Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wells Fargo Financial South Carolina, Inc. v. Mack

United States District Court, D. South Carolina, Charleston Division

August 2, 2018

Wells Fargo Financial South Carolina, Inc., Plaintiff,
v.
Paula D. Mack; Vincent D. Mack, a/k/a Vincent Demar Mack; Toni Dawon; Toni D. Incorporated a/k/a Toni D., Inc.; Charleston Cardiology; Loco Record Shop, Inc., Defendants.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 6) recommending that this Court remand this case to state court sua sponte for lack of subject matter jurisdiction. For the reasons set forth below, this Court adopts the R & R as the order of the Court. This action is remanded to state court for further proceedings.

         I. Background

         On May 31, 2018, pro se Defendants Paul D. Mack and Vincent D. Mack, also known as Vincent Demar Mack, filed a notice of removal for Civil Action No. 2014-CP-10-06824 (a state court mortgage foreclosure action) from the Court of Common Pleas of Charleston County, South Carolina. No other defendants in the state foreclosure action joined in the notice of removal. On July 13, 2018, the Magistrate Judge issued an R & R. (Dkt. No. 6.) No party filed objections.

         II. Legal Standard

         A. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         B. Magistrate's Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270 - 71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to file any specific objections, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).

         Defendants have not filed Objections, and therefore the R & R is reviewed for clear error.

         III. Discussion

         The Magistrate Judge explained that, in addition to Defendants failing to comply with the applicable rules for removal, [1] this Court does not have federal jurisdiction over the causes of action in Plaintiffs complaint, which asserts state law claims for the foreclosure of mortgages. See Civil Action No. 2014-CP-10-06824 available at Charleston County Circuit Court Public Index, https://imgweb.charlestoncounty.org/CMSOBView/Servicel .asmx/StreamDocAsPDF?viewertyp e=cms&ctagency= 10002&casenumber=2014CP 1006824&docseq= P1 A1 (last visited July 31, 2018).[2]

         This is a state court foreclosure action, and the complaint is solely based on state law. To the extent Defendants are attempting to assert defenses or counterclaims under federal law, they cannot create federal question jurisdiction. See Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S.Ct. 1262, 1272 (2009) ("Federal jurisdiction cannot be predicated on an actual or anticipated defense .... Nor can federal jurisdiction rest upon an actual or anticipated counterclaim."). Therefore, this Court lacks federal question jurisdiction. Furthermore, the Defendants are precluded as a matter of law from removing this case on the basis of diversity of citizenship because they are citizens of South Carolina, the state in which this action was brought. See 28 U.S.C. § 1441(b)(2). Therefore, the Court finds that the Magistrate Judge correctly applied the controlling law to the facts of this case.

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.