Editor: David Reiss
Brooklyn Law School

January 31, 2014

Michigan Court Finds Plaintiff’s Argument to Prevent Removal Lacked Merit

By Ebube Okoli

The court in Ordway v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 145228 ( E.D. Mich. Oct. 8, 2013) granted defendants’ motion and denied plaintiff’s motion.

This was a case challenging foreclosure proceedings. Plaintiff named Bank of America, N.A. (BOA); Bank of New York Mellon (BNYM), as Trustee for the benefit of the CWABS Inc. Asset-Backed Certificates, Series 2007-9 (the Trust); and unknown holders of the trust as defendants.

The complaint asserts multiple claims, as follows:

Count I Declaratory Relief that the foreclosure violated MCL 600.3204(1) and (3); Count II Declaratory Relief that the foreclosure violated MCL 600.3204(4), 600.3205a, and 600.3205c; Count III Breach of Contract; Count IV Intentional Fraud; Count V Constructive Fraud; Count VI Tortious Interference with Contractual Relations; Count VII Civil Conspiracy; Count VIII Michigan’s Regulation of Collection Practices Act; and Count IX: Accounting.

BOA and BNYM removed the case to federal court on the grounds of diversity jurisdiction under 28 U.S.C. § 1332. Before the court was the plaintiff’s motion to remand and defendants’ motion to supplement the notice of removal. The court denied plaintiff’s motion and granted defendants’ motion.

Plaintiff contended that removal was improper because (1) the unknown Trust holders did not consent to removal; (2) defendants did not attach the TRO with the removal papers; and (3) defendants had not established that diversity jurisdiction exists because they have not stated in their removal papers the citizenship of the unknown trust holders. The court found that the plaintiff’s arguments lack merit.

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