Federal National Mortgage Association v. Mashak
- Katherine Menendez
- 0:22-cv-03117
- U.S. District Court · District of Minnesota
- 4
Federal National Mortgage Association v. Mashak: Judge Menendez remanded the foreclosure case, denied Mashak’s fee-waiver application, and denied his motion to strike and extend time.
Federal National Mortgage Association, Donald Mashak, The Provident Bank, John Doe, and Mary Roe; the foreclosure case remains in Minnesota state court, and Mashak’s federal filing-fee application and motion to strike and extend time were denied.
What happened
Federal National Mortgage Association v. Mashak involved Donald Mashak’s second attempt to move an ongoing mortgage-foreclosure case from Minnesota state court to federal court. The plaintiff asked the federal court to send the case back to state court.
The court found no federal claim in the state-court complaint. It also ruled that Mashak could not remove the case based on the parties’ citizenship because he was a Minnesota citizen, and that his proposed claims under a federal criminal statute could not support removal. The court further found that the removal attempt came more than 30 days after service of the lawsuit.
Judge Menendez granted the plaintiff’s motion to remand and sent the case to the Minnesota District Court for Wright County. She denied Mashak’s application to proceed without paying filing fees and denied his motion to strike and for more time.
The detailed version
- Federal National Mortgage Association v. Mashak · No. 0:22-cv-03117
- Katherine Menendez
- Feb. 8, 2023
Background
Federal National Mortgage Association brought a mortgage-foreclosure action against Donald Mashak more than seven years before this order. The foreclosure case was still pending in the State of Minnesota District Court, Tenth Judicial District, County of Wright. Mashak previously tried to remove the case to federal court, but the federal court remanded it because the foreclosure action could not have been filed originally in federal court.
Mashak again removed the case under 28 U.S.C. § 1441(a). Federal National Mortgage Association moved to remand, meaning it asked the federal court to return the case to state court. Mashak also moved to strike the remand motion and requested additional time to file a responsive brief. He raised his lack of legal training and limited time to respond or retain counsel. He had, however, already filed an opposition memorandum and additional related documents.
Reasons for Remand
The court held that it lacked jurisdiction over the proceeding. No federal claim appeared on the face of the state-court complaint. The court also rejected diversity jurisdiction as a basis for removal because Mashak was a Minnesota citizen, and federal law generally bars removal based only on diversity when a properly joined and served defendant is a citizen of the state where the action was brought.
Mashak argued that he intended to assert claims under 18 U.S.C. § 241. The court explained that § 241 is a criminal statute and does not create a private right of action. The court also stated that removal depends on the contents of the initial complaint, not on counterclaims or claims the defendant intends to raise.
The court further ruled that the removal was untimely even if removal had otherwise been proper. A defendant generally has 30 days after receiving or being served with the initial pleading or summons to file a notice of removal. The court had previously determined that the lawsuit was served on Mashak in 2015, placing this removal attempt outside the 30-day period.
Other Motions and Disposition
The court found no violation of the meet-and-confer requirements and denied Mashak’s motion to strike and for an extension of time. It granted Federal National Mortgage Association’s motion to remand and remanded the matter to the State of Minnesota District Court, Tenth Judicial District, County of Wright. It also denied Mashak’s application to proceed without paying filing fees as moot. The order directed that judgment be entered accordingly.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.