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Wells Fargo Bank, N.A. v. Moore

United States District Court, D. New Jersey

September 20, 2017

WELLS FARGO BANK, N.A., Plaintiff,
v.
HYO JA AKIKO MOORE, Defendant.

          OPINION

          KEVIN McNULTY. U.S.D.J.

         This matter comes before the Court on the motion of the plaintiff, Wells Fargo Bank, N.A., to remand this removed mortgage foreclosure case to State court. (ECF no. 3) For the reasons stated herein, the motion to remand pursuant to 28 U.S.C. § 1447 is granted. Defendant's motion for a preliminary injunction (ECF no. 19) is administratively terminated.

         This is a state-law mortgage foreclosure action, filed in state court in October, 2010 under docket no. F-049344-10 (Superior Court, Chancery Division, Sussex County). On August 10, 2011, the state court granted Wells Fargo's motion for summary judgment, and the foreclosure proceeded as an uncontested matter. A final judgment of foreclosure was entered on September 13, 2013. Ms. Moore's appeal to the Superior Court, Appellate Division, was dismissed as untimely. A filing in bankruptcy, and a successful motion to lift the automatic stay, followed.

         Wells Fargo purchased the property at a sheriffs sale held on March 16, 2016, On April 6, 2017, the state court issued a writ of possession. On April 25, 2017, the County Sheriff posted the writ, setting the date of eviction for May 22, 2017.

         Five days in advance of the scheduled eviction, on May 17, 2017, the defendant filed a notice of removal of this case to federal court. (ECF no. 1)

         Now before this Court is Wells Fargo's motion to remand the action to state court, pursuant to 28 U.S.C. § 1447. (ECF no. 3) The motion was filed timely within 30 days after removal. See 28 U.S.C. § 1447. Ms. Moore, after receiving extensions of time, has filed papers in opposition. (ECF nos. 8-13, 15-18) Wells Fargo has filed a reply. (ECF no. 14) The matter is fully briefed and ripe for decision.

         Defendant Moore removed this case pursuant to the federal removal statute, 28 U.S.C. § 1441. Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from the state court if the case could have been brought originally in federal court. What that generally means is that the complaint either asserts a federal-law claim, see 28 U.S.C. § 1331, or the parties are citizens of different states and the amount in controversy exceeds $75, 000, see 28 U.S.C. § 1332(a).

         "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). Removal is strictly construed and doubts are resolved in favor of remand. See Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).

         Removal must be timely and procedurally proper under the statute. Removal of this case, however, was untimely, by a matter of years. The removal statute, 28 U.S.C. g 1446(b), requires that a notice of removal be filed within 30 days of the defendant's receipt of the original state-court complaint, by service or otherwise.[1] The complaint in this foreclosure action (ECF no. 3-3) was filed in state court on October 10, 2010. The docket shows proof of service as of December 2010; at any rate, Ms. Moore filed an answer on April 14, 2011. (ECF no. 3-4 at 3) Any notice of removal, then, was required to have been filed no later than May 14, 2011.

         This Notice of Removal, however, was not filed until six years later, on May 17, 2017. (ECF no. 1) Indeed, this was some three and one half years after final judgment had been entered in state court, The 30-day time limit is a procedural bar to removal, independent of any jurisdictional question. See Farina v. Nokia Inc., 625 F.3d 97, 114 (3d Cir. 2010) ("It is well settled that § 1446(b)'s thirty-day time limit for removal is a procedural provision, not a jurisdictional one.") Removal was obviously improper. The motion to remand is therefore granted pursuant to 28 U.S.C. § 1447.[2]

         CONCLUSION

         For the reasons stated above, the motion (ECF no. 3) of the plaintiff, Wells Fargo Bank, N.A., to remand this case to state court, pursuant to 28 U.S.C. § 1447, is GRANTED. Because the case is not properly in this Court, the defendant's later-filed motion for a preliminary injunction (ECF no. 19) is administratively terminated. An appropriate order accompanies this Opinion.

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