) that the court should quiet title
to the Property to reflect that Eugene Turner has no interest in it,
and that the reverse mortgage deeds of trust are valid and enforceable
liens against the Property, id. at 14; (3) in the alternative, that
Daraja and/or Eugene Turner be ordered to disgorge any and all amounts
of the loan proceeds by which they were unjustly enriched, id.;
in the alternative,
against the Property in the amount of $318,000, id. at 15; and (5)
that the court impose equitable relief to "treat as done what in good
conscience ought to have been done",
On October 16,
id. at 16.
Daraja removed the
federal court. Notice Removal 1, ECF No.
[a] 11 other Defendant (s)
instant action to
The notice of removal
who have been served with
summons and petition have joined or will join shortly in this removal,
Defendant(s) to be filed hereafter and attached hereto."
Id. at 2.
Defendants Durwin Eugene Turner, Capital One, T&F, and Midland have
not joined in the removal at any time since its filing in October
Id. at 2-3; see also Def.'s Opp'n Remand Br. 2, ECF No. 13
(''[A]t the time of the Notice of Removal,
this Defendant was under
the belief that the defendant Ahmad Eugene Turner would be joining
in the motion for removal, but he has not done so, nor as a result
In all of his filings, Daraja does not address
why removal is proper without the consent of T&F, Capital One, and
As mentioned above, Daraja asserts that there is diversity
and federal question jurisdiction, and has removed under 28 U.S.C.
Notice Removal 1-2,
On October 16, 2017, Plaintiffs filed their motion to remand.
ECF No, 10.
Their primary contention is that the notice of removal
is defective pursuant to 28 U.S.C.
Defendants have not consented to the removal.
Remand 1, ECF No. 11.
in that all
They also assert that, even if the unanimity
requirement did not render removal defective,
there is a lack of
complete diversity and a lack of federal question jurisdiction. Id.
On October 30, 2017, Daraja filed his response to the motion
Def.'s Opp'n Remand Br., ECF No. 13.
On November 6,
2017, Plaintiffs filed their reply brief. Pl.'s Reply Br., ECF No.
With the motion to remand fully briefed, this matter is ripe
STANDARD OF REVIEW
Federal district courts are courts of limited subject matter
United States ex rel. Vuyyuru v. Jadhav, 555 F. 3d 337,
347 (4th Cir. 2009)
(citing Exxon Mobile Corp. v. Allapattah Servs. ,
They may exercise
jurisdiction authorized them by the United States Constitution and
by federal statute."
(citing Bowles v. Russell, 551 U.S. 205
District courts have diversity jurisdiction in civil
actions between "citizens of different states" and "where the matter
in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs."
case based on
diversity jurisdiction is not initially filed in federal court, a
court may exercise jurisdiction over the case upon proper removal
to federal court.
§§ 1441, 1446.
District courts have
federal question jurisdiction in "all civil actions arising under
the Constitution, laws, or treaties of the United States."
Removal implicates significant federalism concerns and,
Bankshares, Inc., 925 F. Supp. 2d 800, 803
(E.D. Va. 2013)
Venezuela v. Massimo Zanetti Beverage USA, Inc. , 525 F. Supp. 2d 781,
Section 1441 of Title 28, United States Code, provides that "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 or the defendants to the d i s t r i c t court of the United
States for the district and division embracing the place where such
action is pending."
1446 (b) (2) (A) provides that " [w] hen a civil action is removed solely
under section 1441(a) , all defendants who have been properly joined
and served must join in or consent to the removal of the action."
The Supreme Court has construed these statutes ''to require all
defendants in a case to join in or consent to removal^ creating the
Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013) (citing
Mayo V. Bd. of Educ. of Prince George's Cnty.^ 713 F.3d 735, 741 (4th
(citing Lapides v. Bd. of Regents of Univ. Sys. of Ga.,
535 U.S. 613, 620
(2002))); see also Charles Alan Wright & Arthur
R. Miller, 14C Federal Practice and Procedure § 3730 (4^^
and Supp. 2017)
("In cases removed pursuant to Sections 1441(a) and
(b) of Title 28 and in other removals as to which Congress has not
otherwise provided, all of the defendants in the state court action
must consent to the removal, and the notice of removal must be signed
by all of the defendants, although other forms of manifested consent
may be acceptable to the federal court,
of the federal
. . . courts at all levels
judiciary require written consent by all of the
defendants, either in the notice of removal or in other papers filed
with the district court."). The Fourth Circuit has stated that "the
rule of unanimity is consistent with our obligation 'to construe
removal jurisdiction strictly because of the significant federalism
F.3d at 741
Maryland Stadium Auth. v. Ellerbe Becket Inc. ^ 407 F.3d 255, 260 (4th
"The rule of unanimity helps to effectuate Congress's
intent in limiting removal to prevent it from being used too broadly
Plaintiffs argue that the case must be remanded because Daraja
failed to secure the consent of a l l Defendants to removal.
Mem. Supp. Remand 1, ECF No. 11. It is undisputed that Daraja failed
to secure the consent to removal of Defendants Capital One, T&F, and
Midland at the time of the filing of the notice of removal, Notice
Removal 2-3, ECF No. 7, and no papers have been subsequently submitted
to the Court by these Defendants consenting to such removal.
Daraja appears to believe that he only requires the consent of his
brother, Ahmad Eugene Turner, for removal to be proper, by his own
admission he has failed to at any time secure even that Defendant's
Def.'s Opp'n Remand Br. 2, ECF No. 13 (''[A]t the time of
the Notice of Removal, this Defendant was under the belief that the
defendant Ahmad Eugene Turner would be joining in the motion for
removal, but he has not done so, nor as a result of a disagreement,
has he communicated with this Defendant. " ) .
Thus, because Defendant
seeks to remove on the basis of diversity and federal question
jurisdiction, which are both removable under 28 U.S.C. 1441(a), and
because 28 U.S.C. § 1446(b)(2)(A) requires Defendant to secure the
consent of all Defendants prior to removal, removal will be defective
unless Defendant can demonstrate that an exception to the "rule of
One possible exception to the ^^rule of unanimity" occurs where
an attorney signs the notice of removal and represents in the notice
that all other defendants have consented to the removal.
713 F.3d at 742.
Here, Daraja was at one time a licensed attorney
in Virginia, but he forfeited his license as of March 1, 2017.
License Forfeitures, Virginia State Bar, https://www.vsb.org/site/
(last visited Feb.
therefore not licensed a t the time he filed the notice of removal
pro se in September 2017.
represent in the notice of removal that he had already obtained the
consent of all the Defendants, stating merely that all Defendants
joined or will
(emphasis added) .
join shortly in this removal."
Therefore, both because Daraja was not a licensed
attorney when he filed the notice of removal and because he did not
that he had already obtained the consent of all
Defendants to removal,
this exception does not apply.
As the party opposing remand, Daraja bears the burden of proving
Kokkonen, 511 U.S. at 377.
He has failed to assert
that any other possible exception to the ''rule of unanimity" applies
to his notice of removal.
Therefore, for the reasons stated above,
the Court GRANTS Plaintiff's motion to remand, and REMANDS this case
to the Circuit Court for the City of Hampton, Virginia.
ECF No. 10.
The Clerk is REQUESTED to send a copy of this Order to all counsel
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