United States District Court, D. Nebraska
DONALD K. EVERSON and KIMBERLY C. EVERSON; Plaintiffs,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR CDC MORTGAGE CAPITAL TRUST 2002-HE1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-HE1; OCWEN LOAN SERVICING, LLC; and EDWARD E. BRINK; Defendants.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on defendant Edward E. Brink's
(“Brink”) Motion to Dismiss Party (Filing No. 8)
for failure to state a claim. For the reasons stated below,
Brink's Motion is denied, and the case is remanded to the
District Court of Sarpy County, Nebraska.
Kimberly C. Everson purchased a piece of real property
located in Sarpy County, Nebraska, on January 7, 2002. To
finance the property, she delivered a promissory note to
HomeGold, Inc. and a deed of trust to General American Corp.
as trustee and HomeGold, Inc. as beneficiary. HomeGold, Inc.
later assigned all its interest in the property to Deutsche
Bank National Trust Company (“Deutsche”). On
October 18, 2016, Deutsche appointed Brink the successor
trustee for the deed of trust, and on October 27, 2017, Brink
filed a notice of default in the Sarpy County deed
records.Brink scheduled a trustee's sale of the
property for January 27, 2017.
January 27, 2017, plaintiffs filed a complaint in the
District Court of Sarpy County, Nebraska, alleging various
wrongs committed in the servicing of the mortgage and
attempted foreclosure. Plaintiffs requested damages and an
injunction prohibiting the trustee's sale which has not
yet taken place.
February 6, 2017, the defendants removed the case to this
Court, alleging subject-matter jurisdiction based on
diversity of citizenship. See 28 U.S.C. § 1332.
Defendants declared (1) the plaintiffs were both citizens of
Nebraska, (2) Deutsche was a citizen of New York, (3) Ocwen
Loan Servicing, LLC, the loan servicer, was a citizen of both
Florida and Georgia, and (4) Brink was a citizen of Nebraska.
Defendants claimed Brink was fraudulently joined and should
be ignored for purposes of diversity because there was no
reasonable basis in law or fact to support a claim against
Brink. See Wivell v. Wells Fargo Bank, N.A., 773
F.3d 887, 896 (8th Cir. 2014) (allowing the district court to
assume temporary jurisdiction over facially non-diverse
parties to determine if there was fraudulent joinder). After
the removal, Brink filed his Motion to Dismiss Party (Filing
Nebraska Trust Deeds Act (“Act”) governs deeds of
trust in Nebraska. Neb. Rev. Stat. §§ 76-1001 to
76-1018. A trustee may exercise power of sale over the trust
property in accordance with the Act. Id. at §
76-1005. To exercise the power of sale, a trustee must:
first file for record in the office of the register of deeds
of each county wherein the trust property . . . is situated a
notice of default identifying the trust deed by stating the
name of the trustor named therein and . . . containing a
statement that a breach of an obligation for which the trust
property was conveyed as security has occurred[.]
Id. at § 76-1006. The trustee must also give
written notice of the sale. Id. at § 76-1007.
Once the trustee has performed the requisite duties under the
Act, the trustee may sell the property at public auction.
Id. at § 76-1009.
is fraudulent if state law precludes any cause of
action against a defendant. Filla v. Norfolk S. Ry.
Co., 336 F.3d 806, 810 (8th Cir. 2003). Joinder is not
fraudulent if there is any colorable cause of action against
the defendant. Id.
as trustee, is the individual with the power to sell
plaintiffs' property. Id. at § 76-1005. He
has already exercised some of his powers by filing a notice
of default. Plaintiffs' first cause of action in their
complaint requests “an order enjoining the Defendants
from proceeding with the scheduled sale[.]” Any
injunction issued by the Court to stop the sale could enjoin
Brink. Thus, plaintiffs have alleged a colorable claim
against Brink and his joinder is not improper.