United States District Court, E.D. Pennsylvania
BANK OF NEW YORK, formerly known as The Bank of New York, As Trustee on behalf of The Holders of the Alternative Loan Trust 2006-OC11, Mortgage Pass Through Certificates Series 2006-OC11
ROBERT BRUCE FAZIO and UPPER INDIAN HEAD ROAD DEVELOPMENT, LLC, REAL OWNER
removing this mortgage foreclosure action from the state
court, the defendants contend that the federal court has
subject matter jurisdiction based upon federal question
jurisdiction pursuant to 28 U.S.C. § 1331 and diversity
of citizenship pursuant to 28 U.S.C. § 1332. Consistent
with our “independent obligation to determine whether
subject-matter jurisdiction exists, even when no party
challenges it, ” Hertz Corp. v. Friend, 559
U.S. 77, 94 (2010), we may remand a case sua sponte
for lack of subject matter jurisdiction. 28 U.S.C. §
1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
defendant removing a case from state court under § 1331
bears the burden of demonstrating federal jurisdiction.
Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d
144, 151 (3d Cir. 2009) (citing Frederico v. Home
Depot, 507 F.3d 188, 193 (3d Cir. 2007)). Additionally,
removal statutes are to be strictly construed against
removal, and all doubts are resolved in favor of remand.
A.S. ex rel. Miller v. SmithKline Beecham
Corp., 769 F.3d 204, 208 (3d Cir. 2014) (citation
omitted); Brown v. JEVIC, 575 F.3d 322, 326 (3d Cir.
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant. Caterpillar, Inc. v. Williams, 482 U.S.
386, 392 (1987); Bracken v. Matgouranis, 296 F.3d
160, 162 (3d Cir. 2002). A defendant can remove an action
from state court when there is a federal question. Smith
v. Indus. Valley Title Ins. Co., 957 F.2d 90, 92 (3d
Cir. 1992) (citing Caterpillar, 482 U.S. at 392); 28
U.S.C. §§ 1331 and 1441. To confer federal question
jurisdiction, the claim must arise under the Constitution,
treaties, federal statutes or administrative regulations.
Empire Healthchoice Assur., Inc. v. McVeigh, 547
U.S. 677, 689-90 (2006); Hagans v. Lavine, 415 U.S.
528, 536 (1974). For jurisdiction under § 1331, the
federal question must be “substantial.”
Hagans, 415 U.S. at 537-38.
to the “well-pleaded complaint rule, ”
federal-question jurisdiction exists only when a federal
question is presented “on the face” of the
complaint. Berne Corp. v. Government of The Virgin
Islands, 570 F.3d 130, 136 (3d Cir. 2009) (quoting
Caterpillar, 482 U.S. at 392). The plaintiff's
“statement of his own cause of action” must arise
from or be grounded upon federal law. Vaden v. Discover
Bank, 556 U.S. 49, 60-61 (2009) (quoting Louisville
& Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152
(1908)). Federal jurisdiction cannot be based on an actual or
anticipated defense. Id.
to the complaint filed in the state court in 2014, defendant
Robert Bruce Fazio executed a note, which was ultimately
assigned to BNY, in the amount of $750, 000.00 and secured by
a mortgage on Fazio's residence located in Collegeville,
Pennsylvania. BNY alleges that Fazio defaulted on his
mortgage payments, and seeks an in rem judgment for
foreclosure and sale of the property against Fazio and
defendant Upper Indian Head Road Development, LLC, the
current owner of the property. In their removal notice, the
defendants contend that BNY is in violation of their due
process rights under the U.S. Constitution as well as the
“Truth in Lending Act of 1968” by engaging in
“illicit and unlawful mechanisms and schemes” to
try to force the sale of the property.The alleged
illicit schemes were attaching an “incorrect”
Loan and Security Agreements and Disclosure Statement to the
complaint, refusing to produce the original note or mortgage
assignment and obtaining the mortgage assignment “by
means of fraud and fil[ing] it of
is no federal question on the face of the complaint. The
plaintiff's cause of action is based entirely on state
law claims for foreclosure of the mortgage and is not
grounded upon any federal law. As the basis for federal
jurisdiction, in the notice of removal the defendants
describe inconsequential actions by the plaintiff and make
vague references to a federal statute and the Constitution in
an apparent effort to assert a federal defense to the state
law claim. As we have pointed out, the well-pleaded complaint
rule bars federal jurisdiction on the basis of an actual or
anticipated federal defense.
have the defendants met their burden of showing that there is
diversity jurisdiction. I“[J]urisdiction based on
diversity of citizenship requires that opposing parties be
citizens of diverse states.” GB Forefront, L.P. v.
Forefront Mgmt. Grp., LLC, 888 F.3d 29, 34 (3d Cir.
2018). Residency in a state is insufficient to establish
citizenship of an individual. Id. at 35; McNair
v. Synapse Grp. Inc., 672 F.3d 213, 219 n.4 (3d Cir.
2012) (Allegations pertaining solely to a litigant's
“residency, ” as opposed to
“citizenship” or “domicile, ” is
“jurisdictionally inadequate in [a] diversity of
citizenship case.”). For citizenship of a corporation,
one must specify the state of incorporation and its principal
place of business. Hertz Corp., 559 U.S. at 88; 28
U.S.C. § 1332(c)(1). A limited liability company is a
citizen of any state in which its members are citizens.
VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d
273, 282 (3d Cir. 2014). Neither the complaint nor the notice
of removal adequately avers the citizenship of any party. The
complaint states that BNY has “an office and place of
business” in Salt Lake City, Utah, that Fazio
“resides” in Collegeville, Pennsylvania, and that
Upper Indian “is located” in
Collegeville. The removal notice adds nothing, merely
repeating that Fazio “reside[s] at his residence”
the plaintiff's complaint does not present a federal
question sufficient to support jurisdiction under 28 U.S.C.
§ 1331, and the removal notice does not sufficiently
aver the citizenship of any party to enable us to determine
if there is diversity jurisdiction, we shall remand this
action for lack of subject matter jurisdiction.
 Compl. ¶¶ 2-5, 8, 10 (Doc.
No. 1 at ECF 11-13).
 Not. of Removal ¶ 7, second
¶ 4 (Doc. No. 1 at ECF ...