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Jolley v. U.S. Bank, N.A.

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

February 26, 2019

JAMES K. JOLLEY, Plaintiff,
v.
U.S. BANK, N.A. AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, et al., Defendants.

          ORDER OF REMAND

          REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Plaintiff James K. Jolley's ("Jolley") Motion to Remand to State Court ("Motion to Remand") and corresponding Memorandum in Support, both filed on January 3, 2019. ECF Nos. 17-18. For the reasons set forth below, the Motion to Remand is GRANTED.

         I.

         On July 19, 2018, Jolley filed a Complaint with the Circuit Court for the City of Chesapeake ("circuit court"), naming U.S. Bank National Association as Trustee for the RMAC Trust, Series 2016-CTT ("U.S. Bank") and Samuel I. White, P.C., Trustee A/K/A Samuel White, Trustee ("SIWPC") as Defendants. Mem. Supp. at 2, ECF No. 18.[1]

         Jolley seeks judgment against the Defendants on four counts: "Declaratory Judgment," "Equitable Estoppel," "Quiet Title," and "Injunction." Compl. ¶¶ 9-35, ECF No. 1-1 at 3-57.[2] These claims arise out of Jolley's purchase of certain real property ("the Property") pursuant to foreclosure proceedings under the BB&T Deed of Trust ("BB&T DOT"). Id. ¶¶ 6-8. Jolley alleges that U.S. Bank's Deed of Trust ("ML DOT") is subordinate to the BB&T DOT. Id. ¶¶ 10-11. Jolley further alleges that the ML DOT was extinguished by the foreclosure sale to Jolley under the BB&T DOT and that the ML DOT is no longer a lien on Jolley's property. Id. ¶ 12.

         On July 25, 2018, U.S. Bank's Registered Agent was served with the Complaint. Mot. Leave File Answer ¶ 2, ECF No. 1-1 at 84-97. On August 28, 2018, Jolley filed a Motion for Summary Judgment on the basis that U.S. Bank was in default for failing to file a responsive pleading or otherwise appear within twenty-one (21) days after service of the summons and complaint pursuant to Virginia Supreme Court Rules 3:8, 3:9, and 3:19. Mot. Summ. J. ¶¶ 4-5, ECF No. 1-1 at 65-71. Jolley's Motion for Summary Judgment was noticed for October 3, 2018. Notice Hr'g Pl.'s Mot. Summ. J. at 1, ECF No. 1-1 at 82-83.

         On October 2, 2018, U.S. Bank engaged counsel to represent it in this matter. Mot. Leave File Answer ¶ 4. The following day, on October 3, 2018, the Motion for Summary Judgment was continued, and counsel for SIWPC sent an e-mail to counsel for U.S. Bank with a proposed Agreed Order naming Samuel I. White, P.C., Trustee A/K/A Samuel White, Trustee as a Nominal Party ("Agreed Nominal Party Order"). Mem. Supp., Ex. A at 1-4, ECF No. 18-1.[3] U.S. Bank's counsel responded that same day and consented to the entry the Agreed Nominal Party Order. Id. at 1. The Agreed Nominal Party Order was entered by the circuit court on November 19, 2018. Agreed Order at 2, ECF No. 4 at 8-10.[4]

         In the interim, U.S. Bank filed a Motion for Leave to File Answer on October 17, 2018, which explained that U.S. Bank failed to timely file a responsive pleading to the Complaint because it "was improperly routed to the incorrect individual and department of U.S. Bank." Mot. Leave File Answer ¶ 3. The Motion for Leave to File Answer was noticed for November 28, 2018. Praecipe at 1, ECF No. 1-1 at 98-99. The circuit court heard Jolley's Motion for Summary Judgment and U.S. Bank's Motion for Leave to File Answer on November 28, 2018. Tr. Hr'g at 3, ECF No. 21. At the end of the hearing on November 28, 2018, the circuit court indicated that it anticipated ruling "within the next week." Id. at 25. The next week, on December 4, 2018, U.S. Bank filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF No. 1.

         On January 3, 2019, Jolley filed the instant Motion to Remand and corresponding Memorandum in Support. ECF Nos. 17-18. Jolley asserts three grounds for remand: First, Jolley argues that the Notice of Removal was untimely under 28 U.S.C. § 1446, because more than thirty days had passed from October 3, 2018, which is the date U.S. Bank could first ascertain that the case had become removable. Mem. Supp. at 1. Second, Jolley argues that "US Bank has not satisfied its burden to demonstrate that there is complete diversity of the parties or federal subject matter jurisdiction." Id. Finally, Jolley urges the court to "decline jurisdiction, pursuant to its discretionary authority under Title 28 U.S.C. § 2201, over this state court declaratory judgment action.'' Id. at 1-2.

         On January 22, 2019, U.S. Bank filed a Response in Opposition to Plaintiff's Motion to Remand ("Response"), asking the court to deny Jolley's Motion to Remand. ECF No. 26. On January 28, 2019, Jolley filed a Reply in Support of Its Motion to Remand to State Court ("Reply") . ECF No. 27. On February 4, 2019, Jolley, with agreement of U.S. Bank, requested a hearing on its Motion to Remand. ECF No. 28. The Motion to Remand is ripe for review and the court finds a hearing unnecessary to resolve the Motion to Remand.

         II.

         A defendant may remove a civil case to federal court if "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). "The notice of removal of a civil action or proceeding shall be filed within 30 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." Id. § 1446(b) (1) .

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ...

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