Petition for Writ of Certiorari — Donald Henderson Scott, et ux., Petitioners v. U.S. Bank National Association, et al.

NO.

IN THE

Supreme Court of the United States

Donald Henderson Scott; Carolyn Yvonne Scott;

Petitioners

v.

U.S. Bank National Association as Trustee, for

Bayview Financial Mortgage Pass-Through

Certificates, Series 2005; M&T Bank; Bayview Loan

Servicing LLC; David L. Bowan Southlaw, P.C.; Rob

Clifton; Anderson Law, LLC; Mortgage Electronic

Registration Systems, Inc.; Mila Homes, LLC;

Corinthian Mortgage Corporation; Security Land

Title Company;

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES OF APPEALS FOR THE

EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DONALD H. SCOTT and

CAROLYN Y. SCOTT

PO BOX 901284

KANSAS CITY, MO 64190

816 455 7343

Question Presented for Review

The Petitioners have been denied their right to a jury

trial in federal court.

I.

Whether the United States Court of Appeal for

the Eighth Circuit misapprehended its

jurisdiction in a way that conflicts with

decisions of the U.S. Supreme Court?

i

Lists of Parties to Proceeding

Petitioners:

Donald Henderson Scott;

Carolyn Yvonne Scott

Respondents:

U.S. Bank National Association as Trustee, for

Bayview Financial Mortgage Pass-Through

Certificates, Series 2005;

M&T Bank;

Bayview Loan Servicing LLC;

David L. Bowan Southiaw, P.C.;

Rob Clifton;

Anderson Law, LLC;

Mortgage Electronic Registration Systems, Inc.;

Mila Homes, LLC;

Corinthian Mortgage Corporation;

Security Land Title Company;

List of All Proceedings in Other Courts

Donald Henderson Scott and Carolyn Yvonne Scott

v. U.S. Bank National Association as Trustee, for

Bayview Financial Mortgage Pass-Through

Certificates, Series 2005, et al., No: 19-2113, United

States Court of Appeals for The Eighth Circuit.

Judgment entered 08/07/2019.

Donald Henderson Scott and Carolyn Yvonne Scott,

v. U.S. Bank National Association Trustee for

Bayview Financial Mortgage Pass-Through

Certificates, Series 2005, et al.; No. 4:19-cv-00308-

ii

DGK; United States District Court for The Western

District of Missouri Western Division. Judgment

entered 05/14/2019.

Donald Henderson Scott and Carolyn Yvonne Scott v.

U.S. Bank National Association Trustee for Bayview

Financial Mortgage Pass-Through Certificates,

Series 2005, M&T Bank, Bayview Loan Servicing,

LLC, Rob Clifton, Anderson Law, LLC, Mila Homes,

LLC, Corinthian Mortgage Corporation, Security

Land Title Company, and South Law, P.C.;

Adversary No. 19-4006; United States Bankruptcy

Court For The Western District Of Missouri. The

Judgment entered 04/09/2019.

iii

Table of Contents

Question Presented for Review

Lists of Parties to Proceeding

ii

List of All Proceedings in Other Courts

ii

Table of Contents

iv

Table of Authorities

vi

Citations of Opinions

1

Statement of the Basis for the Jurisdiction

1

Constitutional Provisions and Statutes

1

Statement of The Case

3

Reasons for Granting the Writ

5

Conclusion

10

Appendix la - Order Denying Rehearing by

Panel

11

Appendix 2a - Judgment Dismissing the Appeal

12

Appendix 3a - Order Denying Appeal from

Bankruptcy Court

iv

13

Appendix 4a - Order Abstaining and

Remanding Adversary Proceeding to the

Circuit Court of Clay County Missouri

18

Appendix 5a - 28 U.S.C. § 158. Appeals

39

Appendix 6a - 28 U.S.C. § 1334. Bankruptcy

cases and proceedings

43

Appendix 7a - 28 U.S.C. § 1367. Supplemental

jurisdiction

44

Appendix 8a - 28 U.S.C. § 1447. Procedure after

removal generally

46

Appendix 9a - 28 U.S.C. § 1452. Removal of

claims related to bankruptcy cases

47

v

Table of Authorities

Cases

Afr. v. City of Phila., 158 F.3d 723, 727 (3d Cir. 1998).

6

Beacon Theatres, Inc., v. Westover, 359 U.S. 500

6

Byrd v. Blue Ridge Rural Electric Cooperative, Inc.,

356 U.S. 525, 537-539

6

Dairy Queen, Inc., v. Wood, 369 U.S. 469

6

Gipson v. KAS Snacktime Co., 83 F.3d 225, 230 (8th

Cir. 1996)

6

Gunn v. Minton, 568 U.S. 251, 258 (2013)

9

Heartland Fed. Say. Loan Ass 'n v. Briscoe Enters.,

Ltd. (In re Briscoe Enters., Ltd.), 994 F.2d 1160,

1163 (5th Cir.), cert. denied,

U.S. , 114 S.Ct.

550, 126 L.Ed.2d 451 (1993)

8

In re Foust, 52 F.3d 766, 768 (8th Cir. 1995)

7

Kampa v. White Consolidated Ind., Inc., 115 F.3d 585,

586-87 (8th Cir. 1997)

6

Marra v. Phila. Hous. Auth., 497 F.3d 286, 313 (3d Cir.

2007)

6

Marra, 83 F.3d at 230

5

Mine Workers v. Gibbs, 383 U.S. 715

8

Parsons v. Bedford, 3 Pet. 433, 446-449

6

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712

(1996)

7

6

Scott v. Neely, 140 U.S. 106

Simler v. Conner, 372 U.S. 221, 222 (1963)

5

Sinclair Oil Corp. v. Jones (In re Jones), 31 F.3d 659,

661 (8th Cir. 1994)

8

Thermtron Products, Inc. v. Hermandorfer, 423 U S.

336, 345-52 (1976)

7

Things Remembered, Inc. v. Petrarca, 516 U.S. 124,

127-29 (1995)

7

vi

Tull v. United States, 481 U.S. 412, 416 (1987)

Tull v. United States, 481 U.S. 412, 417 (1987)

Statutes

5

5

28 U.S. Code § 1254

28 U.S. Code § 1291

28 U.S. Code § 1331

28 U.S. Code § 1367

28 U.S. Code § 1447

28 U.S. Code § 1452

28 U.S. Code § 158

28 U.S.0 § 1291

28 U.S.0 § 1331

28 U.S.0 § 1367

28 U.S.0 § 158(d)(1)

28 U.S.C. § 1291

28 U.S.C. § 1331

28 U.S.C. § 1334

28 U.S.C. § 1334(a)

28 U.S.C. § 1367

28 U.S.C. § 1447(d)

28 U.S.C. § 1452(a)

28 U.S.C. § 1452(b)

28 U.S.C. § 158

28 U.S.C. § 158(a)

28 U.S.C. § 158(d)

28 U.S.C. §§ 1447(d) and 1452(b)

section 1447(d)

Section 1447(d)

Rules

3

2

2

2, 44

2, 46

3, 47

2, 39

7

5

8

7

1, 7

1

43

1

1

7

1

7, 36

39

1

1

6

7

7

FRAP 6(b)

FRAP 6(b)(2)(B)(iii)

FRBP 8005

FRBP 9015(a)

1, 7

7

1

1, 3

vii

FRBP 9027(a)(2)

Constitutional Provisions

1

7th Amendment

Amendment VII

5

1

viii

Citations of Opinions

Scott v. U.S. Bank, No. 4:19-cv-00308-DGK (W.D. Mo.

May. 14, 2019)

Statement of the Basis for the Jurisdiction

The Bankruptcy Court had jurisdiction in the first

appealed case (19-04006-btf) pursuant to 28 U.S.C. §

1331, 28 U.S.C. § 1334(a), 28 U.S.C. § 1367, 28 U.S.C.

§ 1452(a) and FRBP 9027(a)(2). The Notice of Removal

to the Bankruptcy Court included a federal-law

question of federal jury demand pursuant to FRBP

9015(a) and Bankruptcy Court's Local Rule 9015-1.

The District Court had jurisdiction in the appealed

case (4:19-cv-00308-DGK) pursuant to 28 U.S.C. §

1331, 28 U.S.C. § 1334(a), 28 U.S.C. § 1367, 28 U.S.C.

§ 158(a), and FRBP 8005. The circuit court of appeals

had jurisdiction pursuant to 28 U.S.C. § 1291, 28

U.S.C. § 158(d), and FRAP 6(b). The circuit court's

Judgment dismissing the case was dated August 07,

2019. The circuit court's Order denying Rehearing by

Panel was dated September 13, 2019. The Petitioners

were granted an extension of time within which to file

this writ to and including February 19, 2020 —

Application No. 19A625. This Court has jurisdiction

pursuant to 28 U.S.0 § 1254..

Constitutional Provisions and Statutes

Amendment VII:

"In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of

1

trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise reexamined in any court

of the United States, than according to the rules of

the common law."

28 U.S. Code § 158. Appeals (see appendix 5a)

28 U.S. Code § 1291. Final decisions of district courts:

"The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit)

shall have jurisdiction of appeals from all final

decisions of the district courts of the United States,

the United States District Court for the District of

the Canal Zone, the District Court of Guam, and the

District Court of the Virgin Islands, except where a

direct review may be had in the Supreme Court.

The jurisdiction of the United States Court of

Appeals for the Federal Circuit shall be limited to

the jurisdiction described in sections 1292(c) and (d)

and 1295 of this title."

28 U.S. Code § 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. Code § 1367. Supplemental jurisdiction (see

appendix 7a)

28 U.S. Code § 1447. Procedure after removal

generally (see appendix 8a)

2

28 U.S. Code § 1452. Removal of claims related to

bankruptcy cases (see appendix 9a)

28 U.S. Code § 1254. Courts of appeals; certiorari;

certified questions:

"Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree;

By certification at any time by a court of

appeals of any question of law in any civil or

criminal case as to which instructions are desired,

and upon such certification the Supreme Court

may give binding instructions or require the entire

record to be sent up for decision of the entire

matter in controversy."

Statement of The Case

On 01/14/2019, the Petitioners filed a Notice of

Removal for Case: 18CY-CV07714 from the Court of

the 7th Judicial Circuit, Clay County, Liberty,

Missouri to the United States Bankruptcy Court,

Western District of Missouri (Kansas City) In

paragraph 6 of the Notice of Removal, the Petitioners

demanded a jury trial pursuant to FRBP 9015(a) and

Bankruptcy Local Rule 9015-1. The issues for the jury

trial were cancellation of written instruments, quiet

title, declarative relief, to assert the non-existence of

a default on a loan, common-law restitution where the

value in controversy exceed twenty dollars

($539,073.52), and wrongful foreclosure.

3

The Petitioners' federal jury trial demand of

01/14/2019 was acknowledged by the bankruptcy

court's judge in multiple references in the text of his

order remanding the case — see appendix 4a pages 19,

22, 26, 30, 31, 32, 34, 35, 37, and 38. Also references

to the common-law restitution amount of $539,073.52

are on pages 20 and 22 in the same appendix.

On 04/09/2019, the bankruptcy court entered its Order

of the Court -- Order Abstaining and Remanding

Adversary Proceeding to the Circuit Court of Clay

County, Missouri (see appendix 4a) denying a federal

jury trial and remanding to state court by finding inter

alia that "... the state court may adjudicate all causes

of action and conduct any jury trial. ..."

On 04/19/2019, Petitioners filed their Notice of

Bankruptcy Appeal with their election of the District

Court to hear the appeal.

On 05/14/2019, the District Court issued its Order

Denying Appeal from Bankruptcy Court (see appendix

3a) and affirming the bankruptcy court's order.

On 05/23/2019, the Petitioners filed a Notice of Appeal

to the Court of Appeals for the Eighth Circuit.

On 08/07/2019, the circuit court's Judgment (see

appendix 2a) dismissed the case for lack of

jurisdiction.

On 09/13/2019, the circuit court's Order denying

Rehearing by Panel (see appendix la) was dated.

This writ follows an extension of time to file.

4

Reasons for Granting the Writ

The Circuit Court had multiple statutory

authorizations for jurisdiction to hear the case.

I. The Circuit Court misapprehended the

Bankruptcy Court's federal question jurisdiction

under 28 U.S.C. § 1331 in a way that conflicts

with decisions of the U.S. Supreme Court. Once

the removal to federal court and a 7th

Amendment federal jury trial demand was

effectuated, exclusive competence to adjudicate

the case resides in the federal court and may not

be remanded to state court until all federal law

claims in the case have been eliminated. See

Simler v. Conner, 372 U.S. 221, 222 (1963). The

federal right to a jury trial is also "dictated by the

clear command of the Seventh Amendment" to

the United States Constitution See U.S. Const.

amend. VII ("In Suits at common law, where the

value in controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved. . ..").

Marra, 83 F.3d at 230. The Supreme Court has

"construed" the right to a jury trial provided by

the Seventh Amendment "to require a jury trial

on the merits in those actions that are analogous

to 'Suits at common law."' Tull v. United States,

481 U.S. 412, 416 (1987). The Seventh

Amendment preserves the right to a jury trial in

"suits at common law" filed in federal court. Tull

v. United States, 481 U.S. 412, 417 (1987). The

Eighth Circuit has held that the Seventh

Amendment provides a right to a jury trial in

federal court for an action brought ... in which the

Plaintiff seeks compensatory damages. Kampa v.

5

White Consolidated Ind., Inc., 115 F.3d 585, 58687 (8th Cir. 1997). See also Simler, 372 U.S. at

222, 83 S.Ct. 609 ("The federal policy favoring

jury trials is of historic and continuing strength.

Parsons v. Bedford, 3 Pet. 433, 446-449; Scott v.

Neely, 140 U.S. 106; Byrd v. Blue Ridge Rural

Electric Cooperative, Inc., 356 U.S. 525, 537-539;

Beacon Theatres, Inc., v. Westover, 359 U.S. 500;

Dairy Queen, Inc., v. Wood, 369 U.S. 469. Only

through a holding that the jury-trial right [in

federal court] is to be determined according to

federal law can the uniformity in its exercise [,]

which is demanded by the Seventh Amendment

[,] be achieved.") (internal footnote omitted). "The

right to a jury trial in federal court, regardless of

whether the claim arises under state law,

presents a question of federal law." Afr. v. City of

Phila., 158 F.3d 723, 727 (3d Cir. 1998). This

policy applies "'even when a state statute or state

constitution would preclude a jury trial in state

court.' Marra v. Phila. Hous. Auth., 497 F.3d

286, 313 (3d Cir. 2007) (quoting Gipson v. KAS

Snacktime Co., 83 F.3d 225, 230 (8th Cir. 1996)).

II. The Circuit Court misapprehended its

jurisdiction under 8 U.S.0 § 1447 in a way that

conflicts with decisions of the U.S. Supreme

Court. The Bankruptcy Court may not remand a

suit to the state court on a ground not specified in

the removal statute. The circuit court has

jurisdiction to review the Bankruptcy Court's

abstention and remand order, notwithstanding

28 U.S.C. §§ 1447(d) and 1452(b). The Supreme

Court has held that the prohibitions on appeal

contained in the general removal statute, 28

6

U.S.C. § 1447(d), apply to cases remanded

pursuant to 28 U.S.C. § 1452(b). See Things

Remembered, Inc. v. Petrarca, 516 U.S. 124, 12729 (1995). Section 1447(d), where applicable, see

Thermtron Products, Inc. v. Hermandorfer, 423

U.S. 336, 345-52 (1976) (appellate review

limitations of remands under section 1447(d)

apply only to remands on grounds specified in

section 1447(c)), bars review "on appeal or

otherwise."

The Circuit Court misapprehended its

jurisdiction under 28 U.S.C. § 1291 in a way that

conflicts with decisions of the U.S. Supreme

Court. The Supreme Court held, in Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 712 (1996), that

"An abstention-based remand order is appealable

under 28 U.S.C. § 1291. The Bankruptcy Court's

order in this case was an abstention-based

remand order under U.S.C. Section 1447(d). The

Circuit Court had jurisdiction pursuant to 28

U.S.C. § 1291.

The Circuit Court misapprehended its

jurisdiction under 28 U.S.C. § 158(d)(1) in a way

that conflicts with Eight Circuit Court of Appeals

precedent. In an Appeal in a Bankruptcy Case

from District Court review of a Bankruptcy Court

order under FRAP 6(b), 28 U.S.C. § 158(d)(1)

applies. The court of appeals has jurisdiction to

independently review the Bankruptcy Court's

decision using the record on appeal outlined by

FRAP 6(b)(2)(B)(iii). In re Foust, 52 F.3d 766, 768

(8th Cir. 1995) ("we review the Bankruptcy

Court's factual findings for clear error and its

7

conclusions of law de novo. Sinclair Oil Corp. v.

Jones (In re Jones), 31 F.3d 659, 661 (8th Cir.

1994). The appellate review of the Bankruptcy

Court's decision is independent of the District

Court's opinion. See Heartland Fed. Say. Loan

Ass'n v. Briscoe Enters., Ltd. (In re Briscoe

Enters., Ltd.), 994 F.2d 1160, 1163 (5th Cir.), cert.

denied, U.S. , 114 S.Ct. 550, 126 L.Ed.2d 451

(1993).

V. The Circuit Court misapprehended the

Bankruptcy Court's supplemental (pendant)

jurisdiction under 28 U.S.C. § 1367 in a way that

conflicts with decisions of the U.S. Supreme

Court. See Mine Workers v. Gibbs, 383 U.S.

715:"Pendent jurisdiction, in the sense of judicial

power, exists whenever there is a claim 'arising

under [the] Constitution, the Laws of the United

States, and Treaties made, or which shall be

made, under their Authority . . .,' U.S. Const., Art.

III, § 2, and the relationship between that claim

and the state claim permits the conclusion that

the entire action before the court comprises but

one constitutional 'case.' . .. The state and federal

claims must derive from a common nucleus of

operative fact. But if, considered without regard

to their federal or state character, a plaintiff's

claims are such that he would ordinarily be

expected to try them all in one judicial

proceeding, then, assuming substantiality of the

federal issues, there is power in federal courts to

hear the whole." 383 U.S., at 725 (emphasis in

original). Federal jurisdiction in Gibbs was based

upon the existence of a question of federal law.

Indeed, federal question jurisdiction exists when

8

a federal issue is "(1) necessarily raised, (2)

actually disputed, (3) substantial, and (4) capable

of resolution in federal court without disturbing

the federal-state balance approved by Congress."

Gunn v. Minton, 568 U.S. 251, 258 (2013).

9

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Donald H. Scott

PO Box 901284

Kansas City, MO 64190

Carolyn Y. Scott

PO Box 901284

Kansas City, MO 64190

10