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Federal National Mortgage Association v. Barker

August 6, 2009

FEDERAL NATIONAL MORTGAGE ASSOCIATION PLAINTIFF,
v.
JASON BARKER, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

This civil action was originally filed in the Superior Court of California, County of Butte. On June 26, 2009, Defendant Barker filed a notice of removal. Plaintiff thereafter filed a motion for an order shortening time for service of and hearing on a motion to remand. The motion for an order shortening time was granted, and the motion to remand was set for hearing on August 6, 2009, at 10:00 a.m., before the undersigned in Redding, California.

Pending before the court is Plaintiff's motion to remand (Doc. 14). Defendant filed his opposition to the motion (Doc. 18). The matter was heard as set on August 6, 2009. Brian Whittemore, Esq., appeared telephonically for Plaintiff; Defendant Jason Barker appeared in pro se.

I. MOTION TO REMAND

Plaintiff brings this motion on the basis that the notice of removal was filed untimely and this court lacks subject matter jurisdiction. Plaintiff states this action was "brought" on May 19, 2009, and the notice of removal was not filed until June 26, 2009. Thus more than 30 days passed, and the notice of removal was untimely as filed beyond the time permitted. See 28 U.S.C. § 1446(b).

Plaintiff also argues this court lacks subject matter jurisdiction over this matter. Plaintiff contends first that the court lacks jurisdiction because this is an unlawful detainer action which could not have been brought originally in federal court. See 28 U.S.C. § 1441(a). Second, state case law does not allow a cross-complaint to be filed in an unlawful detainer action, which Defendant is using as an alleged basis for federal jurisdiction. See Superior Models, Inc. v. Rinn Motor Hotels, Inc., 241 Cal. Rptr. 487, 505-06 (Cal. App. 1987).

In addition, Plaintiff is requesting recovery of costs and fees incurred as a result of the improper removal of this action. 28 U.S.C. § 1447(c). Plaintiff is requesting a total of $2,510.00, including costs of $350.00 (filing fees), plus attorney fees of $2,160 (6 hours at $190, plus 4 hours at $255).

II. OPPOSITION

Defendant opposes the motion to remand on the basis that Plaintiff has acted in a fraudulent manner, and that Plaintiff failed to prove there is a debt owed by producing an original note signed with blue ink. He argues that "[t]his Motion for Removal is far from 'tenants, leases, and landlords', but is focused on conspiracy, predatory lending practices, and the depriving people of land, property, money, and rights - RICO - forthcoming - within 30 days without any holder in due course status." (Opposition at 6).

Defendant relies on two Ohio District Court cases, which he has attached as exhibits to his opposition, for his position that "the Mortgage must produce and hold the note." (Id.). The first case is from the Northern District Court of Ohio, which was in federal court based on diversity jurisdiction. The court there dismissed several foreclosures cases because Plaintiff failed to satisfy its burden of demonstrating standing. He also submits an opinion from the Southern District of Ohio, which also was in federal court based on diversity jurisdiction. That court confirmed that foreclosure actions can be brought in federal court, but on the basis of diversity jurisdiction.

III. DISCUSSION

The federal removal statute provides that "[a] defendant . . . desiring to remove any civil action . . . from a State court shall file . . . a notice of removal . . . containing a short and plain statement of the grounds for removal . . . ." 28 U.S.C. § 1446(a).

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then ...


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