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U.S. Bank National Association v. Sanders

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

April 7, 2015

U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
v.
TINA M. SANDERS, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant Tina M. Sanders's ("Defendant" or "Sanders") Objections [8] to Magistrate Judge Walter E. Johnson's Report and Recommendation ("R&R") [3]. The R&R recommends remanding this dispossessory action to the Magistrate Court of Gwinnett County, Georgia. Also before the Court is Defendant's "Ammendment [sic] of Complaint for Emergency Action of Removal of State Action to Federal Court, " which the Court construes as Defendant's Amended Notice of Removal [5], and Defendant's "Emergency Motion to Stay State Court. Proceedings" ("Motion to Stay") [10].[1]

I. BACKGROUND

Defendant has a lengthy history of challenging the validity of her mortgage debt and seeking to delay foreclosure of, and dispossession from, her home, located at 2540 Sable Ridge Court, Buford, Georgia (the "Property"), following her default on her loan obligations.[2]

On April 30, 2014, U.S. Bank National Association ("Plaintiff' or "U.S. Bank") filed, in the Magistrate Court of Gwinnett County, Georgia, a dispossessory action (the "Dispossessory Action") against Defendant.[3] (Complaint [2 at 2]). The Complaint in the Dispossessory Action asserts that Defendant is a tenant at sufferance following an April 1, 2014, foreclosure sale of the Property.

On May 20, 2014, Defendant, proceeding pro se, removed the Dispossessory Action to this Court on the basis of diversity of citizenship. See U.S. Bank Nat'l Assoc. v. Sanders, No. 1:14-cv-1534, Doc. 1 (N.D.Ga.). Defendant also filed a counterclaim for violation of the False Claims Act, alleging that she did not receive proper notice of the foreclosure sale and that "her Note is paid in full and there is not [sic] default" because "[t]he United States of American [sic] [p]aid [her mortgage] via the Pooling and Service [sic] Agreement." Id.

On September 30, 2014, the Court, having found that it lacked subject matter jurisdiction, remanded the Dispossessory Action to the Magistrate Court of Gwinnett County. Id. at Doc. 15.

On October 22, 2014, the Magistrate Court of Gwinnett County granted Plaintiff a Writ of Possession for the Property.

On October 24, 2014, Defendant filed her Notice of Appeal to the Superior Court of Gwinnett County, Georgia.[4]

On January 26, 2015, the Superior Court of Gwinnett County granted U.S. Bank's motion for summary judgment on Sanders's counterclaims and issued a Writ of Possession for the Property in favor of U.S. Bank.

Also on January 26, 2015, Defendant moved for reconsideration of the Superior Court's January 26th Order, which the Superior Court denied on January 27, 2015.

On February 4, 2015, Defendant removed the Dispossessory Action to this Court and filed an application to proceed in forma pauperis ("IFP"). Defendant asserts that she "has exhausted the state remedies and that the ruling of the state court violates the Constitutional rites [sic] of the plaintiff [sic]." (Notice of Removal [2] at 1). Defendant asserts that her "rites [sic] of liberty to [her] place of residency are being violated by the unlawful ruling of the State Court and the State Courts [sic] refusal to hear the appeal." (Id.).

On February 13, 2015, the Magistrate Judge Johnson granted Defendant's IFP application and issued his R&R. The Magistrate Judge considered, sua sponte, whether the Court has subject-matter jurisdiction over this action. He concluded that the Court's jurisdiction cannot be based on diversity of citizenship. He also found that the Dispossessory Action is based on state law, and because federal jurisdiction cannot be based on a defendant's answer or notice of removal, the Magistrate Judge concluded that the Court does not have federal question jurisdiction over this matter. Because the Court lacks subject-matter jurisdiction, the Magistrate Judge recommended that this action be remanded to state court.

Also on February 13, 2015, Defendant filed her Amended Notice of Removal, asserting that she "has been the victim of fraud by [U.S. Bank] through the use of fraudulent documents and fraud perpetrated on the state court by [U.S. Bank] in its filing of the state complaint and use of same during the state court process." (Amended Notice of Removal [5] at 1). Defendant argues that U.S. Bank "initiated the foreclosure action based upon and through the use of fraudulent documents, " and that "[t]he assignment upon which foreclosure and all ...


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