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Motion to Remand - Peni Cox, An Individual, Plaintiff, Vs. Rec on Trust Company, n.a., Bank of America Home Loans

Motion to Remand - Peni Cox, An Individual, Plaintiff, Vs. Rec on Trust Company, n.a., Bank of America Home Loans

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Published by Foreclosure Fraud
St. George attorney John Christian Barlow appeared to hold his own against the legal team of the Bank of America led by attorney Roy Arnold of the Pittsburgh office of Reed Smith, LLP in federal court Thursday morning before Judge Clark Waddoups. At issue is the validity of a state court injunction stopping all foreclosures in Utah by the Bank of America. The preliminary injunction remains in effect as Judge Waddoups reviews the written and oral arguments present in the federal hearing.

Under intensive questioning Barlow was asked by Judge Waddoups to explain why the bank should not be excluded. Barlow said the issue is not about the federally chartered Bank of America but its subsidiary ReconTrust Company. The injunction stopping foreclosures was issued specifically to Recontrust Company, a Bank of America subsidiary, which has no office or business registration in Utah as required by state statute. The plaintiff, Peni Cox, claims her rights for remedies under Utah law were taken from her by ReconTrust Company which is operating illegally in Utah, Barlow said.

The Bank of America operating as a nationally chartered financial institution is not at dispute, he said, it’s the bank's subsidiaries which have been foreclosing on homeowners without legal standing in Utah.

Barlow provided the court evidence of proper notice to all of the defendants in the case; Recontrust Company, N.A; Bank of America Home Loans Servicing, LP; Bank of America FSB; New Line Mortgage, a division of Republic Mortgage Home Loans and Mortgage Electronic Registration Systems, Inc.

The St. George attorney filed an amended petition to remand the case to Fifth District Court with exhibits showing proper service had been made. Amended Petition Proper notice and proper service was a fundamental issue to the bank’s motion to move the case to federal court and the emergency hearing before Judge Waddoups asking the court to dissolve the injunction, modify it to apply only to ReconTrust, or delay its effect until such time as the defendants have had an opportunity to defend against it with a properly-noticed motion.

ReconTrust Company has 903 Utah homeowners in foreclosure this month and 155 Utah homes already foreclosed, according to their website at Recontrustco.com

Judge Waddoups is expected to issue his ruling by Friday according to the federal court docket record.

4closurefraud.org
St. George attorney John Christian Barlow appeared to hold his own against the legal team of the Bank of America led by attorney Roy Arnold of the Pittsburgh office of Reed Smith, LLP in federal court Thursday morning before Judge Clark Waddoups. At issue is the validity of a state court injunction stopping all foreclosures in Utah by the Bank of America. The preliminary injunction remains in effect as Judge Waddoups reviews the written and oral arguments present in the federal hearing.

Under intensive questioning Barlow was asked by Judge Waddoups to explain why the bank should not be excluded. Barlow said the issue is not about the federally chartered Bank of America but its subsidiary ReconTrust Company. The injunction stopping foreclosures was issued specifically to Recontrust Company, a Bank of America subsidiary, which has no office or business registration in Utah as required by state statute. The plaintiff, Peni Cox, claims her rights for remedies under Utah law were taken from her by ReconTrust Company which is operating illegally in Utah, Barlow said.

The Bank of America operating as a nationally chartered financial institution is not at dispute, he said, it’s the bank's subsidiaries which have been foreclosing on homeowners without legal standing in Utah.

Barlow provided the court evidence of proper notice to all of the defendants in the case; Recontrust Company, N.A; Bank of America Home Loans Servicing, LP; Bank of America FSB; New Line Mortgage, a division of Republic Mortgage Home Loans and Mortgage Electronic Registration Systems, Inc.

The St. George attorney filed an amended petition to remand the case to Fifth District Court with exhibits showing proper service had been made. Amended Petition Proper notice and proper service was a fundamental issue to the bank’s motion to move the case to federal court and the emergency hearing before Judge Waddoups asking the court to dissolve the injunction, modify it to apply only to ReconTrust, or delay its effect until such time as the defendants have had an opportunity to defend against it with a properly-noticed motion.

ReconTrust Company has 903 Utah homeowners in foreclosure this month and 155 Utah homes already foreclosed, according to their website at Recontrustco.com

Judge Waddoups is expected to issue his ruling by Friday according to the federal court docket record.

4closurefraud.org

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Published by: Foreclosure Fraud on Jun 11, 2010
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10/11/2010

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John Christian Barlow #1243840 North 300 East, Suite 101St. George, UT 84770(435)688-1170Fax: (435)215-2420IN THE UNITED STATES DISTRICT COURTFOR THE STATE OF UTAH, CENTRAL DIVISIONPENI COX, an individual,Plaintiff,vs.RECONTRUST COMPANY, N.A.;BANK OF AMERICA HOME LOANSSERVICING, LP; BANK OF AMERICA,FSB; NEW LINE MORTGAGE, DIVISIONOF REPUBLIC MORTGAGE HOMELOANS, LLC; MORTGAGEELECTRONIC REGISTRATIONSYSTEMS, INC., and DOES 1
 – 
5,Defendants.MOTION TO REMAND2:10-cv-00492-CW-SAMagistrate Judge Samuel AlbaPlaintiff moves this Court for an Order of Remand back to State Court based on this Court'slack of jurisdiction.BACKGROUNDPlaintiff is a resident of Utah and originally filed this suit in a Utah state court. The suitgenerally challenges the ability of Defendants ReconTrust Company and Bank of AmericaHome Loan Servicing to be involved in real estate foreclosures in Utah. Plaintiff arguesDefendants failed to comply with various provisions of Utah law. Plaintiff claims damagesin an amount less than $75,000.
Case 2:10-cv-00492-CW-SA Document 10 Filed 06/03/10 Page 1 of 11
 
Acting pursuant to 28 U.S.C. §§ 1441 and 1446, Defendants removed the case to federal court.Defendants claim that this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(I) and 28 U.S.C. § 1331.ANALYSISAt every stage of the proceeding in every case, a federal district court must satisfy itself as toits own jurisdiction, even if doing so requires sua sponte action. Citizens Concerned forSeparation of Church & State v. City & County of Denver, 628 F.2d 1289 (10th Cir. 1980).Federal courts have limited subject matter jurisdiction and are restricted to exercising it onlywhen specifically authorized. Erwin Chemerinsky, Federal Jurisdiction 259 (4th ed. 2003).Consistent with this pr
inciple, removal jurisdiction exists only if the “suit initially could have
been filed in federal court. Generally, the plaintiff 
s complaint must present either a federalquestion or diversity of citizenship must, exist in order for a case to be removed to federalcourt." Id. at 344.
A. No Federal Question Exists.
Plaintiff has amended her complaint to remove the action upon which the federal question isbased. Therefore the court cannot have jurisdiction under a federal question. Plaintiff continues to assert her claims of violation Utah Code § 16-10a-1501, and § 57-1-21(3).These claims are not based on a federal question.
B. Defendants have Failed to Satisfy the Procedural Requirements for Removal.
Defendants claim that New Line Mortgage has not been properly served in this action andtherefore need not be a party to the removal filed by ReconTrust and Bank of America HomeLoans Servicing LP.
Case 2:10-cv-00492-CW-SA Document 10 Filed 06/03/10 Page 2 of 11
 
New Line Mortgage has been properly served (see Exhibit 1) and should have joined in theMotion to Remove to Federal Court.Furthermore, Defendants ReconTrust Company and Bank of America Home Loan Servicingclaim that Defendants Bank of America N.A. and Mortgage Electronic Registration SystemsInc. have not been served in this action. The telephone recording at Mortgage ElectronicSystems Inc. states the address for perfection of Service of Process as:3300 SW 34th Ave #101Ocala FL 34474-7448Mortgage Electronic Systems Inc. was properly served. See Exhibit 2. Additionally, Bank of America N.A. has a service of process address listed with the State of:c/o CT Corporation System150 Fayetteville St., Box 1011Taleigh NC 27601Bank of America N.A. is properly served. See Exhibit 3. Defendants ReconTrust Companyand Bank of America Home Loan Servicing have filed to join necessary parties in their motionfor removal. For this reason Defendants ReconTrust and Bank of America Home LoansServicing LP improperly filed a Motion for Removal.CONCLUSIONRather than dismissing this case, which is precisely what Defendants want to happen, this caseshould be remanded to the state court from whence in originated.
Case 2:10-cv-00492-CW-SA Document 10 Filed 06/03/10 Page 3 of 11

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