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Del Rossi v. Suntrust Mortage, Inc.

United States District Court, E.D. Virginia, Richmond Division

February 18, 2016

GARY M. DEL ROSSI and SANDRA M. DEL ROSSI, Plaintiffs,
v.
SUNTRUST MORTGAGE, INC. et al., Defendants.

MEMORANDUM OPINION

M. Hannah J. Lauck United States District Judge

This matter comes before the Court on Defendant SunTrust Mortgage, Inc.'s ("SunTrust") Motion to Remand this action to the Circuit Court of Prince George County, Virginia, Motion for Award of Attorneys' Fees and Costs pursuant to 28 U.S.C. § 1447(c), [1] and Motion to Dismiss for Lack of Jurisdiction (ECF Nos. 2, 3, 11); and, Plaintiffs'[2] "Motion to Dismiss and Withdraw Removal Pursuant to Rule 41" and Motion to Vacate the Writ of Possession and Subsequent Eviction (ECF Nos. 8, 13). The matters are ripe for disposition. The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court grants SunTrust's Motion to Remand and denies SunTrust's Motion for Award of Attorneys' Fees. (ECF Nos. 2, 3.) The Court denies as moot SunTrust's Motion to Dismiss, Plaintiffs' Motion to Dismiss, and Plaintiffs' Motion to Vacate. (ECF Nos. 8, 11, 13.)

I. Factual and Procedural Background

The dispute between the parties stems from a foreclosure sale of Plaintiffs' former home (the "Property") and involves a complicated procedural history throughout a number of courts. In May 2013, Plaintiffs, anticipating foreclosure, filed suit against SunTrust and other defendants in the Circuit Court of Prince George County (the "Circuit Court"). Plaintiffs subsequently took a voluntary nonsuit in the Circuit Court action. On January 16, 2014, SunTrust foreclosed on the Property. SunTrust was the highest bidder at the foreclosure sale, and after purchasing the Property, SunTrust instituted an unlawful detainer action in the General District Court of Prince George County (the "General District Court"). On September 3, 2014, the General District Court awarded possession to SunTrust. Plaintiffs did not appeal the judgment of the General District Court.

On September 16, 2014, Plaintiffs filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of Virginia (the "Bankruptcy Court"), triggering an automatic stay of their eviction pursuant to 11 U.S.C. § 362(a).[3] On October 10, 2014, SunTrust filed a motion for relief from the stay in the Bankruptcy Court. On the same date that Plaintiffs filed their petition in the Bankruptcy Court, Plaintiffs, by counsel, brought a new civil action against Defendants for fraud, breach of contract, and quiet title in the Circuit Court seeking to void the foreclosure. On November 21, 2014, SunTrust filed a Demurrer and a Plea in Bar in the Circuit Court. On December 2, 2014, the Circuit Court heard argument on the demurrer, the plea in bar, and other motions, but deferred its ruling until the Bankruptcy Court had ruled on the motion for relief from the stay.

On February 25, 2015, the Bankruptcy Court heard argument on SunTrust's motion for relief from the stay. At the hearing, counsel for Plaintiffs and SunTrust represented that they had come to an agreement whereby SunTrust would gain possession of the Property in sixty days and Plaintiffs would proceed with their bankruptcy case. However, Plaintiffs and SunTrust could not agree to a consent order to this effect, and SunTrust renewed its demurrer and plea in bar in the Circuit Court. On April 13, 2015, the Circuit Court sustained SunTrust's demurrer and plea in bar; denied Plaintiffs leave to amend their complaint; and, instructed the parties to submit an order of dismissal following the Bankruptcy Court's ruling on the motion for relief from stay.

On May 6, 2015, the Bankruptcy Court granted SunTrust's motion for relief, making it effective May 13, 2015. SunTrust circulated a consent order to this effect, but Plaintiffs' counsel did not endorse the order.[4] After Plaintiffs' additional attempt to extend the stay, the Bankruptcy Court entered its own order granting SunTrust relief from the stay. On May 26, 2015, in accordance with the Circuit Court's decision to withhold ruling until the Bankruptcy Court lifted the stay, SunTrust filed a motion for entry of a final order dismissing the case in the Circuit Court. The Circuit Court scheduled a hearing on the final order for June 17, 2015. Plaintiffs' counsel indicated that he would soon endorse a dismissal order to obviate the need for the hearing.

However, instead of endorsement of a dismissal order by counsel, Plaintiffs, potentially acting without their attorney, [5] filed a "Notice of Removal and Federal Stay of Proceedings Pursuant to 28 USC [sic] 1446(a)"[6] in an attempt to remove the action to this Court. (Not. Removal 1, ECF No. 1.) Plaintiffs attach to their notice of removal a new "Letter of Complaint" that alleges violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Plaintiffs state that because their action "necessarily arises under" the FDCPA, this Court has "original jurisdiction" over the action pursuant to 28 U.S.C. § 1441. (Not. Removal 3.)

SunTrust[7] timely moved to remand this action pursuant to 28 U.S.C. § 1447(c) to the Prince George Circuit Court on the ground that a plaintiff may not remove an action to federal court under § 1441(a). SunTrust further moved the Court to award it reasonable attorney's fees for the fees and costs incurred in seeking the remand. Plaintiffs initially did not respond. However, Plaintiffs ultimately filed a response pursuant to the Court's August 5, 2015 Order to do so. SunTrust replied. The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, this matter is ripe for disposition.

II. Standard of Review

A. Removal and Remand

Title 28, United States Code § 1447(c) states in relevant part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "The party seeking removal bears the initial burden of establishing federal jurisdiction." Abraham v. Cracker Barrel Old Country Store, Inc., No.3:llcvl82, 2011 WL 1790168, at*l (E.D. Va. May 9, 2011) (citing Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)). No presumption favoring the existence of federal subject matter jurisdiction exists because federal courts have limited, not general, jurisdiction. Id. (citing Pinkley Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999)). Courts must construe removal jurisdiction strictly. Id. (citing Mulcahey, 29 F.3d at 151.) "If federal jurisdiction is doubtful, a remand is necessary." Id. (quoting Mulcahey, 29 F.3d at 151.)

A defendant may remove a civil action initially filed in state court if the plaintiff could have originally brought the action in federal court. Id. at *2 (citing Yarnevic v. Brink's Inc., 102 F.3d 753, 754 (4th Cir. 1996)); see 28 U.S.C. § 1441(a). Section 1441 dictates that only "the original defendant" or defendants may remove an action. Palisades Collections LLC v. Shorts, 552 F.3d 327, 333-34 (2008); cf Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005) ("By enacting the ...


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