United States District Court, W.D. Washington
ORDER DENYING PLAINTIFFS' MOTION TO REMAND,
GRANTING DEFENDANTS' MOTIONS TO DISMISS, AND GRANTING
PLAINTIFFS LEAVE TO AMEND
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendants Fannie Mae and
CitiMortgage (“Citi”), Inc.'s (collectively
“Defendants”) motions to dismiss (Dkts. 8, 9) and
Plaintiff Eric and Tammi Niborg's (“Niborgs”)
motion to remand (Dkt. 17). The Court has considered the
pleadings filed in support of and in opposition to the
motions and the remainder of the file and hereby grants
Defendants' motions and denies the Niborgs' motion
for the reasons stated herein.
February 10, 2017, the Niborgs filed a complaint against
Defendants in Clark County Superior Court for the State of
Washington. Dkt. 1-2 (“Comp.”). The Niborgs
assert claims for quiet title, wrongful foreclosure,
conversion, fraud, misrepresentation, and civil conspiracy.
March 1, 2017, Defendants removed the matter to this Court.
March 9, 2017, Defendants filed motions to dismiss. Dkts. 8,
9. On April 11, 2017, the Niborgs responded and filed a
motion to remand. Dkts. 16, 17. On May 1, 2017, Defendants
responded to the motion to remand. Dkts. 18, 19. On May 4,
2017, the Niborgs replied. Dkt. 21.
Niborgs allege that they own the real property located at
1518 NE 91st Avenue, Vancouver, WA 98664
(“Property”). In April 2006, the Niborgs obtained
a loan secured by the Property. In 2012, two assignments of
the Deed of Trust were recorded, giving notice that Citi was
the new beneficiary. On May 13, 2013, Citi appointed Clear
Recon Corp. (“CRC”) as successor trustee.
October 23, 2013, CRC recorded a notice of trustee's sale
noting a non-judicial foreclosure of the Property to occur on
February 28, 2014. The notice claimed that the Niborgs had
missed 21 months of payments resulting in a past due balance
of $37, 486.70. Dkt. 10, Exh. F. CRC formally discontinued
the foreclosure sale on August 7, 2014. The Niborgs do not
allege any foreclosure activity subsequent to this date.
October 13, 2014, Citi recorded notice that Fannie Mae was
the new beneficiary of the Deed of Trust. The servicing of
the loan transferred to non-party Seterus, Inc. In Spring
2015, the Niborgs entered into a loan modification with
Niborgs move for remand because (1) the Court lacks subject
matter jurisdiction, (2) they did not receive timely notice
of the removal, and (3) all defendants did not consent to the
removal. Dkt. 17. All of these arguments are without merit.
First, the Court has subject matter jurisdiction because the
parties are diverse and the amount in controversy exceeds the
jurisdictional minimum of $75, 000. 28 U.S.C. § 1332.
The Niborgs, however, argue that Defendants consented to
state court jurisdiction when they initiated the foreclosure
action in the state. There is no authority for such a
proposition. Thus, the Court denies the Niborgs' motion
on this issue.
Fannie Mae removed the matter after receiving Citi's
consent. Dkt. 1 at 3. Thus, the Court denies the ...