United States District Court, E.D. Pennsylvania
Abdus-Saber simultaneously filed a notice to remove a state
foreclosure proceeding to this Court and filed a related
civil action against Wells Fargo Bank, N.A. (“Wells
Fargo”) and the Philadelphia Court of Common Pleas.
Both cases concern a Sheriff's sale scheduled in a
mortgage foreclosure action initiated against Abdus-Saber by
Wells Fargo in the Philadelphia Court of Common Pleas.
Abdus-Saber seeks leave to proceed in forma pauperis
in both cases. For the following reasons, the Court will
grant Abdus-Saber leave to proceed in forma
pauperis, dismiss his Complaint, and remand the removed
case to state court.
The Foreclosure Proceeding
March 9, 2015, Wells Fargo filed a mortgage foreclosure
complaint against Abdus-Saber in the Philadelphia Court of
Common Pleas in connection with property at 147 Harvey Street
in Philadelphia. Wells Fargo Bank, N.A. v.
Abdus-Saber, Case ID 150301131 (Phila. Court of Common
Pleas). In October of 2016, the state court found in favor of
Wells Fargo. Id. Abus-Saber's post trial motion
was unsuccessful. In November of 2016, Abdus-Saber attempted
to remove the case to this Court by invoking the Court's
federal question jurisdiction. Wells Fargo Bank N.A. v.
Abdus-Saber, Civ. A. No. 16-5785 (E.D. Pa.). The case
was quickly remanded to the Philadelphia Court of Common
Pleas for lack of subject matter jurisdiction because
Abdus-Saber's intention to raise claims under the Fair
Debt Collection Practices Act (“FDCPA”) did not
provide a basis for removal. Id. (Nov. 18, 2016
Order, ECF No. 2).
Sheriff's sale of the property was scheduled and
continued multiple times. On July 15, 2019, Abdus-Saber filed
a “petition for payment into court, ” apparently
in an effort to satisfy the judgment against him, and the
state court scheduled a hearing for August 28 on that
petition. However, a Sheriff's sale was scheduled for
August 6, 2019. Abdus-Saber moved in state court to postpone
the sale, but his motion was denied on August 2, 2019. On the
date the property was set to be sold, he filed a notice of
removal, which was docketed as Wells Fargo Bank N.A. v.
Abdus-Saber, Civ. A. No. 19-3527, and a Complaint
against Wells Fargo and the Philadelphia Court of Common
Pleas, which was docketed as Abdus-Saber v. Wells Fargo
Bank N.A., Civ. A. No. 19-3526. On the same day, the
state court issued an order postponing the Sheriff's sale
until September 10, 2019. See Wells Fargo Bank, N.A. v.
Abdus-Saber, Case ID 150301131 (Phila. Court of Common
Civil Action Number 19-3526
Civil Action Number 19-3526, Abdus-Saber indicates that he is
bringing claims under the FDCPA in connection with recent
events in the foreclosure action. Specifically, he alleges
that Wells Fargo and the Philadelphia Court of Common Pleas
violated the FDCPA by “not immediately cancelling the
[August 6] Sheriff sale” even though he filed a
petition for payment into court on July 15 and a hearing was
scheduled for August 28 on that petition. (Compl. at
He also alleges that he paid a bond to the state court to
satisfy the judgment against him on July 15 and that he tried
to submit payment a second time on August 5, but his payment
was refused. Abdus-Saber adds that his due process rights
were violated by the denial of his motion for a stay of the
Sheriff's sale. Among other things, he seeks damages and
an injunction “to set aside Sheriff sale of property
147 Harvey Street.” (Id.) He also asks the
Court to review the state court's docket and conclude
that the judgment has been satisfied.
Civil Action Number 19-3527
Notice of Removal is essentially the same as his Complaint in
Civil Action Number 19-3526. Although the Court understands
Abdus-Saber to be intending to remove the underlying
foreclosure action, he attached the same typed Complaint to
his Notice of Removal that serves the basis for his claims in
19-3526. Abdus-Saber did not include “a copy of all
process, pleadings, and orders served upon [him]” in
the underlying mortgage foreclosure action as required by 28
U.S.C. § 1446(a).
also filed a Motion for an “Emergency Injunction From a
Pending Foreclosure Sale” in which he sought to enjoin
the August 6 Sheriff's sale on the basis that he
submitted a bond to the prothonotary on August 5. (Civ. A.
No. 19-3527, ECF No. 3.) The Honorable Nitza I.
Quiñones Alejandro, serving in her capacity as
emergency judge, denied the Motion as moot because the state
court had already postponed the Sheriff's sale. (See
Id. ECF No. 5.)
STANDARD OF REVIEW
is granted leave to proceed in forma pauperis
because it appears that he is incapable of paying the fees to
commence these civil actions. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint
if it fails to state a claim. To survive dismissal a
complaint must contain “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Moreover, “if the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed.R.Civ.P. 12(h)(3). The
removal statute similarly requires remand if a Court
concludes that subject matter jurisdiction is lacking.
See 28 U.S.C. § 1447(c). As Abdus-Saber is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).