United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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.
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.
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.
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.
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 ¶
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).
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).
Subject matter jurisdiction
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).
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.
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 ...