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Francis v. Atlantic Law Firm

United States District Court, D. Delaware

November 27, 2017

ATLANTIC LAW FIRM, et al., Defendants.

         Superior Court of the State of Delaware in and for New Castle County Case#N16L-07-076JRJ.

          Denilia Francis, New Castle, Delaware. Pro Se Plaintiff.

          Joelle Eileen Polesky, Esquire, Stradley Ronon Stevens & Young, LLP, Wilmington, Delaware. Counsel for Defendant Ocwen Loan Servicing, LLC.


          ANDREWS, U.S. District Judge

         On 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 forma pauperis.


         In her 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).

         The 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.

         The 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.

         The 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.


         Legal Standard.

         The 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).

         A court 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 ...

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