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Douglas E. Gershuny, Executive Director South Jersey Legal Services, Inc. 745 Market Street Camden, New Jersey 08102 (856)964-2010 Ext. 6907 By: Abigail B. Sullivan, Esq. Attorneys for Defendant/Third Party Plaintiffs, Victor & Enoabasi Ukpe UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE _________________________________________ : BANK OF NEW YORK AS TRUSTEE FOR : THE CERTIFICATE HOLDERS CWABS, INC. : ASSET-BACKED CERTIFICATES, : SERIES 2005-AB3 : : Judge: Hon. Joseph H. Rodriguez, U.S.D.J Plaintiff, : : v. : : VICTOR and ENOABASI UKPE., : CIVIL ACTION NO.: 09-cv-1710 : : Defendants, : _________________________________________ : VICTOR and ENOABASI UKPE : : Counterclaimants : and Third Party Plaintiffs : : v. : Civil Action : BANK OF NEW YORK AS TRUSTEE FOR : THE CERTIFICATE HOLDERS CWABS, INC. : ASSET-BACKED CERTIFICATES, : SERIES 2005-AB3, : Defendant on the Second : Amended Counterclaim, : and : AMERICAS WHOLESALE LENDER; : COUNTRYWIDE HOME LOANS, INC.; : MORGAN FUNDING CORPORATION; :

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ROBERT CHILDERS; COUNTRYWIDE : HOME LOANS SERVICING LP, PHELAN : HALLINAN & SCHMIEG , PC : Third Party Defendants on : the Second Amended : Third Party Complaint : __________________________________________ _____________________________________________________________________________ BRIEF OF DEFENDANT/THIRD PARTY PLAINTIFFS VICTOR AND ENOABASI UKPE IN SUPPORT OF MOTION TO REMAND UKPES CAUSE OF ACTION TO STATE COURT _____________________________________________________________________________

Of counsel: James Villere, Jr., Esq. Mark Malone, Esq. Erica Askin, Esq. LAW OFFICE OF JAMES F. VILLERE, JR. 441 Main Street Metuchen, New Jersey 08840 (973) 267-0787

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ...............................................................................1 COUNTER-STATEMENT OF PROCEDURAL HISTORY AND FACTS ...............................................................2 LEGAL ARGUMENT...............................................................................................6 I. THE COUNTRYWIDE THIRD-PARTY DEFENDANTS REMOVAL VIOLATES THE WELL-PLEADED COMPLAINT RULE...............................................................................6 THE UKPES CLAIMS AGAINST THE COUNTRYWIDE THIRD-PARTY DEFENDANTS ARE NOT SEPARATE AND INDEPENDENT FROM THE CWABS TRUSTEES CLAIMS ...........................................................12 THE UKPE DEFENDANTS REQUEST REMAND OF THE ENTIRE CASE BECAUSE NEW JERSEY STATE LAW PREDOMINATES ALL MATTERS INVOLVED ....................15 THE UKPE DEFENDANTS REQUEST THE COURT TO AWARD ATTORNEY FEES AND COSTS ........................................16

II.

III.

IV.

CONCLUSION........................................................................................................17

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TABLE OF AUTHOTITIES Federal Cases American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951) .............................. 14, 15 Balazik v. County of Dauphin, 44 F.3d 209 (3rd Cir. 1995) ..................................12 Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)...................................................10 Coleman v. A & D Mach. Co., 298 F. Supp. 234 (E.D. Cal. 1969) ........................15 Collins v. Baxter Healthcare Corp., 949 F. Supp. 1143 (D.N.J. 1996) ...................11 First Nat'l Bank v. Pulaski, 301 F.3d 456 (6th Cir. 2002) .......................................14 FirstBank v. Gittens, 466 F. Supp. 2d 614 (D.Virgin Islands 2006) .................. 9, 11 Kaye Associates v. Bd. of Chosen Freeholders of Gloucester, 757 F. Supp. 486 (D.N.J. 1991)........................................................... 6, 7, 8, 9, 11 Krashna v. Oliver Realty, Inc., 895 F.2d 111 (3d Cir. 1990) ..................................10 Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986) ................................10 Michaels v. New Jersey, 955 F. Supp. 315 (D.N.J. 1996).......................................12 Monmouth-Ocean Collection Serv., Inc. v. Klor, 46 F. Supp. 2d 385(D.N.J. 1999)..................................................................... 9, 11 New Venture Gear, Inc. v. Fonehouse, 982 F. Supp. 892 (N.D.N.Y. 1997).... 14, 15 Palmer v. Univ. of Medicine and Dentistry of N.J., 2009 U.S. Dist. Lexis 25313, 17 (D.N.J. 2009) ............................................ 10. 11 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941) .....................................7 Somerset Medical Center v. Jewett, 2009 WL 792269 (D.N.J. 2009) ....................11

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Soper v. Kahn, 568 F. Supp. 398 (D. Md. 1983).....................................................15 State Farm Indemnity Co. v. Fornaro, 227 F. Supp. 2d 229 (D.N.J. 2002) ............................................................................................ 9, 11, 13 Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259 (3d Cir.1994) ......................7 Syngenta Crop Protection Inc. v. Henson, 537 U.S. 28 (2002).................................7 State Cases Associates Home Equity Services, Inc. v. Troup, 343 N.J. Super. 254 (App Div. 2001)...................................................................13 Federal Statutes 15 U.S.C. 1692....................................................................................................5, 6 28 U.S.C. 1331........................................................................................................7 28 U.S.C. 1441..................................................................................... 1, 6, 7, 9, 10 28 U.S.C. 1441(a) ...............................................................................................7, 8 28 U.S.C. 1441(b) ...................................................................................................8 28 U.S.C. 1441(c) .................................................................................... 7, 8, 9, 14 28 U.S.C. 1446........................................................................................................8 28 U.S.C 1446(a) ............................................................................................ 3, 12 28 U.S.C. 1446(b) ...................................................................................................7 28 U.S.C. 1447(c) .................................................................................................16 42 U.S.C. 3601......................................................................................................13 Other Authorities 1A MOORE'S FEDERAL PRACTICE 0.167[10] (2nd Ed.1990) .........................7

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PRELIMINARY STATEMENT The initial pleading in this case was filed on March 13, 2008 in the Superior Court of New Jersey where Plaintiff Bank of New York as Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates, Series 2005-AB3 (hereinafter CWABS Trustee) filed a two-count foreclosure action based entirely on state law claims against the Ukpe Defendants. This residential mortgage

foreclosure complaint and all counter-claims and third-party claims, including those against third party Defendants Americas Wholesale Lender, Countrywide Home Loan Servicing LP, and Countrywide Home Loans, Inc. (collectively the Countrywide Third-Party Defendants) should be remanded to State Court. This foreclosure case is not removable because it does not arise under federal law pursuant to 28 U.S.C. 1441. The well-pleaded complaint rule followed by a majority of the District Courts in this Circuit and elsewhere around the country requires that the federal question be presented on the face of the plaintiffs properly pleaded complaint. After extended motion practice and discovery in the state court civil action, the Ukpe defendants uncovered evidence of the use of fraudulent mortgage assignments in this case and thousands of other foreclosure cases. The Honorable William C. Todd, P.J. Ch., Superior Court of New Jersey, scheduled a plenary

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hearing for April 20, 2009 to get to the bottom of the matter. (A copy of Judge Todds March 4, 2009 order is attached as Exhibit A.) On March 30, 2009, the foreclosure Defendants, Mr. and Mrs. Ukpe, submitted a 41-page brief addressing the plenary hearing issues in the state court civil action. (A copy of the brief is attached as Exhibit B.) Plaintiff CWABS Trustees answering brief was due on April 13, 2009. The Countrywide Third Party Defendants filed their removal action on April 9, 2009. The issues in the pending plenary hearing involve matters of great public importance. The Countrywide Third-Party Defendants removal has thwarted the effort to expose and remedy widespread fraud involving thousands of New Jersey mortgage foreclosure cases. In 2008 alone, Third Party Defendant, Phelan Hallinan & Schmieg, P.C. (PHS), handled between 24,000 to 26,000 foreclosure cases in New Jersey and Pennsylvania. (See Certification of Abigail B. Sullivan, Esq. attached as Exhibit O). Defendants respectfully request the Court to remand the matter forthwith. COUNTER-STATEMENT OF PROCEDURAL HISTORY AND FACTS On March 13, 2008, Plaintiff CWABS Trustee filed the initial pleading in this removal matter, a foreclosure complaint in the Chancery Division of the Superior Court of New Jersey, seeking a determination of the amount due on a promissory note executed by Defendants along with possession of the property

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securing payment of the note. The foreclosure complaint is based entirely on state law claims. No federal question claims were asserted. (A copy of the March 13, 2008 complaint is attached as Exhibit C.) Seemingly in contravention of 28 U.S.C 1446(a), the Countrywide Third Party Defendants did not include a copy of this initial pleading with their removal notice. Indeed, their procedural history in the notice of removal incorrectly begins on March 11, 2009, nearly a year after the initial foreclosure complaint was filed. They failed to include any relevant pleadings and orders from the state case predating the filing of an amended answer, counterclaim and third-party complaint on March 10, 2009. (Notice of removal, 1.) Through South Jersey Legal Services, Inc., Defendants filed an answer and counterclaim to the foreclosure complaint on April 29, 2008 raising federal question claims against Plaintiff CWABS Trustee. (A copy of the answer and counterclaim is attached as Exhibit D.) By order dated September 30, 2008, the state court granted leave for the Ukpe defendants to file a third-party complaint. (A copy of the September 30, 2008 Order is attached as Exhibit E.) On October 23, 2008, the Ukpes filed a third party complaint against Third Party Defendant Americas Wholesale Lender alleging common law fraud, New Jersey Consumer Fraud Act, negligence and contract claims. Additionally, the third party complaint alleged violations of

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federal law involving the Real Estate Settlement Procedures Act, the Fair Housing Act, and the Equal Credit Opportunity Act all arising out of the same common nucleus of facts involving the mortgage loan transaction. (A copy of the October 22, 2008 third party complaint is attached as Exhibit F.) In October 2008, Plaintiff CWABS Trustee moved for summary judgment to strike the Ukpes answer. Judge Todd denied the Plaintiff's summary judgment motion and directed the Ukpes to bring a Motion to Dismiss for lack of jurisdiction pursuant to R. 4:6-2(a). Plaintiff opposed the Ukpes motion and cross-moved for summary judgment. The Ukpes opposed the cross-motion for summary judgment in part based upon deposition testimony showing the assignment of the Ukpes mortgage and note to Plaintiff CWABS Trustee had been falsely notarized. At the hearing on these cross motions, Judge Todd directed that additional discovery be made and set in motion the procedures leading up to the Plenary Hearing scheduled for April 20, 2009. (See Exhibit O, Certification of Abigail B. Sullivan) In a March 4, 2009 Order, Judge Todd directed the Ukpes counsel to file an amended Third Party Complaint by March 10, 2009 and to serve all third party defendants by March 17, 2009. (See Exhibit A) An amended answer,

counterclaim and third party complaint was filed on March 10, 2009. Although this was the fourth pleading filed in the case after (1) the March 13, 2008 complaint, (2) the April 29, 2008 answer and counterclaim, and (3) the October 23,

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2008 third party complaint, it is the first pleading attached to the Countrywide Third Party Defendants notice of removal. (A filed copy of the March 10, 2009 amended third party complaint is attached to the Countrywide Third Party Defendants notice of removal as Exhibit G.) On March 20, 2009, the Ukpes counsel filed the fifth pleading in the state court civil action, a second amended answer, counterclaim and third party complaint adding PHS as a third party defendant for violating the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et. seq. (FDCPA). (An unfiled copy of the March 20, 2009 amended answer, counterclaim and third party complaint is also attached to the Countrywide Third Party Defendants notice of removal as Exhibit H.) On March 30, 2009, Defendants filed their brief in connection with the scheduled April 20, 2009 plenary hearing before Judge Todd. In part, Defendants asserted, The evidence will establish a prima facie case that in connection with recording the assignments with county clerks and filing the assignments with the court system, PHS lawyers were involved in: Falsifying or Tampering with Records, N.J.S.A. 2C:21-4a. Tampering with Public Records or Information (Making, Presenting or Filing a False Document, Record or Thing), N.J.S.A. 2C:28-7a(2).

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Tampering with Public Records or Information (False Entry or Alteration), N.J.S.A. 2C:28-7a(1). Fraud on the court. Consumer Fraud Act violations. Common law fraud. Violation of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et. seq. (FDCPA). (See Exhibit B, March 30, 2009 brief, pp. 8-9.) On April 9, 2009, the Countrywide Third Party Defendants removed the entire case from state court. The April 9, 2009 removal occurred almost 13 months after the initial foreclosure pleading was filed. The removal occurred just short of one year after the Ukpe defendants filed an answer and counterclaim against CWABS Trustee asserting federal question claims. LEGAL ARGUMENT I. THE COUNTRYWIDE THIRD-PARTY DEFENDANTS REMOVAL VIOLATES THE WELL-PLEADED COMPLAINT RULE.

The right of defendants to remove state claims to federal court is purely statutory--such that [the Courts] removal jurisdiction exists only when authorized by Congress. Kaye Associates v. Bd. of Chosen Freeholders of Gloucester, 757 F. Supp. 486, 488 (D.N.J. 1991). Courts narrowly construe Section 1441 against

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removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). See also Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir.1994), Kaye Associates 757 F. Supp. at 488. The statutory procedures for

removal are to be strictly construed. Syngenta Crop Protection Inc. v. Henson, 537 U.S. 28, 32 (2002). A district court has subject matter jurisdiction to hear claims arising under the Constitution, laws, or treaties of the United States," pursuant to 28 U.S.C. 1331. A defendant may remove a claim brought in state court to federal district court under 28 U.S.C. 1441(a) in cases where the United States district courts have original jurisdiction. If the removed case presents a separate and independent claim or cause of action based on federal question jurisdiction that is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matter in which State law predominates. 28 U.S.C. 1441(c). 28 U.S.C. 1441 et seq. creates a narrow removal jurisdiction for federal courts limited to any civil action brought in a State court of which the district courts of the United States have original jurisdiction, . . . Congress further limited removal jurisdiction in expressly providing: The removal of an action under this subsection [1441] shall be made in accordance with section 1446 of this title, . . . In turn 28 U.S.C. 1446(b) provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant,

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through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, . . . . (emphasis added.) The initial pleading in the civil action brought in the Superior Court of New Jersey is the March 13, 2008 foreclosure complaint in which the Ukpes are the only defendants. Only the Ukpes could remove this civil action and only if federal question jurisdiction appeared on the face of CWABS Trustees foreclosure complaint. Congress carved out an additional, narrow removal exception

applicable only to the Ukpe defendants named in the initial pleading. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, . . . 28 U.S.C. 1446 (b). (emphasis added.) Congress did not confer removal jurisdiction on federal courts for third-party defendants. [T]hird-party defendants are not proper parties for removal because they are not 'defendants' under 1441(a) and/or because 1441(c) only applies to claims joined by plaintiffs." Kaye Associates v. Board of Chosen Freeholders, 757 F. Supp. 486, 487 (D.N.J.1991) (citing 1A MOORE'S FEDERAL PRACTICE 0.167[10] (2nd Ed.1990). The Kaye court reasoned that the legislative history of the statute shows that the section was not intended to extend the right of removal to

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third-party defendants. Id. at 489 ("Looking at that legislative history, it seems clear that the intent of 1441(c) was to ensure that the plaintiff cannot preclude the right to remove a removable claim through the device of joining a wholly separate and independent non-removable claim.") (internal quotations and citation omitted). The Kaye court held "[g]iven that intent, the policy of strict construction of removal statutes, and the apparent conflict with other well-established principles of removal, we cannot conclude, without more express guidance from Congress, that section (c) [of 28 U.S.C. 1441] was intended also to expand removal jurisdiction by allowing removal by third-party defendants." Kaye Assocs., 757 F.Supp. at 489. Accordingly, the majority of courts within this District apply the wellpleaded complaint rule only to the initial pleadings of the original plaintiff and thus disallow third party defendants to remove state claims to federal court. See e.g., State Farm Indemnity Co. v. Fornaro, 227 F. Supp. 2d 229 (D.N.J. 2002); FirstBank v. Gittens, 466 F. Supp. 2d 614 (D.V.I. 2006); Monmouth-Ocean Collection Serv., Inc. v. Klor, 46 F. Supp. 2d 385, 393 (D.N.J. 1999); The minority rule allows third party defendants to remove but only if the claims against them are separate and independent from the main cause of action. In order for a case to be removable under 1441 and 1331, the wellpleaded complaint rule requires that the federal question be properly presented on the face of the plaintiffs properly pleaded complaint." Krashna v. Oliver Realty,

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Inc., 895 F.2d 111, 113 (3d Cir. 1990) (quoting Railway Labor Executives Ass'n v. Pittsburgh & L.E. R.R., 858 F.2d 936, 939 (3d Cir. 1988)). See Palmer v. Univ. of Medicine and Dentistry of N.J., 2009 U.S. Dist. Lexis 25313, 17 (D.N.J. 2009) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 (1987)). In Palmer v. Univ. of Medicine and Dentistry of N.J., supra, the court held that a cross-claim could not serve as the basis for arising under jurisdiction pursuant to Section 1441 even when the defendants cross-claim raised a federal constitutional question. See 2009 U.S. Dist. Lexis 25313, 17, 25-27 (D.N.J. 2009). Under the well-pleaded complaint rule as applied in Palmer, the defendants federal First Amendment claim was insufficient for arising under jurisdiction when the plaintiffs original claims arose under New Jerseys Conscientious Employee Protection Act (CEPA) and common law claims for slander, intentional infliction of emotional distress, and intentional interference with prospective economic advantage. Id. at 25-26. Declining to expand the wellpleaded complaint rule to cross-claims, the Palmer court emphasized that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Id. at 26 (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813-14 (1986)). The courts decision in Palmer followed the weight of authority in thirdparty defendant removal cases within this circuit holding that removal is reserved

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solely for the original defendant except in the limited circumstance of a third-party defendant removing a state claim preempted by the federal Employee Retirement Income Security Act (ERISA). See 2009 U.S. Dist. Lexis 25313 at 16. See e.g., State Farm Indemnity Co. v. Fornaro, 227 F. Supp. 2d 229 (D.N.J. 2002); FirstBank v. Gittens, 466 F. Supp. 2d 614 (D. Virgin Islands 2006); MonmouthOcean Collection Serv., Inc. v. Klor, 46 F. Supp. 2d 385, 388-89 (D.N.J. 1999) (adopting the Magistrate Judges report asserting the majority view that a thirdparty defendant may not remove under 1441); Kaye Associates, 757 F. Supp. at 487-89 (D.N.J. 1991) (concluding that the better reasoned view is that third-party defendants do not have the right to remove cases to federal courts under section 1441). See also Collins v. Baxter Healthcare Corp., 949 F. Supp. 1143 (D.N.J. 1996), for an opinion by Judge Rodriguez remanding the case to state court under the well-pleaded complaint rule because removal was not based upon federal claims within the plaintiffs original pleadings and because the case did not properly come within federal jurisdiction by complete preemption. The most recent discussion on the issue in this District is found in Chief Judge Browns unpublished opinion in Somerset Medical Center v. Jewett, et al., 2009 WL 792269 (D.N.J. 2009) After an extensive discussion of the majority and minority rules, the Court decided that removal was inappropriate under either rule. Under the majority rule, a third-party defendant is not empowered to remove.

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Under the minority rule, the third-party defendant could not remove because the indemnification claim against it was not a separate and independent claim. (Slip op. p. 4.) (A copy of the decision is attached as Exhibit P.) Application of the well-pleaded complaint rule to the present removal action means the removal must be denied. The initial state-court mortgage foreclosure complaint by Plaintiff CWABS Trustee against the Ukpe defendants Ukpes was purely a state law claim based on an alleged failure to pay a promissory note secured by a mortgage on real property. No federal question claims are present. Finally, the Ukpe defendants have never sought removal and they never consented to the removal in this case. Judicial construction of the phrase in 28 U.S.C. 1446(a) "defendant or defendants" has given rise to the "well-settled rule of law - commonly known as the `rule of unanimity' - that all defendants must join in or consent to the removal petition." Michaels v. New Jersey, 955 F. Supp. 315, 319 (D.N.J. 1996) (citing Balazik v. County of Dauphin, 44 F.3d 209, 213 (3rd Cir. 1995) (other citations omitted)). II. THE UKPES CLAIMS AGAINST THE COUNTRYWIDE THIRD-PARTY DEFENDANTS ARE NOT SEPARATE AND INDEPENDENT FROM THE CWABS TRUSTEES CLAIMS.

The third-party defendants cannot remove under the majority view of the well-pleaded complaint rule. Even if this Court adopts the minority view, then the Countrywide Third-Party Defendants failed to meet their burden of showing that
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the allegations of the Ukpe Defendants regarding the fraudulent origination of the mortgage are separate and independent from the action to foreclose. In interpreting the scope of their removal jurisdiction, courts adopting the minority rule within this District disallow third party defendants to remove state claims to federal court unless the claims against them are separate and independent from the main cause of action. See e.g., State Farm Indemnity Co. v. Fornaro, 227 F. Supp. 2d 229 (D.N.J. 2002). The Countrywide Third-Party

Defendants fail to show how the allegations of the Ukpe Defendants regarding the fraudulent origination of the mortgage are separate and independent from the action to foreclose. In Associates Home Equity Services, Inc. v. Troup, 343 N.J. Super. 254 (App. Div. 2001), the New Jersey Appellate Division ruled that predatory lending counterclaims and third-party claimswhich included federal discrimination housing claims under Title VIII of the Fair Housing Act, 42 U.S.C. 3601 et seq. are germane in state foreclosure actions. The Ukpes two Fair Housing Act (FHA) and Equal Credit Opportunity Act (ECOA) claims are set among eight other state consumer fraud and contractual issues that render the entire case a state controversy over CWABS Trustees right to foreclose as an assignee of the Countrywide Third-Party Defendants Americas Wholesale Lender.

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The Ukpes FHA and ECOA third-party claims cannot be used by the Countrywide Third-Party Defendants to bring this foreclosure action, strongly rooted in New Jerseys property, contract, and consumer law, into federal court. The Supreme Court held that claims are not separate and independent where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S. Ct. 534, 540, 95 L. Ed. 702 (1951). If the non-removable claim is derived from the same set of facts as the main cause of action, it is not a separate and independent claim under Section 1441(c). See New Venture Gear, Inc. v. Fonehouse, 982 F. Supp. 892, 893 (N.D.N.Y. 1997). It is well-recognized that claims by third-party defendants are rarely separate and independent from the main cause of action in removal cases. See First Natl Bank v. Pulaski, 301 F.3d 456, 465 (6th Cir. 2002). As the Sixth Circuit Court of Appeals stated, even in the courts holding that 1441(c) permits third-party defendants to remove to federal court, as a general proposition, those courts have often held that the third-party claims at issue did not satisfy the "separate and independent" requirement of 1441(c). Id. See also New Venture Gear, Inc. v. Fonehouse, 982 F. Supp. 892, 893 (N.D.N.Y. 1997) (holding that "a third-party claim cannot be 'separate and independent' if it is substantially derived from the same set of facts, or if it is contingent in some way on the plaintiff's non-removable

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claim"); Soper v. Kahn, 568 F. Supp. 398, 405 (D. Md. 1983) (holding that thirdparty claim for indemnity, under state law, was not "separate and independent" under 1441(c)); Coleman v. A & D Mach. Co., 298 F. Supp. 234, 237 & n.9 (E.D. Cal. 1969) (holding that removal was improper because the third-party claim was not separate and independent.) Following the Supreme Courts standard in American Fire & Cas. Ins. Co. v. Finn, 341 U.S. 6, 14 (1951), the Plaintiff CWABS Trustee asserted a single wrong of nonpayment of the mortgage loan, which the Ukpes allege arises from an interlocked series of transactions, beginning with the discriminatory subprime mortgage given by the Countrywide Third-Party Defendants. Contrary to the Countrywide Third-Party Defendants contention that the collection rights under the mortgage are separate and independent from the origination and set-up of the Ukpes loan (Notice of Removal 7), the collection rights under the mortgage are derived from the same set of facts controlling the discriminatory and predatory origination of the mortgage loan. New Venture Gear, Inc. v. Fonehouse, 982 F. Supp. 892, 893 (N.D.N.Y. 1997). III. THE UKPE DEFENDANTS REQUEST REMAND OF THE ENTIRE CASE BECAUSE NEW JERSEY STATE LAW PREDOMINATES ALL MATTERS INVOLVED.

Even if this Court elects to follow the minority rule, Defendants respectfully request the Court to remand the entire matter forthwith. The litigation has been

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going on for over a year and involves a foreclosure action by a securitized trust created by the Countrywide Third Party Defendants. Evidence of the use of

fraudulent assignments in the case and thousands of other cases led the Superior Court of New Jersey to schedule a plenary hearing to get to the bottom of the matter. Removal of the claims would frustrate efforts to expose and remedy widespread fraud involving thousands of mortgage foreclosure cases in New Jersey. IV. THE UKPE DEFENDANTS REQUEST THE COURT TO AWARD ATTORNEY FEES AND COSTS An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. 28 U.S.C. 1447(c). An award of counsel fees is appropriate because the Countrywide Third-Party Defendants removal action did not comply with the removal statutes mandate to include the initial pleading. The initial pleading reveals on the face of the complaint that the matter is not removable if this Court follows the majority rule. In addition, the Countrywide Third-Party Defendants electronically filed their removal notice with this Court on April 9, 2009, they hand-delivered it to the state court on April 9, 2009, but sent it by regular mail to the Ukpe Defendants so their counsel did not receive it until April 13, 2009. Because their counsel did not receive timely notice of the removal, the Ukpes

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counsel continued to work through the Easter holiday weekend in preparation for the plenary hearing before Judge Todd. Accordingly, an award of attorney fees is appropriate not just for removal work, but also for the work that was done preparing for April 20, 2009 plenary hearing in state court because counsel did not receive prompt and appropriate notice of the removal action. South Jersey Legal Services, Inc. (SJLS) through its counsel Abigail B. Sullivan, Esq., is not requesting attorney fees and will not be sharing in any fees awarded as it is a recipient of Legal Services Corporation funds and is therefore prohibited from requesting and receiving attorney fees. Co-

counsel James F. Viller Jr., Esq., and Mark J. Malone, Esq., and Erica B. Askin, Esq., from the Law Offices of James Viller, Jr. are not so prohibited. SJLS, in addition, is not prohibited from requesting and receiving costs incurred. CONCLUSION For the foregoing reasons, the Court should remand the matter to the state court forthwith. Dated: April 24, 2009 Respectfully submitted, SOUTH JERSEY LEGAL SERVICES, INC. Attorney for Defendants/Third Party Plaintiffs By: /s/ Abigail B. Sullivan, Esquire ABIGAIL B. SULLIVAN, ESQUIRE

On the brief: James F. Viller Jr., Esq. Mark J. Malone, Esq. Erica B. Askin, Esq. Abigail B. Sullivan, Esq.
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