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Nadel v. Marino

United States District Court, D. Maryland, Southern Division

October 20, 2017

JEFFREY NADEL, et al., Plaintiffs,
v.
ELSIE MARINO, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         This is 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.

         I. BACKGROUND

         On June 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 l.[1] A 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.

         On 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.

         On 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).

         II. STANDARD OF REVIEW

         Congress 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)).

         III. DISCUSSION

         A. The Substitute Trustees' Motion to Remand Does Not Violate The FDCPA

         15 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).[2] 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.

         Although 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 ยง 1692c(c) persuasive and agrees that a filing ...


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