United States District Court, D. New Jersey
US BANK NATIONAL ASSOCIATION, as legal Title Trustee for Truman 2016 SC6 Title Trust, Plaintiff,
VALTAIR SOUZA and HADIA SOUZA, Defendants.
REPORT AND RECOMMENDATION
LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.
the Court is plaintiffs motion to remand this foreclosure
action to the Superior Court of New Jersey, Chancery
Division, Union County. (ECF No. 2). Defendants oppose the
motion. (ECF No. 3). The Honorable Susan D. Wigenton,
U.S.D.J., referred this motion to the undersigned for a
Report and Recommendation. This motion is decided without
oral argument pursuant to Rule 78 of the Federal Rules of
Civil Procedure. Having considered the parties' written
submissions and for the reasons set forth below, the Court
recommends that the motion to remand be
January 7, 2016, plaintiffs predecessor-in-interest filed a
foreclosure action in the Superior Court of New Jersey,
Chancery Division, Union County against pro se
defendants Valtair and Hadia Souza ("the Souzas").
(Complaint, ECF No. 1-1). The complaint alleges that on May
2, 2006, the Souzas executed a promissory note in the amount
of $525, 000 to Countrywide Bank, N.A., secured by a mortgage
to Mortgage Electronic Registration Systems, Inc. as nominee
for Countrywide Bank, N.A., its successors and assigns, to
purchase real property in Kenilworth, New
Jersey. (Id. ¶¶ 1-3). The
complaint alleges that the Souzas defaulted on their
obligations under the note and mortgage as they failed to
make installment payments as of August 1, 2009. (Id.
case has an extensive procedural history in state court. On
January 20, 2016, the Souzas answered the foreclosure
complaint and asserted counterclaims. (Romano Cert., Ex. G,
ECF No. 2-8). On February 3, 2016, the Souzas filed a pro
se complaint against plaintiffs predecessor-in-interest
in the Superior Court of New Jersey, Law Division, Union
County, (Romano Cert., Ex. H, ECF No. 2-9), which was
ultimately consolidated with the foreclosure action in the
Chancery Division. (Romano Cert., Ex. K, ECF No. 2-12). The
Souzas filed three motions to dismiss the foreclosure
complaint, which were denied by orders dated July 12, 2016,
August 24, 2016, and May 1, 2017. (Romano Cert., Exs. L, N,
V, ECF Nos. 2-13, 2-15, 2-24). Plaintiffs
predecessor-in-interest filed a motion for summary judgment
on February 15, 2017, (Romano Cert., Ex. P, ECF No. 2-17),
and the parties appeared for a non-jury trial before the
Honorable Joseph P. Perfilio on February 21, 2017.
Immediately following the bench trial, Judge Perfilio entered
an order: (1) striking the Souzas' answer and affirmative
defenses; (2) dismissing the Souzas' counterclaim with
prejudice; (3) entering default against the Souzas as though
no answering pleading had been filed; and (4) transferring
the action to the Office of Foreclosure of the Superior Court
in Trenton, New Jersey "to proceed as an uncontested
matter." (Romano Cert., Ex. R, ECF No. 2-19).
April 10, 2017, the Souzas filed a motion to vacate the
February 21, 2017 judgment and dismiss the complaint, which
Judge Perfilio denied by order dated May 1, 2017. (Romano
Cert., Exs. T, V, ECF Nos. 2-21, 2-22, 2-24). Following the
June 30, 2017 assignment of the Souzas' mortgage to U.S.
Bank National Association as Legal Title Trustee for Truman
2016 SC6 Title Trust, plaintiff and new counsel substituted
into the foreclosure action. (Romano Cert., Exs. Y, Z, ECF
Nos. 2-27, 2-28). The Souzas moved to vacate the order
substituting plaintiff for its predecessor-in-interest and
substituting counsel, which Judge Perfilio denied by order
dated March 16, 2018. (Romano Cert., Ex. AA, ECF No. 2-29).
Plaintiff then filed a motion for entry of final judgment on
July 3, 2018. (Romano Cert., Ex. BB, ECF No. 2-30). The
Souzas responded with a "motion to dismiss plaintiffs
notice of final judgment" dated July 13, 2018. (Romano
Cert., Ex. CC, ECF No. 2-31). On August 3, 2018, Judge
Perfilio entered an order denying the Souzas' motion to
dismiss the notice of final judgment and returning the
foreclosure action to the Office of Foreclosure "for
entry of final judgment." (Romano Cert., Ex. EE, ECF No.
27, 2018, while the motion for entry of final judgment was
pending, the Souzas removed the instant foreclosure action to
the District of New Jersey. (ECF No. 1). They additionally
filed what is styled as a counterclaim against plaintiff
alleging, among other things, violations of the Fair Debt
Collection Practices Act ("FDCPA"). (ECF No. 1-13).
Plaintiff now moves to remand the foreclosure action to state
court so the foreclosure proceedings can be concluded.
to 28 U.S.C. § 1447(c), an action may be remanded to
state court where the removal was procedurally defective or
if the district court determines that it lacks subject matter
jurisdiction over the action. "[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 statutes are to be strictly construed, with all
doubts to be resolved in favor of remand." Brown v.
JEVIC, 575 F.3d 322, 326 (3d Cir. 2009).
removing party must file a notice of removal to the district
court within 30 days after receipt "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." 28 U.S.C. § 1446(b)(1). The 30-day removal
period is "mandatory" and the Court cannot extend
it. Galvanek v. AT&T, Inc., Civ. A. No. 07-2759
(FLW), 2007 WL 3256701, at *2 (D.N. J. Nov. 5, 2007). A case
may be remanded where the removing party fails to file a
notice of removal within the prescribed period, provided the
procedural defect is raised within 30 days of removal.
Id.; see 28 U.S.C. § 1447(c); Deutsche Bank
Nat'l Trust Co. v. Onyewuenyi, Civ. A. No. 14-3591
(WJM), 2014 WL 4354106, at *2 (D.N.J. Sept. 3, 2014).
plaintiff timely filed its motion for remand 28 days after
the notice of removal was filed. The removal itself, however,
was untimely. The Souzas filed their answer and counterclaims
in state court on January 20, 2016, and they were served
formally with the summons and complaint in the foreclosure
action on February 1, 2016. The Souzas filed their notice of
removal in this Court on July 27, 2018, more than two years
after the 30-day deadline for removal expired. Thus, the
Souzas' removal was procedurally defective and the case
should be remanded.
Subject Matter Jurisdiction
notice of removal cites 28 U.S.C. §§1331 (federal
question jurisdiction), 28 U.S.C. § 1332(d) (class
action jurisdiction), and 28 U.S.C. § 1441(b) (removal
based on diversity of ...