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Tonea v. Nationstar Mortgage LLC

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

January 11, 2017

MIRCEA TONEA, Plaintiff,



         This removal action is presently before the Court on Plaintiff Mircea Tonea's motion to remand [Doc. 5] and on Defendant Nationstar Mortgage LLC's (“Nationstar”) motion to dismiss for failure to state a claim [Doc. 3]. For the following reasons, the Court RECOMMENDS that the motion to remand be DENIED and that the motion to dismiss be GRANTED.

         I. BACKGROUND

         The instant removal action is the fourth lawsuit that Tonea has filed since 2012 to prevent the non-judicial foreclosure sale, pursuant to the terms of a security deed (the “Security Deed”), of his real property located at 1845 Oak Wind Lane in Buford, Georgia (the “Property”). See Tonea v. Bank of Am., 1:12-cv-2642-WSD (N.D.Ga. 2012) (“Tonea I”); Tonea v. Bank of Am., 1:13-cv-1435-WSD, 6 F.Supp.3d 1331 (N.D.Ga. 2014) (“Tonea II”); Tonea v. Nationstar Mortg., LLC, 1:14-cv-2397-WSD (N.D.Ga. 2014) (“Tonea III”). Tonea initiated each of those cases in state court, and the Defendants removed the cases to this Court.

         In 2004, in connection with a residential mortgage loan, Tonea executed a promissory note (the “Note”) in favor of Home Funds Direct and executed the Security Deed in favor of the Mortgage Electronic Registration System (“MERS”) as nominee for Home Funds Direct. [Doc. 3-2.] In Tonea I, Tonea filed a complaint against his then-servicer Bank of America, N.A. (“BANA”), alleging wrongful attempted foreclosure of the Property. Tonea voluntarily dismissed his complaint but, in 2013, filed a similar complaint against BANA in Tonea II. In March 2014, the District Court dismissed the complaint for failure to state a claim. Several months later, Tonea filed his Tonea III lawsuit against his current loan servicer, Nationstar, again raising claims related to the impending foreclosure sale of his home. The Honorable E. Clayton Scofield III recommended dismissing the complaint for failure to state a claim, and in November 2014, Tonea voluntarily dismissed the complaint before the District Court issued a ruling on that recommendation.

         On July 12, 2016, in the Superior Court of Gwinnett County, Tonea filed the instant complaint against Nationstar, once again challenging the impending foreclosure sale of the Property. [Doc. 1-1 (“Compl.”).] On August 17, 2016, Nationstar removed the case to this Court. [Doc. 1.]

         On August 24, 2016, Nationstar moved to dismiss Tonea's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [Doc. 3.] Nationstar also requested that this Court bar Tonea from filing form complaints related to the foreclosure of the Property. [Doc. 3-1 at 14-15.] That same day, Tonea moved to remand the case to state court. [Doc. 5.] Nationstar has responded to Tonea's motion to remand. [Doc. 9.] Tonea has responded to the motion to dismiss, and Nationstar has filed a reply. [Docs. 10, 11.]


         Tonea's complaint is a rambling document, which largely consists of legal argument, rather than factual allegations. (See Compl.) The complaint also appears to be a form complaint that is not tailored to the actual circumstances of Tonea's home foreclosure. (See id.) Nevertheless, the essential factual allegation of the complaint is that Nationstar is attempting to foreclose on the Property even though it is not the holder of the promissory note secured by the Property (the “Note”). (Id. ¶¶ 5-17.) Tonea suggests that MERS could not make a valid assignment of the Security Deed because it never possessed the Note. (Id. at 5, 11.) He also suggests that the assignment of the Security Deed is invalid because the only assignment he found in the Gwinnett County Records was an assignment of a security deed from New Century Mortgage Corporation to Deutsche Bank.[1](Id. ¶ 22.)

         Tonea attached to his complaint a notice of sale under power from the Albertelli Law firm. (Compl. Ex. A.) The notice of sale under power indicated that assignee of the Security Deed, The Bank of New York Mellon, would have the Property sold at public auction on August 2, 2016. (Id.)

         Tonea alleges that Nationstar committed fraud and misrepresentation by failing to disclose that it is a “debt collector” and is not the secured party before advertising a foreclosure sale. (Compl. ¶¶ 18-25.) He also claims that Nationstar has committed attempted wrongful foreclosure by advertising a foreclosure sale even though it is not the holder of the note.[2] (Id. ¶¶ 26-33.) Furthermore, the notice of sale under power that he received from Albertelli Law did not comply with O.C.G.A. § 44-14-162.2, which, he contends, requires a foreclosure notice to name the “secured creditor.” (Id. ¶¶ 29-30.) As relief, Tonea seeks, inter alia, unspecified damages, a declaration that Nationstar may not foreclose on the Property, and a permanent injunction barring Nationstar from foreclosing on the Property. (Id. at 16-17.)


         A. The parties' arguments

         In his motion to remand, Tonea argues that this matter should be remanded to state court because his claims arise solely under state law. [Doc. 5 at 1-11, 13-20.] He argues that this Court lacks subject matter jurisdiction over the case because there is no federal question jurisdiction over his state law claims. [Id.] Tonea seems to invoke the Younger[3] abstention doctrine, arguing that the Court should remand the case because his case concerns important state real property interests. [Id. at 17-19.] Tonea also argues that Nationstar has failed to make an adequate showing that there is diversity jurisdiction in this case. [Id. at 11-12.]

         Nationstar responds that this Court has diversity jurisdiction over the removal action. [Doc. 9 at 3-4.] Moreover, Nationstar argues, the removal of the state case was timely and procedurally proper.[4] [Id. at 5-6.]

         B. Legal standards

         Generally, a case brought in state court over which a federal court would have original jurisdiction may be removed to federal court. 28 U.S.C. § 1441(a). Even without a motion to remand, a federal court must remand a removal action to state court if it does not have subject matter jurisdiction over the case. 28 U.S.C. § 1447(c). Moreover, the right to remove is construed strictly, and “all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001).

         The party seeking removal has the burden to establish federal jurisdiction by a preponderance of the evidence. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). A court may consider post-removal evidence regarding jurisdiction, and jurisdictional facts “must be judged at the time of the removal.” Id.; Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000).

         Federal courts have original jurisdiction over cases in which the amount in controversy exceeds $75, 000 and the suit is between parties that are citizens of different states. 28 U.S.C. § 1332(a)(1). Where the amount in controversy is based on injunctive or declaratory relief, the defendant “must show that the benefit to be obtained from the injunction is sufficiently measurable and certain to satisfy the . . . amount in controversy requirement.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1269 (11th Cir. 2000) (alteration in original) (quotation omitted). The value of the requested injunctive relief is the monetary value of the benefit that the plaintiff would receive if the injunction were granted. Smith v. GTE Corp., 236 F.3d 1292, 1309 (11th Cir. 2001).

         In cases where a plaintiff seeks an injunction against foreclosure, the amount in controversy is, at times, determined by reference to the value of the property subject to foreclosure. See, e.g., Roper v. Saxon Mortg. Servs., Inc., 1:09-cv-312-RWS, 2009 WL 1259193, at *2 (N.D.Ga. May 5, 2009). This value is used when the plaintiff's claims call into question the validity of a mortgage or security deed or, otherwise, “a right to property is called into question in its entirety.” See Waller v. Prof'l Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961)[5]; see also Davis v. Bank of Am., N.A., No. 1:11-cv-4552-JEC-RGV, 2012 WL 3949224, at *2 (N.D.Ga. Sep. 10, 2012) (holding that the amount in controversy was determined by reference to the value of defendant's security interest where the plaintiffs claimed that they were “exclusive titleholders” to their home).

         For purposes of diversity citizenship, an individual's citizenship is equivalent to his domicile. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). “A person's domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” Id. at 1257-58 (quotation omitted). There is a presumption, however, that a person's residence is also that person's domicile. Beal Bank USA v. Kelley, No. 2:13-cv-435-WCO, 2014 WL 12577114, at *1 (N.D.Ga. 2014) (citing Dist. of Columbia v. Murphy, 314 U.S. 441, 455 (1941)).

         “[A] limited liability company is a citizen of any state of which a member of the company is a citizen.” Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). Thus, “[t]o sufficiently allege the citizenships [of an LLC], a party must list the citizenships of all the members of the limited liability company . . . .” Id. A corporation is a citizen of every state by ...

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