Musa v. Wells Fargo Del. Trust Co.

• Decision Date: 31 December 2015
• Docket Number: No. 1D15–0937.,1D15–0937.
• Citation: 181 So.3d 1275
• Parties: Joseph A. and Mary Ann MUSA, Appellants, v. WELLS FARGO DELAWARE TRUST COMPANY, Appellee.
• Court: Florida District Court of Appeals

181 So.3d 1275

Joseph A. and Mary Ann MUSA, Appellants,

v.WELLS FARGO DELAWARE TRUST COMPANY, Appellee.

No. 1D15–0937.

District Court of Appeal of Florida, First District.

Dec. 31, 2015.

Joseph A. and Mary Ann Musa, pro se, Appellants.

Morgan L. Weinstein of Van Ness Law Firm, PLC, Deerfield Beach, for Appellee.

BENTON, J.

Joseph and Mary Ann Musa appeal a final judgment of foreclosure. They contend the final judgment is void because they had removed the case to federal court, depriving the state court of jurisdiction to proceed, before the judgment was entered. We agree and reverse.

An order void for want of jurisdiction in the lower tribunal may be challenged on appeal, even where the jurisdictional defect was not raised below. Polk Cty. v. Sofka, 702 So.2d 1243, 1245 (Fla.1997) (" ‘[C]ourts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any stage of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order.’ " (citation omitted)); see 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994) ("[S]ubject matter jurisdiction is so vital to a court's power to adjudicate the rights of individuals, that its absence can be questioned at anytime, even after the entry of a final judgment or for the first time on appeal. Moreover, the fact that the lack of such jurisdiction is never presented to a trial court does not preclude an appellate court from considering the issue." (citation omitted)); see also Maidman v. Jomar Hotel Corp., 384 So.2d 728, 730 (Fla. 3d DCA 1980) ("[R]eversal is required for want of subject matter jurisdiction. Under 28 U.S.C. § 1446, a petition for removal divests the state court of subject matter jurisdiction.").

Wells Fargo Delaware Trust Company (Wells Fargo), initiated the foreclosure action below against defendants, including Mr. and Mrs. Musa, in October of 2011. On February 10, 2015, a day before the final hearing, the Musas filed a notice of removal in the United States District Court for the Middle District of Florida, and filed a copy of the notice in state circuit court, pursuant to 28 U.S.C.A. § 1446(a), (d) (West 2015).¹ The circuit court proceeded with the scheduled hearing on February 11, 2015, notwithstanding the notice of removal (and the Musas' failure to appear).² On February 12, 2015, the circuit court entered the final judgment in favor of Wells Fargo that the Musas challenge here.

A "state court is allowed to resume jurisdiction of the removed case if, and only if, the federal court grants permission by entering an order of remand." Preston v. Allstate Ins. Co., 627 So.2d 1322, 1324 (Fla. 3d DCA 1993) (citing 28 U.S.C. § 1446(d) ). Removal to federal court and the effect of removal are governed by federal law. See Harris v. State, 41 Ark. App. 207, 850 S.W.2d 41, 42 (1993). The current version of 28 U.S.C. § 1446, which was in effect when the Musas filed their notice of removal, provides:

(a) Generally.—A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

....

(d) Notice to adverse parties and State court.-Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

28 U.S.C.A. § 1446 (West 2015) (boldface omitted) (emphasis added). "Hence, after removal, the jurisdiction of the state court absolutely ceases and the state court has a duty not to proceed any further in the case. Any subsequent proceedings in state court on the case are void ab initio. " Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1254–55 (11th Cir.1988) (internal citation omitted); see DB50 2007–1 Tr. v. Dixon, 314 Ga.App. 194, 723 S.E.2d 495, 496 (2012) (" ‘[A]ny proceedings in a state court after removal of a case to federal court are null and void and must be vacated.’ " (citation omitted)).

In a 1948 revision to the Judicial Code, 28 U.S.C. § 72 was consolidated with other statutes into 28 U.S.C. § 1446. Then a newly enacted statute, 28 U.S.C. § 1446, provided in pertinent part:

(a) A defendant ... desiring to remove any civil action ... from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him ... to removal together with a copy of all process, pleadings and orders served upon him ... in such action.

....

(e) Promptly after the filing of such petition and bond the defendant ... shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

Hopson v. N. Am. Ins. Co., 71 Idaho 461, 233 P.2d 799, 800–01 (1951) (emphasis added) (discussing 28 U.S.C.A. § 1446 (West 1949) ). The earlier version of the federal removal statute had provided, as follows:

"Whenever any party entitled to remove any suit mentioned in section 71 of this title ... may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition ... in such suit in such State court.... It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. "

Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 455 n. 4 (N.D.1992) (discussing 28 U.S.C. § 72 (1946)) (emphasis added). Under the 1946 statute, "if the facts stated in a petition were insufficient for removal, the state court could ignore the petition and any action by the state court while the removal was pending in federal court was valid if the federal court subsequently remanded the case." Id. at 455–56 (citing Metro. Cas. Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941) ).³ But replacing the earlier version of the removal statute changed the rule.

The Hopson court analyzed the effect under the new removal statute of giving notice of the filing of a verified petition for removal, explaining:

By providing in Section 1446 that taking such procedural steps effects the removal of the cause to the Federal Court, which is not found in the earlier Act, Congress has thereby expressly effected the removal of the cause to the Federal Court irrespective of the ultimate determination of the question as to whether or not it is removable; it is not thereafter in the State court for any purpose until and unless the cause is remanded; for that reason the State court is expressly prohibited from proceeding further until and unless it is so remanded; under Sec. 72 the removal was never accomplished unless it was a cause removable; under the present Act removal is accomplished and jurisdiction attaches in the Federal Court even though it may be subsequently determined that it should be and is thereafter remanded. Removability is no longer a criterion which gives or denies validity to the proceedings in the State court while a petition for removal to the Federal Court is pending; any such proceedings in the State court under the present act are not sanctioned; they are prohibited.

Apparently to overcome the endless and multiple litigation and resulting severe hardships which arose under Section 72 as construed, the amendment was prompted not only for the purpose of removing from the State court the authority in any event to pass upon the question of removability but also for the purpose of effectuating the removal by following all the statutory steps as effectively as if the cause had originally been filed in the Federal Court, thus voiding any further proceedings in the State court until and unless the cause is remanded.

We hold that under 28 U.S.C.A. § 1446, a case is removed from the jurisdiction of the State court upon a compliance with the procedural steps therein set forth for all purposes until and unless it is subsequently remanded to such State court; that until and unless the case is remanded no valid proceedings can be taken in the State court at any time following the filing of such petition and bond and giving notice thereof to all adverse parties and filing a copy of the petition with the Clerk of the State court; furthermore, that any action so taken in the State court thereafter and prior to remanding the cause to such State court, will have no force or effect.

233 P.2d at 802 (emphasis added). The Hopson court held that a state court order entering a default against a defendant who had filed a petition for removal was void, and had been properly vacated. Id. at 799–800, 802.

Since 1948, Congress has amended 28 U.S.C. § 1446 nine times. In 1988, subsection (a) was amended directing state court defendants to file merely a "notice of removal" rather than a "verified petition," in order to effect removal to federal court. Judicial Improvements and Access to Justice Act, Pub. L. No. 100–702, § 1016(b)(1), 102 Stat. 4642; see Standridge v. Wal–Mart Stores, Inc., 945 F.Supp. 252, 254 (N.D.Ga.1996) (discussing this amendment). In 1991, this change was fully implemented "by striking ‘petition for’ each place it appears and inserting ‘notice of,’ " and "by striking ‘petition’ each place it appears and inserting ‘notice.’ " Judicial Improvements, Pub.L. No. 102–198, § 10(a)(1), (4), 105 Stat. 1623.

The language in subsection (d)⁴ on which the Hopson court relied—providing that filing a copy of the notice of removal ...