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Guthrie v. Wells Fargo Home Mortgage Na

United States District Court, N.D. Georgia, Atlanta Division

July 7, 2014

PATRICIA G. GUTHRIE, Plaintiff,
v.
WELLS FARGO HOME MORTGAGE NA et al., Defendants.

MAGISTRATE JUDGE'S ORDER AND REPORT AND RECOMMENDATION

LINDA T. WALKER, Magistrate Judge.

This case is presently before the Court on various motions filed by the parties. (Docs. 5, 7, 9-12, 15, 16, 25, 31, 34, 37, 41, 44, 45, 50, 51, 52, 54, 56, 62). For the reasons outlined below, the parties' Motions are adjudicated as follows:

(1) This Court RECOMMENDS that Defendant McCalla Raymer, LLC's ("McCalla Raymer") Motion to Dismiss be GRANTED. (Doc. 5).

(2) This Court RECOMMENDS that Wells Fargo Home Mortgage's ("Wells Fargo") Rule 12 Motion to Dismiss or in the Alternative for a More Definite Statement be GRANTED. (Doc. 7).

(3) McCalla Raymer's Motion to Stay Discovery and Pretrial Deadlines is GRANTED. (Doc. 9).

(4) This Court RECOMMENDS that Plaintiff Patricia G. Guthrie's ("Plaintiff") Motion for Reconsideration of Removal from State Court and Standing Order 08-01 be DENIED. (Doc. 10).

(5) This Court RECOMMENDS that Plaintiff's Motion for Reconsideration on Order to Deny Cause Hearing for Plaintiff's Motion for Injunction be DENIED. (Doc. 11).

(6) Plaintiff's Motion for Leave to File Amended Complaint and Answer is DENIED. (Doc. 12).

(7) Plaintiff's Motion for Permission for Electronic Case Filing is DENIED. (Doc. 15).

(8) Plaintiff's Motion to Consolidate Related Cases is DENIED. (Doc. 16).

(9) This Court RECOMMENDS that Plaintiff's Motion for Summary Judgment in Opposition to Defendant McCalla Raymer, LLC's Memorandum of Law in Support of Its Motion to Dismiss be DENIED. (Doc. 25).

(10) McCalla Raymer and Wells Fargo's Motions to Strike Plaintiff's Third Amended Complaint are GRANTED. (Docs. 31, 34).

(11) Well's Fargo's Motion to Strike Plaintiff's Answer to Defendant Wells Fargo's Reply in Support of Its Rule 12 Motion to Dismiss or in the Alternative for a More Definite Statement is GRANTED. (Doc. 37).

(12) This Court RECOMMENDS that Plaintiff's Renewed Motion for Emergency Injunction be DENIED. (Doc. 41). Plaintiff's Renewed Motion for Permission for Electronic Case Filing and Motion for Permission to File Supplemental Pleadings are DENIED. (Doc. 41).

(13) This Court RECOMMENDS that Plaintiff's Notice of Motion and Motion to Vacate Judgment in a Dispossessory Action and Deed Under Power Sale be DENIED. (Doc. 44).

(14) Plaintiff's Motion for Sanctions is DENIED. (Doc. 45).

(15) Plaintiff's Motion to Strike the Declaration of Michael Dolan is DENIED. (Doc. 50).

(16) Plaintiff's Motion to Strike Defendant Wells Fargo's Rule 12 Motion to Dismiss or in the Alternative for a More Definite Statement and Motion to Strike any Alleged Added Motion for a More Definite Statement Dated and/or Entered on December 30, 2013, is DENIED. (Doc. 51).

(17) Plaintiff's Motion to File Supplemental Pleadings is DENIED. (Doc. 52).

(18) This Court RECOMMENDS that Wells Fargo's Motion for Protective Order, in which McCalla Raymer joins, be GRANTED. (Doc. 54).

(19) Plaintiff's Motion to Correct Clerical Mistakes is GRANTED. (Doc. 56).

(20) Plaintiff's Motion to Amend Cause of Action and Attach Supplemental Pleadings is DENIED. (Doc. 62).

PLAINTIFF'S MOTION FOR RECONSIDERATION OF REMOVAL FROM STATE COURT AND STANDING ORDER 08-01

I. BACKGROUND

Plaintiff Patricia Guthrie (hereinafter "Plaintiff") filed the instant lawsuit in the Superior Court of Fulton County on November 4, 2013, against Defendants Wells Fargo Home Mortgage, N. A. ("Wells Fargo") and McCalla Raymer, LLC ("McCalla Raymer") for claims arising out of foreclosure or attempted foreclosure on Plaintiff's property on Lenox Road in Atlanta, Georgia. (Compl., p. 2, 11). Plaintiff subsequently amended her Complaint twice while it was pending in the Superior Court of Fulton County. Plaintiff's Second Amended Complaint, which is the operative Complaint in this case, [1] asserted that Defendants violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), the Fair Debt Collection Practices Act, 15 U.S.C. § 1592 et seq. ("the FDCPA"), and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA"). (Second Am. Compl. ¶¶ 24, 26-28, 33-37, 66-68). Plaintiff also asserts various state law claims. Defendants removed the matter to this Court on December 20, 2013, on the grounds that Plaintiff's Complaint raised federal questions.

In Plaintiff's Motion for Reconsideration of Removal from State Court and Standing Order 08-01 (Doc. 10), Plaintiff objects to the removal of her lawsuit to federal court on the grounds that Wells Fargo has already elected to file a dispossessory action in state court and this case involves the same issues and transactions as the dispossessory action. Plaintiff further argues that the case should not be referred to a Magistrate Judge while it is pending in this Court pursuant to Standing Order 08-01 because doing so "create[s] additional stress and undue burden with regard to legal preparation on Pro Se Defendant, who is already overwhelmed by the [Dispossessory] action... filed by the Defendant in the Magistrate Court of Fulton County." (Pl.'s Motion for Reconsideration of Removal, p. 3).

II. LEGAL ANALYSIS

A. This Court has Removal Jurisdiction

Plaintiff appears to contend that her Complaint should be remanded on the grounds that at the time of removal, Wells Fargo had filed a dispossessory action in state court which implicated some of the same issues and transactions present in this case. Because Plaintiff has brought causes of action pursuant to TILA, the FDCPA, and RESPA, Plaintiff's Complaint raises federal questions, and this Court has jurisdiction. Title twenty-eight, section 1441(a) of the United States Code provides that a "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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "[I]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists." Kirkland v. Midland Mortg. Co. , 243 F.3d 1277, 1281 n.5 (11th Cir. 2001) (citation omitted). "[U]ncertainties are resolved in favor of remand." Burns v. Windsor Ins. Co. , 31 F.3d 1092, 1095 (11th Cir. 1994).

"The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987) (internal citation omitted). In this case, Plaintiff pleads federal claims pursuant to TILA, RESPA, and the FDCPA. (See Second Am. Compl. ¶¶ 24, 26-28, 33-37, 66-68). Because Plaintiff has pleaded these federal claims, removal jurisdiction exists and remand is not warranted. In re City of Mobile , 75 F.3d 605, 607 (11th Cir. 1996) (explaining that it is improper to remand federal claims pursuant to 18 U.S.C. § 1367 even if state issues substantially predominate over the federal issues); see also Poche v. Texas Air Corps, Inc. , 549 F.3d 999, 1005 (5th Cir. 2008), citing Laurents v. Arcadian Corp., No. 94-41183, 1995 WL 625394, 69 F.3d 535 (5th Cir. Oct. 4, 1995) (holding that although the district court had discretion to remand state law claims that were removed along with one or more federal question claims, it could not remand federal question claims absent a defect in the removal procedure).

Additionally, Plaintiff presents no authority for the proposition that Defendants should not be able to remove an action against her simply because one Defendant is maintaining a separate action against Plaintiff in state court, and this Court has not located any authority on Plaintiff's behalf. Plaintiff could be arguing that the doctrine of abstention requires remand of her case. The closest abstention doctrine based on the facts and circumstances of this case is the Colorado River abstention doctrine. That doctrine authorizes a federal district court to dismiss or stay an action where there is an ongoing parallel action in state court. Colo. River Water Conservation Dist. v. United States , 424 U.S. 800, 817 (1976); Moorer v. Demopolis Waterworks and Sewer Bd. , 374 F.3d 994, 997 (11th Cir. 2004). Colorado River analysis is applicable as a threshold matter when federal and state proceedings involve substantially the same parties and substantially the same issues. Ambrosia Coal & Constr. Co. v. Pages Morales , 368 F.3d 1320, 1330-31 (11th Cir. 2004). If there is any substantial doubt about whether two cases are parallel, the court should not abstain. Acosta v. James A. Gustino, P.A., 478 F.App'x 620, 621 (11th Cir. 2012). Plaintiff fails to demonstrate that the dispossessory action against her involves substantially the same issues as the present litigation. See, e.g., Acosta, 478 F.App'x at 621 (reversing district court's remand of action which included FDCPA and Florida Consumer Collection Practices Act claim because action did not involve substantially the same issues as state court foreclosure action). Indeed, it is not a foregone conclusion that the dispossessory action would raise the same issues as those raised in this case. Dispossessory proceedings concern the issue of possession of property only and do not concern title to land; thus, the former owner of a property cannot defend a dispossessory action by arguing that the landowner seeking possession does not have proper title to the property. Roberts v. Collins , 199 Ga.App. 614, 614 (1991); Ranger v. First Family Mortg. Corp. of Fla. , 176 Ga.App. 715, 715 (1985) (attack on mortgage company's title to property on grounds that debtor was not given proper ...


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