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Dalambert-Ducena v. Ocwen Financial Corporation

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

January 27, 2015



GERRILYN G. BRILL, Magistrate Judge.

Plaintiffs Widline Dalamberg-Ducena and Wolf Ducena ("Plaintiffs") are proceeding in this action pro se. This matter is before the Court on the Rule 12(b)(6) Motion to Dismiss [Doc. 4] filed by the defendant, Ocwen Financial Corporation ("Defendant" or "OFC"). Also before the Court are Plaintiffs' responses [Docs. 5, 6, 9, and 10], which have been improperly denominated by the Plaintiffs and on the court docket as motions to dismiss.


Plaintiffs originally filed their verified complaint for declaratory judgment and injunctive relief in the Superior Court of Henry County, Georgia on July 31, 2014 in an apparent effort to forestall a foreclosure sale of real property that was scheduled to take place on August 5, 2014. [Doc. 1-1 at 2, Complaint; Doc. 4-1 at 1-4]. Defendant OFC was served with the summons and complaint on August 20, 2014, and timely removed the case to this court on September 19, 2014 on the basis of federal question jurisdiction. [Doc. 1, Notice of Removal, at 1-2].

Plaintiffs' complaint asserts the following grounds for relief: "newly discovered evidence of Fraud on the part of the defendant in a foreclosure action Scheduled for August 5, 2014, " unspecified fraudulent practices of the defendant, and "denial of due process/fair trial." [Doc. 1-1 at 3]. The complaint makes passing references to fraud, misrepresentation, deceit, bank fraud, constructive fraud, bad faith, lack of full disclosure, forgery, and deprivation of due process, but none of the references are supported by factual allegations. [Id. at 4].

The complaint contains no separate counts for relief, but generally alleges the following causes of action: (1) that Defendant OFC created a contract, which was void, because the lending officer lacked power under its federal bank charter to loan the Plaintiffs credit; (2) Defendant OFC violated unspecified usury laws; and (3) Defendant OFC through its conduct defrauded Plaintiffs and violated federal banking law, 12 U.S.C. § 24(7). [Id. at 4-6]. The pro se Plaintiffs also seek attorney's fees and costs under the Civil Rights Attorney's Fee Award Act of 1976, as amended, 42 U.S.C. § 1988. [Id. at 6 ¶ 6].

On September 26, 2014, Defendant OFC filed a Rule 12(b)(6) motion to dismiss Plaintiffs' complaint for failure to state a claim. [Doc. 4]. On October 9, 2014, Plaintiffs filed a nonsensical response titled, "Motion to Dismiss Mark J Windham's Motion to Dismiss." [Doc. 5]. Attorneys Mark J. Windham and Marlee Jean Waxelbaum (with the law firm Troutman Sanders, LLP) represent the defendant, OFC, in this matter. In light of Plaintiffs' pro se status and because it is clear to the Court that Plaintiffs oppose OFC's motion to dismiss, the Court will construe Plaintiffs' "motion to dismiss" [Doc. 5] as Plaintiffs' response in opposition to OFC's motion to dismiss. OFC filed a reply in support of its motion to dismiss on October 27, 2014. [Doc. 7].

On October 9th, Plaintiffs also filed a "Notice of Objection to Removal of Case and Motion to Dismiss" objecting to OFC's removal of the case to federal court. [Doc. 6]. OFC filed a response [Doc. 8] to Plaintiffs' objections on October 27, 2014. Both OFC's reply in support of its motion to dismiss [Doc. 7] and response to Plaintiffs' objections to removal [Doc. 8] were filed by Marlee Maxelbaum, Esq. on behalf of OFC.

On November 17, 2014, Plaintiffs filed two additional responses. The document at Docket Entry 9 is entitled, "Motion to Dismiss Marlee Maxelbaum's Reply in Support of Mark J. Windham's Motion to Dismiss." [Doc. 9]. The second document (filed as Docket Entry 10) is entitled, "[Plaintiffs'] Motion to Dismiss Marlee Maxelbaum Response to Notice of Objection to Mark J. Windham's Removal of Case and Motion to Dismiss." [Doc. 10]. Both additional responses are in effect unpermitted surreplies in opposition to OFC's briefs.

Local Rule 7.1 contemplates the filing of responses to pending motions, LR 7.1(B), NDGa., and permits, but does not require as a matter of routine practice, the filing of one reply brief. LR 7.1(C). Neither the Federal Rules of Civil Procedure nor this Court's Local Rules authorize the filing of surreplies. Although the Court may in its discretion permit the filing of a surreply, this discretion should be exercised in favor of allowing a surreply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief. Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005) (quotations marks and internal citations omitted).

Plaintiffs have already filed responses to both OFC's notice of removal and motion to dismiss. OFC's replies do not raise any new arguments. Plaintiffs did not seek leave of Court to file their surreplies, as this Court normally requires. Since Plaintiffs have not shown a valid reason for the Court to consider additional briefing, the Court has not considered Plaintiffs' surreplies [Docs. 9 & 10] in addressing Defendant OFC's motion to dismiss and/or notice of removal.


This dispute arises out of the non-judicial foreclosure sale of the real property located at 505 Mellview Court, Stockbridge, Henry County, Georgia, 30281 (the "Property"). On or about July 11, 2006, Plaintiff Widline Dalamberg-Ducena obtained a $230, 100 loan (the "Loan") from SouthStar Funding, LLC ("Lender") to purchase or finance the Property at issue in this litigation. A note was signed, and the Plaintiffs executed a security deed to secure repayment of the Loan on the Property. [Doc. 4-2 ("Note"); Doc. 4-3 ("Security Deed")].[1] The Security Deed granted to Mortgage Electronic Registration Systems, Inc. ("MERS"), and to MERS's successors and assigns, the power of sale in the event that Plaintiffs defaulted on their Loan repayment obligations. The Security Deed was subsequently assigned to The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company, N.A. as successor to JPMorgan Chase Bank, N.A., as Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2006-RZ4 ("BNY Mellon"). [Doc. 4-4, "Assignments"]. At all relevant times, Ocwen Loan Servicing, LLC ("OLS") serviced the Loan.[2]

After Plaintiffs failed to make one or more payments required under the 2006 Note, OLS, on behalf of BNY Mellon, retained foreclosure counsel to begin foreclosure proceedings on the Property. [Docs. 4-5, 4-6, 4-7]. The foreclosure sale proceeded as scheduled on August 5, 2014, pursuant to which BNY Mellon took back the Property for a credit bid. [Doc. 4-1 at 4].

On July 31, 2014, Plaintiffs initiated this action by filing their verified complaint in the Superior Court of Henry County. As noted above, the complaint seeks, inter alia, an injunction against the August 5, 2014 foreclosure sale, a declaratory judgment, and attorney's fees and costs. [Doc. 1-1 at 5-6]. OFC was served with process on August 20, 2014, and timely removed the case to this court on September 19, 2014. Defendant OFC's motion to dismiss and Plaintiffs' objections to OFC's removal have been briefed and are before the Court for consideration.


A. Plaintiffs' Objections to Notice of Removal

The Court will first address Plaintiffs' objections to Defendant's removal of this case to federal court. Plaintiffs contend that this Court lacks subject matter jurisdiction. [Doc. 6 at 11].

Like Plaintiffs' complaint, Plaintiffs' "Notice of Objection to Removal of Case and Motion to Dismiss" is difficult to decipher and includes a hodgepodge of bald assertions, conclusory allegations, repetitive and unsupported objections, and nonsensical legalese. Plaintiffs have cut and pasted the exact same objection to every single numbered paragraph in Defendant's Notice of Removal. The "objection" reads as follows:

Counsel Mark J. Windham is not a party to the action and Counsel Mark J. Windham is attempting to testify for a witness not in appearance. Mark J. Windham has placed no facts on the record. No fact appears on record whether by deposition, admission; answer to interrogatory, or by affidavit to support the averments of Counsel Mark J. Windham's, notice of removal, is irrelevant, and inadmissible. Documents proffered by counsel Mark J. Windham opinions are unverified, out-of-date, irrelevant, and inadmissible. "Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment." [Citations omitted].

[Doc. 6 at 1-10]. Plaintiffs' objection fails to articulate any valid legal basis for remand.

Pursuant to 28 U.S.C. § 1441(a), a civil action originally filed in a state court may be removed to federal district court if the district court has original subject matter jurisdiction over the case. The burden is on the party seeking removal to establish federal subject matter jurisdiction. Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005); see also Buice v. Buford Broad., Inc., 553 F.Supp. 388, 390 (N.D.Ga. 1983). "If 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).

In its notice of removal, Defendant OFC invokes federal question jurisdiction. "Only state-court actions that originally could have been filed in federal court may be removed to federal court, " and, "[a]bsent diversity of citizenship, federal-question jurisdiction is required." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also 28 U.S.C. § 1441(b). District courts have federal-question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Caterpillar, 482 U.S. at 392 n.6 (quoting 28 U.S.C. § 1331). Generally, "a case arises under' federal law if federal law creates the cause of action, or if a substantial disputed issue of federal law is a necessary element of a state law claim." Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998) (citation omitted). Accordingly, for removal to be proper, one or more of Plaintiffs' claims must have arisen under federal law.

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. See Caterpillar, 482 U.S. at 392 (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13 (1936)). Under the well-pleaded complaint rule, the plaintiff is "the master of the claim; he or she may avoid federal jurisdiction by exclusive ...

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