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.

Barnhart v. Bank of America, N.A.

United States District Court, W.D. Michigan, Southern Division

February 1, 2018

MICHAEL BARNHART, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendants.

          HON. JANET T. NEFF

          REPORT AND RECOMMENDATION

          ELLEN S. CARMODY UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss, (ECF No. 10), and Plaintiff's Motion to Remand, (ECF No. 11). In accordance with 28 U.S.C. § 636(b), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for resolution of dispositive motions, the undersigned recommends that Plaintiff's motion be denied, Defendant's motion be granted, and this action terminated.

         BACKGROUND

         Plaintiff initiated the present action on or about June 26, 2017, in Eaton County Circuit Court against Bank of America, N.A. and 10 unidentified John Does, none of whom have been identified or served. (ECF No. 1 at PageID.9-32). On July 17, 2017, Bank of America removed the matter to this Court. This action concerns real property located at 424 East Main Street, Potterville, Michigan. (ECF No. 1 at PageID.12). On or about March 17, 2006, Plaintiff obtained a loan from Bank of America in the amount of one hundred thirty-four thousand, four hundred dollars ($134, 400.00) and as security for this loan, Plaintiff executed a mortgage on the property in question. (ECF No. 1 at PageID.34-48). On August 9, 2012, Bank of America assigned the mortgage on Plaintiff's property to Nationstar Mortgage, LLC. (ECF No. 1 at PageID.50). Plaintiff subsequently defaulted on his mortgage and the subject property was sold at auction.

         Plaintiff herein asserts numerous causes of action. However, this is at least the third lawsuit Plaintiff has initiated regarding the foreclosure and sale of the aforementioned property. See Barnhart v. Nationstar Mortgage, LLC, 1:15-cv-627 (W.D. Mich.); Barnhart v. Nationstar Mortgage, LLC, 1:17-cv-302 (W.D. Mich.). Bank of America, N.A. now moves to dismiss Plaintiff's claims on res judicata grounds. Plaintiff has responded by moving to remand this matter to state court. For the reasons discussed herein, the undersigned recommends that Plaintiff's motion to remand be denied and Defendant's motion to dismiss be granted. The undersigned further recommends that Plaintiff's claims against the 10 unidentified John Does be dismissed for failure to timely effect service.

         ANALYSIS

         I. Plaintiff's Motion to Remand

         Plaintiff argues that this matter must be remanded to state court because there does not exist complete diversity between the parties. Specifically, Plaintiff argues that he and Bank of America, N.A. are both Michigan citizens thereby destroying diversity. Plaintiff is mistaken.

         Federal district courts have original jurisdiction of all civil actions "arising under the Constitution, laws, or treaties of the United States" as well as actions where the amount in controversy exceeds $75, 000 and is between citizens of different states. 28 U.S.C. §' 1331, 1332. Any civil action asserted in a state court over which a federal district court has original jurisdiction, "may be removed by the defendant. . .to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Defendant, as the party seeking removal, "bears the burden of demonstrating federal jurisdiction, and all doubts should be resolved against removal." Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007).

         When assessing whether there exists complete diversity between the parties, the citizenship of the John Doe defendants is disregarded. See 28 U.S.C. § 1441(b)(1) (“[i]n determining whether a civil action is removable on the basis of [diversity], the citizenship of defendants sued under fictitious names shall be disregarded”); Howell v. Tribune Entertainment Co., 106 F.3d 215, (7th Cir. 1997) (“naming a John Doe defendant will not defeat the named' defendants' right to remove a diversity case if their citizenship is diverse from that of the plaintiffs”). Thus, the question is simply whether Defendant Bank of America, N.A. is diverse from Plaintiff.

         Plaintiff alleges that he is a citizen of Michigan. (ECF No. 1 at PageID.12). Defendant Bank of America, N.A. is a national bank[1] which, for diversity jurisdiction purposes, is considered to be a citizen of the state in which its primary place of business is located. See Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006); Hargrow v. Wells Fargo Bank, N.A., 491 Fed.Appx. 534, 536 (6th Cir., July 3, 2012) (same). Bank of America, N.A. has its primary place of business in North Carolina. (ECF No. 14). Accordingly, there exists complete diversity in this matter. The undersigned, therefore, recommends that Plaintiff's motion to remand be denied.

         II. Defendant's Motion to Dismiss

         On June 12, 2015, Plaintiff filed a lawsuit against Nationstar Mortgage and ten unidentified John Does alleging various claims concerning the property identified above. Barnhart v. Nationstar Mortgage LLC, case no. 1:15-cv-627 (W.D. Mich.). Plaintiff's claims were subsequently dismissed for failure to ...


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.