Cohn et al v. Greene et al, No. 8:2010cv01820 - Document 17 (D. Md. 2010)
Court Description: MEMORANDUM OPINION (c/m to Kendal and Karen Greene 8/12/10 sat). Signed by Chief Judge Deborah K. Chasanow on 8/12/10. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : EDWARD S. COHN, et al. : v. : Civil Action No. DKC 10-1820 : KENDALL GREENE, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this foreclosure action is a motion filed by Plaintiffs Edward S. Cohn, Stephen N. Goldberg, Richard E. Solomon, and Richard J. Rogers (collectively, Plaintiffs or Substitute Trustees ) to remand this case to the Circuit Court for Montgomery County, Maryland. (Paper 14). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted. I. Background On November 6, 2006, Defendants Kendall and Karen Greene executed a promissory note evidencing their obligation to repay a refinancing loan from Mortgage Lenders Network USA, Inc., in the amount of $559,200, and a deed of trust pledging as security their property located in Germantown, Maryland ( the Property ). (Paper 2, Attach. 3, 4). The loan was subsequently assigned to The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the Certificate Holders, CWMBS 2007-6, CHL Mortgage Pass-Thru Trust ). Trust On 2007-6 April Mortgage 19, 2010, Pass-Thru Certificates Plaintiffs law firm ( the provided Defendants with notice of the Trust s intent to foreclose on the Property due to their default on the mortgage, identifying the Trust as the assignee lender. (Id. at Attach. 1, 2). On June 7, the Trust appointed Plaintiffs as substitute trustees under the deed of trust (id. at attach. 6), and on or about June 14, Plaintiffs commenced a foreclosure action against Defendants in the Circuit Court for Montgomery County, Maryland (papers 2-7). On July 7, Defendants, proceeding pro se and identifying themselves as counterclaimants, removed the action to this court pursuant to 28 U.S.C. § 1441, asserting federal question jurisdiction under 28 U.S.C. § 1331. (Paper 1). filed the pending motion to remand on July 28. II. Plaintiffs (Paper 14). Standard of Review It is well settled that the removing party bears the burden of proving removal is proper. 216 F.Supp.2d 519 (D.Md. See Greer v. Crown Title Corp., 2002) (citing Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)). On a motion to remand, the court must strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court, which is indicative of the reluctance of federal 2 courts court. to interfere with matters properly before a state Richardson v. Philip Morris Inc., 950 F.Supp. 700, 701- 02 (D.Md. 1997) (internal quotation marks omitted). III. Analysis The removal statute provides, in relevant part: Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). jurisdiction of Constitution, laws, U.S.C. § 1331. Federal district courts have original all or civil actions treaties of the arising the States. United under 28 Such jurisdiction arises from those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff s right to relief necessarily depends question of federal law. Vacation Trust, 463 U.S. on resolution of a substantial Franchise Tax Bd. v. Constr. Laborers 1, 27-28 (1983); see also In re Blackwater Security Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006) ( actions in which defendants merely claim a substantive federal defense to a state-law claim do not raise a federal question ). 3 While the rambling arguments presented by Defendants in their notice of removal are difficult to discern, they appear to assert counterclaims based on federal law, which, they contend, serve as the basis for removal to this court. For example, they cite the National Banking Act, 12 U.S.C. § 21, et seq., which established nationally chartered banks and vested them with certain powers, as providing a basis for federal jurisdiction. The thrust of Defendants argument appears to be that they have no obligation of debt because the Trust was not the holder of a note on the Property due to its participation in an unlawful scheme acting under color of authority of statute and thus committing frauds in regard[] to United States Banking Statutes and practices. (Paper 1, at 1). In determining the propriety of removal, however, courts generally look to the face of the underlying pleading. See Griffin 616 v. Ford Consumer Finance Co., 812 F.Supp. 614, (M.D.N.C. 1993) (quoting American Fire and Casualty Co. v. Finn, 341 U.S. 6, 14 (1951)). presented by the Order Here, there is no federal question to Docket Foreclosure of Residential Property or the accompanying papers filed by Plaintiffs in state court. under To the contrary, the pleading cites various provisions the Real Property Article of the Annotated Code of Maryland and the Maryland Rules as grounds for the foreclosure action. (Paper 2, Attach. 1). To the extent that Defendants 4 challenge Plaintiffs ability to enforce the promissory note and deed of trust, such determinations are governed exclusively by Maryland law. See Md. Code Ann., Comm. Law §§ 3-101, et seq. Moreover, any defensive claims Defendants may wish to present cannot provide a basis for removal jurisdiction. See In re Blackwater Sec. Consulting, LLC, 460 F.3d at 584 ( a defendant may not defend his way into federal court because a federal defense does not create a federal question under § 1331 ). Thus, the case cannot be sustained in this court on the basis of federal question jurisdiction. Because all parties are Maryland residents, there is not complete diversity of citizenship such that jurisdiction could be proper under 28 U.S.C. § 1332. Accordingly, the case was improperly removed by Defendants. IV. Conclusion For the foregoing will be granted. reasons, Plaintiffs motion to remand A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 5
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