Metivier v. Deutsche Bank Trust Company Americas

Background

Cynthia Metivier, representing herself, brought a six-count complaint concerning the foreclosure of her home’s mortgage. She named Deutsche Bank Trust Company Americas, as trustee for Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QS10; Ocwen Loan Servicing, LLC; and unknown defendants. She sought to vacate the mortgage sale, obtain other equitable relief, and recover damages, attorney’s fees, costs, and interest.

The case was originally filed in Minnesota state court. After receiving the complaint, Deutsche Bank and an entity called PHH Mortgage Corporation filed a notice of removal in federal court, invoking diversity jurisdiction. The defendants stated that PHH was the correct party in interest and that Ocwen had merged with PHH, with PHH surviving under its own name. They also filed a notice of removal in the Minnesota state court and later filed answers in federal court.

Remand standards

The removing party bears the burden of showing that federal jurisdiction exists. Removal requirements are narrowly construed, and doubts about federal jurisdiction are resolved in favor of returning the case to state court. Under federal law, a case may be removed only after it has been “brought” in state court. The court understood “brought” to mean commenced.

Minnesota law determines when a Minnesota civil action is commenced. Under the rule discussed by the court, that occurs when the summons is served on the defendant, when the defendant signs a waiver of service, or when the summons is delivered to the sheriff in the county where the defendant resides. Minnesota requires personal service; mailing the summons and complaint is not personal service. A defendant’s failure to return a waiver means that service has not occurred.

Court’s analysis

Metivier sent the summons, complaint, and waiver forms by certified mail on November 1, 2019. The entity receiving the materials intended for Deutsche Bank said it was not Deutsche Bank’s registered agent, and the opinion identified no evidence that Deutsche Bank was later served. The materials intended for Ocwen were transmitted to Ocwen, but the opinion found no personal service or delivery of process to a sheriff for Deutsche Bank, Ocwen, or PHH before removal.

The defendants signed and filed waiver forms in state court on December 17, after the November 19 removal. The court also found that the waivers were untimely and that filings made after removal could not establish the state court’s jurisdiction before removal. The defendants argued that removal itself showed their submission to state-court jurisdiction and that their answers did not assert defective service. The court rejected those arguments, explaining that consent could not replace the federal statutory requirement that the case first be brought in state court.

Disposition

The court held that the removal was premature because the Minnesota action had not been commenced before removal. It therefore granted Plaintiff’s Motion to Remand and remanded the matter to Washington County District Court. The court did not decide the merits of Metivier’s foreclosure-related claims. It noted that a later removal attempt might be possible if service occurred and the other requirements for removal were met, but it did not rule that a later removal would be proper.