Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tubwell v. Specialized Loan Servicing LLC

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

April 11, 2017

JOE TUBWELL PLAINTIFF
v.
SPECIALIZED LOAN SERVICE LLC SLS, Agents and Successors, Loan No. 1012441108; MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, Agents and Successors DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Before the Court are four motions filed by Joe Tubwell: (1) a motion to remand, Doc. #10; (2) a motion for entry of default, Doc. #12; (3) a motion to strike, Doc. #13; and (4) a motion to extend the deadline to respond to the motion to dismiss filed by the defendants, Doc. #17.

         I Procedural History

         On December 20, 2016, Joe Tubwell filed a “Verified Complaint” in the Circuit Court of DeSoto County, Mississippi, against “Specialized Loan Service, LLC (SLS), Agents and Successors, Loan No. 1012441108;” and “Morgan and Stanley Mortgage Capital Holdings LLC, Agents and Successors.” Doc. #2. In his complaint, Tubwell alleges that the defendants collectively own a home refinance loan taken out by him and that, in servicing this loan, the defendants engaged in an array of wrongful conduct, including wrongfully refusing to accept his payments and “attempt[ing] to foreclose upon the property without having provided adequate notice or opportunity to the owner and co-borrower.” Id. at ¶ 23. Tubwell asserts numerous claims, including causes of action brought under the “Fair Debt Collection Act” and the Truth in Lending Act. Id. at ¶¶ 35, 48. The complaint seeks: (1) rescission of the relevant loan; (2) $69, 515.00 in damages “which defendants caused plaintiff to loose [sic] in failing to acknowledge the plaintiff's status as a co-borrower on the lone [sic] and thereby prevented refinancing under lesser interest rate which has thereby cause [sic] plaintiff to fall behind on payments on home;” (3) injunctive relief; (4) “Actual Damages;” (5) punitive damages; and (6) attorney's fees, costs, and expenses. Id. at ¶ 54. Tubwell served the defendants with a copy of the summons and complaint on December 21, 2016. Doc. #1-1 at 28-31.

         On January 20, 2017, the defendants, asserting diversity and federal question jurisdiction, removed the action to this Court. Doc. #1. Five days later, on January 25, 2017, the defendants filed a motion to dismiss. Doc. #7.

         Tubwell filed a motion to remand on January 26, 2017, arguing that the defendants' removal was untimely. Doc. #10. On February 1, 2017, Tubwell filed a motion for entry of default. Doc. #12. The following day, on February 2, 2017, Tubwell filed “Plaintiff's Supplemental Motion to Remand and Response to Defendants' Notice of Removal Filed in United States District Court”- which the Court construes as a supplement to his remand motion, [1] Doc. #14; and a motion to strike the defendants' motion to dismiss, Doc. #13. On February 6, 2017, Tubwell filed a motion seeking an extension of the deadline to respond to the defendants' motion to dismiss. Doc. #17.

         The defendants responded in opposition to the motion for entry of default on February 7, 2017, Doc. #18; to the motion to remand on February 7, 2017, Doc. #15; to the supplement to the motion to remand on February 16, 2017, Doc. #21; to the motion to strike on February 16, 2017, Doc. #20; and to the motion for extension on February 21, 2017, Doc. #23.

         II Motion to Remand

         Pursuant to 28 U.S.C. § 1441(a), except for circumstances not present here, “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.” Generally, “under § 1441, removal is proper only when the court has original jurisdiction over at least one asserted claim under either federal question or diversity jurisdiction.” Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 259 (5th Cir. 2014) (emphasis omitted). “The party seeking to remove bears the burden of showing that federal jurisdiction exists and that removal was proper. Any ambiguities are construed against removal and in favor of remand to state court.” Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 887 (5th Cir. 2014) (internal citations and quotation marks omitted). In this regard, “[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).

         In his motion to remand and supporting brief, Tubwell argues that the notice of removal was untimely and that this Court lacks subject matter jurisdiction of the action. In their notice of removal and response to the motion to remand, the defendants argue that this Court has federal question and diversity original jurisdiction. The defendants further argue that the Court has supplemental jurisdiction over Tubwell's state law claims.

         A. Federal Question and Supplemental Jurisdiction

         28 U.S.C. § 1331 provides the district courts with original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A federal question exists only where a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Bd. of Comm'rs of S.E. La. Flood Protection Authority-East v. Tenn. Gas Pipeline Co. L.L.C., 850 F.3d 714, 721 (5th Cir. 2017) (internal quotation marks omitted). Where federal question (or any other form of original jurisdiction) exists, “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).

         In his supplemental filing, Tubwell seems to argue that there is no federal question jurisdiction because the federal statutes under which he brings some of his claims (the Fair Debt Collection Practices Act and the Truth in Lending Act) do not “provide exclusive jurisdiction … to the federal courts.” Doc. #14 at 4-5 n. 3, 5-6 n.4. Tubwell also argues that this Court cannot exercise federal question jurisdiction if diversity jurisdiction is lacking. Both arguments fail.

         First, federal question exists where a federal law “creates” the asserted action. Tenn. Gas Pipeline Co. L.L.C., 850 F.3d at 721. There is no requirement that the law grant exclusive jurisdiction to federal courts. See City of New Orleans v. United Gas Pipe Line Co., 390 F.Supp. 861, 864 (E.D. La. 1974) (“Exclusiveness is a consequence of having jurisdiction, not the generator of jurisdiction because of which state courts are excluded.”) (citing Pan Am. Petroleum Corp. v. Superior Ct. of Del., 366 U.S. 656, 662 (1961)). Second, federal question jurisdiction arises “because of the Federal questions presented in the record, and [does] not depend upon diversity of citizenship.” Ohio Tax Cases, 232 U.S. 576, 586 (1914).

         Here, Tubwell's state court complaint asserts claims created by two federal statutes - the Fair Debt Collection Practices Act and the Truth in Lending Act. Accordingly, this Court has federal jurisdiction over such claims and supplemental jurisdiction over Tubwell's state law claims, which all form part of the same controversy as the federal claims.

         B. Diversity Jurisdiction

         Diversity jurisdiction requires that there be (1) complete diversity between the parties; and (2) an amount in controversy in excess of $75, 000, exclusive of interest and costs. 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.