Washington Mutual Bank, F.A. v. Eskanos ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA § E a” @
DEE: a 3.133%
WASHINGTON MUTUAL BANK, F.A.,
, US, Dlstrtct at: Bantu natty
tm‘ this District at Columbia
Plaintiff,
v. No. 1:14-cv-1546 (RCL)
AMI B. ESKANOS, et al.,
Defendant.
MEMORANDUM OPINION
Plaintiffs Washington Mutual Bank and, successor in interest, 2lst Mortgage Corporation
(collectively “‘plaintiffs”) began foreclosure proceedings against defendants, Ami B. Eskanos and
Barry B. Eskanos (collectively “the Eskanoses”), in March 2005. Final judgment of foreclosure
was entered in the Eleventh Judicial Circuit of Florida, in and for Miami—Dade County on
December 9, 2009. In 2014, as foreclosure proceedings were drawing to a close, the Eskanoses
removed the case arguing that this Court can take jurisdiction under the Financial Institutions
Reform, Recovery, and Enforcement Act (“FIRREA”), 12 U.S.C. § 1821 (2012). Alongside
removal, the Eskanoses sought to dismiss the case for lack of standing, jurisdiction, and
plaintiffs’ failure to file a timely FIRREA claim with the FDIC. Plaintiffs now seek remand of
the case because removal was improper and the Court lacks subject matter jurisdiction over the
matter. Plaintiffs also seek attorney’s fees and costs. For the following reasons, the Court will
grant plaintiffs’ Motion to remand and allow plaintiffs to submit separate application for
attorney’s fees and costs.
I. BACKGROUND
The Eskanoses executed a loan for $364,000 with Washington Mutual Bank, F.A.
(“Washington Mutual”) on October 28, 1999. The Eskanoses defaulted on that loan in October
2004. In March 2005, Washington Mutual filed a foreclosure action against the Eskanoses in the
Circuit Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Case
No. 05-06570. Emergency Mot. for Remand and Att’y’s Fees, Ex. A, ECF No. 5. On December
9, 2009, the Eleventh Judicial Circuit entered a final judgment of foreclosure against the
Eskanoses. Id., Ex. C. The Eskanoses appealed and sought relief from judgment, but in
December 2010, the Third District Court of Appeals affirmed the final judgment of foreclosure
and denied the Eskanoses’ motion for relief from judgment. The Eskanoses appealed the final
judgment again in October 2011, and the final judgment of foreclosure was affirmed on August
14, 2012. On April 25, 2014, an Order was entered substituting 2lst Mortgage Corporation
(“let Mortgage”) as party plaintiff. 21st Mortgage filed a Motion to reschedule the foreclosure
sale on July 29, 2014. 1
The Eskanoses removed the case to this Court on September 8, 2014. Notice of
Removal, ECF No. 1. The Eskanoses relied on FIRREA, 12 U.S.C. § 1821(d)(6) for removal,
arguing that the foreclosure action represents a claim against a failed depository institution,
Washington Mutual. Alongside their Notice of Removal, the Eskanoses sought to dismiss the
entire action because plaintiffs lacked standing to pursue the foreclosure case in Florida state
court, the Florida court lacked subject matter jurisdiction to enter the foreclosure judgment, and
plaintiffs failed to timely file a FIRREA claim with the FDIC. The Eskanoses also filed a
Motion requesting an Order deeming request for admissions admitted and a Motion to compel on
1 Plaintiffs also identify several cases regarding the same subject matter filed by the Eskanoses in Florida,
Ohio, Indiana, and New York. See Emergency Mot. for Remand and Att’y’s Fees, 1111 7—14, ECF No. 5. The Court,
however, does not discuss these cases because they are not relevant for the Court’s determination of plaintiffs’
Motion for Remand based on 18 U.S.C. §§ 1441, 1446, 1447 (2012).
2
September 8, 2014. Requesting an Immediate Order Deeming Req. for Admiss. Admitted, Mot.
to Compel, ECF No. 2. Plaintiffs filed a Motion for remand and for attorney’s fees and costs on
September 29, 2014. Emergency Mot. to Remand and for Att’y’s Fees and Costs, ECF No. 5.
Plaintiffs argue that the notice of removal was not timely and defendants did not unanimously
consent to removal.2 The Eskanoses filed their opposition to the Motion to Remand on October
16, 2014, Mem. in Opp’n, ECF No. 7, and filed a Motion to Amend their Memorandum in
Opposition on October 21, 2014, Mot. to Amend Mem. in Opp’n, ECF No. 8.
II. LEGAL STANDARD
A defendant may remove an action from state to federal court when the action could have
originally been brought in federal court. 28 U.S.C. § 1446 (2012). A defendant in a removal
action bears the burden of proving federal court jurisdiction, Bhagwanani v. Howard Univ., 355
F. Supp. 2d 294, 297 (D.D.C. 2005), and fulfilling the necessary procedural prerequisites for
removal. Notice of removal must be filed within thirty days after defendants receive a copy of
the initial pleading setting forth the claim for relief or a case becomes removable due to
amendment or party additions. § 1446(b)(1); FDS Rest., Inc. v. All Plumbing Inc., No. 12-394,
2012 WL 4052847, *1 (D.D.C. Sept. 14, 2012). Additionally, removal to federal court requires a
timely demonstration of consent from all defendants who have been properly joined and served
in the action. § 1446(b)(2); Hurt v. District of Columbia, 869 F. Supp. 2d 84, 86 (D.D.C. 2012).
“If that condition is not met, a plaintiffs timely motion for remand will generally be granted.”
Hurt, 869 F. Supp. 2d at 86 (internal citations omitted). Failure to obtain timely unanimous
consent for removal is not a curable defect if a plaintiff objects to removal within thirty days. Id.
2 Plaintiffs also argued that the Notice of Removal lacked a short and plain statement of the grounds for
removal, FIRREA did not provide a basis for removal, the United States had provided statutory consent for state
foreclosure actions, and the Court lacked subject matter jurisdiction under the Rooker—Feldman doctrine.
Emergency Mot. to Remand and for Att’y’s Fees and Costs, ECF No. 5. The Court does not decide these matters
because it finds that the removal procedure was flawed and remand is appropriate for that reason alone.
3
(collecting cases). “All doubts about removal should be resolved in favor of remand.” Hurt, 869
F. Supp. 2d at 86 (citing Chicago R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247 (1900)).
III. DISCUSSION
The Eskanoses did not follow proper removal procedure and the case will be remanded.
First, the Eskanoses failed to remove their case in a timely manner. The Notice of Removal was
filed on September 8, 2014, almost ten years afier the case was instituted in Florida state court.
The case was removable, if at all, when the Eskanoses were served with the foreclosure
complaint in 2005. The Eskanoses have provided no justification for the delayed removal or
reason why removal is now appropriate. The Eskanoses chose not to remove the case within the
necessary time frame and they may not do so now.
Second, the Eskanoses have not received unanimous consent for removal from all
defendants. Barry Eskanos and Ami Eskanos are the only parties to join the removal. Eskanos
Enterprises, Washington Mutual,3 the United States of America, and State Farm Mutual
Automobile Insurance Company did not join the Notice of Removal. Further, the Eskanoses
have provided no indication whether these defendants fall within an exception to the rule of
unanimity. Regardless of whether this Court is able to adjudicate the Eskanoses’ F IRREA claim
or review the Florida foreclosure proceedings, the removal was defective; “hence, this Court
lacks jurisdiction to evaluate the merits of the case.” Hurt, 869 F. Supp. 2d at 87.
The only outstanding matter is plaintiffs’ request for attomey’s fees and costs. In this
Court, attorney’s fees and costs are considered a collateral matter and will be considered upon
submission of a separate application. Federal Rule of Civil Procedure 54(d) requires a motion
for attomey’s fees and costs “must specify the judgment and the statute, rule, or other grounds
3 Washington Mutual is also a defendant to the foreclosure complaint by virtue of a mortgage on the
property.
entitling the movant to the award.” Id. (d)(2)(B)(ii); Hayes v. D. C. Pub. Sch, 815 F. Supp. 2d
134, 139 (D.D.C. 2011). Plaintiffs will be allowed to file a motion seeking attorney’s fees and
costs, and the Court will consider the matter upon receipt. Should they chose to seek attorney’s
fees and costs, plaintiffs must identify the basis for an award of attomey’s fees, e. g. 28 U.S.C.
§ 1927 (2012), as well as the hourly rates sought and fees incurred for preparation and
presentation of the Motion for Remand.
IV. CONCLUSION
For the foregoing reasons, plaintiff’ s Motion to Remand and for Attorney’s Fees and
Costs will be granted, and Defendants’ Motion to Amend their Memorandum in Opposition will
be granted. Defendants’ Motion Requesting an Immediate Order Deeming Request for
Admissions Admitted, Motion to Compel will be dismissed as moot. A separate Order
accompanies this Memorandum Opinion.
Signed by Royce C. Lamberth, United States District Judge, on December 18, 2014.