# PENNYMAC LOAN SERVICES, LLC v. JOHNSON

> District Court, M.D. North Carolina · March 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10253684

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253684

## How later opinions describe it (automated extraction)

- declining “to transform the longstanding well-pleaded-complaint rule into the ‘well- pleaded-complaint–or-counterclaim rule’”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PENNYMAC LOAN SERVICES, LLC, )
)
Plaintiff/ )
Counterclaim Defendant, )
)
v. ) 1:20CV175
)
BRAD JOHNSON and ELCI )
WIJAYANINGSIH, )
)
Defendants/ )
Counterclaim Plaintiff/ )
Third-Party Plaintiff, )
)
v. )
)
STANDARD GUARANTY INSURANCE CO., )
ERIKA L. SANCHEZ, EFREN )
SALDIVAR, and ASSURANT, INC., )
)
Third-Party Defendants. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Remand, (Doc.
10), filed by Plaintiff Pennymac Loan Services, LLC (“Pennymac”
or “Plaintiff”). Plaintiff seeks to remand this case, including
both Pennymac’s original claim and Defendants’ counterclaim, to
the Forsyth County General Court of Justice, District Court
Division. Pro se Defendants Brad Johnson (“Johnson”) and Elci
Wijayaningsih (“Wijayaningsih”) (together “Defendants”) oppose
Plaintiff’s motion. This court will grant Plaintiff’s Motion to
Remand. Other motions remain pending and will be dismissed as
moot upon remand. (Docs. 26, 27, 29, 48, 49, 51, 52, 61, 63,
66.)
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Pennymac is a Delaware company that conducts business in
North Carolina. (Complaint (“Compl.”) (Doc. 4) ¶ 1.) Defendant
Brad Johnson is an individual who lives in Oak Island, Brunswick
County, North Carolina. (Id. ¶ 2.) Johnson’s domicile is in

South Carolina. (Doc. 16 ¶ 3.) Defendant Elci Wijayaningsih is
married to Johnson and lives in Oak Island. (Compl. (Doc. 4)
¶ 3; Doc. 16 ¶ 3.)
In 2008, Johnson received a Limited Warranty Deed, (Ex. A
(Doc. 4) at 8)1, for property from AmTrust Bank. (Compl. (Doc. 4)
¶ 6.) In the public registry, that land was recorded as “all of
Lots 16 and 18, Block 186, Section N-6, Long Beach (now Oak
Island), NC as shown on map recorded in Map Book 11, Page 89,
Brunswick County Registry.” (Id.) Several years later, in 2012,
Johnson received a General Warranty Deed from Homer E. Wright,
Jr. (Id. ¶ 8; Ex. B at 10-11.) That deed was recorded as

1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
covering “ALL OF LOTS 13, 15 AND 17, BLOCK 186, SECTION N-6,
LONG BEACH (now Oak Island) as per map for National Development
Corp.” (Id.)
In 2013, Johnson applied for a loan via Weststar Mortgage
(“Weststar”). (Id. ¶ 10.) Weststar ordered an appraisal of
Johnson’s property in order to settle what tract of land would
be collateral for the loan. (Id. ¶ 11.) This appraisal covered
the entire property, including the property conveyed to Johnson
in both 2008 and 2012. (Id. ¶ 12.) Johnson executed an

Instrument of Combination on June 12, 2013, in order to combine
the two separately-conveyed lots into one parcel. (Id., Ex. C at
13.) Weststar extended Defendants a loan of $335,562.00. (Doc.
11 at 4.) As security, “Defendants, as Grantors, executed and
delivered to Linear Title, as Trustee, and Mortgage Electronic
Registration Systems, Inc. (“MERS”) as nominee for the benefit
of Lender, as Grantee, a Deed of Trust” for the land. (Id.;
Compl. (Doc. 4) ¶ 17.) This Deed of Trust (“the Deed”), however,
describes only the second tract conveyed in 2012. (Compl. (Doc.
4), Ex. D at 15.) Pennymac now alleges this description was a
result of “mutual mistake, inadvertence or mistake of the
draftsman.” (Compl. (Doc. 4) ¶ 28; Doc. 11 at 4.) In 2019, MERS

subsequently assigned this Deed of Trust to Pennymac, the
present holder of the Deed of Trust. (Compl. (Doc. 4) ¶ 22.)
Pennymac brought the original complaint in this action
against Defendants seeking amendment of the Deed of Trust for
the property on 14th Street in Oak Island. Pennymac alleges that
a “mutual mistake, inadvertence or mistake of the draftsman”
resulted in an incomplete and inaccurate legal description on
the Deed of Trust conveyed to Pennymac. (Id. ¶ 28.) Pennymac
requests that “the legal description attached to the Deed of
Trust be reformed to reflect the true intentions of the
parties.” (Id. ¶ 30.)

Defendants Johnson and Wijayaningsih filed an Answer,
(Docs. 1-2, 6), and Defendant Johnson2 brought a counterclaim
against Pennymac and joined additional third-party defendants
Standard Guaranty Insurance Company, Assurant Inc., Erika L.
Sanchez, and Efren Saldivar. (Doc. 16.) Defendants’ counterclaim
brings counts under RICO, the Fair Debt Collection Practices Act
of 1970, and common law breach of contract and fraud. (Id.)
B. Procedural History
Pennymac brought its claim in Forsyth County District Court
on January 23, 2020. (Doc. 4.) Defendants Johnson and
Wijayaningsih filed an answer and original counterclaim on

2 As will be further explained, although the counterclaim
states it is brought by Johnson, Wijayaningsih is named as a
party and is at least a putative beneficiary of the counterclaim
as a “similarly situated” individual.
February 21, 2020, (Docs. 6, 16), then filed for removal to
federal court in the Middle District of North Carolina on the
same day, (Doc. 1). Pennymac filed its Motion to Remand, (Doc.
10), on March 19, 2020. On April 6, 2020, Johnson amended the
counterclaim against Pennymac. (Doc. 16.) Defendants also filed
motions for leave to file a Surreply. (Doc. 26.) Pennymac filed
a Motion to Dismiss the First Amended Counterclaim on May 27,
2020. (Doc. 29.) Defendant Johnson filed a motion to amend the
counterclaim again on September 21, 2020. (Doc. 51.)

Meanwhile, third-party Defendants Standard Guaranty
Insurance Company and Assurant, Inc., filed a Motion to Dismiss
Count I of the Counterclaim. (Doc. 27.)
II. STANDARD OF REVIEW
Courts “should dismiss a complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) if the complaint
fails to allege facts upon which subject matter jurisdiction can
be based or if jurisdictional allegations in the complaint are
not true.” McLaughlin v. Safway Servs., LLC, 429 F. App’x 347,
348 (4th Cir. 2011) (per curiam) (citation omitted); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (outlining two ways
lack of subject matter jurisdiction arises: failure “to allege

facts upon which subject matter jurisdiction can be based” and
when “the jurisdictional allegations of the complaint were not
true”). A challenged plaintiff “bears the burden of persuasion”
in defending subject-matter jurisdiction. Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995).
“The burden of establishing federal jurisdiction is placed
upon the party seeking removal.” Mulcahey v. Columbia Organic
Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Ultimately, “[a]ny
doubts about removal must be resolved in favor of remand.” UMLIC
Consol., Inc. v. Spectrum Fin. Servs. Corp., 665 F. Supp. 2d
528, 532 (W.D.N.C. 2009); see also Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09, (1941); Turner v. CTS Con-Way
Transp. Services, No. 1:98CV00624, 1999 WL 1939243, at *1
(M.D.N.C. Apr. 28, 1999). Out of “[d]ue regard for the rightful
independence of state governments . . . [federal courts must]
scrupulously confine their own jurisdiction to the precise
limits which the statute has defined.” Healy v. Ratta, 292 U.S.
263, 270 (1934). Matters can be removed to federal court only
when they could have been brought in federal court in the first
instance. See 28 U.S.C. § 1441(a). For example, federal courts
have jurisdiction over any case that implicates a question of
federal law, and such a case can therefore generally be removed
to federal court. See 28 U.S.C. § 1331.
III. ANALYSIS
A. Federal Question Jurisdiction
Johnson and Wijayaningsih first argue that this court has
federal question jurisdiction over the claim and counterclaim
under 28 U.S.C. § 1331. (Doc. 1 at 2.) Federal-question
jurisdiction exists when either (1) the right to relief arises
directly under federal law, or (2) “the case’s resolution
depends on resolution of a federal question sufficiently
substantial to arise under federal law within the meaning of 28

U.S.C. § 1331.” Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806
(4th Cir. 1996). It must be apparent from the face of the
complaint that the plaintiff’s claims cannot be resolved without
reference to federal law or to the U.S. Constitution. Franchise
Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for So. Cal.,
463 U.S. 1, 8–9 (1983).
However, the original well-pleaded complaint, as filed by
Pennymac, does not contain a federal claim or issue. (Compl.
(Doc. 4).) The complaint focuses only on a potential mistake in
the Deed of Trust, (id. ¶ 30), and requests reformation of the
deed of trust, (id. at 5-6). Defendants advocate for federal
question jurisdiction on the federal issues raised in the

counterclaim. However, the Supreme Court has made clear that a
counterclaim may not be considered to establish federal question
jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 66 (2009)
(“Under the well-pleaded complaint rule, a . . . counterclaim
. . . does not provide a key capable of opening a federal
court’s door.”); Holmes Grp., Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 832 (2002) (declining “to transform
the longstanding well-pleaded-complaint rule into the ‘well-
pleaded-complaint–or-counterclaim rule’”). Thus, this court does
not have federal question jurisdiction over this claim or
counterclaim.

B. Diversity Jurisdiction
Defendants’ second jurisdictional basis for removal derives
from 28 U.S.C. § 1332. In order to establish diversity
jurisdiction under that statute, Defendants must show two
elements: (1) complete diversity of citizenship between
plaintiffs and defendants and (2) an amount in controversy in
excess of $75,000. 28 U.S.C. § 1332. Prior to determining
whether diversity jurisdiction exists, however, this court will
address the dispositive forum-defendant rule. The forum-
defendant rule determines whether diversity jurisdiction, even
if it exists, could serve as a proper basis for removal to
federal court.

The forum-defendant rule, contained in 28 U.S.C.
§ 1441(b)(2), provides that “[a] civil action otherwise
removable solely on the basis of the jurisdiction under section
1332(a) of this title may not be removed if any of the parties
in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.” This case
qualifies as a civil action that is “otherwise removable solely
on the basis of” diversity jurisdiction, and in this instance,
Defendant Wijayaningsih is undisputedly a resident of North
Carolina, the “State in which [the] action is brought.” Id. The
only remaining question is whether Wijayaningsih was properly

joined and served.
1. Proper Joinder and Service
Both Defendants filed a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1) and 12(b)(6) in their Answer. (Doc. 6.) The
motion explains that there “was ineffectual service of process
upon each of the Defendants, Brad R. Johnson and Elci
Wijayaningsih.” (Id. at 1.) However, contrary to LR 7.3(a),
neither Defendant filed a brief in support of the motion to
dismiss. Both Defendants have fully participated in this
litigation; this court therefore finds, as explained hereafter,
that the motion to dismiss should be denied and both Defendants
deemed to have been properly served and joined.

Pleadings filed by pro se litigants are liberally
construed. See Hill v. Braxton, 277 F.3d 701, 707 (4th Cir.
2002). However, courts are not bound by the “legal conclusions
drawn from the facts” and need not accept as true “unwarranted
inferences, unreasonable conclusions, or arguments.” E. Shore
Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180
(4th Cir. 2000). Johnson contends he is the sole counterclaim
plaintiff in each of the counterclaims. (See Pl. Johnson’s
Counterclaims Under the Racketeer Influenced and Corrupt
Organizations Act Against Countercl. Defs. (“Original
Countercl.”) (Doc. 6-1) at 2; Countercl. Pl. Johnson’s Verified

First Am. Countercl. against Countercl. Defs. (“First Am.
Countercl.”) (Doc. 16) at 2; Countercl. Pl. Johnson’s Verified
Second Am. Countercl. against Countercl. Defs. (“Second Am.
Countercl.”) (Doc. 51-1) at 2.)3 Yet, Elci Wijayaningsih is
listed as a party to the counterclaims nonetheless. (Original
Countercl. (Doc. 6-1) at 5; First Am. Countercl. (Doc. 16) at 5;
Second Am. Countercl. (Doc. 51-1) at 7.) Moreover, though each
counterclaim lists Wijayaningsih as a “Party,” none explain her
standing with any specificity. (See id.)

3 The operative counterclaim pleading at the time of this
court’s analysis is the First Amended Counterclaim, (Doc. 16),
as the motion to amend has remained pending up until this time,
(Doc. 51). However, in order to demonstrate the extent of
Wijayaningsih’s simultaneous inclusion and silence, this court
will look at all three versions of the Defendant’s counterclaim
in its analysis.
Each of the counterclaims alleges some collective claim on
behalf of similarly situated individuals to Johnson, without
identifying anyone other than Wijayaningsih who could
potentially be implicated. In the original counterclaim, Johnson
alleges Plaintiff’s schemes were employed “to deprive other
persons similarly situated of money and their beneficial
interests in real property.” (Original Countercl. (Doc. 6-1) at
26.) Likewise, in subsequent counterclaims, Johnson brings class
claims on behalf of “similarly situated” individuals. (See First

Am. Countercl. (Doc. 16) at 2-3 (“Dr. Johnson seeks to recover
statutory damages for . . . other persons similarly
situated[]”); Second Am. Countercl. (Doc. 51-1) at 3 (“Defendant
Brad Johnson . . . individually, and as representative of a
class of assignee PennyMac debtors . . .”).)
Wijayaningsih is a necessary party to the action to reform
the deed of trust, see Nat’l Union Fire Ins. Co. of Pittsburgh
v. Rite Aid of S.C., Inc., 210 F.3d 246, 250 (4th Cir. 2000),
and is named as a party in each of Johnson’s counterclaims. She
is also the only known “similarly situated” individual as
referred to in Johnson’s counterclaims. Wijayaningsih has been
served with at least one of the counterclaims seeking relief on

behalf of Johnson and others, (Original Countercl. (Doc. 6-1) at
39), and has not filed any response or any objection to her
inclusion as a party. Wijayaningsih’s silence suggests that
while she may contend that she is not properly served and
joined, she is also in an obvious position to recover as a party
plaintiff in the event Johnson obtains relief on behalf of
himself and others similarly situated.
In this case, Johnson and Wijayaningsih are both fully
aware of the requirements as to removal: their own briefing
acknowledges that “§ 1446(b)(2)(B) allows each defendant ‘30
days after receipt by or service on that defendant of the

initial pleading or summons . . . to file the notice of
removal,’ whereupon ‘all defendants who have been properly
joined and served must join in or consent to the removal of the
action.’” (Defs.’ Joint Resp. in Opp’n to Pl.’s Mot. to Remand
(“Defs.’ Remand Resp.”) (Doc. 22) at 5.) Both Johnson and
Wijayaningsih joined in the notice of removal. (Doc. 1 at 7.) In
light of their argument, they both did so with the understanding
that “all defendants properly joined and served” must join in
removal. Although both Johnson and Wijayaningsih persist in
arguing that Wijayaningsih has not been “properly joined and
served,” (Defs.’ Remand Resp. (Doc. 22) at 7), they offer no
explanation as to why she joined in removal as opposed to

remaining silent or consenting to removal. (See generally id.)
Furthermore, while Wijayaningsih did not sign the
counterclaims filed by Johnson, she is listed as a party -
without objection - and is readily identifiable as a necessary
party to actions affecting the deed of trust. Under these
circumstances, this court does not disregard warranted
inferences or reasonable conclusions. The aforementioned facts
lead this court to conclude that Wijayaningsih is an intended
beneficiary of the counterclaims ostensibly asserted solely by
Johnson: she is the only known beneficiary of any recovery

Johnson might receive on behalf of a “similarly situated”
individual.
It is therefore not unreasonable for this court to conclude
that Johnson and Wijayaningsih’s failure to file a brief in
support of their motion to dismiss for lack of service of
process, (Doc. 6 at 1), as required by LR 7.3,4 is not simply an
oversight on the part of a pro se litigant. Instead, this court
concludes that the failure to submit a brief is an effort by
Wijayaningsih to indefinitely maintain a posture in this court
that she has not been served and joined, while simultaneously

4 LR 7.3(a) provides that “[a]ll motions, unless made during
a hearing or at trial, shall be in writing and shall be
accompanied by a brief except as provided in section (j) of this
rule.” LR 7.3(k) provides that “[a] motion unaccompanied by a
required brief may, in the discretion of the Court, be summarily
denied.”
maintaining a position as to Johnson’s counterclaim in order to
benefit from affirmative relief. Johnson has specifically sought
affirmative relief in this court. This court finds, pursuant to
LR 7.3(k), that Johnson and Wijayaningsih’s failure to file a
brief in support of their motion should result in denial of the
motion to dismiss. (Doc. 6.) Objections to service of process
may be waived under Fed. R. Civ. P. 12(h)(1). See also Wabash W.
Ry. v. Brow, 164 U.S. 271, 276 (1896). This court finds that
Johnson and Wijayaningsih waived any defects in service of

process when the original counterclaim was filed by Johnson and
named Wijayaningsih as a party was filed in state court, all
prior to removal to this court. (See Doc. 1-2.) The motion to
dismiss, (Doc. 6), will be denied for failing to file a brief in
this court as required. This court finds Johnson and
Wijayaningsih have been joined and served in this action. As a
result, remand is proper under 28 U.S.C. § 1441(b)(2).
2. Absurd Results
As an alternative basis for remand, this court has also
considered the “absurd result” doctrine of the forum-defendant
rule. While this court does not find that doctrine compelling
except where the outcome would be “so gross as to shock the

general moral or common sense,” Sigmon Coal Co. v. Apfel, 226
F.3d 291, 304 (4th Cir. 2000), this court finds that Defendants
should not be afforded more latitude to manipulate removal
jurisdiction than any plaintiff would be given. See,
e.g., Hughes v. Wells Fargo Bank, N.A., 617 F. App’x 261, 264
(4th Cir. 2015) (dismissing claim against defendant fraudulently
joined by plaintiff merely to prevent removal of case). Here,
both Johnson and Wijayaningsih are attempting to seek
affirmative relief by manipulating the pleadings so that
Wijayaningsih can claim improper service while Johnson
simultaneously pursues affirmative relief on her behalf.

The absurd results doctrine divides courts over whether the
forum-defendant rule should be applied literally. Phillips
Constr., LLC v. Daniels Law Firm, PLLC, 93 F. Supp. 3d 544, 550
(S.D. W. Va. 2015) (“There is a broad and growing divide among
the district courts as to whether the forum-defendant rule bars
pre-service removal based on diversity jurisdiction.”).
Typically, the Fourth Circuit requires courts to read statutory
text plainly and literally. Hillman v. I.R.S., 263 F.3d 338, 342
(4th Cir. 2001). However, there are two stated exceptions to
this Plain Meaning Rule:
The first exception applies when literal application
of the statutory language at issue produces an outcome
that is demonstrably at odds with clearly expressed
congressional intent to the contrary. Sigmon Coal Co.
v. Apfel, 226 F.3d 291, 304 (4th Cir. 2000). The
second exception implicated by the Hillmans’ argument
applies when literal application of the statutory
language at issue “results in an outcome that can
truly be characterized as absurd, i.e., that is so
gross as to shock the general moral or common sense
. . . .” Id. (internal quotation marks omitted).

Id.
Courts have split on whether, and under what circumstances,
a literal application of the forum-defendant rule would create
“absurd” results. Some courts have confined rejection of the
literal reading to instances in which all defendants are forum
defendants. See, e.g., Phillips Constr., 93 F. Supp. 3d at 556
(“[I]n cases involving only resident defendants, the forum-
defendant rule bars resident defendants from removing an action
pursuant to diversity jurisdiction before effectuation of
service.”). In the instant case, Defendant Johnson contends he
is not a citizen of North Carolina. (Original Countercl. (Doc.
6-1) ¶ 3.) However, the forum defendant actively joined in the
removal of this action, which creates a different set of
circumstances.
[P]ermitting a forum defendant to appear and seek
federal jurisdiction for an action through removal,
whilst simultaneously asserting that it cannot be
barred from removing because it has not been properly
made party to the action — through delivery of summons
and a copy of the complaint — is patently absurd.
Campbell v. Hampton Roads Bankshares, Inc., 925 F. Supp. 2d 800,
809–10 (E.D. Va. 2013). The rule from Campbell is most directly
applicable here: Campbell narrowly and “expressly limited its
analysis to situations in which the removing defendant was also
the unserved forum defendant.” Bloom v. Library Corp., 112
F. Supp. 3d 498, 505 (N.D. W. Va. 2015). The court in Campbell
read “served” to mean “actual notice and involvement in the
case,” since notice is “the effect that service has on a party.”
Campbell, 925 F. Supp. 2d at 810. The court held that “[a]
removing defendant has actual notice of the case, and has become
involved by seeking removal.” Id. This narrow exception to the
Plain Meaning Rule has been acknowledged elsewhere in this
circuit even where removal was upheld under different

circumstances. Bloom, 112 F. Supp. 3d at 505.
Nor is the purpose of diversity jurisdiction served by
interpreting the forum-defendant rule in the absurd manner
suggested by Defendants. The “protection upon which removal
based upon diversity is premised is not an issue when an out-of-
state plaintiff chooses to bring[] a suit in the state where the
defendant is a citizen.” Councell v. Homer Laughlin China Co.,
823 F. Supp. 2d 370, 379 (N.D. W. Va. 2011) (citation omitted).
This is why the forum-defendant rule exists: “federal diversity
jurisdiction is unnecessary because there is less reason to fear
state court prejudice against the defendants if one or more of
them is from the forum state.” Ada Liss Grp. v. Sara Lee Branded

Apparel, No. 1:06CV610, 2007 WL 634083, at *2 (M.D.N.C. Feb. 26,
2007).
Furthermore, there is no evidence that Pennymac added
Wijayaningsih purely to block removal. See Teamsters Local 677
Health Servs. & Ins. Plan v. Friedman, Civil Action No. CCB-18-
3868, 2019 WL 5423727, at *3 (D. Md. Oct. 23, 2019) (foregoing a
literal reading of the forum-defendant rule where “there is no
suggestion that [the plaintiffs] added the Maryland defendants
to their lawsuit to prevent removal to federal court” and “most
of the defendants . . . are Maryland citizens”). Wijayaningsih
is a direct signatory on the loan, (Compl. (Doc. 4) ¶ 16; Ex. D

at 15), and is a necessary party to the action. See Kemp v.
Funderburk, 224 N.C. 353, 355, 30 S.E. 2d 155, 157 (1944) (“[I]n
an action to reform a deed, all parties claiming an interest in
the land or any part thereof, purported to have been conveyed by
the instrument sought to be reformed, and whose interest will be
affected by the reformation of the instrument, are necessary
parties to the action.”).
Ultimately, the dispositive factor is that Defendant
Wijayaningsih joined Defendant Johnson in the motion to remove
this case to federal court. Even assuming she was not “properly
joined and served” in the traditional sense, Wijayaningsih
clearly had notice of the action by virtue of actively

participating in it. For Wijayaningsih to actively file for
removal of the case, then claim her domicile cannot be
considered for removal purposes due to lack of notice, defies
logic and the purpose of the forum-defendant rule. Since the
forum defendant herself “actively sought the removal of this
action,” this court will accept the interpretation of the forum-
defendant rule proffered by Campbell, which prevents
exploitation of the literal meaning of 28 U.S.C. § 1441(b)(2).
Campbell, 925 F. Supp. 2d at 810.
By virtue of filing an answer and for removal,
Wijayaningsih clearly had actual notice of the suit: permitting

a forum defendant to remove a case in this instance fails to
serve the anti-gamesmanship purpose of the forum defendant rule.
See Perez v. Forest Lab’ys, Inc., 902 F. Supp. 2d 1238, 1244
(E.D. Mo. 2012) (“The rationale underlying the forum defendant
rule is most clearly contravened when a forum defendant itself
removes the action before being served.”).
This court need not address whether diversity jurisdiction
exists. Any diversity jurisdiction would be an improper basis
for removal in this instance, due to the application of the
forum-defendant rule. Thus, even under this alternative basis,
this case will be remanded to Forsyth county.
C. Remand

Defendants contest whether this case is properly before the
Forsyth County court. However, a remanded case must return to
the court it was removed from: the removal statute, 28 U.S.C.
§ 1447, describes remand as an “order remanding a case to the
State court from which it was removed.” 28 U.S.C. § 1447(d). See
also Fletcher Partners, LLC v. Truist Bank, Civil No. 2:20-cv-
00775-JMG, 2020 WL 5407857, at *3 (E.D. Pa. Sept. 9, 2020);
Konold v. Superior Int’l Indus. Inc., 911 F. Supp. 2d 303, 309
(W.D. Pa. 2012). Thus, as this court does not have subject
matter jurisdiction over the case and must remand it, the action
must return to Forsyth County court.

IV. CONCLUSION
Perhaps future litigation will demonstrate that the deed of
trust should be reformed. On the other hand, future litigation
may demonstrate the deed of trust should not be reformed and
Plaintiff is entitled to some type of damage award. Regardless,
Defendants’ attempted manipulation of the removal statute by
filing federal counterclaims while simultaneously picking and
choosing which individuals would challenge service of process
has effectively converted a relatively routine state case into
an action that does not appear to reflect an effort to secure
the just, speedy, and inexpensive determination of the relevant
claims. See Fed. R. Civ. P. 1.

For the reasons set forth herein,
IT IS ORDERED that Defendants’ motion to dismiss pursuant
to Fed. R. Civ. P. 12(b) (6) and 12(b) (1), (Doc. 6), is DENIED.
IT IS FURTHER ORDERED that Plaintiff Pennymac’s Motion to
Remand, (Doc. 10), is GRANTED and that this case is hereby
REMANDED for further proceedings in the District Court of
Forsyth County, North Carolina.
IT IS FURTHER ORDERED that the Clerk of Court is directed
to send a certified copy of this Memorandum Opinion and Order to
the Clerk of District Court in Forsyth County.
IT IS FURTHER ORDERED that the remaining motions, (Docs. 26,
27, 29, 48, 49, 51, 52, 61, 63, 66), are DENIED AS MOOT.
This the 8th day of March, 2021.

□
Wy Uirm L. Blur.
Bo Ai san Osha Mt

-?1-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253684. Public record. Not legal advice.