United States District Court, D. Hawaii
U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2001-2, Plaintiff,
GLENN KIYOHIKO MIZUKAMI; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants.
ORDER: (1) GRANTING MOTION TO REMAND; AND (2) DENYING AS MOOT MOTION TO DISMISS AND EXPUNGE LIS PENDENS, DOC. NO. 17
J. Michael Seabright Chief United States District Judge
On November 12, 2015, Plaintiff U.S. Bank, National Association, as Trustee for Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2001-2 (“Plaintiff”) filed a Complaint for Mortgage Foreclosure in the First Circuit Court of the State of Hawaii against pro se Defendant Glenn Kiyohiko Mizukami (“Defendant”). On December 18, 2015, Defendant removed the action to this court asserting federal subject matter jurisdiction on the basis of both federal question and diversity jurisdiction. See Doc. No. 1, Notice of Removal at 1-3. That same day, Defendant filed a Notice of Lis Pendens. Doc. No. 5. And on December 29, 2015, Defendant filed a “Rule 15 Amendment of Answer with Rule 13 Counterclaims.” Doc. No. 8.
Currently before the court is Plaintiff’s January 19, 2016 Motion to dismiss the Counterclaims, expunge the Lis Pendens, and remand the Complaint. Doc. No. 17. Supporting remand, Plaintiff argues that Defendant’s removal of this action was improper because there is no basis for federal question or diversity jurisdiction. Id. at 2-3. Defendant filed an Opposition on February 8, 2016, Doc. No. 26, and Plaintiff filed a Reply on February 10, 2016. Doc. No. 27. Pursuant to Local Rule 7.2(d), the court determines the Motion without a hearing.
For the reasons discussed below, the court (1) GRANTS the Motion in part, remanding this action to the First Circuit Court of the State of Hawaii, and (2) DENIES without prejudice the Motion to dismiss the Counterclaims and expunge the Lis Pendens as MOOT.
This is an action to foreclose Defendant’s real property located at 99-526 Mikioi Place, Aiea, Hawaii 96701 (the “subject property”). Doc. No. 1-1, Compl. at ¶ 5. As alleged in the Complaint, on or about August 23, 2001, Defendant executed a promissory note (“Note”) in the amount of $228, 000 to Ameriquest Mortgage Co., which is secured by a Mortgage on the subject property. Id. ¶¶ 4-5. The Complaint further alleges that following Ameriquest Mortgage Co.’s endorsement of the Note, and various assignments of the mortgage interest, Plaintiff is currently the holder of the Note and mortgagee of record. Id. ¶¶ 4, 6-7. Defendant allegedly defaulted on the Note and Mortgage, and on November 12, 2015, Plaintiff filed the instant foreclosure action in state court.
On December 18, 2015, Defendant removed the underlying action to this court, Doc. No. 1, and filed an Answer. Doc. No. 6. On December 29, 2015, Defendant amended his Answer to assert seven Counterclaims against Defendant. Doc. No. 8. The Counterclaims are difficult to understand, but appear to assert federal and state claims essentially challenging the securitization of the Note and Mortgage and Plaintiff’s right to foreclose. Id. at 2-6.
III. STANDARD OF REVIEW
Under the general removal statute, “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). Such removal can be based on either diversity jurisdiction or federal question jurisdiction. See 28 U.S.C. §§ 1441(b) & (c).
Plaintiff may seek remand, and 28 U.S.C. § 1447(c) provides:
If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.
“Removal and subject matter jurisdiction statutes are ‘strictly construed, ’ and a ‘defendant seeking removal has the burden to establish that removal is proper and any doubt is resolved against removability.’” Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014) (quoting Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir.2008)). Thus, “‘[i]t is to be presumed that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.’” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006)) (alterations in original). This “‘strong presumption against removal jurisdiction means that the defendant ...