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Ocwen Loan Servicing, LLC v. Ghiselin

United States District Court, C.D. Illinois, Peoria Division

July 25, 2016

OCWEN LOAN SERVICING, LLC, Plaintiff,
v.
BARBARA JO GHISELIN, Defendant.

          Ocwen Loan Servicing, LLC, Plaintiff, represented by Andrew John Hawes, PIERCE & ASSOCIATES & Eleazar Calero, PIERCE & ASSOCIATES.

          Barbara Jo Ghiselin, also known as Barbara Ghiselin, Defendant, Pro Se.

          ORDER & OPINION

          JOE BILLY McDADE, District Judge.

         This 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 granted.

         FACTUAL AND PROCEDURAL BACKGROUND

         This is 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).

         MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         Before 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.

         "The 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).

         Ghiselin 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.

         LEGAL STANDARDS

         A defendant may remove a civil action to federal court if the action is within the federal court's original jurisdiction. 28 U.S.C. § 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. § 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.

         DISCUSSION

         In its 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 ...


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