Fed. Nat'l Mortg. Ass'n v. Milasinovich, No. CIV 15–0627 JB/WPL

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
Parties Federal National Mortgage Association, successor in interest to Aurora Loan Services, LLC, Plaintiff, v. Melanie Milasinovich; Susan Jacques; Lehman Brothers Bank FSB; ABC Corporations I–X; John Does I–X; XYZ Partnerships I–X; the unknown heirs and devisees of any of the above, if deceased, Defendants.
Decision Date30 March 2016
Docket NumberNo. CIV 15–0627 JB/WPL

161 F.Supp.3d 981

Federal National Mortgage Association, successor in interest to Aurora Loan Services, LLC, Plaintiff,
v.
Melanie Milasinovich; Susan Jacques; Lehman Brothers Bank FSB; ABC Corporations I–X; John Does I–X; XYZ Partnerships I–X; the unknown heirs and devisees of any of the above, if deceased, Defendants.

No. CIV 15–0627 JB/WPL

United States District Court, D. New Mexico.

Filed March 30, 2016


161 F.Supp.3d 985

Larry J. Montano, Julia Broggi, Holland & Hart LLP, Santa Fe, New Mexico, Attorneys for Plaintiff Aurora Loan Services, LLC

Joshua A. Spencer, Murr Siler and Accomazzo, PC, Albuquerque, New Mexico, Larry J. Montano, Little West, Holland & Hart LLP, Santa Fe, New Mexico, Attorneys for Plaintiff Federal National Mortgage Association

Melanie Milasinovich, Santa Fe, New Mexico, Defendant pro se

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Melanie Milasinovich's Exigent Amended Notice for Removal and Objection to the State Court Hearing, filed July 23, 2015 (Doc. 4)(“Second Amended Notice of Removal”); (ii) Plaintiff Federal National Mortgage Association's Motion to Strike or Remand and for Award of Additional Sanctions, filed August 19, 2015 (Doc. 11)(“Motion”); (iii) Defendant Melanie Milasinovich's Petition for Writ of Mandamus, filed July 31, 2015 (Doc. 9), and Amended Petition for Writ of Mandamus, filed August 3, 2015 (Doc. 10)(collectively, the “Mandamus Petitions”); (iv) Defendant Melanie Milasinovich's Motion to Strike, filed September 2, 2015 (Doc. 13)(“Motion to Strike”); and (v) Defendant Melanie Milasinovich's Notice of Motion and Motion to Enjoin the United States, filed January 21, 2016 (Doc. 52)(“Motion to Enjoin”). The Court held a hearing on November 18, 2015. The primary issues are: (i) whether the subsequent state court proceedings were valid after Defendant Melanie Milasinovich removed the case to federal court; (ii) whether the Court should grant Milasinovich's request for a writ of mandamus ordering the state court to halt proceedings; (iii) whether the Court should remand this case to the state court; (iv) whether the Court should grant any of Milasinovich's other requests for relief; (v) whether the Court should award sanctions against Milasinovich for her improper removal; and (vi) whether the Court should impose limitations on Milasinovich's ability to file further removal notices. First, the Court concludes that the proceedings in state court after Milasinovich filed her removal notices are void, and the Court will vacate the relevant state court orders. Second, the Court cannot use mandamus to order the state court to take any specific actions. Third, the Court will remand the case to state court, because Milasinovich's removal notices are defective, untimely, and do not establish, as they must, that the Court has jurisdiction over the case. Fourth, the Court will deny the Motion to Strike and the Motion to Enjoin; and will leave the other issues for the state court to decide. Fifth, the Court will grant Federal National Mortgage Association's request for fees and costs because Milasinovich did not have an objectively reasonable basis for removing the case. Finally, the Court will prohibit Milasinovich from filing further motions in this matter in federal court without express permission from the Chief United States Magistrate Judge for the District of New Mexico.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint for Foreclosure, filed in state court December 14, 2014, filed in federal court July 20, 2015 (Doc. 1).1 On or about October

161 F.Supp.3d 986

27, 2005, Milasinovich and co-Defendant Susan Jacques “signed a Note in the principal amount of $412,000.00, which was secured by a Mortgage recorded on October 28, 2005.” Complaint ¶ 8, at 3. The mortgage burdened a lot at 422 Mission Road, Santa Fe, New Mexico (the “Property”). Complaint ¶ 6, at 2–3. Milasinovich and Jacques failed to make required payments beginning in August, 2009. See Complaint ¶ 9, at 3. They thus defaulted under the terms of the Note and Mortgage. See Complaint ¶ 9, at 3.

The ensuing litigation has a complicated procedural history. See Aurora Loan Services, L.L.C. v. Milasinovich, No. CIV 14–0575 MCA/KK, (D.N.M.), Memorandum Opinion and Order, filed February 17, 2015 (Doc. 155)(“Armijo MOO”) (“[T]he procedural posture of this case is far from simple.”)(quotation omitted). The Court will thus summarize only the portions of the prior state and federal litigation history relevant to the Motion.

On December 14, 2009, Plaintiff Aurora Loan Services, L.L.C. filed a foreclosure action in the state court. See Complaint at 1. The Complaint names two specific individuals—Milasinovich and Jacques—as well as Lehman Brothers Bank, FSB, and a variety of unidentified individuals and corporations. See Complaint ¶¶ 2–4, at 1–2. The Complaint alleges one count of judicial foreclosure. See Complaint ¶¶ 5–17, at 2–3. The Complaint seeks, among other forms of relief: (i) at least $412,000.00; (ii) post-filing costs and attorney's fees; (iii) interest from 2009 to the present; (iv) a valid lien on the Property; (v) a declaration that the Mortgage is “not to be subordinate to any right, title, interest, lien, equity, or estate of the Defendants or fictitious defendants”; and (vi) the appointment of a special master to seize and sell the property. See Complaint ¶¶ A–B(14), at 4–6. In May 2013, Fannie Mae overtook the litigation on behalf of Aurora Loan Services, Inc., becoming the plaintiff. See Armijo MOO at 13.

Milasinovich first attempted to remove her case to federal court on June 23, 2014. See Aurora Loan Services, L.L.C. v. Milasinovich, No. CIV 14–0575 MCA/KK, (D.N.M.), Notice of Removal, filed June 23, 2014 (Doc. 1); Motion ¶ 7, at 4. The Honorable Christina Armijo, Chief United States District Judge for the District of New Mexico, rejected Milasinovich's attempt to remove the case and remanded it to the state court. See Armijo MOO at 1. Chief Judge Armijo first explained that the Complaint does not raise any claims arising under federal law and that Milasinovich's federal defenses were insufficient to invoke federal-question jurisdiction. See Armijo MOO at 11 (citing Hansen v. Ha rp er Excavating, Inc., 641 F.3d 1216, 1220 (10th Cir.2011) (explaining the “well-pleaded complaint rule”). Second, Chief Judge Armijo noted that Milasinovich failed to comply with 28 U.S.C. § 1446(b)'s requirement that she remove the action within thirty days after she received notice that federal jurisdictional requirements were satisfied. Armijo MOO at 12. She noted that Milasinovich was aware of Fannie Mae's participation in the case “as early as May of 2013” and that Milasinovich thus filed her notice of removal more than one year after her deadline.2 Armijo MOO at 13. Third, Chief Judge Armijo held that she did not have diversity jurisdiction over the matter, because Milasinovich did not adequately allege the parties'

161 F.Supp.3d 987

citizenship. See Armijo MOO at 13–14. Finally, Chief Judge Armijo noted that, in any case, Milasinovich failed to comply with 28 U.S.C. § 1446(c)(l)'s requirement that she remove the case within one year after the commencement of the action. See Armijo MOO at 15–16 (“Ms. Milasinovich did not file her notice of removal until June 23, 2014, more than four years later.”). Chief Judge Armijo concluded that Milasinovich “lacked an objectively reasonable basis for removal” because of her delay, and thus awarded attorney's fees to Fannie Mae. Armijo MOO at 16.

Proceedings then continued before the Honorable Sarah M. Singleton, District Judge for the First Judicial District, State of New Mexico. See Order Regarding Jurisdiction in Light of Removal Petition at 3, filed in state court July 27, 2015, filed in federal court August 19, 2015 (Doc. 11–4)(“Singleton Order”). Fannie Mae sought to set a status conference to discuss pending motions, but Milasinovich opposed it. See Motion ¶ 12, at 4–5; Singleton Order at 3. Judge Singleton set the status conference for July 21, 2015. See Singleton Order at 3–4.

PROCEDURAL HISTORY

Milasinovich filed a second notice of removal on July 20, 2015. See Second Notice of Removal at 1. Milasinovich first cites “congress 1949” for the proposition that “the second paragraph of the amendment to subsection (b) is intended to make clear that the [r]ight of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed.” Second Notice of Removal at 1. The Court interprets this argument as a reference to 28 U.S.C. § 1446(b)(3), which creates an exception to § 1446(b)(1)'s general requirement that a defendant remove a case within thirty days of receipt of the initial pleading: “Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). Section 1446(b)(3)'s legislative history includes Milasinovich's cited language: “The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a late state of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed.” H.R.Rep. No. 81–352 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1268. Milasinovich requests the following forms of relief:

A. the court review the removed case in the nature of a bill of exception

B. the court invoke article III jurisdiction

C. the court invoke high court of chancery in chambers in camera upon recognition of a private American national citizen of the united states of American, non-beligerent
...

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11 practice notes
  • Hernandez v. Chevron U.S.A., Inc., No. CIV 17-1083 JB/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2018
    ...may consider evidence presented to it after a notice of removal has been filed." Federal National Mortgage Assoc. v. Milasinovich, 161 F.Supp.3d 981, 998 (D.N.M. 2016) (Browning, J.). See, e.g., Thompson v. Intel Corp., 2012 WL 3860748, at *14 (D.N.M. Aug. 27, 2012) (Browning, J.). See also......
  • Trusty v. MTGLQ Inv'rs, 224-2020
    • United States
    • Court of Special Appeals of Maryland
    • September 24, 2021
    ...on actions taken by the Circuit Court while the case was removed to Federal Court. FEDERAL NAT. MORG. ASSOCIATION V. Milainovich, 161 F.Supp.3d 981 - Dist. D. New Mexico[.] 4) The fraud alleged in this case is supported by the Freeman fraud exception to the collateral attack doctrine descri......
  • Mark Pierce, William C. Enloe, & Jill Cook, Trinity Capital Corp. v. Atl. Specialty Ins. Co., Civ. No. 16-829 JAP/KBM
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 26, 2017
    ...notices, which were filed after the expiration of the 30-day period for removal. See, e.g., Fed. Nat'l Mortg. Ass'n v. Milasinovich, 161 F. Supp. 3d 981, 1014 (D.N.M. 2016) (disallowing proposed amendment that was two years too late); ARCO Envtl. Remediation, L.L.C. v. Dep't of Health and E......
  • Bank of Am., N.A. v. Barnard, Case No. 18-CV-0431-CVE-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 11, 2018
    ...defendant. Foltz v. Columbia Casualty Co., 2016 WL 3829144 (W.D. Okla. July 12, 2016); Federal Nat'l Mortgage Ass'n v. Milasinovich, 161 F. Supp. 3d 981 (D.N.M. 2016); NCO Fin. Sys., Inc. v. Yari, 422 F. Supp. 2d 1237 (D. Colo. 2006). On two occasions, this Court has found that a third-part......
  • Request a trial to view additional results
11 cases
  • Hernandez v. Chevron U.S.A., Inc., No. CIV 17-1083 JB/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 30, 2018
    ...may consider evidence presented to it after a notice of removal has been filed." Federal National Mortgage Assoc. v. Milasinovich, 161 F.Supp.3d 981, 998 (D.N.M. 2016) (Browning, J.). See, e.g., Thompson v. Intel Corp., 2012 WL 3860748, at *14 (D.N.M. Aug. 27, 2012) (Browning, J.). See also......
  • Trusty v. MTGLQ Inv'rs, 224-2020
    • United States
    • Court of Special Appeals of Maryland
    • September 24, 2021
    ...on actions taken by the Circuit Court while the case was removed to Federal Court. FEDERAL NAT. MORG. ASSOCIATION V. Milainovich, 161 F.Supp.3d 981 - Dist. D. New Mexico[.] 4) The fraud alleged in this case is supported by the Freeman fraud exception to the collateral attack doctrine descri......
  • Mark Pierce, William C. Enloe, & Jill Cook, Trinity Capital Corp. v. Atl. Specialty Ins. Co., Civ. No. 16-829 JAP/KBM
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 26, 2017
    ...notices, which were filed after the expiration of the 30-day period for removal. See, e.g., Fed. Nat'l Mortg. Ass'n v. Milasinovich, 161 F. Supp. 3d 981, 1014 (D.N.M. 2016) (disallowing proposed amendment that was two years too late); ARCO Envtl. Remediation, L.L.C. v. Dep't of Health and E......
  • Bank of Am., N.A. v. Barnard, Case No. 18-CV-0431-CVE-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 11, 2018
    ...defendant. Foltz v. Columbia Casualty Co., 2016 WL 3829144 (W.D. Okla. July 12, 2016); Federal Nat'l Mortgage Ass'n v. Milasinovich, 161 F. Supp. 3d 981 (D.N.M. 2016); NCO Fin. Sys., Inc. v. Yari, 422 F. Supp. 2d 1237 (D. Colo. 2006). On two occasions, this Court has found that a third-part......
  • Request a trial to view additional results

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