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Brasel v. JPMorgan Chase, N.A.

United States District Court, N.D. Mississippi, Aberdeen Division

June 24, 2014

ROBBY BRASEL, Plaintiff,


GLEN H. DAVIDSON, District Judge.

Presently before this Court are Plaintiff's motion to remand the case to state court [10] and Defendant JPMorgan Chase, N.A.'s motion to strike improper rebuttal [32]. Upon due consideration, the Court is of the opinion that the motion for remand [10] should be granted due to lack of diversity jurisdiction and procedurally defective notice of removal, and the motion to strike improper rebuttal [32] should be denied as moot, as the Court did not consider those rebuttal arguments in its ruling.

A. Factual and Procedural Background

On September 12, 2013, Plaintiff Robby Brasel ("Plaintiff') filed a complaint in the Circuit Court of Prentiss County, Mississippi, against Defendants JPMorgan Chase, N.A. ("Chase") and Tyler Wilson ("Wilson") (collectively, "Defendants") to recover for Defendants' alleged conduct concerning certain real property in Prentiss County, Mississippi (the "subject property"). Plaintiff alleges the following facts: In 2006, Plaintiff was a mortgagee on a mortgage held by Chase Home Finance, LLC, an entity that would later merge into Chase. Plaintiff fell behind on his mortgage payments and requested a loan modification. Chase allowed Plaintiff to participate in a trial payment plan for its loan modification program and pay a reduced monthly mortgage payment. Plaintiff and his wife divorced in August of 2010; as part of the divorce settlement, Plaintiff received the subject property. Chase sent Plaintiff a series of letters requesting documentation from him concerning the requested loan modification. While Chase was still sending such letters to Plaintiff, Chase foreclosed on the subject property, without notice to Plaintiff that the loan had been accelerated or that he had an opportunity to cure his default or institute legal proceedings to protect his interest. The property was sold to Wilson at a foreclosure sale, and Wilson is now the purported owner and occupant of the subject property.

Among other things, Plaintiff alleges that Chase did not have the right to foreclose on the subject property, that Chase has a pattern and practice of wrongful foreclosure, that Wilson is in improper and illegal possession of the subject property, and that Plaintiff has been damaged as a result of these alleged actions. Plaintiff asserts numerous causes of action against Chase: breach of contract, breach of implied covenant of good faith and fair dealing, misrepresentation and deceit, promissory estoppel, fraud, fraudulent misrepresentation, negligent misrepresentation, fraudulent inducement, negligence, gross negligence, wrongful foreclosure, negligent infliction of emotional distress, conversion, fraudulent conveyance, and unjust enrichment. Plaintiff asserts the following causes of action against Wilson: fraudulent conveyance, trespass, and ejectment. Plaintiff seeks compensatory damages, punitive damages, and attorney's fees in an unspecified amount.

On October 21, 2013, Chase filed a notice of removal [1]. On November 20, 2013, Plaintiff filed the present motion to remand [10] the case to state court. Chase then filed a response, and Plaintiff filed a reply. The motion to remand [10] is now ripe for review.

B. Standard of Review

The removal statute provides in pertinent part:

Except as otherwise expressly provided by Act of Congress, any 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). A case may be remanded upon a motion filed within thirty days after the filing of the notice of removal on any defect except subject matter jurisdiction, which can be raised at any time by any party or sua sponte by the Court. See Wachovia Bank, N.A. v. PICC Prop. & Cas. Co. Ltd., 328 F.Appx. 946, 947 (5th Cir. 2009). "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). Any "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).

C. Discussion

Federal diversity jurisdiction requires complete diversity between all plaintiff's and all defendants and an amount in controversy that exceeds $75, 000.00. See 28 U.S.C. § 1332(a). Plaintiff contends that removal is improper and remand is warranted because (1) complete diversity of citizenship does not exist between Plaintiff and Defendants, who are properly joined;[1] (2) Chase's notice of removal was procedurally defective; and (3) the complaint does not raise a federal question. Plaintiff also seeks costs and attorney's fees incurred in flling the present motion to remand. The Court addresses each ground for remand in turn.

(1) Complete Diversity of Citizenship

First, Plaintiff contends that removal is not appropriate because there is lack of complete diversity of citizenship among the parties. It is undisputed that complete diversity exists between Plaintiff, a citizen of Mississippi, and Chase, a citizen of Ohio. However, Plaintiff contends that Wilson's presence as a Defendant destroys complete diversity, as both Plaintiff and ...

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