Petition for Writ of Certiorari — Jody Kimbrell, Petitioner v. Bank of America, N.A.

11

APPENDIX

PET APP 1 Order to Remand November 4, 2022; Motion to Reconsider

November 14, 2022; Magistrate Judge TEXT order denied November

15, 2022. No final document entered or sent to the non ECF pro-se filer

defendant

PET APP 2 January 23, 2023 District Court issues final order of the

text order November 15, 2022

PET APP 3 TEXT order sua sponte, District Court Judge Michael M.

Mihm denied Motion to Reconsider and mailed Petitioner a copy of the

text order. February 9, 2023

PET APP 4 Seventh Circuit dismissed case 23-1139 for lack of

jurisdiction and totally ignoring Rule 58

Case: 23-1139

Document: 9

Filed: 02/16/2023

Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

ORDER

February 16, 2023

Before

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

BANK OF AMERICA, N.A.,

Plaintiff - Appellee

No. 23-1139

v.

JODY KIMBRELL,

Defendant - Appellant

Originating Case Information:

District Court No: l:22-cv-01348-MMM-JEH

Central District of Illinois

District Judge Michael M. Mihm

The following are before the court:

1. APPELLANT'S EXPEDITED MOTION TO STAY US DISTRICT COURT FOR

THE CENTRAL DISTRICT OF ILLINOIS REMAND ORDER ENTERED ON

1/23/2023; IN COMBINATION WITH ORDER TO FILE BRIEF 1/24/2023 MOTION

TO EXTEND EMAILED 1/23/2023, filed on February 13, 2023, by the pro se appellant.

2. APPELLANT’S MOTION TO FILE BY ECF, filed on February 13, 2023, by the pro se

appellant.

Case: 23-1139

Document: 9

Filed: 02/16/2023

Pages: 2

Page 2

No. 23-1139

IT IS ORDERED that this appeal is DISMISSED for lack of jurisdiction.

Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal in

a civil case be filed in the district court within 30 days of the entry of the judgment or

order appealed. In this case, judgment was entered on November 8, 2022, and the order

denying defendant-appellant's motion to reconsider was entered on November 15,

2022, starting the time to appeal. The notice of appeal was filed on January 20, 2023,

therefore, is over one month late. The district court has not granted an extension of the

appeal period, see Rule 4(a), and this court is not empowered to do so, see Fed. R. App.

P. 26(b).

Accordingly, IT IS FURTHER ORDERED that all pending motions are DENIED.

form name: c7_Order_3J

(form ID: 177)

l:22-cv-01348-MMM-JEH # 20

Page 1 of 6

E-FILED

Friday, 04 November, 2022 04:03:58 PM

Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

BANK OF AMERICA, N.A.

Plaintiff,

v.

JODY D. KIMBRELL and

MICHAEL D. KIMBRELL

Defendants.

)

)

)

)

)

)

)

)

)

)

Case No. l:22-cv-1348

ORDER

Pending before the Court is Plaintiff Bank of America, N.A.’s Motion to Remand. (ECF

No. 14). Defendant Jody Kimbrell has responded, and the motion is ripe for ruling. Plaintiffs

Motion to Remand is granted for the reasons stated below.

BACKGROUND

Plaintiff initially filed this Complaint to Foreclosure Mortgage against Defendant Jody

Kimbrell and several other defendants in Illinois State Court in 2018. ECF No. 5-1. The case was

litigated in state court for several years. On August 31, 2021, the state court granted Plaintiffs

motion for summary judgment and motion for reformation of the mortgage. ECF No. 1 at 28. On

September 2, 2021 the state court entered a judgment for foreclosure and sale in favor of Plaintiff.

Id. The parties agree that the foreclosure sale was scheduled for October 26, 2022.

More than one year after the state court entered summary judgment in favor of Defendant,

Defendant filed a Notice of Removal to Federal Court. ECF No. 1. Plaintiff moved to remand the

case arguing that the removal was untimely, procedural ly improper, and that this Court otherwise

lacks subject matter jurisdiction over this foreclosure action.

l:22-cv-01348-MMM-JEH # 20

Page 2 of 6

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. ofAm.,5\ \ U.S. 375, 377 (1994).

If a plaintiff files a case in state court even though the federal courts also have jurisdiction, the

defendant may remove the case to federal court. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89

(2005). Section 1441(a) provides:

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 the defendants, to the district court of the United States

for the district and division embracing the place where such action

is pending.

28 U.S.C. § 1441 (a). Generally, the party invoking jurisdiction bears the burden of establishing

all elements of federal subject matter at the time of removal. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Courts are to

presume that “a cause lies outside [its] limited jurisdiction.” Kokkonen, 511 U.S. at 111.

DISCUSSION

As Plaintiff notes, Defendant Jodie Kimbrell removed this case more than a year after the

state court entered the judgement for foreclosure. This case was also initially filed in 2018,

meaning that Defendant delayed removing the case for years and the state court has already entered

summary judgment in favor of Plaintiff. Accordingly, Plaintiff argues that removal was untimely.

Plaintiff also argues that Defendant does not otherwise have a meritorious basis for removal in that

she claims federal question jurisdiction when the complaint is a mortgage foreclosure and

reformation act under Illinois law. ECF No. 14 at 5. Finally, Plaintiff points out that Defendant

failed to join all the defendants named in the state court matter and the Notice of Removal bears

2

l:22-cv-01348-MMM-JEH # 20

Page 3 of 6

only Defendant Jodie Kimbrell’s signature. Id. at 4. The Court agrees that there are multiple

reasons it is appropriate to remand this case to state court, as explained below.

A. This Court Lack Subject Matter Jurisdiction.

Defendant attempts to argue that a federal question has arisen because the mortgage at issue

is insured by the Federal Housing Administration (“FHA”) and that Plaintiff did not follow the

FHA regulations. Under 28 U.S.C. § 1331, district courts have original jurisdiction over all civil

actions arising under the Constitution, laws, or treaties of the United States. However, the presence

or absence of federal question jurisdiction is governed by the well-pleaded complaint rule which

requires that a federal question be presented on the face of the plaintiffs properly pleaded

complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Doe, 985 at 911.

Plaintiffs Complaint asserts only a mortgage foreclosure and reformation under Illinois

law. ECF No. 5-1. Plaintiff asserts no federal claims against Defendant. The Seventh Circuit and

district courts in this Circuit have long held that a state-court mortgage foreclosure proceeding

itself does not raise a federal question. See, e.g., Hilgeford v. Peoples Bank, 776 F.2d 176, 178

(7th Cir. 1985) (an action involving “only [a] mortgage foreclosure” was “proper for state court

determination, not federal court”, and “[ljand title and possessory actions are generally not the

business of federal courts.”); GMAC Assocs., Inc. v. Devon Bank, No. 92-3347, 1993 WL 86802,

at *2 (N.D. Ill. Mar. 23, 1993) (foreclosure “does not turn on an interpretation of [] federal law”

and “foreclosure complaint remains an action between private parties to determine the contractual

rights to private property”); Green Tree Servicing, LLC v. Williams, No. 14 C 888, 2014 WL

2865905, at *12 (N.D. Ill. Jun. 24, 2014) (state-court complaint that alleged “nothing more than a

mortgage foreclosure action under Illinois law” was not a basis for federal question jurisdiction).

3

l:22-cv-01348-MMM-JEH # 20

Page 4 of 6

Defendant’s argument about having a federal defense does not serve as not an adequate

basis for federal question jurisdiction. Caterpillar Inc., 482 U.S. at 393. The Supreme Court has

clearly explained “a case may not be removed to federal court on the basis of a federal defense . .

. even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede

that the federal defense is the only question truly at issue.” Id.\ see also Chi. Tribune Co. v. Bd. of

Trustees of the Univ. of III, 680 F.3d 1001, 1003 (7th Cir. 2012) (“a potential federal defense is

not enough to create federal jurisdiction”). Here, there is clearly no federal question on the face of

the complaint. Plaintiff only cites a potential federal defense which is not enough to give rise to

federal jurisdiction.

Accordingly, to the extent Defendant may raise a federal defense founded on FHA

regulations, such a defense does not serve as a proper basis for removal.

B. Defendant’s removal was otherwise procedurally improper.

Defendant’s removal was also otherwise procedurally improper as she waited to remove

the case for years after the window for removal had closed and did not obtain the necessary

signatures of the co-defendants.

Defendants cannot remove cases to federal court at any time. Instead, “[t]he rules of

procedure provide two different removal windows.” Walker v. Trailer Transit, Inc., 727 F.3d 819,

820 (7th Cir. 2013). First, “[t]he 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.”

28 U.S.C. § 1446(b)(1). Second, “[ejxcept as provided [elsewhere], 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

4

l:22-cv-01348-MMM-JEH # 20

Page 5 of 6

paper from which it may first be ascertained that the case is one which is or has become

removable.” 28 U.S.C. § 1446(b)(3). As explained above, the removal was otherwise not

appropriate. However, upon receiving the Complaint, Plaintiff should have been aware of the

potential federal defense she now cites. Even assuming Plaintiff was not aware of this potential

defense at first, in July 2019 she filed an Amended Answer raising a defense to the foreclosure

action related to FHA requirements. ECF No. 5-5 at 43. Accordingly, her deadline for removal had

certainly passed by August 2019. Defendant waited nearly four years after the initiation of the

lawsuit and three years after raising a defense related to FHA requirements to remove the case.

Defendant’s extraordinary delay would also place this court in the position of reviewing a state

court decision which implicates various federalism concerns. As there are other compelling

reasons to remand this case, the Court need not fully explore this issue except to note the

importance of the deadlines for removal.

Defendant asserts that the state court’s October 6, 2022 order started the clock on the 30day removal time clock. However, she does not respond to Plaintiffs observation that she first

cited a potential federal defense in 2019 or explain why that order would have triggered the 30day clock for removal. Accordingly, the Court is unpersuaded by this assertion.

Finally, Defendant Jodie Kimbrell also failed to join the other named Defendants. The

removal notice only bears the signature of Defendant Jodie Kimbrell despite there being several

other Defendants. ECF No. 1 at 42. 28 U.S.C. § 1446 reads, “[wjhen 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.” Defendant Jodie Kimbrell’s failure to join the

appropriate Defendants provides another reason for remand.

5

l:22-cv-01348-MMM-JEH # 20

Page 6 of 6

CONCLUSION

For the reasons stated above, Plaintiffs Motion to Remand [14] is GRANTED and the case

is remanded to the Circuit Court of the Tenth Judicial Circuit, Peoria County.

ENTERED this 4th day of November, 2022.

/s/ Michael M. Mihm

Michael M. Mihm

United States District Judge

6

Date Filed

#

Docket Text

TEXT ONLY ORDER DENYING 32 . Defendant Jody Kimbrell has filed a Motion to

Reconsider, requesting that the Court reconsider its Order denying Kimbrell's Motion for

Leave to Appeal in forma pauperis. In part, the Court observed that Defendant had missed

the deadline to appeal. The Court otherwise explained that it lacked jurisdiction and

Defendant's attempts to appeal were frivolous. Defendant now argues that she did not

receive notice of the Court's decision and thus, her time to appeal should be extended. The

Court disagrees with Kimbrell's assertion that she did not receive a copy of the order, but

the Court would not have granted her motion even if it were timely filed because

Kimbrell's appeal was otherwise frivolous as explained in the Court's initial order (ECF

No. 30). Accordingly, Kimbrell's Motion for Reconsideration 32 is DENIED. Entered by

Judge Michael M. Mihm on 2/7/2023. (VH) (Entered: 02/07/2023)

02/07/2023

02/06/2023

33

TRANSCRIPT INFORMATION SHEET by Jody D Kimbrell. (VH) (Entered:

02/06/2023)

01/25/2023

32

MOTION for Leave to File Motion to Reconsider January 24, 2023 Order Pursuant Rule

59(e) by Defendant Jody D Kimbrell. Responses due by 2/8/2023 (Attachments: # 1

Memorandum in Support)(VH) (Entered: 01/25/2023)

01/24/2023

31 CIRCUIT RULE 3(b) FEE NOTICE re 23 Notice of Appeal. (VH) (Entered: 01/24/2023)

01/23/2023

30

01/23/2023

29 NOTICE of Docketing Record on Appeal from USCA re 22 Notice of Appeal filed by

Jody D Kimbrell. USCA Case Number 23-1139. (JS) (Entered: 01/23/2023)

01/20/2023

28

Short Record of Appeal Sent to US Court of Appeals re 22 Notice of Appeal. (VH)

(Entered: 01/20/2023)

01/20/2023

27

MOTION for Leave for Order to File Through ECF by Defendant Jody D Kimbrell.

Responses due by 2/3/2023 (VH) (Entered: 01/20/2023)

01/20/2023

26 MOTION for Leave for Order to Stay Pending Appeal by Defendant Jody D Kimbrell.

Responses due by 2/3/2023 (VH) (Entered: 01/20/2023)

01/20/2023

25

MOTION for Leave to Appeal in forma pauperis by Defendant Jody D Kimbrell.

Responses due by 2/3/2023 (VH) (Entered: 01/20/2023)

01/20/2023

24

DOCKETING STATEMENT by Jody D Kimbrell re 23 Notice of Appeal. (VH) (Entered:

01/20/2023)

01/20/2023

23

NOTICE OF APPEAL as to 20 Order on Motion to Remand by Jody D Kimbrell. (VH)

(Entered: 01/20/2023)

11/15/2022

ORDER Entered by Judge Michael M. Mihm on 1/23/2023. Denying 25 Motion for Leave

to Appeal in forma pauperis; denying 26 Motion ; denying 22 . (SEE FULL ORDER).

(AEM) (Entered: 01/23/2023)

TEXT ONLY ORDER DENYING 22 . Defendant seeks to have the Court reconsider its

order to remand the case to state court. Plaintiff does not adequately explain why a motion

to reconsider would be appropriate here. Plaintiff primarily raises new arguments that she

could have initially raised or rehashes arguments the Court already rejected. As the Court

initially explained, it did not have subject jurisdiction over the removed case and Plaintiff

also made numerous errors in removing the case that otherwise required remand. Notably,

she waited for years until the case was nearly resolved in state court before removing.

Accordingly, the Court will not reconsider its order when the case so clearly belongs in

state court and Defendants Motion for Leave to File Motion to Reconsider 22 is denied.

Entered by Judge Michael M. Mihm on 11/15/2022. (VH) (Entered: 11/15/2022) -

A mcs n

11/14/2022

22 MOTION for Leave to File Motion to Reconsider Court Order 11/8/2022 by Defendant

Jody D Kimbrell. Responses due by 11/28/2022 (Attachments: # 1 Proof of Service)(VH)

(Entered: 11/14/2022)

11/08/2022

21

JUDGMENT entered. (VH) (Entered: 11/08/2022)

11/04/2022

20

ORDER entered by Judge Michael M. Mihm on 11/4/2022. For the reasons stated,

Plaintiffs Motion to Remand 14 is GRANTED and the case is remanded to the Circuit

Court of the Tenth Judicial Circuit, Peoria County. Civil Case Terminated. See full written

Order. (VH) (Entered: 11/04/2022)

10/28/2022

12

MOTION to Leave to Request Emailed Pleadings and Amend Response to Plaintiffs

Motion to Remand Rule 15 by Defendant Jody D Kimbrell. Responses due by 11/14/2022

(Attachments: # l Proof of Service)(VH) (Entered: 10/28/2022)

10/24/2022

18 Defendant's Reply to Plaintiffs 15 Response to Defendant Request for Injunction Against

Plaintiff, filed by Defendant Jody D Kimbrell. (Attachments: # 1 proof)(AEM) (Entered:

10/24/2022)

10/21/2022

17 RESPONSE to Motion re 14 MOTION to Remand With Incorporated Memorandum of

Law in Support filed by Defendant Jody D Kimbrell. (Attachments: # 1 Attachment)(VH)

(Entered: 10/21/2022)

10/21/2022

16

ORDER entered by Judge Michael M. Mihm on 10/21/2022. Accordingly, it is ORDERED

this matter is STAYED until after the Court has ruled on the pending Motion to Remand.

See full written Order. (VH) (Entered: 10/21/2022)

10/20/2022

15

RESPONSE to Motion re 4 MOTION for Preliminary Injunction filed by Plaintiff Bank of

America, N.A.. (Burris, Natalie) (Entered: 10/20/2022)

10/20/2022

14 MOTION to Remand With Incorporated Memorandum ofLaw in Support by Plaintiff

Bank of America, N.A.. Responses due by 11/3/2022 (Burris, Natalie) (Entered:

10/20/2022)

10/19/2022

13

10/19/2022

12 MOTION for Leave to Request the Court Grant Defendant to File through the Court's ECF

System by Defendant Jody D Kimbrell. Responses due by 11/2/2022 (VH) (Entered:

10/19/2022)

10/19/2022

11

10/19/2022

10 MOTION to Demand Jury Trial by the Seventh Amendment of the Constitution by

Defendant Jody D Kimbrell. Responses due by 11/2/2022 (VH) (Entered: 10/19/2022)

10/19/2022

9 MOTION for Leave to Amend Heading Doc #8 and Correct Address by Defendant Jody D

Kimbrell. Responses due by 11/2/2022 (VH) (Entered: 10/19/2022)

10/18/2022

8 Defendant's Now (Plaintiffs) Motion to Remit State Court Records to the Case by

Defendants Jody D Kimbrell, Michael D Kimbrell. Responses due by 11/1/2022

(Attachments: # 1 Defendant’s Response, # 2 K L Court docs, # 3 Documents 1, # 4

Documents 2, # 5 Documents 3, # 6 Proof of Email Service of Bank of America)(TK)

(Entered: 10/18/2022)

10/18/2022

7

10/18/2022

6 NOTICE of Appearance of Attorney by Natalie T Burris on behalf of Bank of America,

N.A. (Burris, Natalie) (Entered: 10/18/2022)

PROOF OF SERVICE by Jody D Kimbrell (VH) (Entered: 10/19/2022)

NOTICE filed by Jody D Kimbrell. (VH) (Entered: 10/19/2022)

CERTIFICATE OF INTEREST pursuant to Local Rule 11.3 by Bank of America, N.A..

(Burris, Natalie) (Entered: 10/18/2022)

/A

10/17/2022

5 MOTION to Remit State Court Records to the Case by Defendant Jody D Kimbrell.

Responses due by 10/31/2022 (Attachments: # I Attachmentl, # 2 Attachment2, # 3

Attachment3, # 4 Attachment4, # 5 Attachments, # 6 Attachment6, # 7 Attachment?, # 8

Attachments, # 9 Attachment9, # 10 AttachmentlO, # H Attachmentl 1, # 12

Attachments, # 13 Attachments, # 14 Attachmentl4)(VH) (Entered: 10/17/2022)

10/13/2022

4 MOTION for Injunction by Defendant Jody D Kimbrell. Responses due by 10/27/2022

(VH) (Entered: 10/13/2022)

10/11/2022

3

10/08/2022

2 NOTICE of Appearance for Pro Se Litigant by Plaintiff Jody Kimbrell. (TK) (Entered:

10/11/2022)

10/08/2022

1

PROOF OF SERVICE by Jody D Kimbrell re 1 Notice of Removal. (VH) (Entered:

10/11/2022)

NOTICE OF REMOVAL from Peoria County, case number 18-CH-420 ( Filing fee $ 402,

receipt No. PIA100000948), filed by Jody D Kimbrell, Michael D Kimbrell. (Attachments:

# 1 Notice of Amendments to Notice of Removal, # 2 Civil Cover Sheet)(VH) Modified

on 10/11/2022 to correct filing date(TK). (Main Document 1 replaced on 10/11/2022)

(TK). (Attachment 1 replaced on 10/11/2022) (TK). (Entered: 10/11/2022)

PACER Service Center

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02/09/2023 15:50:54

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Case: 23-1139

Documents

Filed: 01/24/2023

Pages: 2

Tlmtcfr States dau rt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 24, 2023

By the Court:

BANK OF AMERICA, N.A.,

Plaintiff-Appellee,

No. 23-1139

v.

JODY KIMBRELL,

Defendant-Appellant.

] Appeal from the United

] States District Court for

] the Central District of

] Illinois.

]

] No. 1:22-cv-01348-MMM-JEH

]

] Michael M. Mihm,

Judge.

]

ORDER

Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of

appeal in a civil case be filed in the district court within 30 days of the entry of the

judgment or order appealed. In this case judgment was entered on November 8, 2022

and the order denying defendant-appellant's motion to reconsider was entered on

November 15, 2022, starting the time to appeal. The notice of appeal was filed on

January 20, 2023, therefore, is over one month late. The district court has not granted

an extension of the appeal period, see Rule 4(a), and this court is not empowered to do

so, see Fed. R. App. P. 26(b).

Further, the order appealed from may not be a final appealable judgment within

the meaning of 28 U.S.C. § 1291.

This court has consistently reminded litigants that an order remanding a case to

state court based on a lack of subject matter jurisdiction or a defect in the removal

procedure is not reviewable on appeal, whether or not the decision is correct. See, e.g^

The Northern League, Inc. V. Gidney, 558 F.3d 614 (7th Cir. 2009) {per curiam) Rubel v.

Pfizer, Inc., 361 F.3d 1016 (7th Cir. 2004); Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352,

354-55 (7th Cir. 2000); In re Continental Casualty Co., 29 F.3d 292, 293 (7th Cir. 1994).

-over-

Case: 23-1139

No. 23-1139

Document: 2

Filed: 01/24/2023

Pages: 2

-Page 2-

In the present case, the district court remanded this case to state court both for

lack of jurisdiction and for a defect of the removal procedure. As such, the

untimeliness of this appeal is not defendant-appellant's only jurisdictional problem.

Accordingly,

IT IS ORDERED that appellant, on or before February 6, 2023, file a brief

memorandum stating why this appeal should not be dismissed for lack of jurisdiction.

A motion for voluntary dismissal pursuant to Fed. R. App. P. 42(b) will satisfy this

requirement. Briefing shall be suspended pending further court order.

NOTE:

Caption document "JURISDICTIONAL MEMORANDUM.” The filing of a

Circuit Rule 3(c) Docketing Statement does not satisfy your obligation under

this order.

ELECTRONIC FILING SYSTEM - U.S. District Court ILCD

https://ilcd-ecf.sso.dcn/cgi-bin/Dispatch.pl7100260570914751

Orders on Motions

1:22-cv-01348-MMM-JEH Bank of America. N.A. v.

Kimbrell et al CASE CLOSED on 11/04/2022

12,15,APPEAL,CLOSED,REFER,REMOVAL,STAYED

U.S. District Court

CENTRAL DISTRICT OF ILLINOIS

Notice of Electronic Filing

The following transaction was entered on 2/7/2023 at 4:15 PM CST and filed on 2/7/2023

Bank of America, N.A. v. Kimbrell et al

Case Name:

l:22-cv-01348-MMM-JEH

Case Number:

Filer:

WARNING: CASE CLOSED on 11/04/2022

Document Number: No document attached

Docket Text:

TEXT ONLY ORDER DENYING [32]. Defendant Jody Kimbrell has filed a Motion to Reconsider,

requesting that the Court reconsider its Order denying KimbreH's Motion for Leave to Appeal

in forma pauperis. In part, the Court observed that Defendant had missed the deadline to

appeal. The Court otherwise explained that it lacked jurisdiction and Defendant's attempts to

appeal were frivolous. Defendant now argues that she did not receive notice of the Court's

decision and thus, her time to appeal should be extended. The Court disagrees with KimbreH's

assertion that she did not receive a copy of the order, but the Court would not have granted

her motion even if it were timely filed because KimbreH's appeal was otherwise frivolous as

explained in the Court's initial order (ECF No. 30). Accordingly, KimbreH's Motion for

Reconsideration [32] is DENIED. Entered by Judge Michael M. Mihm on 2/7/2023. (VH)

l:22-cv-01348-MMM-JEH Notice has been electronicaUy mailed to:

John Matthew Kienzle

Natalie T Burris

john.kienzle@yahoo.com

nburris@winston.com, natalie-burris-7196@ecf.pacerpro.com

l:22-cv-01348-MMM-JEH Notice has been delivered by other means to:

Jody D Kimbrell

6608 N. University St

Peoria, IL 61614

Michael D Kimbrell

6608 N. University St.

Peoria, IL 61614

/(

1 of 2

/ ^

/ vY

2/7/2023,4:15 PM

l:22-cv-01348-MMM-JEH # 30

Page 1 of 3

E-FILED

Monday, 23 January, 2023 04:55:48 PM

Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

BANK OF AMERICA, N.A.

Plaintiff,

v.

JODY D. KIMBRELL and

MICHAEL D. KIMBRELL

Defendants.

)

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)

)

)

)

)

)

)

)

Case No. l:22-cv-1348

ORDER

Pending before the Court is Defendant Jody D. Kimbrell’s Motion for Leave to Appeal in

forma pauperis (ECF No. 25) and Motion for Stay Pending Appeal (ECF No. 26). These Motions

are DENIED for the reasons stated below.

On November 4, 2022 this Court entered an opinion granting Plaintiff Bank of America’s

Motion to remand and remanding the case to state court. In the opinion, the Court explained that

the case had been litigated in state court for several years and it was not until nearly a year after

the state court entered a judgement of foreclosure that Plaintiff attempted to remove the case. Thus,

removal was untimely. Moreover, Defendant did not follow the appropriate procedural rules and

this Court otherwise lacked subject matter jurisdiction over the case. As explained in the opinion,

the only alleged basis for federal jurisdiction was a purported federal defense and an anticipated

federal defense is not enough to give rise to federal jurisdiction when the state complaint was a

mortgage foreclosure action under Illinois law. See ECF No. 20 at 4. The Court entered Judgment

on November 8, 2022 and denied Defendant’s Motion to Reconsider on November 15, 2022. See

ECF No. 21 and d/e dated 11-15-2022.

l:22-cv-01348-MMM-JEH #30

Page 2 of 3

Now, over two months later, Defendant seeks to appeal that decision and moves for this

Court to grant her leave to file in forma pauperis and to stay the case. Under 28 U.S.C. § 1915(a)

a court may authorize an appeal by persons unable to pay the fees, but an “appeal may not be taken

in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C.

§ 1915(a)(3). Here, the Court determined it does not have subject matter jurisdiction and that

Defendant otherwise missed the deadline to remove by years and also failed to follow the proper

procedural rules. ECF No. 20. Also, under Rule 4(a) of the Federal Rules of Appellate Procedure,

Defendant had only 30 days to file an appeal. Accordingly, any notice of appeal was due, at the

latest, by December 15, 2022. Defendant missed that deadline by over thirty days. Finally,

decisions to remand based on lack of subject matter jurisdiction are generally not appealable. See

28 U.S.C. § 1447. Accordingly, the Court finds that this appeal was not taken in good faith and

declines to grant Defendant’s motion to proceed in forma pauperis.

Defendant also moves this Court to stay remanding the case back to state court pending

appeal. This Court has already determined it does not have subject matter jurisdiction and

remanded the case over two months ago. Defendant blew her deadline to appeal and otherwise has

no basis to appeal. The Court has no jurisdiction and certainly does not have the power to interfere

in the state proceeding. Defendant does not attempt to support this request by citing any laws, and

thus, there is little else for the Court to say on this matter. Defendant’s motion to stay is therefore

denied.

CONCLUSION

For the reasons stated above, it is ORDERED as follows:

(1) Defendant’s Motion for Leave to Appeal in forma pauperis [25] is DENIED;

(2) Defendant’s Motion for a Stay Pending Appeal [26] is DENIED;

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(3) Defendant’s Motion for Leave for Order to File Through ECF [27] is DENIED because

this case is closed, and Defendant has no further need to file documents in this case.

ENTERED this 23rd day of January, 2023.

/s/ Michael M. Mihm

Michael M. Mihm

United States District Judge