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LSF9 Master Participation Trust v. Tucker

United States District Court, D. Delaware

November 29, 2018

LSF9 MASTER PARTICIPATION TRUST, Plaintiff,
v.
GREGORY TUCKER, a/k/a Gregory L Tucker, a/k/a Greg L. Tucker, and KAREN TUCKER, a/k/a Karen K. Tucker, Defendants.

         Superior Court of the State of Delaware: in and for New Castle County: C.A. No. N16L-03-181 EMO

          Lisa K. Cartwright, Esquire, Atlantic Law Group, Wilmington, Delaware. Counsel for Plaintiff.

          Gregory Tucker, New Castle, Delaware. Pro se Defendant.

          MEMORANDUM OPINION

          CONNOLLY, U.S. DISTRICT JUDGE

         Defendant Gregory Tucker filed a notice of removal on August 14, 2018, of LSF9 Master Participation Trust v. Tucker, Delaware State Court No. N16L-03-181 EMD (Del. Super.). (D.I. 2). Defendant appears pro se and has been granted leave to proceed in forma pauperis. The Court proceeds to screen the case pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons discussed below, the Court will summarily remand the matter to the Superior Court of the State of Delaware in and for New County.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On March 30, 2016, Plaintiff filed a scire facias sur mortgage complaint in the Superior Court of the State of Delaware in and for New Castle County ("Superior Court") against Defendant and Karen Tucker seeking foreclosure of their interest in real properly located in New Castle, Delaware. (D.I. 2 at Ex. 1) On April 19, 2017, the Superior Court granted summary judgment in favor of Plaintiff finding that: (1) Plaintiff is the valid holder of the mortgage; (2) Defendant and Tucker executed the mortgage; (3) they defaulted on their obligation to Plaintiff; and (4) they owed the amount of judgment sought by Plaintiff, (id. at 11)

         After obtaining judgment, the property was sold at a sheriffs sale on October 10, 2017 to Plaintiff who was the highest bidder, (id. at Ex. 2) The sale was confirmed on November 24, 2017, the New Castle County Sheriff executed a deed transferring the property on December 21, 2017 and, on July 17, 2018, the Superior Court entered an order granting a writ of possession for Plaintiff to have possession of the property, (id.) The writ of possession issued on August 1, 2018, and on August 10, 2018, a notice of eviction was posted on the property. (Id.) Defendant removed the matter to this Court on August 14, 2018. The Court takes judicial notice of the Superior Court docket that eviction was served on August 30, 2018, the door locks were changed and possession was transferred to Plaintiff's agent without incident. See Super. Ct. Sept. 5, 2018 docket entry.

         Defendant removed this matter pursuant to 28 U.S.C. §§ 1441-1446. He demands his right to due process under the Fourth and Fifth Amendments of the United States Constitution and states there was an unconstitutional foreclosure and eviction. (D.I. 2 at 4, 8, 9)

         II. LEGAL STANDARDS

         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) and § 1443 both provide that the action may be removed by the defendant to the district court of the United States. Id. at §§ 1441(a), 1446. The removal statutes are strictly construed and require remand to 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 plaintiffs 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.

         III. DISCUSSION

         In the notice of removal, Defendant states there is a "federal question, constitution, treaty, religious liberty, due process, substantive rights, Supreme Court rulings." (D.I. 2 at 1) A district court has federal-question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Defendant asserts ...


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