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Wells Fargo Bank, N.A. v. Harrington

United States District Court, Third Circuit

September 5, 2013

WELLS FARGO BANK, N.A., Plaintiff,
v.
FLOYD E. HARRINGTON, ET AL., Defendants.

REPORT AND RECOMMENDATION ON MOTION FOR REMAND [D.E. 8]

STEVEN C. MANNION, Magistrate Judge.

I. INTRODUCTION

Before the Court is plaintiff Wells Fargo Bank, N.A.'s (hereinafter "Plaintiff" or alternatively, "Wells Fargo") Motion to Remand this case to the Superior Court of New Jersey, Essex County. The motion is opposed by pro se defendant Heidi Harrington (hereinafter "Defendant"). Pursuant to Local Civil Rule 72.1(a)(2), the Honorable Esther Salas, U.S.D.J. has referred the instant motion to the undersigned for report and recommendation.

The Court, having considered the parties' submissions and for the reasons set forth herein, respectfully recommends that Plaintiff's Motion to Remand be granted.

II. BACKGROUND

On August 28, 2008, Plaintiff filed a three-count Complaint for foreclosure against defendants Floyd E. Harrington (and his heirs, devisees, personal representatives and successors), Heidi Harrington (and her heirs, devisees, personal representatives and successors), Mrs. Floyd E. Harrington and Mr. Harrington, husband of Heidi Harrington (referred collectively hereinafter as "Defendants") in the Superior Court of New Jersey, Chancery Division. ( See Docket Entry ("D.E.") 8-1, Exhibit A- Plaintiff's Complaint for Foreclosure). A copy of the Summons and Complaint was served upon Defendant on September 3, 2008. ( See D.E. 8-1, Exhibit B- Affidavit of Service). Final judgment in the above-referenced action was entered against the Defendants on December 23, 2009. ( See D.E. 8-1, Exhibit C- Order of Final Judgment).

On April 26, 2013, Defendant filed a Notice of Removal in this Court. ( See D.E. 1, Notice of Removal). Thereafter, Defendant sought an Order to Show Cause to Enforce the Notice of Removal and for a Stay of Eviction. ( See D.E. 2, Defendant's Certification in Support of Order to Show Cause). After conducting a hearing, this Court denied Defendant's application for a preliminary injunction staying eviction. ( See D.E. 7, Court's Minute Entry for Hearing on Pro See Defendant's Application for Preliminary Injunction).

On May 23, 2013, Plaintiff filed the instant Motion to Remand. ( See D.E. 8, Plaintiff's Motion to Remand ("MTR")). Defendant filed her Opposition to the MTR on June 14, 2013.[1] (See D.E. 9, Defendant's Opposition). Plaintiff did not file a Reply.

III. SUMMARY OF PARTIES' POSITIONS

A. Plaintiff's Moving Certification[2]

Plaintiff proffers two arguments in support of its Motion to Remand. First, Plaintiff avers that because this foreclosure matter was fully adjudicated in the Superior Court of New Jersey, complete with the underlying property being sold via a sheriff sale, Defendant is no longer the title-holder of the subject property and therefore did not have standing to remove this action. (D.E. 8-1 at p. 2). Additionally, Plaintiff argues that even if Defendant could demonstrate standing, remand is proper because Defendant filed the Notice of Removal over five years after the statutory period allotted for removal. ( Id. )

B. Defendant's Opposition Brief

In her brief, Defendant's first point heading reads: "Memorandum of Law that Supports that 28 U.S.C. ยง 1146(b)[3], allows for the Exception to the 30 day requirement for Removal." (D.E. 9 at p. 3). [sic]. Defendant makes two averments in support of the timeliness of Removal: 1) that "Removal is Timely because the Court has both Original and Diversity Jurisdiction..." [sic]; and 2) that "I, the Plaintiff Served all parties in the Superior Court before the Chancery Judge on the record, pursuant to rule." [sic]. ( Id. ). Defendant makes no further averments or arguments in support of the timeliness of her Removal of the instant action. The remainder of Defendant's ...


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