United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTION TO REMAND GRANTING MOTION TO
DISMISS AND FINDING MOTIONS TO STRIKE MOOT
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT are the  Amended Motion to Remand to State
Court filed by Plaintiffs Chad Bryant and Brandi
Bryant, the  Motion to Dismiss filed by Defendant
Dovenmuehle Mortgage, Inc., and the  Motion to Strike and
For More Definite Statement and  Motion to Strike
Response in Opposition, both filed by Defendant I-10 Properties
LLC. After review of these pleadings and the relevant law,
the Court concludes that removal of this case from state
court was proper. Accordingly, the Motion to Remand will be
denied. Additionally, Plaintiffs responded to the Motion to
Dismiss by acknowledging that their complaint does not
contain sufficient factual allegations to meet the Rule
12(b)(6) standard, and they requested the opportunity to
amend their complaint if remand was denied. Accordingly, the
Motion to Dismiss will be granted and Plaintiffs given leave
to file an amended complaint. Both motions to strike are
consequently rendered moot.
Chad and Brandi Bryant filed this wrongful foreclosure action
in the Circuit Court of Harrison County, Mississippi
concerning real property in Pass Christian, Mississippi.
Plaintiffs complain that they did not receive notice of the
transfer of servicing rights from Defendant Hope Federal
Credit Union to Defendant Dovenmuehle Mortgage, Inc.
Plaintiffs allege they were in default at the time of the
transfer, but sent late payments sufficient to cover the
deficiency. However, unbeknownst to Plaintiffs, the loan had
been accelerated and sold in foreclosure to Defendant I-10
Properties LLC. Plaintiffs' late payments were returned
to them and they received a demand from I-10 Properties to
vacate the premises.
a number of deficiencies in the foreclosure sale process,
Plaintiffs bring claims for 1) wrongful foreclosure, 2)
violation of the Real Estate Settlement Procedures Act
(“RESPA”), 3) violation of the Fair Debt
Collection Practices Act (“FDCPA”); 4) breach of
contract, and 5) negligent infliction of emotional distress.
They seek orders enjoining eviction proceedings and setting
aside the foreclosure sale, plus compensatory and statutory
damages and attorneys' fees.
The Motion to Remand
their lawsuit was removed to this Court, Plaintiffs moved for
remand. They contend that this Court cannot afford them
complete relief because the Anti-Injunction Act prohibits a
federal court from enjoining eviction proceedings. Plaintiffs
further argue that if an eviction is ordered in state court,
this Court will have no authority to grant possession of the
property to them.
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).
complaint clearly states causes of action pursuant to two
federal statutes: RESPA, 12 U.S.C. § 2605, and the
FDCPA, 15 U.S.C. 1692k. (Am. Compl. 8, 11, ECF No. 1-1.)
RESPA and FDCPA claims are removable. Hopson v.
Specialized Loan Serv., LLC, No. 3:17cv832-DPJ-FKB, 2018
WL 1178959, at *1 (S.D.Miss. Mar. 6, 2018); Shakir v.
Fed. Nat. Mortg. Ass'n, No. 3:15cv44-MPM-JMV, 2015
WL 4997151, at *5 (N.D. Miss. Aug. 20, 2015). The state law
claims are so intertwined with the federal claims as to form
part of the same case or controversy, making exercise of
supplemental jurisdiction over the state law claims proper.
28 U.S.C. § 1367(a).
allegations do not implicate the Anti-Injunction
because Plaintiffs seek to enjoin Defendants - not a
state court - from proceeding with any eviction action until
the merits of this case are resolved. (Am. Compl. 6, ECF No.
1-1.) This Court may exercise such authority over parties
Plaintiffs' concern that the Court cannot set aside a
state court eviction order appears to be speculative, since
they have not alleged a pending action in state court. In any
event, this Court must apply Mississippi substantive law to
the state-law claims over which it exercises supplemental
jurisdiction. Sommers Drug Stores Co. Employee Profit
Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th Cir.
1989). This includes the remedies available for wrongful
foreclosure and breach of contract. See The Law Funder,
L.L.C. v. Munoz, 924 F.3d 753, 760 (5th Cir. 2019)
(considering remedies available under Texas law for legal
malpractice). Should Plaintiffs prevail on their wrongful
foreclosure claim, they would “have the right to elect
between (1) having the sale set aside and (2) recovering from
the mortgagee the damages suffered as a result of the
wrongful foreclosure.” Henderson v. Copper Ridge
Homes, LLC, No. 2017-CA-00959-SCT, 2019 WL 2398706, at
*5 (Miss. June 6, 2019). The relief available to Plaintiffs
does not depend on the forum. Remand will be denied for these
The Motion to Dismiss
Dovenmuehle Mortgage moved for dismissal of Plaintiffs'
RESPA, FDCPA, breach of contract, and negligent infliction of
emotional distress claims under Fed.R.Civ.P. 12(b)(6).
Plaintiffs responded in opposition, but also “concede
that the current complaint does not contain sufficient
factual allegations to survive a motion to dismiss on these
claims under the pleading requirements for federal
court.” (Pl. Resp. 5, ECF No. 17.) They state they will
seek leave to amend the complaint if remand is denied.
(Id.) As the Court ...