United States District Court, C.D. Illinois, Peoria Division
Loan Servicing, LLC, Plaintiff, represented by Andrew John
Hawes, PIERCE & ASSOCIATES & Eleazar Calero, PIERCE &
Barbara Jo Ghiselin, also known as Barbara Ghiselin,
Defendant, Pro Se.
ORDER & OPINION
BILLY McDADE, District Judge.
matter is before the Court on Defendant Barbara Jo
Ghiselin's ("Ghiselin") motion for leave to
proceed in forma pauperis (Doc. 2) and Plaintiff Ocwen Loan
Servicing, LLC's ("Ocwen") motion to remand.
(Doc. 4). For the reasons presented below, both motions are
AND PROCEDURAL BACKGROUND
a foreclosure case that originated in Peoria County Circuit
Court. According to the Complaint, Ghiselin obtained a
mortgage in the amount of $44, 000 for the purchase of real
estate from First National Bank on December 26, 2008. (Doc.
1-1 at 1.) The mortgage was recorded on January, 2, 2009. (
Id. at 1.) Ghiselin has been delinquent on her
monthly payments since December 2010. ( Id. at 2.)
Ocwen alleges that it is the current holder of the mortgage
note. ( Id. at 1.) It filed its complaint for
foreclosure against Ghiselin on April 18, 2011 and properly
served her on April 20, 2011. (Doc. 4-2 at 1.) Ghiselin filed
a notice of removal with this Court on May 10, 2016, and
moved to proceed in forma pauperis at the same time. Ocwen
timely filed its Motion to Remand on June 8, 2016. (Doc. 4),
to which Ghiselin filed an untimely response on July 14,
2016. (Doc. 11).
FOR LEAVE TO PROCEED IN FORMA PAUPERIS
addressing Ocwen's motion to remand, the Court considers
whether Ghiselin can proceed without paying the $400 filing
fee. In support of her motion to proceed without paying the
fee, Ghiselin states under penalty of perjury that she has
$2.86 in a checking or savings account, that she earns $831
in pay or wages each month, and that she receives $450 per
month in rent payments. She further states that she has $426
in monthly expenses, and no dependents.
privilege to proceed without [paying] costs and fees is
reserved to the many truly impoverished litigants who, within
a district court's discretion, would remain without legal
remedy if such privilege were not afforded to them."
Brewster v. North Am. Van Lines, Inc., 461 F.2d 649,
651 (7th Cir. 1972). Courts have sometimes used the Federal
Poverty Guideline as a threshold for determining whether to
allow a civil plaintiff to proceed without payment of fees.
See Hernandez v. Dart, 635 F.Supp.2d 798,
805 (N.D. Ill. 2009); Annual Update of the HHS Poverty
Guidelines, 81 Fed. Reg. 4036 (Jan. 25, 2016).
earns approximately $15, 372 per year, which is $3, 492 more
per year than the 2016 guideline for a family of one. Despite
the fact that Ghiselin earns more than the federal poverty
level, her application reveals that she does not currently
have the funds necessary to pay the $400 filing fee. The
Court in its discretion grants her leave to proceed without
the prepayment of costs.
defendant may remove a civil action to federal court if the
action is within the federal court's original
jurisdiction. 28 U.S.C. Â§ 1441. "The removing party has
the burden of establishing that removal is proper, and any
doubt regarding jurisdiction should be resolved in favor of
remand." Kuznar v. Kuznar, 954 F.Supp.2d 761,
764 (N.D. Ill. 2013) (citing Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009)).
Plaintiffs may seek to remand cases for a lack of subject
matter jurisdiction at any time before final judgment has
been rendered. 28 U.S.C. Â§ 1447. A motion to remand due to a
defendant's failure to comply with the removal statutes
must be made within thirty days after the defendant has filed
a notice of removal. Id.
motion to remand, Ocwen argues that Ghiselin's notice of
removal is fatally deficient in a number of ways: it is
untimely, it fails to establish federal court jurisdiction,
and it is procedurally deficient. Ocwen further argues that
the Court should award it attorneys' fees and costs
incurred as a result of the removal. The Court concludes ...