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Niborg v. CitiMortgage, Inc.

United States District Court, W.D. Washington

May 16, 2017

ERIC NIBORG and TAMMI NIBORG, Plaintiff,
v.
CITIMORTGAGE, INC., et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO REMAND, GRANTING DEFENDANTS' MOTIONS TO DISMISS, AND GRANTING PLAINTIFFS LEAVE TO AMEND

          BENJAMIN H. SETTLE United States District Judge.

         This 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.

         I. PROCEDURAL HISTORY

         On 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. Id.

         On March 1, 2017, Defendants removed the matter to this Court. Dkt. 1.

         On 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.

         II. FACTUAL BACKGROUND

         The 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.

         On 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.

         On 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 Seterus.

         III. DISCUSSION

         A. Remand

         The 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.

         Second, Fannie Mae removed the matter after receiving Citi's consent. Dkt. 1 at 3. Thus, the Court denies the ...


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