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Juanita V. Perkins v. Beltway Capital

February 24, 2011

JUANITA V. PERKINS
v.
BELTWAY CAPITAL, LLC ET AL.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court is Plaintiff's Motion to Remand. (ECF No. 10.) For the following reasons, Plaintiff's Motion will be granted.

I. BACKGROUND

Plaintiff Juanita Perkins owns a home on South 13th Street in Philadelphia. In May 2006, Plaintiff applied for a loan with Defendant Assured Lending, a company that brokered mortgages for Defendant First Franklin. On May 25, 2006, Plaintiff consummated a consumer loan transaction with Defendant First Franklin at Plaintiff's home.

On June 18, 2007, Defendant Deutsche Bank, a transferee of the mortgage, obtained a default judgment in foreclosure against Plaintiff in the Court of Common Pleas of Philadelphia County. Plaintiff did not appeal the default judgment, which is now final. After entry of the default judgment Plaintiff sent notices to Defendants purporting to rescind the mortgage due to the existence of material violations of the Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1635, and purporting to cancel the mortgage pursuant to Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Cons. Stat. § 201-7.The default judgment was subsequently "marked to the use of" Defendant Beltway Capital.

On November 25, 2008, Plaintiff filed a Complaint in the Court of Common Pleas of Philadelphia County.*fn1 The Complaint seeks rescission of the loan and damages pursuant to TILA, 15 U.S.C. §§ 1601 et seq. (Count I), and cancellation of the loan and damages pursuant to UTPCPL, 73 Pa. Cons. Stat. §§ 201-1 et seq. (Count II). On April 8, 2009, Defendant First Franklin filed a Notice of Removal pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. (ECF No.1.) On May 17, 2009, Plaintiff filed the instant Motion to Remand. (ECF No. 10.) Defendants Mortgage Electronic, Beltway Capital, Deutsche Bank, and First Franklin oppose remand. (ECF Nos. 16, 17, 19.) For the following reasons, we will grant Plaintiff's Motion to Remand.*fn2

II. LEGAL STANDARD

Removal from state court is governed by 28 U.S.C. § 1441. Section 1441(a) states that "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 . . . ." A United States district court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. § 1331. After a case is removed, the plaintiff may file a motion to remand based on a defect or lack of subject matter jurisdiction. Id. § 1447(c). Section 1441 is to be strictly construed against removal. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007).

III. DISCUSSION

Defendants argue that removal is appropriate because the Court has federal question jurisdiction arising out of Plaintiff's TILA claim. See 28 U.S.C. § 1331. Defendants assert that we can hear Plaintiff's entire case, including her pendent state law claim.*fn3 Plaintiff raises two grounds for remand. Plaintiff argues that Defendants did not consent to removal. Plaintiff also argues that we lack subject matter jurisdiction under the Rooker-Feldman doctrine. We will address these arguments in turn.

A. Consent to Removal

Plaintiff argues that Defendant Assured Lending did not sign or consent to Defendant First Franklin's Notice of Removal. Plaintiff maintains that this renders the removal petition fatally defective.

Section 1447(c) provides that a "motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." An "irregularity in removal of a case to federal court is to be considered 'jurisdictional' only if the case could not initially have been filed in federal court." Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 614 (3d Cir. 2003) (citations omitted). It is well settled that the failure to obtain the consent of all Defendants for removal is not a jurisdictional defect and is therefore waivable. See Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) ("Failure of all defendants to join is a 'defect in removal procedure' within the meaning of §1447(c), but is not deemed to be jurisdictional."); Plevretes v. La Salle Univ., No. 07-5186, 2007 WL 4441220, at *2 (E.D. Pa. Dec. 19, 2007); Miller v. Principal Life Ins. Co., 189 F. Supp. 2d 254, 258 n.4 (E.D. Pa. 2002) ("The failure of all defendants to consent to removal is a waivable defect and does not in any way deprive this court of subject matter jurisdiction."). Objections to non-jurisdictional defects may be waived if not raised "within 30 days after the filing of the notice of removal." See 28 U.S.C. § 1447(c); see also Ariel Land Owners, 351 F.3d at 614; In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000).

Defendant First Franklin filed the Notice of Removal on April 8, 2009. Plaintiff did not file her Motion to Remand until May 17, 2009, thirty-nine days later. Since Plaintiff did not file the Motion to Remand within 30 days after the filing of the Notice of Removal, Plaintiff has waived the right to challenge procedural defects in the removal process. Failure of all Defendants to consent to removal is a procedural defect. Accordingly, Plaintiff has ...


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