Cole v. Wells Fargo Bank Nat'l Ass'n, 5D15–2118.
Decision Date | 23 September 2016 |
Docket Number | No. 5D15–2118.,5D15–2118. |
Parties | Duane COLE and Susan Perkins, Appellants, v. WELLS FARGO BANK NATIONAL ASSOCIATION, etc., et al., Appellees. |
Court | Florida District Court of Appeals |
Duane Cole and Susan Perkins, Spring Hill, pro se.
Kimberly S. Mello and Laura Bassini, of Greenberg Traurig, P.A., Tampa, and Patrick G. Broderick, Greenberg Traurig, P.A., West Palm Beach, for Appellee, Wells Fargo Bank National Association as Trustee for Soundview Home Loan Trust 2007–OPTS, Asset–Backed Certificates, Series 2007–OPTS.
No Appearance for other Appellee.
Duane Cole and Susan Perkins appeal the final judgment of foreclosure entered against them in favor of Wells Fargo Bank, National Association as Trustee for Soundview Home Loan Trust 2007–OPTS, Asset–Backed Certificates, Series 2007–OPTS (“Wells Fargo”). Because the trial court rendered the final judgment after the filing of a notice of removal to federal court and before the federal court remanded the case back to the trial court, the trial court lacked jurisdiction to enter the final judgment.1 See Musa v. Wells Fargo Del. Tr. Co., 181 So.3d 1275, 1284 (Fla. 1st DCA 2015)
(); Preston v. Allstate Ins. Co., 627 So.2d 1322, 1324 (Fla. 3d DCA 1993) ( ); see also
Maseda v. Honda Motor Co., 861 F.2d 1248, 1254–55 (11th Cir.1988) ( ”. But see
Perez v. Fed. Nat'l Mortg. Ass'n, 200 So.3d 157, 41 Fla. L. Weekly D1445 (Fla. 5th DCA June 17, 2016) ( ). Accordingly, we reverse.2
REVERSED.
EVANDER
1 Wells Fargo argues that the actions of the trial court after removal are not void because the case was, in fact, not removable. See Wilson v. Sandstrom, 317 So.2d 732, 740–41 (Fla.1975)
(citing Metro. Cas. Ins. Co. v. Stevens, 312 U.S. 563, 566, 61 S.Ct. 715, 85 L.Ed. 1044 (1941) ). However, the current version of the removal statute states that after removal “[t]he State court shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d) (2015). The holdings in Wilson and Metropolitan Casualty were based on a version of the removal statute that was repealed in 1948, which expressly permitted state courts to ignore notices of removal that were legally insufficient. See 28 U.S.C. § 72 (1946); Musa v. Wells Fargo Del. Tr. Co., 181 So.3d 1275, 1277–78 (Fla. 1st DCA 2015) (citing Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 455–56 (N.D.1992) ). “There is all but unanimity on the proposition that amendments to the removal statute in 1948 effectively changed the result in Metropolitan Casualty so that a state court adjudication, while a removal petition is pending in federal court, is void, even if the federal court subsequently determines that the case is not removable.” Musa, 181 So.3d at 1279 (footnote admitted) (quoting Rub, 481 N.W.2d at 455–56 ).
2 We note, with approval, Judge Bilbrey's concurring opinion in Musa cautioning defendants of the potential consequences of removing a case to federal court as a delay tactic. 181 So.3d at 1284
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