Bank of New York Mellon v. Glavin, John et al

Filing 9

ORDER granting Plaintiff The Bank of New York Mellon's 4 Motion to Remand to State Court. The clerk of court is directed to transmit the record to the Circuit Court for Juneau County, Wisconsin. Plaintiff's motion for an award of act ual expenses, including attorney fees, is GRANTED. Plaintiff may have until September 14, 2016 in which to file an itemized statement of the actual expenses it has incurred, including attorney fees, in opposing defendants' May 26, 2016 removal of this case to federal court. Defendants may have until September 28, 2016, in which to file their opposition to the amount of fees sought. Plaintiff may have until October 5, 2016 in which to file a reply. Plaintiff's motion for an ord er barring defendants John and Gabrielle Glavin from filing another motion to remove this case from the Circuit Court for Juneau County is DENIED for plaintiff's failure to cite any legal support for such an order. Signed by District Judge Barbara B. Crabb on 9/7/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE BANK OF NEW YORK MELLON
formerly known as the Bank of New York
on behalf of CIT Mortgage Loan Trust
2007-1,
OPINION AND ORDER
Plaintiff,
16-cv-349-bbc
v.
JOHN A. GLAVIN; GABRIELLE
GLAVIN; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AS
NOMINEE FOR ACCREDITED HOME
LENDERS, INC.; UNIFUND CCR
PARTNERS; CITIBANK (SOUTH
DAKOTA) N.A.; UNITED STATES
OF AMERICA; WISCONSIN RIVER
CO-OP SERVICES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For almost seven years, plaintiff The Bank of New York Mellon has been pursuing an
action in the Circuit Court for Juneau County, Wisconsin, to foreclose on a mortgage executed
by defendants John A. Glavin and Gabrielle Glavin in February 2006. To prevent that from
happening, the Glavins have filed a number of actions in this court and in the United States
Bankruptcy Court for this district. (Since the Glavins are the only defendants that play a role
in this opinion and order, I will refer to them simply as “defendants” from now on.)
The matter is now before this court on plaintiff’s motion for remand of the case to the
state court, for an order prohibiting defendants from removing the case for a period of 180 days

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and for an award of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal. Because this is the third time that defendants have removed the case to
this court without justification, I will grant plaintiff’s motion for an award of costs and actual
expenses. However, plaintiff has cited no authority to support its motion to bar defendants from
removing the case for 180 days, this motion will be denied.

RECORD FACTS
Plaintiff The Bank of New York Mellon filed a mortgage foreclosure action in the Circuit
Court for Juneau County, Wisconsin, on September 4, 2009. Dkt. #1. Wisconsin Consolidated
Court Automation Programs, http://wcca.wicourts.gov. (All references to docket numbers for
filings in the state circuit court are to filings for cases initiated by defendant John Galvin in the
Circuit Court for Juneau County; all can be accessed on the Wisconsin Consolidated Court
Automation Programs website.). Plaintiff alleged that it was the owner and holder of a note and
mortgage executed by defendants John and Gabrielle Glavin and that the mortgagors had failed
to make any monthly payments on the mortgage covering the property located at West 6222
Highway A, New Lisbon, Wisconsin. Plaintiff sought foreclosure and sale of the premises.
Two months after the filing, defendant John Glavin filed for Chapter 13 bankruptcy
protection in the Bankruptcy Court for the Western District of Wisconsin, bankruptcy case no.
10-bk-15431. This was the first of five filings for bankruptcy initiated by defendants between
November 2009 and July 27, 2016. All were dismissed for defendants’ failure to comply with
the bankruptcy court’s requirements for obtaining relief.
In addition to defendants’ bankruptcy court filings, defendant John Glavin has twice filed

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a Notice of Removal from the Circuit Court for Juneau County to this court: once on December
3, 2010 (district court case #10-cv-765) and again on December 18, 2014 (district court case
#14-883). In both instances, the cases were remanded by this court to the Circuit Court for
Juneau County, see dkt. #18, district court case 10-cv-765; dkt. #11, district court case 14-cv883, on the ground that the removals were not filed within 30 days of the pleading that provided
the basis for removal and were therefore untimely.
On May 7, 2013, the sheriff conducted a sale of the subject of the foreclosure action.
The sheriff’s sale was confirmed by the Circuit Court for Juneau County on December 16, 2013
and a writ of assistance issued on January 17, 2014.
On April 11, 2014, defendant John Glavin moved in the Circuit Court for Juneau County
for relief from judgment, for an order vacating or setting aside the foreclosure order and for an
order granting an immediate stay of writ of assistance. Dkt. #89. On October 23, 2014, the
circuit court judge directed plaintiff to file a new notice for confirmation of the sheriff’s sale. dkt.
#105, which plaintiff did on December 1, 2014.

Dkt. #108.

On December 5, 2014,

defendants filed a notice of appeal with the Wisconsin Court of Appeals, through counsel.
Wisconsin Consolidated Court Automation Programs, http://wscca.wiscourts.gov. The court of
appeals dismissed the appeal for lack of jurisdiction on April 29, 2015.
On December 15, 2014, defendants asked the Circuit Court for Juneau County to stay
the confirmation of sale. Dkt. #109. On December 17, 2014, defendant John Glavin filed a
pro se motion to strike and oppose plaintiff’s motion for confirmation of the sheriff’s sale. Dkt.
#113. Plaintiff filed its opposition to any stay of the foreclosure pending appeal. Dkt. #116.
On December 18, 2014, defendants filed their second notice of removal of the foreclosure action

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to this court. Dkt. #1, district court case no. 14-cv-883-bbc. Plaintiff’s motion to remand the
matter to the Circuit Court for Juneau County was granted on March 11, 2015. Dkt. #11, 14cv-883-bbc.
On May 23, 2016, plaintiff filed a motion to clarify the record by voiding the existing
sheriff’s deed, so as to clarify the specific legal description of the property and seeking
confirmation of sale. Dkt. ##195, 196. On May 26, 2016, defendants filed a notice of removal
in this court for the third time, contending that the action had recently become removable.
They did not cite any new filing or court action in the Juneau County court to support their
claim that the action had become removable. The circuit court’s docket sheet shows that during
the 30 days before the removal, only three matters were docketed: plaintiff’s counsel’s motion
to void the sheriff’s deed and to amend the judgment and documents to their original dates and
application for sheriff’s sale, the mailing of the notice of that motion to all parties and a request
from a lawyer to appear by telephone on May 27, 2016. Dkt. ##194-98.

OPINION
In their third attempt to remove the foreclosure action to this court, filed on May 26,
2016, defendants contend that the removal is justified because they discovered within the 30
days preceding removal that the case was one that was removable. Jurisdictional Mem. in Supp.
of Removal, dkt. #2, district court case 16-cv-349, at 1 (citing 28 U.S.C. § 1446(b)(3)). Section
1446(b)(3) provides that a party may file a notice of removal within 30 days after receipt by the
defendant “of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.”

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However,

defendants have not identified anything in any paper filed within 30 days of May 26, 2016 that
would have given them cause to think the case was removable. As I told defendants in the
March 11, 2013 order denying their second attempt at removal and granting plaintiff’s motion
to remand the case to the Circuit Court for Juneau County, defendants have the burden to prove
that removal is proper. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
Their failure to make the necessary showing means that the case must be remanded yet again.
Plaintiff has asked for an award of fees and costs under 28 U.S.C. § 1447, if remand is
granted. Section 1447 provides that “[a]n order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
Plaintiff contends that it is entitled to an award of the actual expenses it has incurred as a result
of the most recent removal. The request is justified in light of defendants’ failure to show that
its recent attempt to remove the case was legally permissible under 28 U.S.C. § 1441.

ORDER
IT IS ORDERED that
1. Plaintiff The Bank of New York Mellon’s motion to remand this case to the Circuit
Court for Juneau County, Wisconsin, is GRANTED. The clerk of court is directed to transmit
the record to the Circuit Court for Juneau County, Wisconsin.
2. Plaintiff’s motion for an award of actual expenses, including attorney fees, is
GRANTED. Plaintiff may have until September 14, 2016 in which to file an itemized
statement of the actual expenses it has incurred, including attorney fees, in opposing defendants’
May 26, 2016 removal of this case to federal court. Defendants may have until September 28,

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2016, in which to file their opposition to the amount of fees sought. Plaintiff may have until
October 5, 2016 in which to file a reply.
3. Plaintiff’s motion for an order barring defendants John and Gabrielle Glavin from filing
another motion to remove this case from the Circuit Court for Juneau County is DENIED for
plaintiff’s failure to cite any legal support for such an order.
Entered this 7th day of September, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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