Green Tree Servicing, LLC v. Damron

557 F. App'x 588
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 9, 2014
DocketNo. 13-3832
StatusPublished

This text of 557 F. App'x 588 (Green Tree Servicing, LLC v. Damron) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green Tree Servicing, LLC v. Damron, 557 F. App'x 588 (7th Cir. 2014).

Opinion

ORDER

Cynthia Damron, an Indiana resident who removed an Indiana foreclosure case to federal court three years after it began, challenges the district court’s decision to award fees and costs of $9,879.85 against her for an unfounded removal. See 28 U.S.C. § 1447(c). Because Damron lacked a reasonable basis for the removal, we affirm.

In her petition for removal, Damron focused on the state court plaintiff, Green Tree Servicing and its right to sue her. The state suit arose out of a mortgage loan and promissory note that Damron had signed with GMAC Mortgage. In April 2010, GMAC filed a foreclosure action against Damron alleging that she was delinquent on her mortgage payments. While the case was pending, GMAC declared bankruptcy and Green Tree acquired its servicing rights. The state court agreed to substitute Green Tree as the plaintiff in April 2018. A few months before the substitution, in January 2013, Damron had asserted that Fannie Mae (the Federal National Mortgage Association) had purchased her loan as a mortgage-backed security and was thus the “actual owner” of the mortgage. After Green Tree became the substituted plaintiff, it agreed with Damron that Fannie Mae “continued” to own the loan but asserted that once Green Tree had acquired GMAC’s servicing rights, it became entitled to enforce the note.

In May 2018, thirty days after the substitution of Green Tree, Damron (then represented by counsel) removed the case. The removal came four months after Dam-ron had asserted that Fannie Mae owned the loan and just a week before dispositive motions were due in state court. In her amended notice of removal, she argued that removal was proper based on Fannie Mae’s “ownership” of the loan and the diverse citizenship of the parties (a position she no longer advances on appeal). See 28 U.S.C. §§ 1331,1332(a). Only Fannie Mae, she said, could foreclose on her house. Because Fannie Mae had been under the conservatorship of a federal agency since 2008, it could sue in federal court. See 12 U.S.C. §§ 4511(b)(2), 4513(c)(1); see generally Housing and Economic Recovery Act of 2008, Pub.L. No. 110-289,122 Stat. 2654. Thus, Damron concluded, the case was removable because it could have been brought originally in federal court.

On Green Tree’s motion, the district court remanded the case to state court, finding no basis for federal jurisdiction. First, the court explained, long before the substitution of Green Tree as plaintiff, Damron had known of her asserted ground for removal and thus overshot the thirty-day deadline to for removal. 28 U.S.C. § 1446(b)(1). Apart from the lapsed deadline, the court also reasoned that removal was improper because the complaint pleaded a foreclosure claim based only on Indiana law that did not reveal a federal question. The court added that Damron could not remove her case based on diversity jurisdiction because she is a citizen of Indiana defending in Indiana state court. See § 1441(b)(2). Finally, concerning Green Tree’s request for fees, the judge stated in open court the correct standard that fees should be assessed only when removal was objectively unreasonable. See Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). After finding that the [590]*590timing of removal just before the deadline for dispositive motions “virtually shrieks gamesmanship” and was designed to delay foreclosure, the court awarded fees and costs to Green Tree.

On appeal Damron (now proceeding pro se) asserts that the district court abused its discretion in awarding fees and costs against her. As in the district court, she generally maintains that removal was reasonable because her mortgage loan is owned by Fannie Mae, which is under the conservatorship of a federal agency, and a federal agency can always sue in federal court. 28 U.S.C. § 1345; see generally DeKalb Cnty. v. Fed. Hous. Fin. Agency, 741 F.3d 795, 797-98 (7th Cir.2013) (discussing Fannie Mae’s history).

The only order we may review on appeal is the award of fees and costs, not the underlying remand. 28 U.S.C. § 1447(d); Garble v. DaimlerChrysler, 211 F.3d 407, 409-10 (7th Cir.2000). We review deferentially the district court’s exercise of discretion in awarding fees and costs, but consider any underlying questions of law de novo. Micrometl Corp. v. Tranzad Technologies, Inc., 656 F.3d 467, 470 (7th Cir. 2011).

Damron’s defense of her removal petition seizes on the murky backdrop of the secondary mortgage market that caused the 2008 financial crisis. Her mortgage, like approximately 60% of mortgages in the United States, is technically recorded under the name of the Mortgage Electronic Registration Systems, Inc., though MERS itself has no financial interest in her mortgage. See Union County v. MERSCORP, Inc., 735 F.3d 730, 732 (7th Cir.2013) (discussing history of MERS in secondary-mortgage market); M & M Inv. Group, LLC v. Ahlemeyer Farms, Inc., 994 N.E.2d 1108, 1122-23 (Ind.2013) (same). Instead, the servicer and the owner of the mortgage-backed security both share a financial interest in the loan; the shared ownership can sometimes make it difficult to discern which one should file a foreclosure action. See CWCapital Asset Mgmt., LLC v. Chi. Properties, LLC, 610 F.3d 497, 500-01(7th Cir.2010) (explaining that mortgage servicer properly sued as real party in interest); Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 809 n. 4 (Ind. 2012) (“There is no public record of the real party in interest in these mortgages, and MERS does not require member banks to report transfers ... causing] significant confusion for banks, borrowers, and courts.”).

Despite complexities about shared ownership, for two reasons the district court properly concluded that Damron had no reasonable basis to remove. The first fatal defect in the petition was its untimeliness. Even if it were reasonable for Dam-ron to think that Fannie Mae “owns” the mortgage and should therefore be the plaintiff, Damron believed in Fannie Mae’s ownership (and knew about its federal con-servatorship) at least four months before she petitioned for removal.

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Bluebook (online)
557 F. App'x 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-tree-servicing-llc-v-damron-ca7-2014.