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Bank of America, N.A. v. Goldberg

United States District Court, D. Hawaii

April 12, 2019

BANK OF AMERICA, N.A., Plaintiff,
v.
ELINOR K. GOLDBERG, ALBERT M. GOLDBERG, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., SOLELY AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC., PUALANI ESTATES AT KONA COMMUNITY ASSOCIATION, JOHN DOES 1-50, JANE DOES 1-50, DOE PARTNERSHIPS 1-50, DOE CORPORATIONS 1-50, DOE ENTITIES 1-50, DOE GOVERNMENTAL UNITS 1-50, Defendants.

          ORDER SUA SPONTE REMANDING THE INSTANT CASE TO STATE COURT

          LESLIE E. KOBAVASHI UNITED STATES DISTRICT JUDGE

         On February 13, 2019, pro se Defendant/Counterclaimant Albert M. Goldberg (“A. Goldberg”) filed: a “Notice of Removal of the Above State No. 13-1-084K to the United States District Court of Hawaii” (“Notice of Removal”); and a “Request for Injunction and Temporary Restraining Order” (“TRO Motion”). [Dkt. nos. 1, 2.] On February 22, 2019, Plaintiff/Counterclaim Defendant Bank of America, N.A. (“BOA”) and A. Goldberg each filed a response addressing the issues raised in this Court's February 14, 2019 entering order (“EO”). [Dkt. nos. 8 (EO), 11 (“BOA Response”), 12 (“A. Goldberg Response”).] On March 15, 2019, A. Goldberg filed a document that has been construed as a supplement to the A. Goldberg Response (“A. Goldberg Supplement”) and a declaration by Defendant/Counterclaimant Elinor K. Goldberg (“E. Goldberg”), that has also been construed as a supplement to the A. Goldberg Response (“E. Goldberg Supplemental Declaration”). [Dkt. nos. 15 (A. Goldberg Supplement), 16 (E. Goldberg Suppl. Decl.), 17 (EO construing filings).] The instant case is sua sponte remanded to the State of Hawai`i, Third Circuit Court (“state court”) for the reasons set forth below.[1]

         BACKGROUND

         On February 1, 2013, BOA filed a Complaint for Foreclosure (“Complaint”) in state court against: E. Goldberg; A. Goldberg; Defendant Mortgage Electronic Registration Systems Inc. (“MERS”), solely as nominee for Countrywide Home Loans, Inc. (“Countrywide”); and Defendant Pualani Estates at Kona Community Association (“Pualani Estates”). [Notice of Removal, Exh. A at 9-15 (Complaint).[2] The Complaint seeks to foreclose upon a property in Kona that is owned by E. Goldberg - in her individual capacity and in her capacity as the wife of Samuel A. Goldberg, deceased - and A. Goldberg as joint tenants (“Property”). [Complaint at ¶ 1.] According to the Complaint: MERS may have an interest in the Property because of “a junior mortgage recorded on June 21, 2005 in the Bureau of Conveyances of the State of Hawaii” (“BOC”); [id. at ¶ 2;] and Pualani Estates may have an interest in the Property because of an unrecorded lien for unpaid maintenance fees, [id. at ¶ 3].

         E. Goldberg and A. Goldberg (“the Goldbergs”) filed a Counterclaim, alleging breach of contract and unfair and deceptive trade practices. [BOA Response, Decl. of Allison Mizuo Lee (“Lee Decl.”), Exh. 1 (Answer to Complaint for Foreclosure; Counterclaim, filed on 3/31/14 in state court (“Answer and Counterclaim”)).] The state court dismissed the Complaint on July 30, 2014 because of a violation of circuit court rules. [Lee Decl., Exh. 2 (Order of Dismissal).] According to BOA's counsel, the Goldbergs have actively pursued their Counterclaim, including opposing BOA's motion to dismiss and participating in discovery. On February 1, 2019, BOA filed a motion for summary judgment on the Counterclaim, and the state court set the motion for hearing on March 1, 2019. A. Goldberg apparently filed the Notice of Removal in lieu of responding to the motion for summary judgment.[3] [Lee Decl. at ¶¶ 4-6.]

         A. Goldberg removed this action based on: federal question jurisdiction; diversity jurisdiction; and jurisdiction over admiralty, maritime, and prize cases. [Notice of Removal at pgs. 8-10.] He alleges federal question jurisdiction exists, pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692k. [Id. at pg. 2.] The Notice of Removal does not contain any indication that A. Goldberg: 1) obtained E. Goldberg's, MERS's, or Pualani Estates' consent to the removal; or 2) served the Notice of Removal on any of those defendants. See Notice of Removal at 13-14 (Proof of Service, noting service on BOA only).

         A. Goldberg asserts removal was timely because “the initial pleading was amended and recently discovered by” him. [A. Goldberg Response at 2.] He asserts he recently discovered that BOA was not the beneficiary of the promissory note that the mortgage on the Property secures (“Note”), and he recently offered to tender full payment on the Note, but BOA has ignored this offer. [Id.] A. Goldberg states E. Goldberg is his eighty-nine-year-old mother and he was authorized to act on her behalf. Id. at 3; see also E. Goldberg Suppl. Decl. at pg. 9 (“I attest and affirm that I am aware of the Removal. I also approve of my son's actions.”). A. Goldberg argues he was not required to obtain MERS's and Pualani Estates' consent to the removal because they have been improperly identified as defendants in this action. He asserts Countrywide is BOA's predecessor in interest, and therefore MERS, as Countrywide's nominee, should be a plaintiff, not a defendant. [A. Goldberg Response at 3.] He also asserts Pualani Estates is not a proper defendant because it “is merely the Association” for the Property. [Id.]

         A. Goldberg states he traveled to Honolulu and Kailua-Kona to complete or confirm service of the Notice of Removal on E. Goldberg, MERS, and Pualani Estates. A. Goldberg states a separate proof of service will be submitted. [Id. at 4.] However, no additional proof of service for the Notice of Removal was filed.[4]

         DISCUSSION

         I. Scope of Attempted Removal

          Plaintiff attached the Complaint to the Notice of Removal, but BOA has presented evidence that the Complaint has been dismissed and only the Goldbergs' Counterclaim remains at issue. Thus, it is not clear whether A. Goldberg is attempting to remove the entire case or whether he is attempting to remove the Counterclaim only because there are no remaining issues regarding the Complaint.

         28 U.S.C. § 1441(a) states:

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.

(Emphasis added.) To the extent A. Goldberg is attempting to remove the Counterclaim only, the attempt fails as a matter of law because A. Goldberg is a plaintiff in the Counterclaim and only the defendant is entitled to remove an action. See § 1441(a); see also Wilmington Sav. Fund Soc'y, FSB v. Perreira, CIVIL 16-00029 LEK-KSC, 2016 WL 3034154, at *3-4 (D. Hawai`i May 27, 2016) (“Defendant cannot create federal subject matter jurisdiction based on an attempt to raise . . . defenses or counterclaims under federal law.” ...


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