United States District Court, E.D. Tennessee, Greeneville
L. COLLIER, UNITED STATES DISTRICT JUDGE.
the Court is a motion to remand for lack of subject matter
jurisdiction filed by Plaintiff, Mary Louise Bell. (Doc. 10.)
Plaintiff argues diversity jurisdiction does not exist
because she and Defendant Aspen Title and Escrow, LLC, TN
(“Aspen Title”) are both citizens of the state of
Tennessee and the amount in controversy does not exceed $75,
000. Defendants Federal National Mortgage Association
(“Fannie Mae”) and CIT Bank, N.A. (“CIT
Bank”) responded in opposition to Plaintiff's
motion. (Doc. 18.) Aspen Title has not responded to the
motion to remand. Defendant Financial Freedom Senior Funding
Corporation (“Financial Freedom”) has not yet
appeared in the action and does not appear to have been
served. The time for Plaintiff to file a reply in support of
her motion has expired, and this matter is now ripe. For the
reasons set out below, the Court will DENY
the motion to remand.
before the Court is a motion to dismiss filed by Defendants
Fannie Mae and CIT Bank (collectively, the “Moving
Defendants”). (Doc. 7.) The Moving Defendants argue
Plaintiff's claims against them should be dismissed under
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim on which relief can be granted.
Plaintiff responded in opposition (Doc. 19), and the Moving
Defendants replied (Doc. 22). For the reasons set out below,
the Court will GRANT the motion to dismiss.
August 8, 2008, Plaintiff obtained a reverse mortgage from
Financial Freedom on the real property known as 406 Putters
Court in Church Hill, Tennessee (the “Property”).
The value of the Property in 2008 was $156, 700. In
connection with obtaining the reverse mortgage, Plaintiff
executed various instruments, including a note in the amount
of $285, 000; an Adjustable Rate Home Equity Conversion Deed
of Trust (the “First Deed of Trust”) in favor of
Financial Freedom, recorded in Book 920, Pages 693-703,
instrument number 08006912, in Hawkins County, Tennessee
(Doc. 7-1); and an Adjustable Rate Home Equity Conversion
Second Deed of Trust (the “Second Deed of Trust”)
in favor of the Secretary of Housing and Urban Development
(the “Secretary”), recorded in Book 920, Pages
704-713, instrument number 08006913, in Hawkins County,
Tennessee (Doc. 7-2). Aspen Title was named as the trustee in
both Deeds of Trust.
Freedom's interest in the First Deed of Trust was
transferred, through Mortgage Electronic Registration
Systems, Inc., to CIT Bank on October 22, 2015. (Doc. 1-1 at
26-27.) On March 16, 2016, CIT Bank substituted Shapiro &
Ingle, LLP (“Shapiro”) for Aspen as trustee as to
the First Deed of Trust. (Id. at 29.)
made all of the mortgage payments she was required to make
and paid her county property taxes. She did not, however, pay
her city property taxes or maintain flood insurance on the
Property as required under the Deeds of Trust.
17, 2016, Shapiro, as trustee, foreclosed on the First Deed
of Trust and sold the Property to CIT Bank for $180, 836.
(Id. at 30-31.) CIT Bank transferred its interest in
the Property to Fannie Mae the same day. (Id.)
Following correspondence with Plaintiff and communications
with her counsel, Fannie Mae filed a detainer warrant in the
General Sessions Court for Hawkins County, Tennessee on
September 23, 2016. (Id. at 34-36.)
filed this action in Chancery Court for Hawkins County on
October 12, 2016. (Id. at 4-14.) The Complaint does
not enumerate any causes of action. The demand section,
however, seeks a restraining order and injunction against
Defendants to prevent them from proceeding with the eviction;
asks to have both Deeds of Trust set aside, found to be
unconscionable, and declared null and void; and asks to have
Plaintiff's rights in the Property restored to her. The
body of the Complaint also characterizes the Defendants'
actions as fraud, as a violation of the Tennessee Consumer
Protection Act, Tenn. Code Ann. §§ 47-18-101 et
seq. (the “TCPA”), and as the intentional
infliction of emotional distress on Plaintiff.
CIT Bank, Fannie Mae, and Aspen removed the action to this
Court on October 24, 2016 based on diversity jurisdiction,
alleging Aspen is a fraudulently joined and nominal party
whose citizenship should not be considered for purposes of
removal. (Doc. 2.)
STANDARD OF REVIEW
Motion to Remand
defendant may remove any civil action filed in state court to
federal court if the district court would have had subject
matter jurisdiction had the case been originally filed in
federal court. 28 U.S.C. § 1441. The party seeking
removal to federal court bears the burden of establishing the
district court has original jurisdiction over the matter.
Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757
(6th Cir. 2000). Removal petitions are strictly construed,
with all doubts resolved against removal. Her Majesty the
Queen in Right of the Province of Ontario v. City of
Detroit, 874 F.2d 332, 339 (6th Cir. 1989).
defendant removing a case to federal court on the basis of
diversity of citizenship jurisdiction has the burden of
proving these jurisdictional requirements exist at the time
of removal. Rogers v. Wal-Mart Stores, Inc., 230
F.3d 868, 871 (6th Cir. 2000). If a case does not involve a
federal question, complete diversity of citizenship must
exist between the parties and the amount in controversy must
exceed $75, 000 for the federal court to have subject matter
jurisdiction. 28 U.S.C. § 1332; see U.S. Fid. &
Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1089
(6th Cir. 1992). The removal statute is construed strictly
and narrowly against removal. Her Majesty the Queen,
874 F.2d at 339. If doubt exists as to the propriety of
removal, the case should be remanded to state court.
Smith v. Nationwide Prop. & Casualty Ins. Co.,
505 F.3d 401, 405 (6th Cir. 2007).
Motion to Dismiss
may move to dismiss a claim for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling
on such a motion, a court must accept all of the factual
allegations in the complaint as true and construe the
complaint in the light most favorable to the plaintiff.
Gunasekera v. Irvwin, 551 F.3d 461, 466 (6th Cir.
2009) (quoting Hill v. Blue Cross & Blue Shield of
Mich., 49 F.3d 710, 716 (6th Cir. 2005)). If a party
presents matters outside the pleadings in connection with the
motion, the court must either exclude those matters from
consideration or treat the motion as one for summary
judgment. Fed.R.Civ.P. 12(d). Documents attached to pleadings
are considered part of the pleadings for all purposes,
however, Fed.R.Civ.P. 10(c), and the consideration of
documents referred to in a complaint and integral to the
claims does not convert a motion to dismiss into a motion for
summary judgment, Commercial Money Ctr., Inc. v. Ill.
Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007).
deciding a motion to dismiss under Rule 12(b)(6), a court
must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). The factual content pleaded by a
plaintiff must permit a court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plausibility as explained by the Court “is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. at 678.