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Green Tree Servicing LLC v. Cargille

United States District Court, D. New Jersey

November 19, 2019

GREEN TREE SERVICING, LLC, Plaintiff,
v.
CARGILLE, et al., Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on Plaintiff/Counterclaim Defendant Green Tree Servicing, LLC's motion to remand this action to the Superior Court of the State of New Jersey, Chancery Division, Mercer County. (ECF No. 103). The question before the Court is whether this Court still retains subject matter jurisdiction over this matter. For the reasons explained below, this Court finds that it has subject matter jurisdiction to hear this case.

         I

         The Court notes, at the outset, that Defendants David and Julie Cargille (the "Cargilles") have violated the "hybrid representation" rule and the Local Civil Rules of the U.S. District Court for the District of New Jersey, because they filed and signed their opposition brief on behalf of themselves, as pro se litigants. (See Cargilles' Opp'n Br., ECF No. 115). At the time of filing of their opposition brief, their then-counsel of record, Joshua W. Denbeaux, of Denbeaux & Denbeaux, represented the Cargilles (see Notice of Appearance, ECF No. 70), but did not file or sign the Cargilles' opposition brief.

         The Third Circuit has held that "[p]ro se litigants have no right to "hybrid representation" because '"[a] defendant does not have a constitutional right to choreograph special appearances by counsel.'" United States v. Turner, 677 F.3d 570, 578 (3d Cir. 2012) (quoting McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)). "Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously ... request[s] that. . . counsel be silenced." Turner, 677 F.3d at 578 (citation omitted). Accordingly, a district court is not obligated to entertain pro se motions filed by a represented party. See United States v. Ransom, 502 Fed.Appx. 196, 201 (3d Cir. 2012). Moreover, District of New Jersey Local Civil Rule 11.1 states that "[i]n each case, the attorney of record who is a member of the bar of this Court shall sign all papers submitted to the Court or filed with the Clerk." L. Civ. R. 11.1.

         In this case, the Cargilles violated both the "hybrid representation" rule and Local Rule by filing and signing their own opposition brief without providing any notice to the Court about their intentions. At oral argument held on October 21, 2019, this Court granted Mr. Denbeaux's oral request to withdraw as counsel for the Cargilles. The Cargilles now proceed as pro se litigants. Although the Cargilles' filing of their brief was procedurally improper, this Court will nonetheless take heed of the legal arguments in their brief.

         II

         The facts and procedural history of this case have been set forth in considerable detail in this Court's prior decisions and will not be repeated here again. Only the facts and procedural history relevant to the issue of subject matter jurisdiction will be discussed.

         A. The Foreclosure

         On August 28, 2003, the Cargilles purchased a home in Cranbury, New Jersey and executed a promissory note [hereinafter "the note"] with GMAC Mortgage Corporation in the amount of $285, 000. (Compl. ¶ 1, ECF No. 1-1). The same day, the Cargilles executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for GMAC Mortgage Corporation, which was secured by the Cargilles' property. (Id. at ¶ 2). The property at issue is located at 29 Millstone Drive, Cranbury, New Jersey 08512, in Mercer County. (Id. at ¶ 3). The mortgage was duly recorded on June 6, 2005 by the Mercer County Clerk's Office. (Id. at ¶ 2). By Assignment of Mortgage dated February 21, 2008, Mortgage Electronic Registration Systems, Inc., solely as a nominee of GMAC Mortgage Corporation, assigned the mortgage to GMAC Mortgage, LLC. (Id. at ¶ 2a). By Assignment of Mortgage dated June 14, 2013, GMAC Mortgage LLC by Green Tree Servicing LLC, its Attorney-in-Fact, assigned the Mortgage to Green Tree Servicing, LLC, now known as Ditech Financial LLC [hereinafter "Ditech"]. (Id. at ¶ 2(b)).

         The Cargilles allege that in 2008, after the assignment of the mortgage to GMAC, which they argue was fraudulent, GMAC began foreclosure procedures against them in New Jersey Superior Court, Chancery Division, Mercer County. (First Answer and Counterclaims ¶ 126, ECF No. 35). The proceedings eventually resulted in a settlement of the accelerated debt in which the Cargilles made a cash payment to GMAC and entered into a new, unsecured loan with GMAC. (Id. at ¶¶ 126-139). After the Settlement, the Cargilles continued to make payments to GMAC on the mortgage. (Id. at ¶ 143).

         The Cargilles went into default again in or around September 2012. (Id. at ¶ 157). On October 4, 2013, Ditech sent the Cargilles a notice of intent to foreclose. (Id. at ¶ 270). While the loan was in default, the foreclosure complaint was filed on December 8, 2014 in state court. (See ECF No. 1-1).

         B. Subject matter jurisdiction

         Ditech's Complaint alleges state law claims only. (Compl., First and Second Counts). On February 4, 2015, the Cargilles filed a Joint Notice of Removal and removed this action from state court to federal district court, asserting that the District Court had diversity jurisdiction under 28 U.S.C. § 1332. (See Joint Notice of Removal ¶ 7, ECF No. 1). The Cargilles indicated that diversity jurisdiction was proper because Ditech is a citizen of the States of Delaware, Maryland, and Minnesota, and that the Cargilles are domiciled in, and thus citizens of, New Jersey. (Id. at ¶¶ 15, 16). The Cargilles also alleged that the amount-in-controversy was satisfied because the value of the mortgage note is $285, 000. (Id. at ¶ 8).

         On May 20, 2015, Ditech moved to remand the matter to state court, arguing that because the Cargilles-the defendants in this case-are domiciled in New Jersey, they were not permitted to remove this action to federal court under the forum-defendant rule, 28 U.S.C. § 1441(b)(2), which prohibits removal based on diversity jurisdiction if any of the defendants is a citizen of the state in which an action is brought. (Ditech's Mot. to Remand, ECF No. 7). Ditech's initial remand motion, however, was untimely under 28 U.S.C. § 1447(c).

         On October 14, 2015, this Court granted Ditech's initial motion to remand and ordered that this action be remanded to New Jersey state court. (See Remand Order, Oct. 13, 2015, ECF No. 20). On October 7, 2016, however, the U.S. Court of Appeals for the Third Circuit vacated this Court's remand order, holding that this Court was "precluded by statute from remanding the foreclosure action on a ...


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