By Dave Krieger
The case is Easton v. Bosco et al with a case number of CV2010-054748; filed four days after U.S. District Court Judge Mark E. Aspey remanded a quiet title action back to the State Superior Court for Maricopa County, previously removed by Defendants First Horizon Home Loan Corporation and others to federal court, which the author views as a typical move to hide from state court discovery actions.
The case is Forde v. First Horizon Home Loan Corporation et al, CV2010-01922, filed pro se August 3, 2010 by Barbara J. Forde. The author feels the significance of this case smacks to the heart of jurisdictional issues as to which court has the right to hear the case based on what merits. The Plaintiff in this action cited breach of contract based on negligence and fraud. The trustee, Quality Loan Service Corporation was also named in the suit. On September 22, 2010, the Defendants, who like in most instances asserted diversity jurisdiction and the amount in controversy as the sole basis for their removal to federal court, filed a motion to strike the complaint under Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil Procedure.
The author sees this remand ruling as a plus for judicial expediency in quiet title actions throughout the 9th Circuit. Judge Aspey even cited that there were no federal questions up for decision which would confer jurisdiction to the U.S. District Court. On December 3, 2010, Judge Aspey issued the remand order, to “reduce litigation costs and eliminate any need to certify novel state-law issues to the Arizona Supreme Court or speculate how the Arizona Supreme Court would rule on those issues.”
After citing eight pages of case law and abstentions, the court denied all of the Defendants’ pending motions without prejudice. The key significance here is why lenders as national associations feel the need to remove quiet title actions to federal court, when the Plaintiff has listed no federal questions which would give a federal judge cause to keep the case. One also has to question what authority a federal judge would have to quiet title on property situated in a county that is not in a federal territory. This judge appears to understand the fundamentals of a quiet title action very well.
There are also numerous state case laws that protect the property owners from foreclosure in the event a quiet title action has been filed, abating ejectment if there are title issues involved. This would further strengthen the author’s contention that quiet title issues are going to become commonplace very soon and that the state courts had better take these filings seriously. In the Easton case, there appear to be conflicting issues with assignments amidst a potential wrongful foreclosure. A lis pendens has also been filed in the case by the Plaintiff’s counsel, Scottsdale attorney, Beth Findsen, of which there are at least eight key defendants involved. The trustee in that case is also a defendant.