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Green Tree Servicing, LLC v. Williams

United States District Court, N.D. Illinois, Eastern Division

June 24, 2014

GREEN TREE SERVICING, LLC, Plaintiff,
v.
MILTON WILLIAMS, U.S. BANK NATIONAL ASSOCIATION, VILLA OAKS CONDOMINIUM ASSOCIATION, UNKNOWN OWNERS, and NON-RECORD CLAIMANTS, Defendants.

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge.

On October 16, 2013, Plaintiff Green Tree Servicing, LLC ("Green Tree") filed a complaint to foreclose on a mortgage in the Circuit Court of Cook County (Dkt. No. 7, Ex. A, "Compl." or "Complaint"), against Milton Williams ("Mr. Williams"), U.S. Bank National Association ("U.S. Bank"), Villa Oaks Condominium Association ("Villa Oaks"), and unknown owners and non-record claimants (collectively, "Defendants"). Mr. Williams was served via publication in the Chicago Daily Law Bulletin on November 29, 2013, at the latest. (Dkt. No. 7, Ex. B, at 7.) On February 10, 2014, seventy-three days after Mr. Williams was served, he filed a notice removing the case to the United States District Court for the Northern District of Illinois, Eastern Division. (Dkt. No. 1, the "Notice of Removal".)

Before the court is Green Tree's "Motion to Remand Pursuant to 28 U.S.C. 1447(c)" (Dkt. No. 6, the "Motion to Remand"), accompanied by a supporting memorandum (Dkt. No. 7, "Def's Mem.") Green Tree argues this matter should be remanded to the Circuit Court of Cook County, because the Notice of Removal was untimely and not joined by all Defendants. (Def's Mem. at 2-5.) Additionally, Plaintiff argues that this court lacks jurisdiction over the matter, in the absence of a federal question and diversity jurisdiction. ( Id. at 5-7.) For the reasons set forth below, this court grants Green Tree's Motion to Remand.

BACKGROUND

As mentioned above, Green Tree filed a complaint against Defendants to foreclose on a mortgage in the Circuit Court of Cook County. (Dkt. No. 7, Ex. A.) In this case, Mr. Williams, the unknown owners, and non-record claimants were served via publication in the Chicago Daily Law Bulletin on November 29, 2013, at the latest. (Dkt. No. 7, Ex. B, at 7.)

Under Illinois law, service by publication is accomplished through publishing the details of a suit in a newspaper in the county where the suit is pending. See 735 ILCS 5/2-206(a). When a defendant cannot be found in spite of due inquiry, the Illinois Code of Civil Procedure permits a plaintiff to file an affidavit, to that effect, with the clerk of court where the action is pending. Id. After this affidavit is filed, the clerk may effectuate service by publication. Id. [1]

Before service by publication can occur in Cook County, the local rules also require the actual individual, who inquired into a defendant's whereabouts, to file an affidavit. See Cook Cnty. Local R. 7.3. This affidavit must set forth what actions were taken to attempt to locate the defendant. Id.

Here, Green Tree filed the affidavits required under Section 2-206 of the Illinois Code of Civil Procedure and Cook County Local Rule 7.3 on November 12, 2013. (Def's Mem., Ex. B, at 1-6.) Notice of the action was then published in the Chicago Daily Law Bulletin on November 15, 22, and 29, 2013. ( Id. at 7.) The Chicago Daily Law Bulletin executed its Certificate of Publication on November 29, 2013. ( Id. ) Service of process by publication, therefore, was affected on Mr. Williams, the unknown owners, and non-record claimants at the very latest on November 29, 2013.

Again, seventy-three days passed until Mr. Williams filed the Notice of Removal on February 10, 2014, seeking to remove this case from Cook County Circuit Court to the United States District Court for the Northern District of Illinois, Eastern Division. (Dkt. No. 1.) The Notice of Removal was not joined by any of the other defendants in this action. ( Id. ) Mr. Williams filed the Notice of Removal, despite the fact that Mr. Williams is an Illinois resident. (Def's Mem. at 6.)

LEGAL STANDARD

Green Tree moves to remand this case to Cook County Circuit Court under 28 U.S.C. ยง 1447(c). That provision reads in relevant part as follows:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.... If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.... A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

Id.

When ruling on a motion to remand, "[c]ourts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum, " with any doubt regarding jurisdiction resolved in favor of remand. Battle v. Countrywide Home Loans, Inc., No. 05-3022, 2005 WL 2284250, at *1 (N.D. Ill. Sept.15, 2005) (Der-Yeghiayan, J.) The burden of establishing federal jurisdiction falls on the party seeking removal from state court. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). An order remanding a case to the state court from which it was removed is not reviewable on appeal or ...


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