United States District Court, D. Delaware
Court of the State of Delaware in and for New Castle County
Denilia Francis, New Castle, Delaware. Pro Se Plaintiff.
Eileen Polesky, Esquire, Stradley Ronon Stevens & Young,
LLP, Wilmington, Delaware. Counsel for Defendant Ocwen Loan
ANDREWS, U.S. District Judge
September 6, 2017, Denilia Francis commenced this action when
she filed a complaint against Defendants Atlantic Law Firm,
Attorneys for Ocwen Loan Financing, and Ocwen Loan Servicing.
(D.I. 2). On October 16, 2017, Francis requested that the
case be treated as a notice of removal of Delaware State
Court C.A. No. N16L-07-076-JRJ. (D.I. 7). Francis appears
pro se and has been granted leave to proceed in
AND PROCEDURAL BACKGROUND
complaint, Francis alleges that debt collector Atlantic Law
Firm is attempting to foreclose her property and has violated
bankruptcy laws and the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692, by threatening to
foreclose and by harassing Francis and her family. (D.I. 2 at
p.4). She seeks $540, 000. (Id. at p.7). After the
complaint was filed, Francis filed a document titled,
"Motion for Removal to Federal Court / Motion to Stay
State Court Case # N16L-07-076-JRJ." (D.I. 7).
Court takes judicial notice that C.A. No. N16L-07-076-JRJ is
a foreclosure action filed on July 14, 2016, in the Superior
Court of the State of Delaware in and for New Castle County,
Deutsche Bank Trust Co. v. Francis, C.A. No.
N16L-07-076-JRJ. Francis was served on December 28, 2016, and
she answered and filed a counterclaim. (Id. at D.I.
9 at Exs. F, G). In the counterclaim, Francis asserted claims
of fraud, violations of the FDCPA, Delaware's Deceptive
Practices Act, and the Fair Credit Reporting Act, as well as
unlawful assignment of mortgage and extortion. (D.I. 11-7 at
Ex. Gat pp.4-5, 9-11 at ¶¶11, 15, 16, 22). On
September 15, 2017, the Superior Court entered summary
judgment in favor of Deutsche Bank in the amount of $256,
158.41. (Id. at Ex. H). Francis filed a notice of
appeal the same day. See Francis, C.A. No.
N16L-07-076-JRJ at BL-64, BL-65, BL-66. On October 17, 2017,
Francis filed a notice of removal in the Superior Court
removing the case to this Court. See Id. at BL-67.
Court takes judicial notice that on August 9, 2016,
approximately one month after the foreclosure action
commenced, Francis filed an action against Ocwen Financial
Services, Inc. and its attorneys and Deutsche Bank Trust
Company in the Court of Chancery of the State of Delaware,
Francis v. Ocwen Financial Services, Inc., C.A. No.
12661-VCMR. Francis appeared pro se and was granted
leave to proceed in forma pauperis. Id. at BL-2.
Francis sought to enjoin a trustee sale and/or sheriff
proceeding and alleged that the defendants might be in
violation of the FDCPA, 15 U.S.C. § 1692, used deceptive
tactics and misrepresentation, and had no authority or legal
standing to foreclose. See Id. at BL-5.
Chancery Court case was dismissed as frivolous on the grounds
that Francis failed to demonstrate any irreparable harm,
failed to present a colorable claim that supported enjoining
foreclosure, failed to include Dozmitt Francis (also a record
owner and mortgagee of the property at issue) as a party, and
the deficiencies asserted by Francis were belied by the
exhibits she submitted. Id. at BL-1, BL-3. When
Francis did not file any exceptions to the letter decision
and order dismissing the complaint, the letter decision and
order were approved and adopted on September 9, 2016.
Id. at BL-11. Francis sought reconsideration and
stated that the FDCPA has rules concerning debt collectors
and creditors and that Ocwen is a debt collector acting
outside the scope its capacity. Id. at BL-12. The
Chancery Court denied her motion on October 19, 2016, stating
that it agreed with the previously entered letter decision
and order. Id. at BL-15.
exercise of removal jurisdiction is governed by 28 U.S.C.
§ 1441(a) which states that, in order to remove a civil
action from state court to federal court, a district court
must have original jurisdiction by either a federal question
or diversity of citizenship. 28 U.S.C. §§ 1331,
1332, 1441(a). Section 1441(a) also provides that the action
may be removed by the defendant to the district court of the
United States. Id. at § 1441(a). The statute is
strictly construed, requiring remand to the state court if
any doubt exists over whether removal was proper.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 104 (1941).
will remand a removed case "if at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction." 28 U.S.C. § 1447(c). The
party seeking removal bears the burden to establish federal
jurisdiction. Steel Valley Auth. v. Union Switch &
Signal Div. Am. Standard, Inc.,809 F.2d 1006, 1010 (3d
Cir. 1987); Zoren v. Genesis Energy, LP., 195
F.Supp.2d 598, 602 (D. Del. 2002). In determining whether
remand based on improper removal is appropriate, the court
"must focus on the plaintiff's complaint at the time
the petition for removal was filed, " and assume all
factual allegations therein are true. Steel Valley
Auth., 809 F.2d at 1010. Upon a determination that a
federal court lacks subject matter jurisdiction, the District