United States District Court, D. New Jersey
THE BANK OF NEW YORK MELLON TRUST COMPANY N.A. FKA THE BANK OF NEW YORK TRUST COMPANY N.A., AS SUCCESSOR TO JPMORGAN CHASE BANK N.A., AS TRUSTEE FOI RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC. MORTGAGE ASSET-BACKED PASS THROUGH CERTIFICATE SERIES 2005-RP3, Plaintiff,
JOANNE FABER., Defendant.
MEMORANDUM AND ORDER
matter is before the Court on Plaintiff the Bank of New
York's (hereinafter, "BoNY") motion to remand
the case to the Superior Court of New Jersey, Ocean County.
(ECF No. 6). For the reasons expressed below, Plaintiffs
motion is granted.
case arises from a state-law foreclosure action. On March 26,
2004 Defendant Joanne Faber executed a promissory note,
secured by a mortgage, with Washington Mutual Bank, FA
(hereinafter, "Washington Mutual"), wherein
Washington Mutual agreed to loan Defendant $975, 000. (ECF
Nos. 6-3, "Promissory Note"; 6-4,
"Mortgage"). Since May 1, 2006, Defendant has been
in default of her mortgage obligations and on September 1,
2015, Washington Mutual assigned the mortgage to BoNY, which
was recorded two days later. (ECF No. 6-5,
December 23, 2015, BoNY filed its Original Complaint for
Foreclosure in state court, alleging claims under New Jersey
foreclosure laws. (ECF No. 6-6, "Original
Complaint"). After an extensive pretrial motion
practice, BoNY filed its Second Amended Complaint against
Defendant on August 29, 2016, asserting a fourth claim under
New Jersey foreclosure law. (ECF No. 4-7). Thereafter,
Defendant filed an answer and counterclaim, asserting a claim
under the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, et seq. (ECF No. 4-9, "Answer and
Counterclaim to SAC"). On August 3, 2017, almost a year
after BoNY filed its Second Amended Complaint, Defendant
filed a Notice of Removal, claiming the Court has
jurisdiction pursuant 28 U.S.C. § 1331, since her FDCPA
counterclaim creates federal question jurisdiction. The
following day, August 4, 2017, a New Jersey Superior Court
judge granted summary judgment in Plaintiffs favor. (ECF No.
6-8). The sole issue before the Court is whether the present
matter should be remanded to the Superior Court pursuant 28
U.S.C. § 1447(c).
Standard and Analysis
action that has been removed to federal court can be remanded
to state court, pursuant to 28 U.S.C. § 1447(c), if the
removal procedure was defective. Section 1447(c) states, in
relevant part, that "[a] motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. § 1447(c). Moreover, under
Section 1446(a), when a defendant seeks to remove a civil
action from State court, he or she must file a notice of
removal, "containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action." 28 U.S.C. § 1446(a).
According to the Third Circuit, the "party asserting
jurisdiction bears the burden of showing that at all stages
of the litigation the case is properly before the federal
court." Samuel- Bassett v. Kia Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004). Accordingly, on
a motion to remand, the burden of demonstrating a proper
basis for removal remains with the removing party. See
Carroll v. United Air Lines, 7 F.Supp.2d 516, 519
(D.N.J. 1998) ("When confronted with a motion to remand,
the removing party has the burden of establishing the
propriety of removal.").
28 U.S.C. § 1441(a), defendants may generally remove
civil actions from state court to federal court so long as
the district court would have had subject-matter jurisdiction
had the case been originally filed before it." A.S.
ex rel. Miller v. Smith Kline Beecham Corp., 769 F.3d
204, 208 (3d Cir. 2014). "Because the plaintiff acts as
'master of the claim, ' a court looks to the face of
a complaint in accordance with the 'well-pleaded
complaint' rule in order to determine whether the action
rests upon a federal claim." Green Tree Servicing
LLC v. Dillard, 88 F.Supp.3d 399, 401 (D.N.J. 2015)
(citing Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). As such, it is well-settled that federal
jurisdiction cannot "rest upon an actual or anticipated
counterclaim." Vaden v. Discover Bank, 556 U.S.
49, 60 (2009). "It follows that a counterclaim -- which
appears as part of a defendant's answer, not as part of
the plaintiffs complaint - cannot serve as the basis for
'arising under' jurisdiction." Holmes Group,
Inc. v. Vornado Air Circulation Sys., 535 U.S. 826, 831
because BoNY's Complaint only asserts state law causes of
action and since neither party asserts that diversity
jurisdiction exists pursuant 28 U.S.C. § 1332,
Defendant's removal in this matter was improper because
removal cannot be based on a counterclaim. As such,
BoNY's motion to remand is granted.
carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments and
exhibits therein presented, and for good cause shown, and for
all of the foregoing ...