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Countrywide Home Loans, Inc. v. Bartmasser

United States District Court, S.D. Ohio, Eastern Division
Oct 21, 2008
Case No. 2:08-CV-805 (S.D. Ohio Oct. 21, 2008)

Summary

holding that remand is proper because the Franklin County Treasurer is a citizen of Ohio and properly a defendant in a foreclosure proceeding

Summary of this case from Fifth Third Bank v. U.S. Golf Sport Centers

Opinion

Case No. 2:08-CV-805.

October 21, 2008


OPINION AND ORDER


This matter is before the Court on Plaintiff Countrywide Home Loans, Inc.'s Motion to Remand (doc. #9) and Defendants' Motion to Dismiss (doc. #11).

I.

On August 20, 2008, Defendants Kary J. Bartmasser and Janice Wald Henderson ("Defendants") removed a state court foreclosure case captioned Countrywide Home Loans, Inc. v. Kary J. Bartmasser, et al., Franklin County, Ohio Case Number 08-CVE-07-009895. The purported grounds for removal was the diverse citizenship of the parties, in which case the Court would have subject matter jurisdiction under 28 U.S.C. § 1332. (Notice of Removal, Doc. #2). Plaintiff has moved to remand the matter to state court based on the citizenship of Defendant, the Franklin County Treasurer. Plaintiff contends that the Treasurer's Ohio citizenship precludes removal under 28 U.S.C. § 1441. Defendants' Notice of Removal does not assert that this Court has federal question jurisdiction under 28 U.S.C. § 1441.

II.

The removal statute states, in part:

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b). Section 1441(b) limits removal based upon diversity jurisdiction to instances where no defendant is a citizen of the forum state. See Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910 (6th Cir. 2007).

Defendant, the Treasurer of Franklin County, Ohio, is a necessary party to this foreclosure case, because the County Treasurer holds an interest in mortgaged property located in Franklin County. See Huntington Natl. Bank v. Ross, 130 Ohio App.3d 687, 693, 720 N.E.2d 1000 (Ohio App., 1998). ("The holder of rights or interest in property is a necessary party to a foreclosure action."). There is no dispute that the Franklin County Treasurer is a citizen of the state of Ohio. Accordingly, under 28 U.S.C. § 1441(b), there was no "objectively reasonable basis to believe that [Countrywide's] state court action could properly be removed to federal court." Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910 (6th Cir. 2007) (affirming remand of foreclosure action based on state law, where defendants were citizens of the state of filing). Given the clear prohibition contained in the removal statute, this Court does not have subject matter jurisdiction over this action.

There is also no dispute that, even if the Treasurer could remove this case on the basis of diversity jurisdiction, he did not consent to Defendants ill-advised attempt at removal, as required by 28 U.S.C. 1446(a), and Sixth Circuit precedence interpreting the removal statute. See Loftis v. United Parcel Service, Inc., 342 F.3d 509 (6th Cir. 2003) (The "rule of unanimity demands that all defendants must join in a petition to remove a state case to federal court.").

Although Defendants have not alleged federal question as a basis for federal jurisdiction, the Court finds that the Complaint filed in the state court action arises under and is governed solely by the laws of the state of Ohio.

III.

For the foregoing reasons, Plaintiff's motion to remand (doc. #9) is GRANTED. This action is hereby REMANDED to the Franklin County Court of Common Pleas. Plaintiff is directed to file a motion for fees under 28 U.S.C. § 1447(c), accompanied by an itemized accounting of the fees and costs incurred in connection with the motion to remand, within 10 days of the date of this Order. Further, in light of the Court's Order on Plaintiff's motion to remand, Defendants' pending motion to dismiss (doc. #11) is hereby DENIED as moot.

IT IS SO ORDERED.


Summaries of

Countrywide Home Loans, Inc. v. Bartmasser

United States District Court, S.D. Ohio, Eastern Division
Oct 21, 2008
Case No. 2:08-CV-805 (S.D. Ohio Oct. 21, 2008)

holding that remand is proper because the Franklin County Treasurer is a citizen of Ohio and properly a defendant in a foreclosure proceeding

Summary of this case from Fifth Third Bank v. U.S. Golf Sport Centers

directing plaintiff to file a motion for fees accompanied by an itemized accounting of fees and costs incurred in connection with the motion of remand, in light of lack of "objectively reasonable basis" and "clear prohibition" of removal of mortgage foreclosure case

Summary of this case from Ohio v. Horton

directing Countrywide to file a motion for fees accompanied by an itemized accounting of fees and costs incurred in connection with the motion of remand, in light of lack of "objectively reasonable basis" and "clear prohibition" of removal of mortgage foreclosure case

Summary of this case from Buckner v. Powers

directing plaintiff to file a motion for fees accompanied by an itemized accounting of fees and costs incurred in connection with the motion of remand, in light of lack of "objectively reasonable basis" and "clear prohibition" of removal of mortgage foreclosure case

Summary of this case from U.S. Bank Nat'Lass'N v. Merusi

directing plaintiff to file a motion for fees accompanied by an itemized accounting of fees and costs incurred in connection with the motion of remand, in light of lack of "objectively reasonable basis" and "clear prohibition" of removal of mortgage foreclosure case

Summary of this case from Hamliton Cnty. Treasurer v. Nesbitt
Case details for

Countrywide Home Loans, Inc. v. Bartmasser

Case Details

Full title:Countrywide Home Loans, Inc., Plaintiff, v. Kary J. Bartmasser, et al.…

Court:United States District Court, S.D. Ohio, Eastern Division

Date published: Oct 21, 2008

Citations

Case No. 2:08-CV-805 (S.D. Ohio Oct. 21, 2008)

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