The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WELLS FARGO BANK, N.A.,
Plaintiff, Case No. 8:19-cv-1877-T-02AAS
v.
GREGORY R. WILSON, et al.,
Defendants.
_______________________________/
ORDER
This matter is before the Court on Plaintiff Wells Fargo Bank, N.A.’s Motion
to Remand and for Attorney’s Fees and Costs. (Dkt. 5). Defendant Gregory R.
Wilson has filed an objection opposing the motion. (Dkt. 9). Because the Court lacks
subject matter jurisdiction over Wells Fargo’s state law mortgage foreclosure action,
the motion to remand is due to be granted.
Removal of an action to federal court is governed by 28 U.S.C. § 1441, which
provides in relevant part that “[e]xcept as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” Id. § 1441(a). “A removing
defendant bears the burden of proving proper federal jurisdiction. . . . Any doubts
about the propriety of federal jurisdiction should be resolved in favor of remand to
state court.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir.
2008) (citations omitted). “Federal courts are courts of limited jurisdiction,”
possessing “only that power authorized by Constitution and statute.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As courts of limited
jurisdiction, federal court removal is appropriate for “all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Alternatively, removal may be based upon diversity jurisdiction, where the parties
are citizens of different states and the amount in controversy exceeds $75,000. Id. §
1332. Federal courts are obligated to inquire as to the propriety of their jurisdiction
at the earliest point in the proceeding. Kirkland v. Midland Mortg. Co., 243 F.3d
1277, 1279–80 (11th Cir. 2001). “A federal district court must remand to the state
court any case that was removed improvidently or without the necessary
jurisdiction.” Estate of Ayres ex rel. Strugnell v. Beaver, 48 F. Supp. 2d 1335, 1339
(M.D. Fla. May 19, 1999).
Wells Fargo initiated this action by filing a single-count complaint for
mortgage foreclosure against multiple Defendants on June 26, 2019. (Dkt. 1-1).
Defendant Gregory R. Wilson was served with a copy of the Complaint on July 2,
2019. (Dkt. 1 ¶ 2). Mr. Wilson filed a Notice of Removal on August 1, 2019. (Dkt.
1). In his Notice of Removal, Mr. Wilson alleges the loan at issue is an FHA (Federal
Housing Administration) loan as indicated by the Note attached to the Complaint.
Id. ¶ 3. Additionally, he attached a letter addressed to him from Wells Fargo
identifying it as the servicer on the loan and Governmental National Mortgage
Association (“Ginnie Mae”)1 as the investor. (Dkt. 1-6 at 49).2 Mr. Wilson argues
that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 because the case
involves “issues arising under the laws of the United States and Ginnie Mae is a
government corporation.” (Dkt. 1 ¶ 7).3
Wells Fargo moves to remand because no federal question appears on the face
of its Complaint. (Dkt. 5 at 3). Wells Fargo argues that the very small print at the
right-hand footer of the Note indicating it is an FHA form is insufficient to convert
its state law cause of action to a federal claim. Id. at 3–4. The Court agrees.
“Whether a claim arises under federal law for purposes of 28 U.S.C. § 1331
is generally determined by the well-pleaded complaint rule, ‘which provides that
federal jurisdiction exists only when a federal question is presented on the face of
1 “Ginnie Mae guarantees investors (security holders) the timely payment of principal and interest
on securities issued by private lenders that are backed by pools of Federal Housing Administration
(FHA), Veterans Affairs (VA), Rural Housing Service (RHS), and Public and Indian Housing
(PIH) mortgage loans. The full faith and credit guarantee of the U.S. Government that Ginnie Mae
places on mortgage-backed securities lowers the cost of, and maintains the supply of, mortgage
financing for government-backed loans.” Government National Mortgage Association (Ginnie
Mae), HUD.GOV, https://www.hud.gov/hudprograms/Ginnie_Mae_I (last visited September 25,
2019).
2 This letter was not an exhibit or part of Wells Fargo’s Complaint.
3 Mr. Wilson does not raise diversity of citizenship as a viable basis for removal. Review of the
documents attached to the Notice of Removal supports that he is a citizen of Florida, and thus, he
would be precluded from removing on the basis of diversity in any event. See 28 U.S.C. §
1441(b)(2).
the plaintiff’s properly pleaded complaint.’” Smith v. GTE Corp., 236 F.3d 1292,
1310 (11th Cir. 2001) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987)). Under the well-pleaded complaint rule, “merely having a federal defense to
a state law claim is insufficient to support removal[.]” Lontz v. Tharp, 413 F.3d 435,
439 (4th Cir. 2005) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152
(1908)).
In this case, Wells Fargo Bank’s Complaint contains a single mortgage
foreclosure claim, arising under state law. (Dkt. 1-1). The face of the Complaint does
not raise a federal question or seek any form of relief under federal law. Federal
jurisdiction “must be based on a federal statute or law governing the Plaintiff’s
claims for relief. No federal statute grants federal jurisdiction over state foreclosure
claims.” U.S. Bank Nat’l Assoc. v. Story, 2009 WL 485165, at *2 (M.D. Fla. Feb.
25, 2009). As Wells Fargo Bank’s Complaint is based solely on state foreclosure
law, it raises no federal questions and removal pursuant to § 1331 is generally
improper.
“But even where a claim finds its origins in state rather than federal law . . .
[the Supreme Court has] identified a ‘special and small category’ of cases in which
arising under jurisdiction still lies.” Gunn v. Minton, 568 U.S. 251, 258 (2013).
When only state-law claims are asserted in a complaint, a claim arises under federal
law if a federal issue is: “(1) necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in the federal court without disrupting the federal-state
balance approved by Congress.” Id. All four of these criteria must be satisfied to find
jurisdiction is proper. Id.
Reviewing Wells Fargo’s Complaint, no federal issue has been raised. Merely
arguing that the Complaint is based on an FHA loan is not enough to raise a federal
issue. “[M]ortgage foreclosure has traditionally been a matter for state courts and
state law, and there are state law remedies available to protect mortgagors from
unconscionable mortgages.” Roberts v. Cameron-Brown Co., 556 F.2d 356, 361 (5th
Cir. 1977) (footnote omitted).4 There is no “necessary federal question” that hasn’t
been pled. Wells Fargo’s Complaint raises a single claim for mortgage foreclosure
under state law. Therefore, jurisdiction is lacking and remand to state court is
warranted.5
In its motion, Wells Fargo requests an award of attorneys’ fees and costs
pursuant to 28 U.S.C. § 1447(c), which provides in part that “[a]n order remanding
the case may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” This Court may award attorneys’
4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh
Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
5 The motion to remand also argued that Mr. Wilson did not obtain his Co-Defendants’ consent
for the removal. (Dkt. 5 at 4). Thereafter, Mr. Wilson filed consents from four of the other
Defendants along with his objection to the motion to remand. See Dkts. 9-1, 9-2, 9-3, 9-4. Because
the Court concludes that federal jurisdiction is lacking and remand is warranted, the Court need
not reach the issue of consents.
fees under the attorney fee provision of the removal statute “only where the
removing party lacked an objectively reasonable basis for seeking removal.” Martin
v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “In applying this rule, district
courts retain discretion to consider whether unusual circumstances warrant a
departure from the rule in a given case.” Id.
The Eleventh Circuit has recognized that the reasonableness standard
enunciated by the Supreme Court was meant to balance “the desire to deter removals
sought for the purpose of prolonging litigation and imposing costs on the opposing
party, while not undermining Congress’ basic decision to afford defendants a right
to remove as a general matter, when the statutory criteria are satisfied.” Bauknight
v. Monroe County, Fla., 446 F.3d 1327, 1329 (11th Cir. 2006) (quoting Martin, 546
U.S. at 140). Therefore, “there is no indication that a trial court should ordinarily
grant an award of attorneys’ fees whenever an effort to remove fails.” Kennedy v.
Health Options, Inc., 329 F. Supp. 2d 1314, 1319 (S.D. Fla. July 21, 2004) (citing
Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993)).
Although, there is no “bright line rule” as to the definition of “objectively
reasonable,” courts that have applied the Martin standard typically focus upon
whether the removing party has offered a credible reason for removal, even if it later
becomes clear that the removing party was incorrect on the facts or the law. Here,
Mr. Wilson has offered an arguable, albeit incorrect, basis for removal. Accordingly,
the Court will deny the request for attorneys’ fees and costs.
For the reasons stated, it is hereby ORDERED that Wells Fargo Bank, N.A.’s
Motion to Remand and for Attorney’s Fees and Costs (Dkt. 5) is GRANTED in
part and DENIED in part as follows:
1. Wells Fargo’s Motion to Remand is GRANTED;
2. Wells Fargo’s Motion for Attorney’s Fees and Costs is DENIED.
3. The Clerk is directed to effect REMAND of this case to the Circuit
Court of the Tenth Judicial Circuit in and for Polk County and thereafter close the
case.
DONE and ORDERED this 25th day of September 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
Copies furnished to:
All counsel of record and unrepresented parties