Petition for Writ of Certiorari — Johnson D. Koola, Petitioner v. Bank of America, N.A.

Supreme Court briefDec 11, 2017

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Text

No.

IkI:I

SUPREME COURT OF THE UNITED STATES

JOHNSON D. KOOLA

PETITIONER

VS.

BANK OF AMERICA. NA et aL

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

(Name of the Court that last ruled on merits of your case)

PETITION FOR WRIT OF CERTIORARI

JOHNSON ft KOOLA

1587 Cambridge Lakes Drive

Mount Pleasant, South Carolina, SC 29464

(843) 849-9241

viii

QUESTIONS PRESENTED

28 U.S.C. § 1447(d) bars appellate review of remand orders only when remand

orders within the scope of 28 U.S.C. § 1447(c) are based on (1) a district courts lack of

subject mater jurisdiction or (2) a defect in removal other than lack of subject matter

jurisdiction which must be asserted by a party's motion to remand filed within 30 days.

ElIenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192,196, 197 (01 Cir. 2005). The

question presented, which is the subject of circuit split and conflicts with the precedents

set by this Court, are:

Whether 28 U.S.C. § 1447(d) read in pari materia with 28 U.S.C. § 1447(c) bar

appellate review of a properly removed case:

When there was no remand order pursuant to 28 U.S.C. § 1447(c) entered by the

District Judge but only a remand recommendation, which was not adopted and thereby,

rejected by the District Judge?

When the respondent's Motion to Remand did not assert any defect in the

defendant's removal and did not the mandate of 28 U.S.C. § 1447(c)?

When the respondent filed a frivolous Motion to Dismiss in the appellate court

without jurisdiction?

LIST OF PARTIES

[ ]

All parties appear in the caption of the case on the cover page.

[x]

All parties do not appear in the caption of the case on the cover page. A

list of all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

The cross-claims defendants

First Citizens Bank and Trust Company, Inc. and

Cambridge Lakes Condominium Homeowners Association, Inc.

are also parties to the

case. However, the cross-claim defendants were dropped as parties to the case during

the state-court action. Further, this Court has ruled that cross-claim defendants are not

defendants within the meaning of 28 USCS § 1441(a).

Citizenship

Koola is a citizen of South Carolina.

Bank of America is a citizen of the states of California and North Carolina; it is a publicly

held corporation.

First Citizens Bank and Trust Company, Inc. is a citizen of the State of South Carolina

and is a publicly held corporation.

Cambridge Lakes Condominium Homeowners Association, Inc. is a citizen of the State

of South Carolina and a local privately incorporated entity

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION................... .. ............. ........................ .................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................3

STATEMENT OF THE CASE............................................................................6

REASONS FOR GRANTING THE WRIT............................................................10

Federal Circuits are split lopsidedly over multiple questions of law.

Conflicts with the precedents set by the United States Supreme Court

This Petition is representative of litigants nationwide, whose cases are

remanded without due consideration in federal courts.

ARGUMENTS..............................................................................................15

The Fourth Circuit stands uniquely alone in dismissing a properly removed

case because there was no remand order at all pursuant to 28 U.S.C. §

1447(c) entered by the District Judge but only a remand recommendation

for lack of jurisdiction, which was not adopted and thereby, rejected by the

District Judge; therefore, 28 U.S.C. § 1447(d) did not bar appellate review.

1.13 Bank of America's Motion to Remand did not assert any defect in Koola's

removal of his Federal Question claim as mandated by 28 U.S.C. § 1447(c)

but asserted only defects in a purported foreclosure action, and therefore, 28

U.S.C. § 1447(d) did not bar appellate review.

LC 28 U.S.C. §1447(d) did not bar appellate review of a frivolous Motion to

Dismiss filed in the appellate court without jurisdiction.

CONCLUSION.............................................................................................35

INDEX TO APPENDICES (filed separately)

APPENDIX A

Decision of the Court of Appeals for the Fourth Circuit ............ 001

APPENDIX B

Order of the District Judge granting Motion to Remand.............005

APPENDIX C

August 12, 2016 Text Order of the District Judge.....................012

APPENDIX D

Magistrate Judge's October 19, 2016 R and R

APPENDIX E

Magistrate Judge's July 29, 2016 R and R.............................031

APPENDIX F

Court of Appeals' Order denying the Petition for Rehearing.......040

APPENDIX G

July 13, 2009 Order closing the Bankruptcy case ................... .041

APPENDIX H

Order reopening the Bankruptcy case and Notice of Hearing.....042

APPENDIX I

November 6, 2013 Order closing the Bankruptcy case.............044

APPENDIX J

Order of the State Court of Appeals .... .................................. 045

APPENDIX K

Order of the State Master in Equity .... ................................... 048

APPENDIX L

Order of the Court of Appeals denying Petition for Rehearing... O53

APPENDIX M

Master in Equity's Order dismissing the action for non-suit ........ 055

APPENDIX N

Master in Equity's Order reinstating the action........................056

APPENDIX 0

Notice of Removal............................................................057

APPENDIX P

Motion to Remand............................................................074

APPENDIX Q

Responses to Motion to Remand ---------------------------- .............078

APPENDIX R

Objections to Magistrate Judge's July and Sep. 2016 R and R .093

APPENDIX S

Respondent's Motion to Dismiss appeal ....... .........................121

APPENDIX T

Motion for Summary Judgment in the State foreclosure action ...135

APPENDIX U

Respondent's Complaint in the foreclosure action ...................139

APPENDIX V

Respondent's Amended Complaint in the foreclosure action

xii

. 013

144

TABLE OF AUTHORITIES

CASES

ACR Energy Partners v. Polo North Club, Inc. and

Polo North Club, Inc. v. ACR Energy Partners, LLC,

2015 U.S. Dist. LEXIS 15086 at 3-19 (DN.J. Nov. 2015).......................................20

Annese v. Diversey, Inc., 2017 U.S. Dist. Lexis 83929 (W.D. NC, June 12017) .... 10, 16

Archuleta v. Lacuesta, 131 F.3d 1359 (10th Cir. 1997)...........................................24

Badon v. R J Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000)................................12, 33

BEPCO, LP v. Santa Fe Minerals, Inc. 675 F.3d 466 (5th Cir. 2012)....................11, 32

Bondi v. Grant Thornton Intl, 322 B.R. 44 (S.D.N.Y., 2005)....................................34

Braze!! v. Waite, 525 F. App'x 878 (10th Cir. 2013).....................................10, 16, 25

Briefly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999)............12, 33

Buffets, Inc. v. v. Leischow, 732 F.3d 889 (8th Cir. 2013).......................................20

Burrell v. Bayer Cp., 2017 U.S. Dist. LEXIS 38770 (W.D.N.C. March 17, 2017)..........30

Canby v. Davis, 718 F.2d 198(41h Cir. 1983).......................................................22

Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009)......................................26

Celtox Cp. v. Edwards, 514 U.S. 300 (1995)........................................................25

City of Chicago v. Intl College of Surgeons, 522 U.S. 156 (1997)............................25

Colorado River Water Conservation District v. United States,

424 U.S. 800 (1976).......................................................................................24

Councel! v. The Homer Laughlin China Co.,

823 F.Supp.2d 370 (N.D.W.Va., 2011).........................................................10, 16

xii

Cuevas v. BAC Home Loans Serv. LP, 648 F.3d 242 (51h Cir. 2011)........................ 26

Dart Cherokee Basin Operating Co., LLC v. Owens,

135 S.Ct. 547 (2014).................................................................................13, 23

Davis v. Ciba-Geigy Cp. 958 F. Supp. 264, 265 (M.D. La 1997)..............................31

Deutsche Bank and National Trust Co. v. Brader,

2016 U.S. Dist. LEXIS 6424 ( D.S.C., Jan 20 2016).........................................10, 16

Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192 (4th Cir. 2008)..........11, 14, 31

Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir- 2007)...............27

Gillespie v. Marnott Intl, Inc., 2015 U.S. Dist. LEXIS 167079 (E.D.Va., 2015).......10, 16

Grab!e & Sons Metal Prod., Inc. v. Darue Eng'g and Mfg,

545 U.S. 308(2005)........................................................................10, 17,21, 28

Gunn v. Minton, 133 S.Ct. 1059 (2013)...............................................................28

Horton v. Conklin, 431 F.3d 602 (8th Cir- 2005)....................................................10

Hunter v. City of Montgomery,

2017 U.S. App. LEXIS 10555 (11th Cir. 2017).......................................................24

Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000)....................10, 16, 25

In Re: Blackwater Security Consulting, LLC, 460 F.3d 576 (4th Cir. 2006)..................34

In Re: The Celtox Cp. 124 F.3d 619 (4th Cir. 1997)................................................25

In re Educator's Group Health Trust, 25 F.3d 1281 (5th Cir. 1994)............................16

Kakarala v. Wells Fargo Bank N.A., 615 Fed. Appx. 424 (gth Cir. 2015) ...............11, 33

King v. Flinn & Dreffein Eng'g Co., 675 F.Supp.2d 642 (W.D.Va., (2009).............12, 32

Lisenby, Jr. v. Lear, 674 F.3d 259 (4th Cir. 2012).............................................14, 25

Lively v. Wild Oats Market, Inc. 456 F.3d 933 (9 Cir. 2006).........................10, 16, 25

Lovern v. General Motors Cp., 121 F.3d 160 (0 Cir. 1997)....................................12

out

Market Street Railway Co. v. Railroad Commission of California,

324 U.S. 548 (1945).......................................................................................34

Me/ton v. S. C. Elec. & Gas Co.,

2016 U.S. Dist. LEXIS 74574 (D.S.C. June 8,2016) ............................................. 30

Morlan v. Universal Guaranty Life Ins. Co., 298 F.3d 609 (71h Cir. 2002)...................19

Music v. Arrowood Indem. Co., 632 F.3d 284 (6th Cir. 2011)..............................12, 32

AL Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co.,

69 F.3d 1034 (9th Cir. 1995).........................................................................11,31

Pacor, Inc. v. Higgins, 743 F.2d 984, (3 d Cir. 1984)...............................................20

Fairy. WELCO-CGI Gas Tech., LLC, 2010 U.S. Dist. Lexis 111407 (E.D.Va. 2010)....12

Palisades Collections LLC v. Shorts, 552 F.3d 32(0 Cir. 2008).........................15, 24

Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198 (4 h Cir. 2006)..................16, 24

Price v. Wyeth Holding Corp., 505 F.3d 624 (7th Cir. 2007).................................12, 33

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)..........................................24

Richards v. D.R. Horton, 320 Ga. App. 771 (Ct.App. 2013)...........................13, 19, 25

RTC v. Allen, 16 F.3d 568 (4th Cir. 1994)............................................................26

Shamrock Oil & Gas Corp. V. Sheets, 313 U.S. 100 (1941).................................15,24

The Gate at Williams-Brice Condominium Assn v. Quality Built, LLC,

2016 U.S. Dist. Lexis 120380 (D.S.C. Sep. 7,2016) ........................................ 12, 33

Thermtron Prod. Inc. v. Hermansdorfer, 423 U.S. 338, 352 (1976)........................23, 32

Things Remembered, Inc. v. Petrarca 516, U.S. 124 (1995)....................................20

Tyler House Apartments, Ltd. v. U.S., 38 Fed. CI. 1 (1997)......................................16

Virginia ex rel. Hunter Labs LLC v. Quest Diagnostics, Inc.,

2016 U.S. App. LEXIS 12515 (4th Cir. 2016)........................................................24

STATUES

11 U.S.C. § 350(b)

11 U.S.0 554(c)

28 U.S.C. § 1331

28 U.S.C. § 1332(a)

28 U.S.C. § 1332(a)(1)

28 U.S.C. § 1334(b),

28 U.S.C. § 1334(c)(2)

28 U.S.C. § 1367(a)

28 U.S.C. § 1367(c)

28 U.S.C. § 1367(c)(3)

28 U.S.C. §§ 1441(a)

28 U.S.C.

1441(b)(2)

28 U.S.C. § 1446(a)

28 U.S.C. § 1446(b)(1)

28 U.S.C. § 1441 (b)(2)(A)

28 U.S.C. § 1446(b)(3)

•

28 U.S.C. § 1446(c)(1)

28 U.S.C. § 1447(c)

28 U.S.C. § 1447(d)

28 U.S.C. § 1452(a)

xvi

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x]

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A to

the petition and is

I reported at

; or

has

been

designated

for

publication

but

not

yet

reported;

[xl is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

; or

[x] reported at

2016 U.S. Dist. LEXIS 179165

[] has been designated for publication but is not yet reported; or

[] is unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

[3 reported at

; or

[1 has been designated for publication but is not yet reported; or

[1 is unpublished.

[3 reported at

; or

has

been

designated

for

publication

but

not

yet

reported;

[3 is unpublished.

B to

JURISDICTION

[x]

For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

June 6, 2017

[] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

September 12, 2017

and a copy of the

order denying rehearing appears at Appendix

[3 An extension of time to file the petition for writ of certiorari was granted

to and including

in Application No.

(date) on

(date)

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[3 An extension of time to file the petition for writ of certiorari was granted

to and including

in Application No.

(date) on

(date)

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1331. Federal Question

The district courts shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.

28 U.S.C. § 1332. Diversity of citizenship; amount in controversy and costs

The district court shall have original jurisdiction of all civil actions where

the matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs; and is between(1) Citizens of different States.

28 U.S.C. § 1334. Bankruptcy cases and proceedings

Except as provided in subsection (e)(2), and notwithstanding any Act of

Congress that confers exclusive jurisdiction on a court or courts other than the

district courts, the district courts shall have original but not exclusive

jurisdiction of all civil proceedings arising under title 11, or arising in or related

to cases under title 11.

(c)(2) Upon timely motion of a party in a proceeding based upon a State law

claim or State law cause of action, related to a case under title 11 but not

arising under title 11 or arising in a case under title 11, with respect to which

an action could not have been commenced in a court of the United States

absent jurisdiction under this section, the district court shall abstain from

hearing such proceeding if an action is commenced, and can be timely

adjudicated, in a State forum of appropriate jurisdiction.

28 U.S.C. § 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided

otherwise by Federal statute, in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the same case or

controversy under Article Ill of the United States Constitution. Such

supplemental jurisdiction shall include claims that involve the joinder or

intervention of additional parties.

The district court nay decline to exercise supplemental jurisdiction over a

claim under subsection (a) if

(3) the district court has dismissed all claims over which it has original

jurisdiction.

28 U.S.C. § 1441. Removal of civil actions

Generally. Except 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

defendants, to the district court of the United States for the district and

division embracing the place where such action is pending.

Removal based on diversity of citizenship.

(2) 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.

28 U.S.C. § 1466. Procedure for removal of civil actions

Generally. A defendant or defendants desiring to remove any civil action

from a State court shall file in the district court of the United States for the

district and division within which such action is pending a notice of removal

signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and

containing a short and plain statement of the grounds for removal, together

with a copy of all process, pleadings, and orders served upon such defendant

or defendants in such action.

Requirements; generally.

(1) The notice of removal of a civil action or proceeding shall be filed within 30

days after the receipt by the defendant, through service or otherwise, of a

copy of the initial pleading setting forth the claim for relief upon which such

action or proceeding is based, or within 30 days after the service of summons

upon the defendant if such initial pleading has been filed in court and is not

required to be served on the defendant, whichever period is shorter.

(2)(A) When a civil action is removed solely under section 1441(a), all

defendants who have been properly joined and served must join in or consent

to the removal of the action.

(3) Except as provided in subsection (c), if the case stated by the initial

pleading is not removable, a notice of removal may be filed within 30 days

after receipt by the defendant, through service or otherwise, of a copy of an

amended pleading, motion, order, or other paper from which it may first be

ascertained that the case is one which is or has become removable.

(1) A case may not be removed under subsection (b)(3) on the basis of

jurisdiction conferred by section 1332 more than 1 year after commencement

of the action unless the district court finds that the plaintiff has acted in bad

faith in order to prevent a defendant from removing the action.

28 U.S.C. § 1447. Procedure after removal generally

subject matter jurisdiction must be made within 30 days after the filing of the

notice of removal under section 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall

be remanded. An order remanding the case may require payment of just

costs and any actual expenses, including attorney fees, incurred as a result of

the removal. A certified copy of the order of remand shall be mailed by the

clerk to the clerk of the State court. The State court may thereupon proceed

with such case.

(d) An order remanding a case to the State court from which it was removed

is not reviewable on appeal or otherwise, except that an order remanding a

case to the State court from which it was removed pursuant to section 1442 or

1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1452. Removal of claims related to bankruptcy cases

(a) A party may remove any claim or cause of action in a civil action other

than a proceeding before the United States Tax Court or a civil action by a

governmental unit to enforce such governmental unit's police or regulatory

power, to the district court for the district where such civil action is pending, if

such district court has jurisdiction of such claim or cause of action under

section 1334 of this title.

11 U.S.C. § 350. Closing and reopening cases

After an estate is fully administered and the court has discharged the

trustee, the court shall close the case.

A case may be reopened in the court in which such case was closed to

administer assets, to accord relief to the debtor, or for other cause.

11 U.S.C. § 554(c). Abandonment of property of the estate

Unless the court orders otherwise, any property scheduled under section

521 (a)(1) of this title not otherwise administered at the time of the closing of a

case is abandoned to the debtor and administered for purposes of section

350 of this title.

STATEMENT OF THE CASE

The statement of the case pertinent for this Petition for Writ of Certiorari revolves

around three questions. (1) Whether federal questions claiming Bankruptcy codes arising

in a state-law foreclosure action could be removed to a district court? (2) Whether a state

court has jurisdiction to revoke a bankruptcy court's orders? (3) Whether a federal forum

may entertain a removed case without disturbing any congressionally approved balance

of federal and state judicial responsibilities after the State Court, without jurisdiction,

revoked Bankruptcy Court's Orders?

In mid-February 2004, Koola purchased a condominium, which was converted from

apartments to condominiums, in the Cambridge Lakes subdivision in Mount Pleasant,

South Carolina. He received a mortgage loan from the predecessor in interest to Bank of

America, Countrywide Home Loans Servicing, LP, (collectively, Bank of America) after

Bank of America had completed an appraisal of the converted condominium. He made ten

percent down payment to receive the mortgage.

In 2008, Koola was unemployed and had limited financial resources. In May/June

2008, Koola placed his condominium in the market for sale to clear off his mortgages. In

June 2008, the Cambridge Lakes Homeowners Association, Inc. ("the "HOA") filed a

construction-defects lawsuit against developer/seller and others alleging massive

construction defects and Unfair Trade practices and claimed $8 million in damages. Asa

result, Koola could not sell his condominium in 2008. Koola became insolvent and filed

for Chapter 7 Bankruptcy in March 2009. Koola was discharged from Bankruptcy in July

2009. App. G, p. 041. By November 2009, Koola fell behind his mortgage-related

payments. In April/May of 2010, Koola listed his unit for short sate, which was the only

means for him to pay off mortgage-related dues. Bank of America did not allow Koola to

short-sell his condominium and initiated foreclosure action in 2010. App. U, pp. 139-143

and App. V1 pp. 144-149. As a result, Koola could not proceed with the short Sale. If only

Bank of America had accepted Koola's offer of short sale in 2010, this case would have

ended amicably in 2010 without any court actions.

In September 2010, Koola learned that, the HOA filed Amended Complaints in its

construction-defects lawsuit in which it alleged that the developer/seller violated South

Carolina Horizontal Property Act, S.C. Code Ann. § 27314301 in the conversion of the

apartments to condominiums. In February/March 2011, Koola learned that Bank of America

did not appraise the converted condominium in compliance with Real Estate Appraisal

Regulations codified under 12 C.F.R. §§ 34.41, 34.43, 34.44, 34.45, 34.62, 564.1 pursuant

to Title XI of the Federal Financial Institutions Reform, Recovery, and Enforcement Act.

("FIRREA Real Estate Appraisal Regulations"). It also failed to ensure developer's/seller's

compliance with S.C. Code Ann. § 27-31-430. In March 2011, Koola amended his Answer

in the foreclosure action to assert claims against Bank of America for the above-mentioned

violations. In the Discovery during the state-court proceedings, Bank of America admitted

that it had a legal duty to appraise the condominium in compliance with FIRREA Real

Estate Appraisal Regulations.

In April 2012, Bank of America filed a "Motion for Summary Judgment" to dismiss

Koola's counterclaims. App. S, pp. 121-134. Citing Bankruptcy codes 11 U.S.C.A. §

521(a)(1)(A)-(B)(i) and § 541(a) and case laws from Bankruptcy courts, it alleged that

'S.C. Code Ann. § 27-31-430 mandates that developer/seller upon conversion of apartments to

condominiums should provide disclosure of the physical condition of the building report prepared by

a state-licensed and qualified architect or engineer to all prospective purchasers of converted

condominiums. The violation of the code constitutes unfair trade practices.

Koola could not assert counterclaims against it because of his failure to include the claims

against it as an asset in Schedule B of his March 2009 Bankruptcy petition. In May 2012,

the Bankruptcy Court, pursuant to 11 U.S.C. § 350(b), reopened Koola's Bankruptcy case

to let Koola amend the Schedules and to include claims against Bank of America in

Schedule B. App. H, pp. 042-043. In November 2013, the Bankruptcy Court closed the

case after the trustee certified that the bankruptcy estate had been fully administered

pursuant to 11 U.S.0 § 554(c). App. I, p. 044. The Bankruptcy estate was then again

reverted to Koola, nunc pro tune.

Although Koola regained his right to assert counterclaims against Bank of America,

it pressed its Motion for Summary Judgment to dismiss Koola's counterclaims. In its

February 17, 2016 Opinion, which became final when it denied Koola's Petition for

Rehearing on April 21, 2016, the South Carolina Court of Appeals invalidated and revoked

the Bankruptcy Court's May 2012 Order reopening Koola's previously closed Bankruptcy

case and remedying the defects in the March 2009 petition. Stating that formal

abandonment of the Bankruptcy estate required notice and opportunity for a hearing, the

State Court also determined that the trustee did not abandon the Bankruptcy estate. The

State Court also revoked the Bankruptcy Court's November 7, 2013 Order returning the

Bankruptcy estate to Koola pursuant to 11 U.S.C. § 554(c) after the trustee certified that

the estate had been fully administered. App. J, pp. 045-047. The State Court ruled further

that the Bankruptcy estate belonged to the trustee, and Koola could not assert

counterclaims against Bank of America. App. J, pp. 045-047. On May 20, 2016, Koola filed

the Notice of Removal in the District Court. App. 0, pp. 057-073.

Koola never contested the mortgage default and does not contest the mortgage

default even today. in his counterclaims, Koola argued only that he suffered losses in the

purchase of his condominium because of Bank of America's failure to appraise the

condominium in compliance with FIRREA Real Estate Appraisal Regulations and to ensure

developer's/seller's compliance with S.C. Code Ann. § 27-31-430; these losses led to the

foreclosure. To dismiss Koola's counterclaims, Bank of America raised Federal Question

claiming Bankruptcy codes in the foreclosure action. Koola removed the case on May 20,

2016 when it could be ascertained that the case was removable.

In his Notice of Removal, Koola affirmatively stated that he was removing a Federal

Question arising in a state-law foreclosure action. App. 0, p. 062-064. The Magistrate

Judge, however, characterized Koola's case as removal of a foreclosure action only and in

July 2016, recommended remand of Koola's removed case for lack of jurisdiction. App. E,

pp. 031-039. The District Judge did not did not adopt and thereby, rejected the Magistrate

Judge's remand recommendation. There was no Remand Order at all under 28 U.S.C. §

1447(c) entered by the District Judge. App. C, p. 012. In its Motion to Remand, Bank of

America affirmatively stated that the removed action is a foreclosure action only, and it

asserted potential defects in Koola's removal of a purported foreclosure action. App. P, pp.

074, 077. It did not assert any defect in Koola's removal of a federal question arising in a

state-law foreclosure action. Nevertheless, the District Judge granted Bank of America's

Motion to Remand and remanded Koola's case to the State Court. App. B, pp. 005-011.

The Fourth Circuit dismissed Koola's appeal stating it had no jurisdiction to review the

appeal even though there was no Remand Order under 28 U.S.C. § 1447(c) for lack of

jurisdiction entered by the District Judge.

REASONS FOR GRANTING THE PETITION

In Grab!e & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312

(2005), this Court noticed, "[A] federal court ought to be able to hear claims recognized

under state law that nonetheless turn on substantial questions of federal law, and thus

justify resort to the experience, solitude, and hope of uniformity that a federal forum

offers on federal issues.. "Id. at 312.

i. Federal Circuits are split lopsidedly over multiple questions of law.

(a) Forum Defendant Rule, 28 U.S.C. 4 1441(b)(2'): The First, Second, Third, Fifth,

Sixth, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have ruled that the Forum

Defendant Rule is procedural and waivable. Representative case laws: Braze!! v. Waite,

525 F. App'x 878, 884, (10th Cir. 2013); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377,

380 (7th Cir. 2000) and Lively v. Wild Oats Mkt., Inc. 456 F.3d 933, 939 (g Cir. 2006). The

lone Eighth Circuit has ruled that the violation of the Forum Defendant rule is a nonwaivable and jurisdictional defect. Horton v. Conklin, 431 F.3d 602, 604-05 (81Cir. 2005).

Thus, there is a split among the federal circuits over the Forum Defendant Rule.

Additionally, several district courts within the Fourth Circuit have also ruled that

Forum Defendant Rule is a waivable and jurisdictional defect. Representative case

laws: Annese v Diversey, Inc., 2017 U.S. Dist. LEXIX 83929 at 3 (WD-N-C, 2017);

Deutsche Bank Nat'! Trust Co. v. Brader, 2016 U.D. Dist. LEXIS 6424 at 4-5 (D.S.C.,

2015); Councel! v. The Homer Laughlin China Co., 823 F.Supp.2d 370, 378

(N.D.W.Va., 2011) and Gillespie v. Marriott Intl, Inc., 2015 U.S. Dist. LEXIS 167079 at

8-9 (E.D.Va., 2015). Bank of America did not raise the Forum Defendant rule at all, and

thus waived this objection for violation of Forum Defendant Rule. App. A, pp 1-4.

IDJ

Disregarding the majority view, the Fourth Circuit affirmed the District Court's remand

recommendation for violation of Forum Defendant Rule. App. A, pp 1-4.

(b) The motion to remand the case on the basis of any defect other than lack of

subject matter jurisdiction pursuant to 28 U.S.C. 1447(c). The Fourth and Ninth Circuits

have ruled that 'the motion to remand' should assert the defect in the removal process.

u[W]here remand would be justified by a defect in removal other than a lack of subject

matter jurisdiction, the defect must be asserted by a party's motion to remand filed within

30 days? El!enburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 197 (41h Cir. 2008).

(Emphasis added). "[T]he critical date is not when a motion to remand is flied, but when the

moving party asserts a procedural defect as a basis for remand? N. Cal. 01st. Council of

Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995); "[M]erely

filing some timely motion to remand will not preserve objections not explicitly raised?

Kakarala v. Wells Fargo Bank, N-A, 615 Fed. Appx. 424, 425 (9th Cir. 2015) (Cert. denied,

136 S.Ct. 1153 (2016). Contradicting the Fourth and Ninth Circuits, the Fifth Circuit has

ruled, "Whether a removal defect is not raised by a plaintiff in the motion to remand, or is

raised more than 30 days after removal, does not matter... [W]hat does matter is the timing

of the remand motion? BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466,471 (51h Cir.

2012). Bank of America's Motion to Remand did not assert any defect in Koola's removal of

Federal Question arising in a state-law foreclosure action; it asserted defects in a purported

foreclosure action. App. P. pp. 74-77. The exercise of this Court's supervisory power is

called for to resolve the split among the federal circuits regarding the interpretation of a

motion to dismiss the case on the basis of any defect other than lack of subject matter

jurisdiction pursuant to 28 U.S.C. 1447(c).

cases, 8 U.S.C. F4 1446(c)r11. The Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh

Circuits have ruled that the bar on removal in diversity cases more than one year after

commencement of the action is applicable to only those cases, which are not initially

removable. Representative case laws: Badon v. R J R Nabisco, Inc., 224 F.3d 382, 389

(5th Cir. 2000); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534-535 (6th

Cir. 1999); Price v. Wyeth Holding Cp., 505 F.3d 624, 630-631 (7th Cir. 2007). The

circuit split began when, in Lot/era v. General Motors Cp., 121 F.3d 160, 162 (4th Cir.

1997), the Fourth Circuit made a statement that diversity cases must in any event be

removed not more than one year after "commencement" of the action. The Sixth Circuit

has interpreted that Lovern contains no holding that one-year limitation is jurisdictional,

and it is a dicta statement and does not address whether the one-year bar is procedural

or jurisdictional. Music v. Arrowood Indem. Co., 632 F.3d 284, 287 (6th Cir. 2011).

Several district courts in the Fourth Circuit have determined that Lovem is a dicta

statement and does not address whether the one-year bar is procedural or

jurisdictional. Representative case laws: King v. Flinn & Dreffein Eng"g Co., 675

F.Supp.2d 642, 643-645 (W.D.Va., (2009); Pair v WELCO-CGI Gas Tech., LLC, 2010

U.S. Dist. Lexis 111407 at 6-8 (E.D.Va. 2010); The Gates at Williams-Brice

Condominium Assn v. Quality Built, LLC, 2016 U.S. Dist. LEAS 120380 at 25-28

(D.S.C, 2016). Disregarding the majority view of other circuit courts and the district

courts within the Circuit, the Fourth Circuit affirmed the District Court's remand

recommendation reasoning that Koola's removal was outside of the one-year period for

removal of cases under Diversity Jurisdiction.

Conflicts with the precedents set by the United States Supreme Court

The Fourth Circuit's dismissal of Koola's appeal conflicts with the precedents set

by this Court- These conflicts are detailed in the discussion of appropriate jurisdictional

statements.

This Petition is representative of litigants nationwide, whose cases are

remanded without due consideration in federal courts.

In 2015, over 35,000 cases2 including pro se cases were removed from state courts

to the district courts. The district courts begin the review of removed cases on a purported

"presumption" against removal. Dart Cherokee Basin OperatingCo- , LLC v Owens, 135

S.Ct. 547, 554 (2014). The removal statutes are strictly construed against removal.

Consequently, all the removed cases-3, with limited exceptions, are remanded back to the

state court. Koola removed this case only after the State Court revoked certain orders of

the Bankruptcy Court. App. J, pp. 045-047. The State Court's Order conflicted with 11

U.S.C. §§ 350(b) and 554(c) and orders from other state appellate courts. Richards v. D.R.

Horton, 320 Ga. App. 771, 771-74 (Ct.App. 2013). In 2015, Citizens, Corporations, and

LLCs filed over 850,000 Bankruptcy cases4. District and Bankruptcy Courts have exclusive

jurisdiction over cases arising under, arising in or related to Bankruptcy. The state courts

can adopt the bankruptcy court's orders in the adjudication of state-law cases, but they do

not have jurisdiction to revoke bankruptcy courts' orders. Revocations of bankruptcy courts'

orders by state courts would create a jurisdictional crisis. This Court should enforce uniform

interpretation of Bankruptcy codes-

2 www.uscourts.-gov/sites/default/files/data-tables/Table4.03.pdf

No information is available how many cases were remanded to state courts in 2015.

4 www.uscourts.gov/sites/defaultifiles/data-tables/lable7.02.pdf

As a matter of fact, the Fourth Circuit applies different standards in the appellate

review of remanded cases, in the case of pro se petitioner Koola, the Fourth Circuit

ruled, "[A]n order remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise? App. A, p. 002. In the appellate review of wellrepresented parties, the Court would apply certain exceptions to the general rule that

makes an otherwise nonreviewable case reviewable. In Ellenburg, 519 F.3d at 195-198,

the Fourth Circuit reversed the sua sponte remand order of the District Court for tack of

subject matter jurisdiction stating that the District Court never ruled that subject matter

jurisdiction did not exist. In the case of Koola, Fourth Circuit dismissed Koola's appeal

even though there was no Order at all pursuant to 28 U.S.C. § 1447(c) entered by the

District Judge. In Liseriby v. Lear, 674 F.3d 259, 263 (4th Cir. 20012), the Fourth Circuit

reversed the District Court's Remand Order after stating that the defendants have a right

to remove to federal court a complaint that included federal claims. Koola removed his

Federal Question claim arising in a state-law foreclosure action in strict compliance with

Gunn-Grable stipulations; nevertheless, the Fourth Circuit dismissed Koola's appeal

Without any appellate review.

This case presents important questions of federal removal procedures and

procedures after removal that affect thousands of litigants across federal jurisdictions.

Congress enacted laws enabling both removal and remand. Splits among circuits and

interpretation of federal codes without due regard for the text of the codes distort the

Congressional intent. Koola argues only that all removed cases should receive a fair

hearing at the district court level. The exercise of this Court's supervisory power is called for

to ensure uniform interpretation of federal codes.

ARGUMENTS

The Fourth Circuit stands uniquely alone in dismissing a properly removed

case because there was no Remand Order at all pursuant to 28 U.S.C. §

1447(c) entered by the District Judge but only a Remand Recommendation

for Lack of Jurisdiction, which was not adopted and thereby, rejected by

the District Judge; therefore, 28 U.S.C. § 1447(d) did not bar appellate

review.

On May 20, 2016, Koola removed the underlying case from South Carolina Court

of Appeals to the District Court calming Diversity Jurisdiction, Federal Question,

Removal of Cases related to Bankruptcy cases, and Supplemental Jurisdiction.

Jurisdictional and Statutory statements

Diversity Jurisdiction

Koola's jurisdictional statements in the Notice of Removal

(1) the matter in

controversy exceeded the sum or value of $75,000, and (2) there was complete diversity

between defendants and plaintiffs

had complied with the provisions of 28 U.S.C. §

1332 verbatim. App. 0, p. 065. Removal also complied with the statutory provisions of

Rule of Unanimity under 28 U.S.C. § 1446(b)(2)(A) and Forum Defendant Rule under 28

U.S.C. § 1441(b)(2). Koota claimed as follows. (1) The cross claim defendants were

removed from the case when the State Court dismissed the underlying case on

September 11, 2013 stating "voluntary nonsuiV' and dismissed the cross-claim

defendants from the case upon reinstatement of the case in January 27, 2014. App. L, p.

055, 056. (2) The cross-claim defendants were added as fraudulent joinders. App. R, pp.

105-106. (3) The United States Supreme Court and the Fourth Circuit have ruled that

cross-claim defendants are not defendants within the meaning of 28 USCS § 1441(a).

Shamrock Oil & Gas Cp. v. Sheets, 313 U.S. 100, 104-107 (1941). (Internal citations

omitted). Palisades Collections LLC V. Shorts, 552 F.3d 327, 333 (4th Cir. 2008). (4) The

Fourth Circuit has also ruled that failure of all defendants to join in the removal petition is

merely a waivable and procedural error in the removal process. Payne ex rel. Estate of

Caizada v. Brake, 439 F.3d 198, 203 (4th Cir. 2806). Bank of America did not make

objection on the Rule of Unanimity at all and waived the objection. App. P., pp. 074-077.

The Fourth Circuit's dismissal of Koola appeal based on violation of the Rule of

Unanimity does not hold legal ground in the Fourth Circuit.

A large majority of circuit courts and district courts within the Fourth Circuit have

ruled that Forum Defendant Rule is a waivable and procedural defect. Koola has

presented this argument and relevant case laws in section 'Reasons for Granting the

Petition' to support this argument (This document, supra, pp. 10-11). For brevity, only

representative case laws are cited here: Braze!!, 525 F. App'x at 884; Hurley,, 222 F.3d

at 380; Lively, 456 F.3d at 939; Annese, 2017 U.S. Dist. LEXIS at 3; Deutsche Bank

Nat'! Trust Co., 2016 U.D. Dist. LEXIS at 4-5; Councell,, 823 F.Supp.2d at 378;. and

Gillespie, 2015 U.S. Dist. LEXIS at 8-9. Bank of America did not raise the Forum

Defendant rule at all, and thus waived this objection. App. P, pp. 074-077.

Nevertheless, the Fourth Circuit affirmed the District Court's remand recommendation

for violation of Forum Defendant Rule. App. A, pp 1-4.

Federal Question

In April 2012, Bank of America filed a 'Motion for Summary Judgment' in its

foreclosure action against Koola in the State Court. App. T, 074-077. Citing Bankruptcy

codes, 11 U.S.C.A. § 521(a)(1)(A)-(B)(i) and § 541(a) and case laws from Bankruptcy

courts, In re Educator's Group Health Trust, 25 F.3d 1281, 1283-84 (5th Cir. 1994) and

Tyler House Apartments, Ltd. v. U.S., 38 Fed. Cl. 1, 6 (1997), it argued as follows. (i)

Koola had filed Chapter 7 Bankruptcy in March 2009. (ii) Koola failed to include his

claims against it in Schedule B of his March 2009 Bankruptcy petition. (iii) Because of

this defect, the Bankruptcy estate, which included Koola's claims against Bank of

America, belonged to the Bankruptcy trustee after Discharge from Bankruptcy in July

2009. (iv) Koola had no standing to raise counterclaims against it in the foreclosure

action. App. T, pp. 136-37; App. R, pp. 094-096. Thus, Bank of America raised a

substantial Federal Question under Bankruptcy codes in the State Court action. Bank of

America's right to relief necessarily depends on resolution of a substantial question of

federal law under Bankruptcy code. Koola removed his case on May 20, 2016 claiming

Federal Question. He supported his Federal Question Jurisdiction by explicitly citing

Grable, 545 U.S. 308 (2005) in the Notice of Removal. App. 0, p. 062.

Removal of Claims related to Bankruptcy cases

On May 20, 2016, Koola removed certain claims related to his Bankruptcy case

pursuant to 28 U.S.C. §§ 1334 and 1452. App. 0, pp. 057-073. Under 28 U.S.C. §

1452(a), a case may be removed to a district court that has jurisdiction of such claim

under 28 U.S.C. § 1334(b). Under 28 U.S.C. § 1334(b), the district courts shall have

original jurisdiction of all civil proceedings related to cases under 24 U.S.C. § 1452.

On May 22, 2012, the Bankruptcy Court, pursuant to 11 U.S.C. § 350(b), ordered

that Koola's previously closed Chapter 7 Bankruptcy case was reopened and allowed

Koola to. amend the Schedule B of the original petition to include the unlisted claims

against Bank of America in the amended Schedule. App. H, pp. 042-043. The

November 6, 2013 Order of the Court closed the reopened case and discharged the

trustee after the trustee certified that the estate had been fully administered pursuant to

11 U.S.C. § 554(c). App. I, p. 044. The Bankruptcy estate was legally returned to Koola

in November 2013. He regained his right to assert counterclaims against Bank of

America in the foreclosure action. The Bankruptcy Courts Orders complied with the

statutory provisions of 11 U.S.C. §§ 350(b) and 554(c), which provide:

"A case may be reopened in the court in which it was closed to administer

assets, to accord relief to the debtor, or for other cause."

11 U.S.C. § 350(b).

"Unless the court orders otherwise, any property scheduled under section 521

of this title not otherwise administered at the time of closing of a case is

abandoned to the debtor and administered for the purposes of section 350 of

this title."

11 U.S.0 §554(c)In a February 17, 2016 Order, South Carolina Court of Appeals made the

following determinations. (1) Koola lost his rights in the causes of action he had at the

time he sought Bankruptcy petition in March 2009 because of his failure to include them

in his March 2009 Bankruptcy petition's Schedule B. (2) Bankruptcy estate was not

formally abandoned by the trustee in 2013 after giving notice and opportunity for a

hearing. Therefore, the Bankruptcy estate continued to remain under the control of the

trustee even after the reopened case was closed and the trustee was discharged in

November 2013. (3) Under these conditions, only the trustee continues to possess the

authority to prosecute and/or settle causes of action contained in the Bankruptcy estate.

(4) Koola has no right to assert any counterclaims against Bank of America in the

foreclosure action. App. J, pp. 045-047.

Pursuant to 11 U.S- C. § 554(c), when the estate is not otherwise administered at

the time of closing of a case

meaning, the trustee does nothing to dispose of the

estate because the estate has no value

the estate is fully administered by the trustee

and the estate is abandoned to the debtor. "[W]hen property of the bankrupt is

abandoned pursuant to 11 U.S.C. § 554(c), the title reverts to the bankrupt, nunc pro

tunc, so that he is treated as having owned it continuously. Morian v. Universal

Guaranty Life Ins. Co., 298 F.3d 609, 617 (7th Cir. 2002).

The State Court's February 17, 2016 Order invalidated and revoked the

Bankruptcy Court's May 22, 2012 and November 13, 2013 Orders. App. J, pp. 045-047;

App. H, pp. 42-43; App. I, p. 044. The State Court's Order ran afoul of 11 U.S.C. §

350(b) and 554(c) and conflicted with the precedents set by other state appellate courts

as found in D. R. Horton, 320 Ga. App. at 771-74. In 2010, the plaintiff in D. R. Horton

filed a construction-defects lawsuit against D.R. Horton and others in the state trial

court. In January 2011, the plaintiff filed a Chapter 7 Bankruptcy petition in which he

disclosed his claims against D. R. Horton but not others. In April 2011, the trustee

entered a report of no distribution, and the Bankruptcy Court approved that report,

discharged plaintiff and the trustee, and closed the estate by order dated July 19, 2011.

In September 2011, the State Trial Court dismissed the plaintiff's claims in toto stating

that the Bankruptcy estate belonged to the trustee and not the plaintiff. On appeal, the

State Court of Appeals vacated the dismissal of plaintiffs claims against D. R. Horton

but affirmed the dismissal of claims against others. The State Court of Appeals

determined that the plaintiff had disclosed his claims against D. R. Horton in the

Bankruptcy petition, and therefore, after discharge from Bankruptcy, plaintiff regained

full control of the Bankruptcy estate. The plaintiff did not disclose the claims against

other defendants, and plaintiffs claims against them were not vacated.

The state courts can adopt the Orders of the Bankruptcy courts in state-court

proceedings. However, they shall not invalidate or revoke the Orders of the Bankruptcy

courts. The State Court of Appeal's February 17, 2016 Order revoking the Bankruptcy

Court's Orders was outside of the jurisdiction it had. Thus, Koola could remove the

underlying case from the State Court to the District Court without disrupting the federalstate balance approved by Congress, one of this Court's Gun-Grabic stipulations.

Since the South Carolina Court of Appeal's February 17, 2016 Order, which

became final on April 21, 2016, altered Koola's rights, liabilities, options or freedom of

action positively and impacted upon the handling and administration of the Bankruptcy

estate in any way, Koola's claims are related to Bankruptcy case under the Third

Circuit's Pacor Test. Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3 d Cir. 1984), overruled

on other grounds by Things Remembered, Inc. v. Petrarca, 516, U.S. 124 (1995). Even

a proceeding, which portends a mere contingent or tangential effect on a debtors

estate, meets the broad related to jurisdictional test. Buffets. Inc. v. v. Leischow, 732

F.3d 889, 894 (8th Cir. 2013). Claims related to closed Bankruptcy cases also could be

removed to district courts. ACR Energy Partners v. Polo North Club, Inc. and Polo North

Club, Inc. v. ACR Energy Partners, LLC, 2015 U.S. Dist. LEXIS 150086 at 3-19 (D.N.J.

Nov. 2015).

Supplemental Jurisdiction

On May 20, 2016, Koola removed certain claims under 28 U.S.C. § 1367,

Supplemental Jurisdiction. App. 0, pp. 065-073. Under Supplemental Jurisdiction, he

claimed inter al/a the following supplemental question: Bank of America owed Koola

Duty of Care which was created through the statutory provisions of FIRREA Real Estate

Appraisal Regulations codified under 12 C.F.R. §§ 34.41, 34.43, 34.44, 34.45, 34.62,

and 564.1 pursuant to Title XI of the Federal Financial Institutions Reform, Recovery,

and Enforcement Act and S.C. Horizontal Property Act, S.C. Code Ann. § 27-31-430.

The Notice of Removal had stated all other supplemental questions under

Supplemental Jurisdiction. App. 0, pp. 065-073.

There was no Remand Order at all pursuant to 28 U.S.C. § 1447(c) entered by the

District Judge but only a remand recommendation for lack of jurisdiction, which

was not adopted and thereby, rejected by the District Judge.

Without having given the parties prior notice and an opportunity to respond, the

Magistrate Judge filed a Report and Recommendation on July 29, *2016 ("July 29, 2016

R & R") recommending sua sponte remand of Koola's removed case for lack of

jurisdiction. App. E, pp. 031-039. The Magistrate Judge based his remand

recommendation, inter a/ia, stating: (I) Review of the amended complaint reveals that

this is a state law foreclosure action; (ii) No federal jurisdiction exists over foreclosure;

(iii) Neither Federal Question Jurisdiction nor Diversity Jurisdiction exists in the removed

case; (iv) Koola is attempting to raise federal defenses; (v) Koola's counterclaims do not

establish federal jurisdiction; and (vi) Rule of Unanimity and the Forum Defendant Rule

bar Koola's removal. App. E, pp. 031-039

In his timely objections filed against the Magistrate Judge's July 29, 2016 and

September 19, 2016 R and R, Koola raised the following objections. App. R, pp. 093120. (1) The Magistrate Judge reviewed only the Amended Complaint and found therein

only a foreclosure action. 2. He didn't review the Motion for Summary Judgment and

didn't notice the Federal Question. 3. He didn't review case laws on Rule of Unanimity

and Forum Defendant Rule. 4. He based remand recommendation stating Koola

removed a foreclosure case and not Federal Question arising in a foreclosure action.

On August 17, 2016, the District Judge filed the following Text Order:

"Before the Court is the Report and Recommendation of the Magistrate

Judge (Dkt. No. 27). Plaintiff previously moved to correct docket entry

number 18, to reflect that it is a motion to remand..4Tlhere is a pending

motion to remand that is not reflected on the docket, briefed by Defendant,

or addressed in the Report and Recommendation. The Court therefore

ORDERS the Clerk to correct docket entry number 18 per the Court's order

of July 29, 2016 (Dkt. Nos 25, 26) and RECOMMITS this matter to the

Magistrate Judge for further proceedings regarding the motion to remand.

And IT IS SO ORDERED."

The District Judge (i) had not stated anywhere in the Text Order that he had

adopted the Magistrate Judge's July 29, 2016 R & R., (ii) didn't concur with the

Magistrate Judges' remand recommendation, and (iii) therefore, summarily rejected the

Magistrate Judge's July 29, 2016 R & R. "'A judge of the court may accept, reject, or

modify in whole or in part the magistrate's report.. .Adoption is an affirmative act." Canby

v. Davis, 718 F.2d 198, 199 (0 Cir. 1983). In summary, there was no Remand Order

pursuant to 28 U.S.C. § 1447(c) entered by the District Judge following the Magistrate

Judge's July 29, 2016 R & R.

Following the Magistrate Judge's September 19, 2016, Report and

Recommendation, the District Judge filed an Order on December 28, 2016 stating,

"For the foregoing reasons, the court ADOPTS the Report and

Recommendation of the Magistrate Judge (Dkt. No. 41) as the order of the

Court, GRANTS Defendant's motion to remand (Dkt. No. 18), and REMANDS

this case to the South Carolina Court of Appeals."

App. B, p. 11. In this instance, the District Judge adopted the Magistrate Judge's

October 19, 2016 R & R for alleged defects in the removal procedure as the Order of

the Court. Clearly, there was no Remand Order entered by the District Judge on

August 17, 2016 for lack of Jurisdiction following the July 27 R & R.

It was an error

a fatal error to Koola's appeal that the Fourth Circuit dismissed

Koola's appeal without a Remand Order pursuant to 28 U.S.C. § 1447(c). The text of 28

U.S.C. § 1447(d), "An order remanding a case to the State court from which it was

removed is not reviewable or otherwise...," makes it abundantly clear that an order of a

district court under to 28 U.S.C. § 1447(c) is a requisite to deny appellate review. In

Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336 (1976), this Court determined that

28 U.S.C. § 1447(d) bars appellate review only if the removal was improvident and

without jurisdiction, and the district court had issued remand order under 28 U.S.C. §

1447(c) invoking the grounds for removal. Koola removed his Federal Question claim

properly. 28 U.S.C. § 1447(c) has not mandated that a Magistrate Judge's rejected

remand recommendation would qualify as a sua sponte remand order. This "Court's

power to correct a district court that has not merely erred in applying the requisite

provision for remand but has remanded on grounds not specified in the statute and not

touching the propriety of the removal" should extend to circuit courts' dismissal orders.

Id., at 352. The Magistrate Judge's July 29 R & R is infested with errors. Since the

Fourth Circuit affirmed the Magistrate Judge's error-infested July 29 R & R, the Fourth

Circuit's Judgment is fatally infected by legal error. White vacating a remand order in

Dart, 135 S.Ct. at 555, 556-557, for errors in the judicial review, this Court made the

determination: "Discretion to review a remand order is not rudderless. A court "would

necessarily abuse its discretion if it based its ruling on an erroneous view of the law. Id.

at 556-557.

Conflicts with the Precedents set by this Court and Federal Circuit Courts

The Fourth Circuit's dismissal of Koola's appeal when removal of the underlying

case had complied with jurisdictional and statutory requirements of Diversity Jurisdiction

conflicted with the precedents set by this Court and all federal circuit courts.

Representative case laws: The federal courts have a virtually unflagging obligation to

exercise jurisdiction when jurisdiction is given them. Colorado River Water Conservation

District v. United States, 424 U.S. 800, 817 (1976). (Internal citations omitted). "Federal

Courts have a strict duty to exercise the jurisdiction that is conferred upon them by

Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). (Internal

citations omitted). "As such, "[e]very federal appellate court has a special obligation to

satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause

under review." Virginia ex rel. Hunter Labs LLC v. Quest Diagnostics, Inc., 2016 U.S.

App. LEXIS 12515 at 10 (4th Cir. 2016). (Emphasis added; internal citations omitted).

"[W]e will determine by independent review the actual grounds upon which the district

court believed it was empowered to remand." Archuleta v. Lacuesta, 131 F.3d

13591

1362 (10th Cir. 1997). (Internal citations omitted). "It is our responsibility to determine

whether the remand was based on a jurisdictional defect or some other issue." Hunter v.

City of Montgomery, 2017 U.S. App. LEXIS 10555 at 9, n. 2 (11th Cir. 2017). (Internal

citations omitted).

The Fourth Circuit's denial of Diversity Jurisdiction for alleged non-compliance

with the Rule of Unanimity is in conflict with the precedents set by this Court Shamrock

Oil, 313 U.S. at 102-108 and the Fourth Circuit itself in Palisades Collections, LLC, 552

F.3d at 333 and Payne ex rel. Estate of Calzada, 439 F.3d at 203.

The Fourth Circuit affirmation of the District Courts remand recommendation for

alleged violation of Forum Defendant Rule is in conflict with the precedents set by the

First, Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits

Representative case laws are: Braze!!, 525 F. App'x at 884; Hurley, 222 F.3d at 380;

and Lively, 456 F.3d at 939.

The Fourth Circuit's dismissal Koola's properly removed case claiming Federal

Question conflicts with this Courts precedent set in City of Chicago v. Intl College of

Surgeons, 522 U.S. 156, 163 (1997) that the district courts should exercise original

jurisdiction under 28 U.S.C. § 1331 over cases arising under the laws of the United

States. It conflicts with Fourth Circuit's own holdings in Lisenby, 674 F.3d at 261-262,

namely: (I) A defendant has a right to remove to federal court a complaint that included

federal claims; (ii) Pursuant to 28 U.S.C. §§ 1331 and 1441, a district court is vested

with subject matter jurisdiction to consider cases involving federal claims; and (iii) A

court of appeals can review remanded cases when the district court fails to exercise

jurisdiction granted to it under 28 U.S.C. §§ 1331 and 1441.

The Fourth Circuit's denial of related to jurisdiction under 28 U.S.C. §§ 1334 and

1452 for removal of cases related to Bankruptcy cases conflicts with the precedents set

by this Court in Celtox Cp. v. Edwards, 514 U.S. 300, 308 (1995) and the Fourth Circuit

itself in In Re: The Celtox Cp. 124 F.3d 619, 625-26 (4th Cir. 1997).

It was shown earlier that the State Court of Appeals' Order revoking the

Bankruptcy Court's Orders: (I) was outside of the jurisdiction it had, (ii) conflicted with

the provisions of 11 U.S.C. § 554(c) and conflicted with the judgments of other state

appellate courts. D.R. Horton, 320 Ga. App. at 771-774.

Misinterpreting 28 U.S.C. § 1257, the Magistrate Judge recommended sua

sponte remand of Koola's removed action stating that Koola is attempting to appeal the

state court proceedings to this Court. Pursuant to the Order of the Fourth Circuit in RTC

v. Allen, 16 F.3d 568, 573 (4th Cir. 1994), the District Court, immediately after the

removal of cases from state-court after Judgment in the state court, was required to

adopt the state court judgment sue sponte as its own, treat the judgment as other

judgments entered by the District Court and allow the parties to follow the ordinary rules

of post-judgment remedies such as an appeal. The District Court failed to do as

mandated by the Fourth Circuit, and the Fourth Circuit failed to enforce its own mandate.

The Fourth Circuit's affirmation of the denial of Supplemental Jurisdiction by the

District Court conflicts with the precedents set by this Court and other circuits. When the

District Court has original subject matter jurisdiction over state law claims, the exercise

of Supplemental Jurisdiction is mandatory. Cuevas v. BAC Home Loans Set-v. LP, 648

F.3d 242, 250 (51h Cir. 2011). A district court's decision whether to exercise that

jurisdiction after dismissing every claim over which it had original jurisdiction is purely

discretionary. The district court's exercise of its discretion under 28 U.S.C. §1367(c) is

not a jurisdictional matter and is reviewable by an appellate court. Carlsbad Tech. Inc.

V. HIF B!o, Inc., 556 U.S. 635, 639-40 (2009).

1.13 Bank of America's Motion to Remand did not assert any defect in Koola's

removal of his Federal Question claim as mandated by 28 U.S.C. § 1447(c)

but asserted only defects in a purported foreclosure action, and therefore,

28 U.S.C. § 1447(d) did not bar appellate review.

In May 20, 2016, Kooia removed the underlying case from State Court of

Appeals to the District Court claiming, inter a/ia, Federal Question, 28 U.S.C. § 1331.

Bank of America's Motion to Remand did not assert any defect in Koola's removal of

Federal Question but only asserted defects in a purported foreclosure action. App. P, pp.

74-77. The Motion to Remand did not meet the mandate of 28 U.S.C. § 1447(c), which

provides, "A motion to remand on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing of the notice of

removal_," Therefore, 28 U.S.C. § 1447(d) did not bar appellate review of Koola's

appeal.

Bank of America's Motion to Remand raised four arguments to deny Koola's

removal. App. P, pp. 74-77. As for its first argument in support of the Motion to Remand,

Bank of America argued that removal in May 2016 was untimely under 28 U.S.C. §

1446(b)[1] because Koola was served with Amended Summons and Complaint six

years ago in September 2010. Koola responded that the Amended Complaint: (i)

presented only a state-law foreclosure action and (ii) did not present a Federal

Question. App. Q, pp. 079-080. Since the State Court was the appropriate jurisdiction to

adjudicate a foreclosure action, removing a state-law foreclosure action to district court

would disrupt the federal-state balance approved by Congress. Gasch v. Hartford

Accident & Indeni. Co., 491 F.3d 278, 281 (5th Cir. 2007). Thus, Bank of America's first

claim that removal in May 2016 was untimely under 28 U.S.C. § 1446(b) is without any

merit.

As for its second argument in support of the Motion to Remand, Bank of America

argued that removal in May 2016 was untimely under 28 U.S.C. § 1446(b)(3) because it

filed a Motion for Summary Judgment in April 2012 in which it "raised a federal question."

When a federal question arises in a state-law action, the case is removable pursuant to

28 U.S.C. § 1446(b)(3) only when it is ascertainable that it is removable. The United

States Supreme Court has determined that the ascertainability of removal of a federal

question arising in a state-law action is determined by compliance with Gunn-Grable

stipulations: "[A] state-law claim must necessarily (i) raise a stated federal issue, (ii)

actually disputed and (iii) substantial, which (iv) a federal forum may entertain without

disturbing any congressionally approved balance of federal and state judicial

responsibilities. Gunn v. Minton, 133 S.Ct. 1059, 1065 (2013). Grable, 545 U.S. at 314.

"[T]he federal issue will ultimately qualify for a federal forum only if federal jurisdiction is

consistent with congressional judgment about the sound division of labor between state

and federal courts governing the application of § 1331." Grable, 545 U.S. at 313-314.

Koola presents here his arguments how he complied with Gunn-Grable

stipulations in the removal of a Federal Question arising in a state-law action. Raising a

substantial Federal Question based on Bankruptcy codes, 11 U.S.C.A. § 521 (a)(1 )(A)(B)(i) and § 541(a) and case laws from Bankruptcy courts, Bank of America argued in

its April 2012 Motion for Summary Judgment in the State Court that Koola could not

assert any counterclaims against it in the foreclosure action because of defects in his

March 2009 Chapter 7 Bankruptcy petition. App. T, pp. 136-137; App. R, pp. 094-097.

Koola did not contest Bank of America's substantial claim. Instead, in May 2012, he

removed the defects in the original Bankruptcy petition by reopening his previously

closed Bankruptcy case and amending the Schedule B of the reopened Bankruptcy

case. App. H, pp. 42-43. Koola's actions rendered Bank of America's substantial

Federal Question moot and uncontested, and the ground for Motion for Summary

Judgment became redundant and non-existent. Therefore, Koola could not remove the

case in 2012 under Gunn-Grable.

Bank of America pressed its Motion for Summary Judgment even though it was

rendered moot, uncontested, and redundant. In 2014, the Master in Equity granted its

Motion for Summary Judgment without resolving the Federal Question issue. App. K,

pp. 051. As a result, Bank of America's substantial Federal Question remained moot

and uncontested in 2014 as it was in 2012. In its February 17, 2016 Opinion, the State

Court of Appeals revoked: (i) the Bankruptcy Court's May 2012 Order reopening the

closed Bankruptcy case and remedying the defects in the original Bankruptcy petition

and (ii) the Bankruptcy Court's November 2013 Order returning the Bankruptcy estate

to Koala when the case was closed in November 2013. App. J, pp. 45-47. The State

Court of Appeals ruled further that: (i) The Bankruptcy estate belonged to the

Bankruptcy trustee; and (ii) Koola could not assert counterclaims against Bank of

America. App. J, pp. 45-47. [Koala has detailed the implications of the State Court's

February 17 Order in section l.A: Removal of Claims related to Bankruptcy cases, (This

document, supra, pp. 17-20)]. At this stage in February 2016, Koola contested Bank of

America's substantial claim raised in its April 2012 Motion for Summary Judgment. The

State Court of Appeals' February 17, 2016 Opinion, though erroneous and without

jurisdiction, resurrected Bank of America's claims from moot status. The Court's Order

became final on April 21, 2016 when it denied Koala's Petition for Rehearing.

Consequently, the substantial Federal Question raised by Bank of America in April 2012

became a contested claim in April 2016-

State and federal courts should confine themselves to their respective jurisdiction

granted by Congress. Bankruptcy and District Courts have exclusive jurisdiction over

cases under Title 11 Bankruptcy. State courts can adopt, but shall not revoke the

Orders of the Bankruptcy courts. Only district courts can revoke the Orders of the

Bankruptcy courts. The State Court of Appeal's February 2016 Order revoking the

Bankruptcy Court's Orders, which became final on April 21, 2016 upon denial of Petition

for Rehearing, was outside of the jurisdiction it had. Therefore, Koola could remove the

case from State Court to Federal Court without disrupting the federal-state balance

approved by Congress. All the four prongs of the Gunn-Grable stipulations were

satisfied only on April 21, 2016. On May 20, 2016, Koala filed the Notice of Removal.

In Me/ton v S. C. Elec. & Gas Co., 2016 U.S. Dist. LEXIS 74574 at 23 (D.S.C.

June 8, 2016), the District Court denied plaintiff's Motion to Remand after finding that

exercising Federal Question jurisdiction involving Federal Power Act, 16 U.S.C. §§ 791828(c), arising in a state-law action would not disturb the balance of federal and state

judicial responsibilities. In Burrell v. Bayer Cp., 2017 U.S. Dist. LEXIS 38770 at 10

(W.D.N.C. March 17, 2017), the District Court denied plaintiffs Motion to Remand after

finding that exercising Federal Question jurisdiction involving Medical Device

Amendments of 1976 under Federal Food, Drug, and Cosmetic Act, would not upset the

federal-state balance.

Bank of America's Motion to Remand did not assert any defect in Koola's removal

of the Federal Question in strict compliance with Gunn-Grable stipulations. Bank of

America's Motion to Remand addressed potential defects in a purported removal of a

foreclosure action. In fact, Bank of America states in its Motion to Remand that the

removed case is a foreclosure action instituted by Bank of America in July 2010 against

Koola. App. P, p. 074. Bank of America perceived and continues to perceive that Koola

removed a foreclosure action in May 2016 and not a Federal Question arising in a statelaw foreclosure action.

28 U.S.C. §1447(d) read in pan materia with 28 U.S.C. § 1447(c) does not bar

appellate review of remand orders when the motion to remand did not assert the

procedural defect in the defendant's removal. The Fourth and Ninth circuits have ruled

that the motion to. remand should explicitly assert the defect in the removal procedure.

"[W]here remand would be justified by a defect in removal other than a lack of subject

matter jurisdiction, the defect must be asserted by a party's motion to remand filed

within 30 days." Ellenburg, 519 F.3d at 197. (Emphasis added). "[T]he critical date is not

when a motion to remand is filed, but when the moving party asserts a procedural defect

as a basis for remand." N. Cal. Dist. Council of Laborers, 69 F.3d at 1038; Davis V.

Ciba-Geigy Cp. 958 F. Supp. 264, 265 (M.D. La 1997). "[M]erely filing some timely

motion to remand will not preserve objections not explicitly raised." Kakarala, 615 Fed.

Appx. at 425. Bank of America filed a timely Motion to Remand, but the Motion to

Remand did not assert any procedural defect in Koola's removal of Federal Question in

compliance with Gunn-Grable stipulations. Its Motion to Remand addressed potential

defects if Koola7s removal were a foreclosure action only.

The District Court granted bank of America's Motion to Remand and remanded

the case to the State Court; the District Courts Remand Order did not meet the

provisions of 28 U.S.C. § 1447(c). A district court exceeds its statutory authority when it

remands a case on grounds that seem justifiable to the court but which are not

recognized by the controlling statute. Thermtron, 423 U.S. at 351.

Federal circuits are split over the interpretation of 28 U.S.C. § 1447(c) with regard

to Motion to Remand.

Contradicting the Fourth and Ninth Circuits, the Fifth Circuit has ruled, 'Whether a

removal defect is not raised by a plaintiff in the motion to remand, or is raised more than

30 days after removal, does not matter.. .[Wlhat does matter, is the timing of the remand

motion." BEPCO, LP, 675 F.3d at 471. Thus, there is a circuit split regarding the

interpretation of reviewability of remand orders for procedural defects pursuant to 28

U.S.C. §§ 1447(c). It is imperative that this Court should grant the Petition for Writ of

Certiorari to resolve the circuit split 28 U.S.C. § 1447(c).

As for its third argument in support of the Motion to Remand, Bank of America

argued that removal in May 2016 based on diversity of citizenship was untimely under

28 U.S.C. § 1446(c)[1] because a case may not be removed based on diversity of

citizenship "more than one year after commencement of the action." App. P, p. 076077.

The bar for removal more than one year after commencement of the action is not

applicable in the present case because Koola removed his case claiming Federal

Question under 28 U.S.C. § 1331 in addition to Diversity Jurisdiction under 28 U.S.C. §

1332.

A majority of circuit courts and large majority of district courts within the Fourth

Circuit have ruled that the one-year bar applies to those cases that were not originally

removable. Koola has presented this argument and relevant case laws in section

'Reasons for Granting the Petition' to support this argument. (This document, supra, pp.

12). For brevity, only representative case laws are cited here: Badon v. 224 F.3d at

389; Briefly., 184 F.3d at 534-535; Price, 505 F.3d at 630-631; Music, 632 F.3d at 287.

King, 675 F.Supp.2d at 643-645; Pair, 2010 U.S. Dist. Lexis at 6-8; The Gates at

Williams-Brice Condominium Assn, 2016 U.S. Dist. LEXIS at 25-28.

The District Court granted Bank of America's claim that removal was untimely

under 28 U.S.C. § 1446(c)[1] overlooking the facts. (i) Koola removed his case claiming

Federal Question and Diversity Jurisdiction. (ii) Bar on removal in diversity cases, which

are originally removable, more than one year after commencement of the action is not

the law in the Fourth Circuit. (iii) A vast majority of federal circuits and district courts in

the fourth circuit have ruled that bar on removal based on diversity more than one year

after commencement of the action is applicable to only those cases which are not

initially removable. (iv) Koola's case was initially removable. The Fourth Circuit affirmed

the District Court's Remand Order.

As for its fourth and final argument in support of the Motion to Remand, Bank of

America claimed that Koola's removed case is not related to Bankruptcy case. App. P, p.

077. It did not state any procedural defect in the removal of claims related to Bankruptcy

cases. Previously, Koola has shown conclusively that his removal of claims related to

Bankruptcy cases complied with the Pacer Test, and therefore, Bank of America's fourth

argument is without merit. (This document, supra, pp. 17-20). However, in support of

Bank of America's argument, the District Judge determined that pursuant to 28 U.S.C. §

1334 (c)(2), the Court must abstain from hearing a case related to Title 11 because Bank

of America filed a Motion to Remand. App. B, p. 010. The District Judge has no authority

to raise an argument in support of Bank of America's Motion to Remand. Also, the

District Judge misrepresented 28 U S.C. § 1334 (c)(2), which stipulates that the district

court must abstain from hearing a case related to Title 11 provided the plaintiff has filed

a Motion to Abstain. The District Judge changed the provision of the code from Motion to

Abstain to Motion to Remand. This is a substantial judicial error and fatal to Koola's

removed case. A motion to abstain is a prerequisite to a decision to abstain under 28

U.S.C. § 1334(c)(2). Bondi v. Grant Thornton 1nt7, 322 B.R. 44, 49 (S.D. N.Y., 2005).

28 U.S.C. §1447(d) does not bar appellate review of a frivolous Motion to

Dismiss filed in the appellate court without jurisdiction.

On February 2, 2017, Bank of America filed a Motion to Dismiss after Koola filed

the Informal Brief in the Fourth Circuit. App. S, pp. 121-134. Stating, "[W]e are without

jurisdiction to review the remand order," the Court of Appeals granted Bank of America's

Motion to Dismiss and dismissed Koola's appeal. App. A, pp. 1-4.

The Court of Appeals' judicial authority is limited to appellate jurisdiction. Since

Bank of America's Motion to Dismiss was not filed in the District Court, and the District

Court had not rendered a Decision thereupon, the Fourth Circuit should have denied

Bank of America's Motion to Dismiss Koola's appeal. "[The Fourth Circuit] generally

declines to consider issues raised for the first time on appeal 'absent a fundamental

miscarriage of justice." In re B!ackwater Sec. Consulting, LLC, 460 F.3d 576, 590 (4th.

Cir. 2006).

In support of its Motion to Dismiss, Bank of America stated that: (i) This action

proceeded through final judgment in the South Carolina courts; (ii) There was no "civil

action" capable of being removed; and (iii) It is entitled to judgment on its favor. Bank of

America misapprehended when a state-court action becomes final. This Court has

determined when a state-court action becomes final: "Final it must be in two senses: it

must be subject to no further review or correction in any other state tribunal; it must also

be final as an effective determination of the litigation and not of merely interlocutory or

intermediate steps therein. It must be the final word of a final court" Market Street

Railway Co. v. Railroad Commission of California, 324 U.S. 548, 551 (1945). In the

State of South Carolina, the highest court is the State Supreme Court. In South Carolina

jurisdiction, an action becomes final when the State Supreme Court has decided the

merits of the case in a petition for writ of certiorari, or the 30-day time for filing the

petition for a writ of certiorari in the State Supreme Court has expired. Since Koola

removed the case to the District Court before the 30-day time to file a petition for writ of

certiorari expired, his removed action was active in the State Court at the time of

removal

Koola further represents to this Court that 28 U.S.C. §1447(d) does not bar

appellate review of a Motion to Dismiss

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

December 11, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.