Countrywide Home Loan Services LP v. Dietrich et al

Filing 12

ORDER signed by Judge Rudolph T Randa on 10/26/2009 denying as moot 2 Motion for Leave to Proceed in forma pauperis; granting 11 Motion to Remand to State Court. A certified copy of this Order SHALL be sent to the Clerk of the Milwaukee County Circuit Court. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

C O U N T R Y W I D E HOME LOANS S E R V I C I N G , L.P., P l a i n t i f f, v. C O L L E E N DIETRICH, UNKNOWN SPOUSE OF C O L L E E N DIETRICH, and MORTGAGE ELECTRONIC R E G I S T R A T I O N SYSTEMS, INC., a s nominee for Countrywide Bank, N.A., Defendants. C a s e No. 09-C-835

DECISION AND ORDER

O n August 31, 2009, Defendant Colleen Dietrich ("Dietrich") removed this f o re c lo su re action from Milwaukee County Circuit Court and filed a motion for leave to p ro c e ed in forma pauperis. A fully briefed motion for summary judgment filed by Plaintiff C o u n t ryw id e Home Loans Servicing, L.P. ("Countrywide") in the state court action was also f iled with the Court.1 O n September 15, 2009, Countrywide filed a motion to remand the action to s t a te court, asserting that the notice of removal is defective because it failed to include or e x p la in why it does not include all defendants and because it was filed more than 30 days after
Countywide's amended motion to strike answer is also noted on the Court's docket. However, the motion w a s not filed.
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D ie tric h ascertained that the action might be removable to federal court as required by 28 U .S .C . § 1446(b). The time for filing a response to the motion has passed, see Civil Local R u le 7.1(b), and Dietrich has not responded to the motion. Section 1446(b) of Title 28 of the United States Code, states, in pertinent part: [ t]h e notice of removal of a civil action or proceeding shall be f ile d within thirty days after the receipt by the defendant, through se rv ice or otherwise, of a copy of the initial pleading setting forth th e claim for relief upon which such action or proceeding is b a se d , or within thirty days after the service of summons upon the d e f en d a n t if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is s h o r te r . If the case stated by the initial pleading is not removable, a notice o f removal may be filed within thirty days after receipt by the d e f en d a n t, through service or otherwise, of a copy of an amended p le a d in g , motion, order or other paper from which it may first be a s c e rta in e d that the case is one which is or has become re m o v a b le . S ta te court defendants may remove an action to federal court if the federal court would have h a d original jurisdiction. 28 U.S.C. § 1441(a). Federal removal jurisdiction is statutory in n a tu re and is to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 1 0 8 (1941); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). All doubt is re so lv e d in favor of the states. Allied-Signal, Inc., 985 F.2d at 911. Removal is proper if it is based on permissible statutory grounds and if it is timely. See Boyd v. Phoenix Funding C o r p ., 366 F.3d 524, 529 (7th Cir. 2004). As the party seeking to invoke federal jurisdiction, D ie tric h bears the burden of demonstrating that removal is proper. Id.

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The notice of removal states that "an amended pleading was first received by the d e f en d a n t on August 24, 2009, and from this the defendant was first able to ascertain that the c a se has become removable because of issues under the federal laws RESPA (the Real Estate S e ttle m e n t Procedures Act, 12 U.S.C. §§ 2601 et seq.,) and TILA (the Truth in Lending Act, 1 5 U.S.C. §§ 1601 et seq.)." (Notice of Removal ¶ 1.) By its motion, Countrywide counters th a t the record shows that Dietrich knew that the case might be removable on July 1, 2009, and p ro b a b ly knew that it might be removable on March 4, 2009. Countrywide relies upon D ie tric h 's answer and affirmative defense filed on July 1, 2009, that cite RESPA and the T IL A , and a letter dated March 4, 2009, filed by Dietrich stating that the loan was predatory. C o u n tryw id e has called into question the timeliness of the notice of removal indicating it was n o t filed within 30 days of Dietrich's knowledge that RESPA and the TILA were involved. Based on the record and the absence of any response by Dietrich, the Court concludes that D ie tric h has failed to meet her burden of establishing that her notice of removal was timely. Countrywide has also called into question Dietrich's compliance with the general ru le , all defendants must join in a removal petition in order to effect removal. See Chi., Rock Is la n d , & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900). Countywide specifically asserts th a t Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") has not joined in th e notice of removal. A notice of removal is facially defective if it is not joined by all served d e f e n d a n ts , or if it fails to explain why all defendants have not consented to removal. Shaw v . Dow Brands, Inc., 994 F.2d 364, 368 (7th Cir. 1993) (overruled on other grounds by

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M e rid ia n Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540, 542 (7th Cir. 2006)); Gossmeyer v. M c D o n a ld , 128 F.3d 481, 489 (7th Cir. 1997). The notice of removal states that "there are no defendants in the action except D ie tric h ." (Notice of Removal ¶ 2.) However, two other defendants are named in the action a n d Dietrich has not explained why they have not joined in the petition of removal. Thus, C o u n tryw id e has properly challenged Dietrich's compliance with the requirement that all d e f e n d a n t s join in a petition for removal. Based on the record and the absence of any response b y Dietrich, the Court concludes that Dietrich has failed to meet her burden of establishing that s h e has complied with the requirement that all defendants join in the notice of removal. See S h a w , 994 F.2d at 368. In light of the foregoing, Countrywide's motion for remand is granted. F u r th e rm o re , Dietrich's motion for leave to proceed in forma pauperis is denied as moot. N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Countrywide's motion for remand is GRANTED. Dietrich's motion for leave to proceed in forma pauperis is DENIED as moot. A certified copy of this Order SHALL be sent to the Clerk of the Milwaukee C o u n ty Circuit Court. D a te d at Milwaukee, Wisconsin this 26th day of October, 2009. BY THE COURT

s / Rudolph T. Randa Hon. Rudolph T. Randa U .S . District Judge 4