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Bank of New York Mellon Trust Company, N.A. v. Cresci

United States District Court, D. New Jersey

February 7, 2018

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. AS SUCCESSOR-IN-INTEREST TO ALL PERMITTED SUCCESSORS AND ASSIGNS OF JPMORGAN CHASE BANK, AS TRUSTEE, FOR CERTIFIED SHAREHOLDERS OF NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1004-AR1, Plaintiff,
v.
PETER J. CRESCI; MRS. PETER J. CRESCI, HIS WIFE; JENNIFER L. CRESCI; MR. CRESCI, HER HUSBAND; STATE OF NEW JERSEY, Defendants,
v.
AMERICA'S SERVICING COMPANY, WELLS FARGO BANK, N.A., MILSTEAD & ASSOCIATES, LLC, Third-Party Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.

         This matter having come before the Court by way of the motions of Plaintiff The Bank of New York Mellon (“Plaintiff”) and Third-Party Defendant Milstead & Associates, LLC to remand the matter to the Superior Court of New Jersey Chancery Division, Hudson County;[1]

         and it appearing that Plaintiff originally filed this action in the Superior Court of New Jersey, Hudson County on June 9, 2017, seeking foreclosure of property in New Jersey for failure to satisfy the terms of the mortgage, see Complaint, attached to Notice of Removal, D.E. 1-4; and it further appearing that on October 26, 2017, Defendants removed the matter to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441(b), see Notice of Removal, D.E. 1, ¶ 4;[2]

         and it further appearing that on November 22, 2017 Plaintiff filed this motion to remand [D.E. 7], and on November 27, 2017 Third-Party Defendant filed its motion to remand [D.E. 8]; and it further appearing that the motions to remand contend that Defendants removed the Complaint beyond the thirty-day time limit under 28 U.S.C. § 1446(b);

         and 28 U.S.C. § 1446(b)(1) providing in pertinent part that

[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant . . . .

28 U.S.C. § 1446(b)(1);[3]

         and it being well settled that the thirty-day time limit to remove under § 1446(b) is “‘mandatory' and the Court cannot extend it” and that “[f]ailure to remove within the prescribed period requires remand, provided the procedural defect is raised within 30 days of removal[, ]” Ventures Trust 2013 I-H-R- by MCM Capital Partners, LLC v. Pinto, No. 16-7647, 2017 WL 1251030 at *3 (D.N.J. Mar. 17, 2017) (quoting Galvanek v. AT&T, Inc., No. 07-2759, 2007 WL 3256701 at *2 (D.N.J Nov. 4, 2007)); and it appearing that Defendants were served with the Summons and Complaint on June 15, 2017, and therefore their deadline to remove was July 15, 2017;[4]

         and it therefore appearing that Defendants filed their Notice of Removal on October 26, 2017, nearly four months after the deadline to remove had passed;

         and the Court therefore concluding that Defendants removed this matter outside of the thirty-day time limit required by 28 U.S.C. § 1446(b);

         and for good cause shown;

         IT IS ON THIS 7th day of February, 2018,

         RECOMMENDED that the District Court grant Plaintiff's motion [D.E. 7] and Third-Party Defendant's motion [D.E. 8] to remand and therefore remand this matter to the Superior Court of New Jersey, Chancery Division, Hudson County.

         The parties have fourteen days to file and serve objections to this Report and Recommendation pursuant to 28 U.S.C. ...


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