Parviz Abedi v. U.S. Bank National Association

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 23, 2019
• Docket: 18-13252
• Status: Unpublished

Opinion

Case: 18-13252 Date Filed: 05/23/2019 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13252 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-01747-SCJ

PARVIZ ABEDI, ZEINAB ABEDI,

Plaintiffs - Counter Defendants - Appellants,

versus

U.S. BANK NATIONAL ASSOCIATION, Individually and under its assumed name Ultron Processing Services, Inc.,

Defendant - Counter Claimant - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 23, 2019)

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-13252 Date Filed: 05/23/2019 Page: 2 of 8

Parviz and Zeinab Abedi appeal the district court’s order granting summary

judgment to U.S. Bank National Association on its counterclaim seeking a

declaratory judgment that certain security deeds lawfully conveyed to U.S. Bank

the Abedis’s interest in their Marietta, Georgia property. On appeal, the Abedis

argue that (1) the district court lacked jurisdiction because U.S. Bank’s initial

removal was untimely and (2) the security deeds purporting to transfer the property

to U.S. Bank are unenforceable. 1 Finding no merit in either argument, we affirm.

I

We review the district court’s grant of summary judgment de novo.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The Abedis first

argue that the district court lacked jurisdiction over this action, because U.S. Bank

removed the case to federal court almost five months after the Abedis filed their

claims. U.S. Bank responds that it removed the case within 30 days of when the

Abedis filed their amended petition, which added a slough of new federal claims.

It is not clear from the record that U.S. Bank did, in fact, timely remove the case

1 The Abedis also mix in arguments pertaining to their earlier motion to dismiss. Because the Abedis appealed only the district court order granting U.S. Bank summary judgment, however, we consider only the arguments relevant to that order. See Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987) aff’d sub nom. Osternek v. Ernst & Whinney, 489 U.S. 169 (1989) (“Although we generally construe a notice of appeal liberally, we will not expand it to include judgments and orders not specified unless the overriding intent to appeal these orders is readily apparent on the face of the notice.”). 2 Case: 18-13252 Date Filed: 05/23/2019 Page: 3 of 8

after the Abedis amended their pleadings. 2 But we find that, for purposes of this

appeal, it does not matter.

To briefly explain the disputed law, two subsections of 28 U.S.C.

§ 1446(b)—governing the timeliness of removal in civil cases—are relevant to this

appeal. The first, on which the Abedis rely, addresses civil actions that are

removable at the time of filing, stating: “The notice of removal of a civil action or

proceeding shall be filed 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 second, on which U.S. Bank relies, deals with civil actions in which “an

amended pleading, motion, order or other paper” establishes removability, and

states that, in such a case, the notice of removal may be filed within 30 days of the

defendant’s receipt of the amended pleading. Id. at 1446(b)(3).

Regardless of which clause applies here, any untimeliness in removing the

case would be an insufficient basis to vacate the judgment and remand for a new

trial in state court. That is because, although the 30-day removal period is

2 It appears that the Abedis filed their amended pleadings on April 28, 2016. In their brief on appeal they state that U.S. Bank removed the case on May 21, 2016—which would put the removal within 30 days of the filing—and focus on arguing that U.S. Bank should have removed within 30 days of their initial filing. U.S. Bank’s actual removal petition, however, is dated May 31, 2016 (which would put the removal outside the 30-day limit). Throughout its brief, U.S. Bank does not specify dates but repeatedly insists that it properly removed the case within 30 days of the Abedis’s amended filing. 3 Case: 18-13252 Date Filed: 05/23/2019 Page: 4 of 8

mandatory, failure to comply is “a procedural defect—not a jurisdictional one.”

Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1329 (11th Cir. 2010); accord Pretka

v. Kolter City Plaza II, Inc., 608 F.3d 744 at 751–52 (11th Cir. 2010) (explaining

that timeliness of removal is a procedural issue, not a jurisdictional issue). And,

relevant here, a motion to remand a case to state court on the basis of any defect

other than lack of subject matter jurisdiction—for instance, for untimely removal—

“must be made within 30 days after the filing of the notice of removal.” 28 U.S.C.

§ 1447(c). A party who does not move to remand within 30 days waives any

objection to the untimely removal. Wilson v. Gen. Motors Corp., 888 F.2d 779,

781 n.1 (11th Cir. 1989); see also Moore, 623 F.3d at 1329 (“Any untimeliness in

the filing of the notice of removal in this case would be an insufficient basis to

vacate the judgment and remand for a new trial in state court. It is undisputed in

this case that the timeliness of removal is a procedural defect—not a jurisdictional

one.”). A motion for remand based on lack of subject matter jurisdiction, however,

may be made “at any time before final judgment.” Wilson, 888 F.2d at 781 n.1.

Although the Abedis fashion their objection as pertaining to subject matter

jurisdiction, it is clear that the basis of their claim is U.S. Bank’s failure to remove

the case within 30 days of receiving the pleading. Following U.S. Bank’s

allegedly untimely removal, however, the Abedis failed to file a motion to remand

within 30 days as required by 28 U.S.C. § 1447(c). Because the Abedis did not file

4 Case: 18-13252 Date Filed: 05/23/2019 Page: 5 of 8

a motion to remand, they have waived any objection to U.S. Bank’s allegedly

untimely removal. See id.

II

Next, the Abedis argue that the district court erred by declaring that the

security deed conveying their property to U.S. Bank was valid and enforceable

because (1) the deed was not properly witnessed and attested to and (2) the after-

acquired-property doctrine should not have been applied. We disagree on both

points.

First, in order for a deed to be properly recordable under Georgia law, its

signature must be attested to by two witnesses. See Hooten v. Goldome Credit

Corp., 481 S.E.2d 550, 551–52 (Ga. 1997). The Georgia Code provides that “[i]n

order to admit deeds to secure debt or bills of sale to secure debt to record, they

shall be signed by the maker, attested by an officer . . . and attested by one other

witness.” O.S.G.A. § 44-14-61. This requirement, however, “[r]elates only to the

record[a]bility of the instrument”—a deed itself may be valid without attestation.

Hooten, 481 S.E.2d at 551–52 (emphasis added) (citation omitted). Indeed, in

Georgia, a deed is “good as between the parties without any attesting witness” if it

“specifies the property, states the debt, and shows that the parties intend to create a

lien.” Hawes v. Glover, 55 S.E. 62, 67 (Ga. 1906); see Lionheart Legend, Inc. v.

Norwest Bank Minn. Nat’l. Ass’n, 560 S.E.2d 120, 124 (Ga. App. 2002)

5 Case: 18-13252 Date Filed: 05/23/2019 Page: 6 of 8

(explaining that a deed not executed in accordance with the witness requirement

“is not properly recordable and therefore does not give constructive notice to all

the world” but that “[a]s between the parties themselves” it is “valid and binding”

(citation omitted)).

The Abedis argue that because no witness or notary was present when they

conveyed their property to U.S. Bank, the deed was not properly executed and is

not valid under O.C.G.A. § 44-14-61. Georgia law makes clear, however, that

although a deed that does not meet the recording requirements may not provide

constructive notice to third parties, a recording deficiency is insufficient to void a

deed as against the grantor. See Lionheart Legend, 560 S.E.2d at 124. Thus, in

this case, the deed signed by the Abedis—which “specifies the property, states the

debt, and shows that the parties intend to create a lien”—is sufficient to show that

they conveyed title to the disputed property to U.S. Bank. Hawes, 55 S.E. at 67.

Second, Georgia law hews to the after-acquired-title doctrine, which

provides that “[w]here one executes a warranty deed to another, purporting to

convey title to property when the grantor owns no interest in the property described

in the conveyance, but subsequently does acquire an interest, the subsequently

acquired interest immediately inures to the benefit of the grantee in his deed.”

Todd v. Williford, 150 S.E. 912, 916 (Ga. 1929); see also O.C.G.A. § 44-5-44

(explaining that“[t]he maker of a deed cannot subsequently claim adversely to his

6 Case: 18-13252 Date Filed: 05/23/2019 Page: 7 of 8

deed under a title acquired after the making thereof” and is “estopped from

denying his right to sell and convey the property treated in the deed”). Put more

simply, the doctrine prevents fraud by ensuring that when you give away

something you don’t have—and then later get the thing that you purported to give

away—it automatically belongs to the person that you “gave” it to.

That is precisely what happened in this case. The Abedis purported to deed

a security interest in their property to U.S. Bank, but later revealed that the

property was actually owned, at that time, by their business P.A. International.

Not a problem. Under Georgia law, once P.A. International conveyed the property

to the Abedis, the after-acquired-title doctrine kicked in and the interest

automatically transferred to U.S. Bank, giving it a validly perfected security

interest in the property. 3

On appeal, the Abedis now argue that the after-acquired-title doctrine should

not apply in this case because the loan documents themselves do not reference the

doctrine and there is no evidence that they agreed to its application. For support,

they cite to one Massachusetts case without explanation. This argument fails—

there is no requirement in Georgia law that grantors specifically accede to the

3 The Abedis also summarily argue on appeal that the conveyance from P.A. International was void because it lacked proper execution or a corporate seal from the company, that U.S. Bank has not shown that it is the owner of the loan documents, and that the district court erred in denying Mrs. Abedi’s request to withdraw her admissions. None of these shotgun-style claims, however, is supported by the record or adequately explained in the briefing, thus we do not consider them here. 7 Case: 18-13252 Date Filed: 05/23/2019 Page: 8 of 8

after-acquired-title doctrine before it kicks in. See Williford, 150 S.E. at 916.

Because the Abedis have not shown why the doctrine should not apply in this case,

we hold that when P.A. International conveyed the property to the Abedis, U.S.

Bank received the security interest that the Abedis had formerly purported to

convey.

III

For the foregoing reasons, we affirm the district court’s grant of summary

judgement to U.S. Bank.

AFFIRMED.