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Saber v. Wells Fargo Bank N.A.

United States District Court, E.D. Pennsylvania

August 15, 2019

IDRIS ABDUS SABER, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendant. IDRIS ABDUS SABER, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendant.

          MEMORANDUM

          WENDY BEETLESTONE, J.

         Idris 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.

         I. FACTS [1]

         A. The Foreclosure Proceeding

         On 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).

         A 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 Pleas).

         B. Civil Action Number 19-3526

         In 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.[2] 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 15.)[3] 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.

         C. Civil Action Number 19-3527

         Abdus-Saber's 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).

         Abdus-Saber 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.)

         II. STANDARD OF REVIEW

         Abdus-Saber 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).

         III. ...


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