United States District Court, S.D. Ohio, Western Division, Dayton
BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, Plaintiff,
DENISE FOSTER, Defendants.
H. Rice District Judge.
REPORT AND RECOMMENDATIONS 
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
April 19, 2018, Denise Foster filed a Notice of Removal of
this case from the Montgomery County, Ohio Court of Common
Pleas. She asserts that removal is proper based on this
Court's federal-question jurisdiction under 28 U.S.C.
§ 1331 and this Court's diversity jurisdiction under
28 U.S.C. § 1332(a). She also filed an Application to
Proceed in forma Pauperis, which this Court granted.
The case is presently pending for initial review of
Foster's Notice of Removal and attached documents to
determine whether removal was proper or whether remand to
state court is warranted. See 28 U.S.C. §
1915(e)(2); see also Bank of America, N.A. v.
Davidson, No. 1:12cv26, 2012 WL 404870, at *1 (S.D. Ohio
2012) (Litkovitz, M.J.), Report and Recommendation adopted,
2012 WL 403923 (Feb. 8, 2012) (Dlott, D.J.).
has attached to her Notice of Removal the Complaint in
Foreclosure Plaintiff Bank of New York Mellon Trust Company
filed in state court. That Complaint together with other
documents that Foster has attached to her Notice of Removal
explain the following.
is the holder of a Note executed on or near May 30, 2003 by
Foster in the amount of $55, 000.00. (Doc. #1,
PageID #s 22, 26). Foster has defaulted on the Note
by not making the installment payments due on it. She has
consequently defaulted under the Mortgage that secured the
Note, leaving a currently due and owing amount of $22,
752.88, plus interest, late fees, etc. Id. at 22.
Plaintiff, as the holder of the Mortgage, holds a
“valid first lien upon certain real property in
… Dayton, Ohio….” Id. at 22-23,
March 15, 2018, the state court issued a Notice of Sale,
requiring that the real property at issue be “offered
for sale by the Montgomery County Sheriff on April 20,
2018….” Id. at 88. Foster filed her
Notice of Removal in this Court one day before the scheduled
asserts in her Notice of Removal, “Plaintiff is
attempting to illegally take possession of [her] property
with an unverified complaint.” Id. at 5. She
maintains that she was misled, deceived, deprived of her real
property by entities, institutions, and “people
claiming that [they] had a right to initiate the foreclosure
… by false and forged documents clouding [her]
title.” Id. at 9. She alleges, “The
Wrongful Sale failed to comply with multiple Federal and
State Laws by creation of fabricated documents pertaining to
fraudulent foreclosure proceedings willfully committed by
Third-Party Debt Collectors, posing as alleged beneficiaries
who knowingly knew that [her] due process rights would be
violated in the State Courts Summary Proceedings.”
Id. She further charges that she sent a letter to
the “Debt Collectors, ” but they never responded.
Id. She concludes that Plaintiff has violated her
rights under the Fair Debt Collection Practices Act and her
right to due process under various provisions in the U.S.
Constitution, 42 U.S.C. §§ 1981-1983.
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). Foster must
therefore show that the present case “originally could
have been filed in federal court [and] may be removed to
federal court by the defendant.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96
L.Ed.2d 318 (1987); see Village of Oakwood v. State Bank
& Trust Co., 539 F.3d 373, 377 (6th Cir. 2008)
(defendant carries the burden of showing that removal is
basic statutory grants of federal-court subject-matter
jurisdiction are contained in 28 U.S .C. § 1331, which
provides for ‘[f]ederal-question' jurisdiction, and
§ 1332, which provides for ‘diversity of
citizenship' jurisdiction.” Arbaugh v. Y &
H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235
Foster's Notice of Removal advances federal claims, it is
not her claims that control whether her removal was proper.
Instead, to determine whether federal-question jurisdiction
exists, the required removal analysis considers “the
‘well-pleaded' allegations of the complaint. Under
the well-pleaded complaint rule, the plaintiff ‘is
master to decide what law he will rely upon.'”
Berera v. Mesa Medical Group, PLLC, 779 F.3d 352,
357 (6th Cir. 2015) (citations omitted). Examination of
Plaintiff's state-court Complaint In Foreclosure does not
reveal the presence of a federal question. See Doc.
#1, PageID#s 21-24. Additionally, Plaintiff's
state-court case cannot be removed based on a federal defense
Foster might seek to raise. See Caterpillar, 482
U.S. at 393, 107 S.Ct. 2425 (“it is now settled law
that a case may not be removed to federal court on
the basis of a federal defense, including the defense of
pre-emption, even if the defense is anticipated in the
plaintiff's complaint, and even if both parties concede
that the federal defense is the only question truly at
issue.”); see also Davidson, No. 1:12cv26,
2012 WL 404870, at *2 (“even if a defense has been
raised in the foreclosure proceeding based on the FDCPA or
other federal statute, the existence of such a defense is
insufficient to support federal question jurisdiction as a
basis for removal….”).
on, says Foster, what about the artful pleading doctrine?
Under this doctrine, “plaintiffs may not avoid removal
by artfully casting there their essentially federal law
claims as state-law claims.” Berera, 779 F.3d
at 358. Foster appears to argue that removal is proper
because Plaintiff cannot artfully hide its violations of the
FDCPA or the Constitution by raising only state-law claims in
its Complaint In Foreclosure. See Doc. #1,
PageID#s 8-10. Yet, this does not make sense because
Foster-not Plaintiff- is attempting to raise a claim under
the FDCPA, concerning Plaintiff's alleged debt
collections activities. This is not the situation
contemplated by the artful-pleading doctrine under which a
plaintiff is attempting to use state law to camouflage a
federal claim against a defendant. See Berera, 779
F.3d at 358; cf. Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229 (1986)
(“A defense that raises a federal question is
inadequate to confer federal jurisdiction.”); cf.
also Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d
910, 915 (6th Cir. 2007) (notice of FDCPA information
attached to state-court complaint insufficient to show artful
pleading). As a result, neither the artful-pleading doctrine
nor federal-question jurisdiction supports Foster's
attempt to remove this case from state court.
likewise faces a hurdle in her attempt to invoke this
Court's diversity jurisdiction. “A civil action
otherwise removable solely on the basis of jurisdiction under
[28 U.S.C. §] 1332 … may not be removed if any of
the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2). Foster, a
defendant in state court and in this court, acknowledges that
she is a resident and citizen of Ohio for purposes of
diversity jurisdiction. (Doc. #1, PageID#s 7-8). Her
removal attempt is therefore improper. See 28 U.S.C.
§ 1441(b)(2); see also Chase Manhattan Mortg.,
507 F.3d at 914; Davidson, No. 1:12cv26, 2012 WL
404870, at *1.
Foster's Notice of Removal is untimely by a long shot. A
defendant removing an action to federal court must file a
notice of removal “within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” 28 U.S.C.
§ 1446(b)(1). The 30-day period in § 1446(b)(1)
starts to run only if the initial pleading contains
“solid and unambiguous information that the case is
removable.” Berera, 779 F.3d at 364. The
factual allegations in Plaintiff's Complaint are the same
factual allegations upon which Foster now grounds her claims
under the FDCPA and other federal laws. The information was
no less solid and unambiguous then than it is today.
Consequently, Foster cannot reasonably argue that she did not
know the grounds for her present federal claims when
Plaintiff filed its Complaint in Foreclosure on August 20,
2015. Foster filed her Notice of Removal in this Court more
than 30 days later- indeed, more than 31 months later-on
April 19, 2018. Her Notice of Removal is therefore untimely.
IS THEREFORE ...