United States District Court, D. Maryland, Southern Division
KEITH M. YACKO, et al., Plaintiffs,
TIFFANY L. NOELS, et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
Keith M. Yacko, Robert E. Frazier, Thomas J. Gartner, Laura
D. Harris, Robert M. Oliveri, Thomas W. Hodge, and Gene Jung
(collectively, “Plaintiffs” or “Substitute
Trustees”), brought a foreclosure action against
Defendants Tiffany L. Noels and Darryl Noels
(“Defendants”) in the Circuit Court for Prince
George's County, and Defendants removed the action to
this Court. ECF No. 1. Presently pending before the Court is
Plaintiffs' Motion to Remand. ECF No. 11. No. hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Plaintiffs' Motion is granted.
14, 2006, Defendants executed a note in the amount of $278,
800 and Deed of Trust to Nova Star Mortgage, Incorporated
(“Nova Star” or “Lender”) against the
real property known as 1214 Iron Forge Road, District
Heights, Maryland 20747. ECF No. 2-1; 2-4. Mortgage
Electronic Registration Systems, Inc., as nominee for Nova
Star, executed an Assignment transferring the Deed of Trust
to Deutsche Bank, which was then transferred to the
Substitute Trustees, granting Plaintiffs all powers conferred
by the Deed of Trust. ECF Nos. 2-2; 2-5. On October 26, 2015,
Substitute Trustees sent Defendants a Notice of Intent to
Foreclose. ECF Nos. 2-6; 2-7. On February 10, 2016,
Plaintiffs filed an Order to Docket a foreclosure proceeding
(“Foreclosure Action”). ECF No. 2. After the
Circuit Court denied Defendants' Motion to Dismiss the
Foreclosure Action on July 25, 2016, ECF No. 5, Defendant T.
Noels filed a Petition for Bankruptcy in the U.S. Bankruptcy
Court for the District of Maryland, No. 16-25654-WIL, which
temporarily stayed the Foreclosure Action.
November 1, 2017, Defendants filed an action in this Court
against Ocwen Loan Servicing LLP, Shapiro & Brown LLP,
Deutsche Bank National Trust, and Brock & Scott, LLC
alleging violations of, inter alia, the Fair Debt
Collection Act. See Noels v. Ocwen Loan Servicing LLC et
al., No. GJH-17-3218 (D. Md. Nov. 1, 2011) (hereinafter
“Federal Action”).On the same day, Defendants
attempted to remove the Foreclosure Action as a part of the
filing of the Federal Action. Federal Action, ECF No. 2. The
Clerk informed Defendants that the notice of removal was
filed in error and that “[i]f your intention is to
remove a case, the Notice of Removal must be filed in paper
form with the Clerk's Office and a new civil case will be
instituted.” Federal Action, ECF No. 9. Thereafter,
Defendants removed the Foreclosure Action to this Court on
December 5, 2017, generating the civil case herein. ECF No.
1. On January 24, 2018, Plaintiffs filed a Motion to Remand
to State Court. ECF No. 11. Defendants then filed a pleading
that included both an Opposition to Plaintiffs' Motion to
Remand and an Emergency Motion for Declaratory Judgment and
Injunctive Relief. ECF No. 12. After Plaintiffs filed a Reply
to Defendants pleading, Defendants filed a Supplemental
Response to Plaintiffs' Motion to Remand, ECF No. 14, to
which Plaintiffs move to strike as an improper surreply
memoranda. ECF No.15. Finally, Defendants filed a request for
a hearing and supplemental briefing on the validity of the
underlying foreclosure. ECF No. 16.
removing an action to federal court, the removing party must
demonstrate proper jurisdiction and propriety of removal.
See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815
(4th Cir. 2004). Defendants assert that removal is proper
because the Court has both diversity jurisdiction under 28
U.S.C. § 1332 and federal question jurisdiction under
§ 1331. ECF No. 1. Neither assertion is correct, and
removal is not proper.
preliminary matter, Defendants' attempts to remove the
Foreclosure Action were not timely. Pursuant to 28 U.S.C.
§ 1446(b), a defendant seeking to remove a civil action
to federal court must file a notice of removal within 30 days
after being served with the initial complaint. Defendants
were served with initial pleadings in the Foreclosure Action
on February 13, 2016. ECF No. 11-3. However, Defendants did
not make their initial attempt to file a notice of removal
until November 1, 2017. Therefore, Defendants notice of
removal is untimely, and this alone provides the Court with a
sufficient basis to remand the action to the Circuit
the Foreclosure Action was timely removed, removal is not
proper because the Court lacks jurisdiction to hear the case.
First, Defendants have failed to establish that diversity
jurisdiction exists. See Tough Mudder, LLC v.
Sengupta, 614 Fed.Appx. 643, 645 (4th Cir. 2015)
(“For a court to have jurisdiction over an action
pursuant to 28 U.S.C. § 1332(a), ‘diversity must
be complete such that the state of citizenship of each
plaintiff must be different from that of each
defendant.'” (citing Home Buyers Warranty Corp.
v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014))).
Defendants are Maryland residents and allege that Substitute
Trustees are employees or agents of Brock & Scott PLLC, a
North Carolina corporation, and not working in their
individual capacities as attorneys. ECF No. 12-1 at
But Defendants' allegation regarding Plaintiffs'
citizenship is not correct. While Substitute Trustees are
represented by Brock & Scott, and may in fact be employed
by Brock & Scott, the Foreclosure Action was filed under
the names of the individual Substitute Trustees. ECF No. 2.
Further, the Substitution of Trustee filing appoints the
Substitute Trustees in their individual capacities. ECF No.
2-5 at 2 (“the undersigned hereby substitutes
[Substitute Trustees] under said Deed of Trust, any of whom
may act independently, in the place and stead of the
trustee(s) originally named therein”).
Motion to Remand, Plaintiffs state that Substitute Trustee
Jung is a citizen of the State of Maryland, ECF No. 11-1 at
4. Defendants failed to respond to this assertion or
otherwise allege that complete diversity between Defendants
and Substitute Trustees exists. See Strawn v. AT&T
Mobility, LLC, 530 F.3d 293, 296 (4th Cir. 2008)
(“[i]f a plaintiff files suit in state court and the
defendant seeks to adjudicate the matter in federal court
through removal, it is the defendant who carries the burden
of alleging in his notice of removal and, if challenged,
demonstrating the court's jurisdiction over the
matter.”). Therefore, the Court does not have diversity
jurisdiction over the Foreclosure Action.
Plaintiffs' Foreclosure Action does not implicate a
federal question-that is to say, it is not a civil action
“arising under the Constitution, laws, or treaties of
the United States.” § 1331. “The presence or
absence of federal-question jurisdiction is governed by the
well-pleaded complaint rule, which provides that federal
jurisdiction exists only when a federal question is presented
on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987); see also Metro Ford Truck Sales,
Inc. v. Ford Motor Company, 145 F.3d 320, 326-27 (5th
Cir. 1998) (“for both removal and original
jurisdiction, the federal question must be presented by
plaintiff's complaint as it stands at the time the
petition for removal is filed . . . . It is insufficient that
a federal question has been raised as a matter of defense or
as a counterclaim”). Nor does the existence of
Defendants' Federal Action give this Court supplemental
jurisdiction over the Foreclosure Action under 28 U.S.C.
§ 1367(a). See Nadel v. Marino, No.
GJH-17-2136, 2017 WL 4776991, at *4 (D. Md. Oct. 20, 2017)
(“the fact that [defendants] have a separate federal
action pending against the Substitute Trustees does not give
the Court supplemental jurisdiction over the Foreclosure
Proceeding, which does not involve any federal
claims.”); Fuese v. Broan-Nutone, LLC, No.
DKC-10-2174, 2010 WL 3446872 at *2 (D. Md. Aug. 31, 2010)
(rejecting reliance on § 1367(a) for removal, reasoning
that “Defendant stretches to concoct a rationale for
removal jurisdiction past the breaking point”).
Opposition to Plaintiffs' Motion to Remand, ECF No. 12-1,
and Supplemental Response, ECF No. 14, fails to respond to
any of the arguments raised by Plaintiffs or explain why
removal is proper. Instead, Defendants repeat the allegations
set forth in the pending Federal Action, and asks the Court
to find that the debt instrument at issue in the Foreclosure
Action is invalid. Because the Court does not have subject
matter jurisdiction over the instant Foreclosure Action, the
Court will not consider the merits of Defendants'
foregoing reasons, Plaintiffs' Motion to Remand, ECF No.
11, shall be ...