United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
a foreclosure action, which Defendants Elsie Marino and Luis
Javier Marino (the "Marinos") removed to this Court
on July 28, 2017. ECF No. 1. Presently pending before the
Court is Plaintiffs' Motion to Remand, ECF No. 12.
Defendants filed an Opposition brief, ECF No. 13, to which
Plaintiffs replied, ECF No. 14. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Plaintiffs' Motion to Remand is granted.
27, 2017, Plaintiffs Jeffrey Nadel, Scott Nadel, Daniel
Menchel, and Michael McKeown (collectively, "Substitute
Trustees") initiated a Foreclosure Proceeding in the
Circuit Court for Montgomery County, after the Marinos had
defaulted on their mortgage loan. ECF No. 12-2 at
month later, on July 28, 2017, the Marinos removed the
Foreclosure Proceeding to this Court. ECF No. 1. In their
Notice of Removal, the Marinos argue that the Court has
original jurisdiction over the Foreclosure Proceeding because
it is a "federally related action" under the Fair
Debt Collection Practices Act ("FDCPA"), and has
supplemental jurisdiction because the Marinos have filed a
separate federal suit against the Substitute Trustees and
these two cases "form part of the same case or
controversy." ECF No. 1 at 1-2.
August 22, 2017, the Substitute Trustees filed a Motion to
Remand to state court. ECF No. 12. In their Motion, the
Substitute Trustees assert that the Court does not have
federal question jurisdiction over the Foreclosure
Proceeding, as the proceeding is a Maryland state law
proceeding involving no question of federal law. See
ECF No. 12-2 at 4 (citing MacFadyen v. Smith, No.
WDQ-10-2802, 2011 U.S. Dist. LEXIS 47578 at *8-10 (D. Md. May
2, 2011) ("Neither the Foreclosure Order nor any
subsequent filing by the plaintiffs seeks relief that
requires the construction or application of federal law"
and "[t]his Court should refrain from interfering in a
state foreclosure proceeding")). Furthermore, the
Substitute Trustees argue that the Court does not have
supplemental jurisdiction under 28 U.S.C. § 1367(a), as
the Marinos are asking the Court to exercise supplemental
jurisdiction over the Foreclosure Proceeding on the basis of
a separately filed federal action. See ECF No. 12-2
at 5-6 (citing Fuese v. Broan-Nutone, LLC, No.
DKC-10-2174, 2010 U.S. Dist. LEXIS 89673, at *3-6 (D. Md.
Aug. 31, 2010) ("The supplemental-jurisdiction statute
is not a source of original subject-matter jurisdiction, and
a removal petition therefore may not base subject-matter
jurisdiction on the supplemental-jurisdiction statute, even
if the action which a defendant seeks to remove is related to
another action over which the federal district court already
has subject-matter jurisdiction ...."). The Substitute
Trustees further requests that the Court award their costs
and expenses incurred in responding to the Marinos'
Notice of Removal. ECF No. 12-2 at 6.
September 21, 2017, the Marinos filed an Opposition to the
Substitute Trustees' Motion to Remand. ECF No. 13. In
their Opposition, the Marinos do not dispute any of the
Substitute Trustees' substantive arguments regarding the
Court's lack of jurisdiction over the Foreclosure
Proceeding. Instead, the Marinos argue that by filing a
Motion to Remand, the Substitute Trustees had acted
"with unclean hands in bad faith, " as the Motion
was filed in violation of the FDCPA, specifically 15 U.S.C.
§ 1692c(b). ECF No. 13 at 2, 6. The Marinos assert that
the Substitute Trustees are debt collectors for purposes of
the FDCPA, and under § 1692c(b) may not communicate with
third parties '"without the prior consent of the
consumer." Mat 2. The Marinos allege that they did not
give the Substitute Trustees prior consent to communicate
with the Court, which the Marinos argue is a third party
under § 1692c(b).
STANDARD OF REVIEW
has provided that:
Except as otherwise expressly provided by Act of Congress,
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 district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C.A. § 1441 (West). "A defendant must file a
notice of removal within thirty days of receiving a copy of
the initial pleadings setting forth the claim for
relief." Tinoco v. Thesis Painting
Inc., No. GJH-16-752, 2016 WL 6495428, at *1 (D. Md.
Nov. 1, 2016) (citing 28 U.S.C. § 1446(b)(1)). "As
the removing party, Defendant 'bears the burden of
establishing the right to removal, including compliance with
the requirements of 28 U.S.C. § 1446(b).'"
Tinoco, 2016 WL 6495428, at *1 (quoting
Kluksdahl v. Muro Pharm., Inc., 886 F.Supp. 535, 537
(E.D. Va. 1995)). Once removed, the plaintiff may seek to
remand the case to state court if the defendant "did not
take the right steps when removing ...." Ellenburg
v. Spartan Motors Chassis, Inc., 519 F.3d 192,
199 (4th Cir. 2008) (quoting Matter of Continental Cas.
Co., 29 F.3d 292, 294 (7th Cir. 1994)). "On a
motion to remand, the court must 'strictly construe the
removal statute and resolve all doubts in favor of remanding
the case to state court, ' indicative of the reluctance
of federal courts 'to interfere with matters properly
before a state court.'" Rizwan v. Lender Servs.
Inc., 176 F.Supp.3d 513, 515 (D. Md. 2016) (quoting
Barbour v. Int'l. Union, 640 F.3d 599, 615 (4th
Cir.2011) (en banc), abrogated by statute on other
grounds by 28 U.S.C. § 1446(b)(2)(B)).
The Substitute Trustees' Motion to Remand Does Not
Violate The FDCPA
U.S.C. § 1692c(b) of the FDCPA dictates that unless a
consumer consents, a court provides permission or it is
"reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in
connection with the collection of any debt, with any person
other than the consumer, his attorney, a consumer reporting
agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt
collector." 15 U.S.C. § 1692c(b). Defendant
contends that by filing a Motion to Remand, Plaintiffs and
their attorney have communicated with an unauthorized person,
the Court, in violation of § 1692c(b) and that the
Motion should therefore be denied. ECF No. 13 at 2.
some courts initially interpreted this section of the FDCPA
as not applying to attorneys who were engaged in the practice
of law, the Supreme Court in Heintz v. Jenkins found
that the FDCPA "applies to attorneys who
'regularly' engage in consumer-debt-collection
activity, even when that activity consists of
litigation." 514 U.S. 291, 299 (1995). See also
Elyazidi v. SunTrust Bank,780 F.3d 227, 234 (4th Cir.
2015) ("There is no denying that, as a general matter,
litigation activity is subject to the FDCPA." (internal
quotations omitted)). The Court did recognize, however, the
potential anomalies that could result from that
interpretation. Considering, as an example, the provision of
§ 1692c(c) forbidding communication with a consumer
under specific circumstances, the Court specifically noted
the possibility of individuals challenging an attorney's
right to "file a lawsuit against (and thereby
communicate with) a nonconsenting consumer or file a motion
for summary judgment against that consumer."
Heintz, 514 U.S. at 296. But the Court found that
such results are avoided by reading an exception to §
1692c(c) that permits communications regarding an intent to
invoke a specific remedy as excepting ordinary litigation
from the FDCPA. Id. In so finding, the Supreme Court
noted that "it would be odd if the Act empowered a
debt-owing consumer to stop the 'communications'
inherent in an ordinary lawsuit and thereby cause an ordinary
debt-collecting lawsuit to grind to a halt." Id. See
also Jerman v. Carlisle, McNellie. Rini, Kramer & Ulrich
LPA,559 U.S. 573, 600 (2010) (noting that the FDCPA
"should not be assumed to compel absurd results when
applied to debt collecting attorneys"). Although dicta,
this Court finds the Supreme Court's suggested
interpretation of § 1692c(c) persuasive and agrees that
a filing ...