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PHH Mortgage Corp. v. Lawrence

United States District Court, D. Minnesota

June 29, 2018

PHH Mortgage Corporation, Federal National Mortgage Association Plaintiffs,
v.
Kimberly A. Lawrence, John Doe, and Mary Roe Defendants.

          Kalli Ostlie, for Plaintiff Federal National Mortgage Association.

          Kimberly A. Lawrence, pro se.

          REPORT & RECOMMENDATION AND ORDER

          FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE

         THIS MATTER came before the undersigned United States Magistrate Judge on Plaintiff Federal National Mortgage Association's (“Fannie Mae”) motion to remand to state court (ECF No. 10), and Defendant Kimberly A. Lawrence's (“Defendant”) application to proceed without prepaying fees or costs (ECF No. 2), motion for court appointed counsel (ECF No. 3), and motion to amend notice of removal (ECF No. 5). The parties dispositive motions are referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. See Order, ECF No. 16. For the reasons set forth below, the Court recommends that Fannie Mae's motion for remand (ECF No. 10) be GRANTED. Defendant's motion to amend her notice of removal (ECF No. 5) is GRANTED, and her application to proceed without paying fees or costs (ECF No. 2), and motion for court appointed counsel are DENIED as moot.

         I. FACTUAL SUMMARY

         On June 4, 2014, Fannie Mae filed an Amended Complaint in Hennepin County, District Court, seeking to evict Defendant from the property located at 1661 Eagle Ln, Mound, MN. See ECF No. 13, Ex. 1. According to the Amended Complaint, the mortgage on the property was foreclosed upon and sold to PHH Mortgage Corporation on October 7, 2011. Id. The property was then transferred to Fannie Mae on December 22, 2011, by a limited warranty deed. Id. On May 8, 2012, a demand for possession of the property was sent to Defendant. Id. On November 19, 2012, Fannie Mae brought a motion for summary judgment which was stayed until June 11, 2013. Id. at Ex. 5. On July 30, 2013, the court granted Fannie Mae's motion for summary judgment, and found that Fannie Mae was entitled to judgment as a matter of law. Id. In doing so, the court found that Defendant had not disputed the existence of the mortgage, the sheriff sale, the expiration of the redemption period without redemption, or that she continued to occupy the property. Id. The court entered judgment in favor of Fannie Mae for recovery of the property, and an order to vacate was issued on August 6, 2013. Id. at Ex. 4. While the writ of recovery was executed on September 3, 2013, the Defendant had access to the property until December 9, 2013. Id. at Ex. 6.

         On October 3, 2017, Defendant filed a motion seeking damages for personal property left at the residence. Id. On November 27, 2017, the court denied Plaintiff's motion. Id.

         Shortly thereafter, on December 8, 2017, Defendant filed a notice to remove the matter to the District of Minnesota. See ECF No. 4. Defendant also filed an application to proceed in district court without prepaying fees and costs, and a motion for appointment of counsel. See ECF Nos. 2, 3. On December 11, 2017, Defendant filed a motion to amend the notice of removal. ECF No. 5. Fannie Mae has not responded to Defendant's request or motions, and the time to do so has now passed.

         On January 8, 2018, Fannie Mae filed a motion to remand the matter to state court. ECF No. 10. Fannie Mae argues that Defendant's notice of removal is untimely and therefore procedurally defective. ECF No. 12.

         II. CONCLUSION OF LAW

         1. Defendant's Motion to Amend Notice of Removal (ECF No. 5)

         As an initial matter, noting that Fannie Mae has not objected to Defendant's motion to amend her notice of removal, this Court grants Defendant's motion to amend.

         2. Plaintiff's Motion for Remand (ECF No. 10)

         Pursuant to 28 U.S.C. § 1441(a), a party may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction . . . to the district court ...


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