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UNITED STATES DISTRIC'I` COURT F I L E D
FOR THE DISTRICT OF COLUMBIA
AUS 3 1 2015

Cicrk, U.S. Distr\ct & fiankrupwy

ESTHER STEWARD and Cour¢s forma Distrlct of Coiumbla

KARIM STEWARD,
Plaintiffs,

v. Case No: 14-cv-01868-RCL

GOLDMAN SACHS MORTGAGE
COMPANY, L.P., and
LI'I`TON LOAN SERVICING, L.P.,

Defendants.

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U.S. BANK NATIONAL ASSOCIATION,
et al.

Plaintiff,
v. Case No: 15-cv-02041-RCL

STEWARD, et al.

Defendants.

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MEMORANDUM OPINION
I. INTRODUCTION
The motions before the Court concern two cases Which one of the parties has moved to
consolidate The defendants in Civil Action No. 14-1868 have moved to dismiss and the plaintiffs
in Civil Action No. 15-2041 have moved to remand.

Esther Steward and Karim Steward (“the Stewards”) are suing Goldman Sachs Mortgage

Company, L.P. (“Goldman Sachs”) and Litton Loan Servicing, L.P. (“Litton”) for quiet title and

 

declaratory relief as to the interests in 715 S Street NW, Washington, D.C. Goldman Sachs and

Litton have filed a motion to dismiss Civil Action No. 14-1868.

U.S. Bank National Association (“U.S. Bank”) is suing the Stewards in Civil Action No.
15-2041 for judicial foreclosure on the same property and the case was removed to this Court, but
U.S. Bank has filed a motion to remand the case to D.C. Superior Court. The Stewards have filed `
a motion to consolidate the two cases.

The motions to dismiss and remand are granted, rendering the motion to consolidate moot.
II. BACKGROUND

The Stewards obtained the deed to 715 S Street NW, Washington, D.C., in November 2004
and used a mortgage loan to finance their purchase Steward Compl. 1[1[ 3, 7, ECF _No. l. They
used Fremont Investment & Loan (“Fremont” or “Fremont lnvestment”), which did not have a
license to engage in mortgage lending in D.C. to refinance their home for a lump sum cash payment
in February 2006. Id. 111[ 8-10. The Stewards executed two Deeds of Trust (“Deed I” and “Deed
II”) With Fremont Investment for loans of $624,000 and $156,000, respectively Defs.’ Mem. in
Supp. of Mot. Dismiss Exs. B, C, ECF No. 6. The deeds state that Fremont Investment is the
lender and/or original payee on the Stewards’ Note and that Fremont possesses a security interest
in the property. Steward Compl. 11 15.

ln August 2008, Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee
for Fremont Investrnent, transferred Fremont’s interest under Deed I to U.S. Bank. U.S. Bank
Compl. 11 13, ECF No. l. Aiter the Stewards missed several loan payments, U.S. Bank sent a
demand letter to the Stewards in April 2009 regarding their default Id. at 1111 16~17. The Stewards
failed to cure their default and U.S. Bank attempted to foreclose on the property. Id. at ‘[[ 18;

Steward Compl. 11 18. In July, the D.C. Superior Court enjoined U.S. Bank from selling the

 

 

property on the scheduled date, Steward Compl. 11 26, but the case was later dismissed by the

Distn`et Court due to the lack of responsiveness by the Stewards’ attorney, id. at 11 31.l U.S. Bank
is the current holder and beneficiary under Deed I.. U.S. Bank Compl. 1[ 15.

In September 2011, MERS assigned Deed II to Goldman Sachs and Goldman Sachs
nominated Litton as its servicer. Steward Compl. 1111 40~41.

The Stewards filed this action against Goldman Sachs and Litton in D.C. Superior Court
on October 10, 2014 Goldman Sachs and Litton removed this case to the Distn`ct Court in
November 2014 and moved the court to dismiss the case. The Court requested and received
supplemental memoranda regarding the D.C. Mortgage Lender and Broker Act of 1996, D.C. Code
§§ 26-1100 et seq.

ln October 2015, U.S. Bank filed Civil Action No. 15-2041 against the Stewards in the
Superior Court for the District of Columbia. ln November 2015, the Stewards removed the case
to this Court and moved to consolidate this case with Civil Action No. 14-1868, in which the
Stewards are plaintiffs U.S. Bank has moved to remand Civil Action No. 15-2041 back to D.C.
Superior Court.

III. STANDARD OF REVIEW

“Under Rule 12(b)(6), a plaintiff need only plead ‘enough facts to state a claim to relief
that is plausible on its face’ and to ‘nudge[ ] [his or her] claims across the line from conceivable
to plausible.”’ Hunter v. District of Columbia, 64 F. Supp. 3d 158, 165 (D.D.C. 2014)' (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

1 The Stewards’ attorney was facing` disciplinary proceedings before the D.C. Bar Board ofProfessional
Responsibility during the winter of 2010. He was suspended from practice in April 2011 and disbarred in November
2011.

 

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plausible on its face.”’ Ashcroji v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ia'. The Court must accept as true all factual
allegations contained in the complaint and construe the complaint liberally in the plaintiff s favor,
granting the plaintiff the benefit of all reasonable inferences that can be derived. Boykz'n v. Gray,
895 F. Supp. 2d 199, 205 (D.D.C. 2012). `

Civil actions filed in state court may be removed to a United States district court by the
defendant so long as the case could have been filed in the district court originally. 28 U.S.C. §
144l(a). However, “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § l447(c). A challenge to
subject matter jurisdiction may be raised on a motion to remand by the parties. 28 U.S.C. §
1447(0). b

Courts should apply a strict reading to the removal statute to avoid federalism concerns
See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). Any uncertainty about
the existence of subject matter jurisdiction should be resolved in favor of remand. Hood v. F.

Hojj‘inan-La Roche, Ltd., 639 F. Supp. 2d 25, 28 (D.D.C. 2009) (citing Gasch v. HartfordAccident

& Indem. Co., 491 F.3d 278, 281-82 (Sth Cir. 2007)).
IV. ARGUMENT

A. Motion to Dismiss

The Stewards claim Goldman Sachs and Litton violated Section 26-11 14(a)(10) of the D.C.
Mortgage Lender and Broker Act, D.C. Code § 26-1100 et seq., and the D.C. Loan Shark Act,
D.C. Code § 26-901 et seq. However, Fremont Investrnent was a “bank” under D.C. Code § 26-

1102(1) and therefore was exempt from the regulations of §§ 26-1100 et seq. Additionally,

 

because the loan in this case was greater than $25,000, the D.C. Loan Shark Act does not apply.
Therefore, the motion to dismiss Civil Action No. 14-1868 will be granted.
The relevant section of the D.C. Mortgage Lender and Broker Act reads:

(a) No mortgage broker, mortgage lender, mortgage loan originator, or loan officer
required to be licensed under this chapter, or person required to be licensed under
this chapter, shall:

(10) Purchase loans from an unlicensed mortgage broker or lender, unless the
unlicensed mortgage broker or lender is exempt under § 26-1102;

D.C. Code § 26-1114(a)(10). Section 1102(1) states that the provisions of the Mortgage Lender

and Broker Act shall not apply to:
(l) Any bank, trust company, savings bank, savings and loan association, or credit
union incorporated or chartered under the laws of the United States, any state or
territory of the United States, or the District, and any other financial institution

incorporated or chartered under the laws of the Distn'ct or of the United States, that
accepts deposits and is regulated under Title 26 of the District of Columbia Ofiicial

Code.

D.C. Code § 26-1102(1).

In their Complaint, the Stewards argue that Goldman Sachs possesses no right to the
property because Deed II was “void ab initio.” Steward Compl. W 45, 48, 5(), 51, 53, 54.
Therefore, the appropriate question to ask is whether Fremont Investment Was a “bank” for the
purposes of § 26-1102(1) at the time the deed was executed and the loan was issued-_March 8,
2006. See Steward Compl. 1[ 10.

Fremont Investment was a “bank” on March 8, 2006. On October 11, 2004, Fremont
Investment received a Certificate of Authority from the State of California Department of Financial
Institutions and was “authorized to transact industrial banking business.” Defs.’ Mem. Supp. Mot.
Dismiss Ex. A, ECF No. 17. The same day, it received a certification from the Federal Deposit

Insurance Corporation (“FDIC”). Defs.’ Mem. Supp. Mot. Dismiss Ex. B, ECF No. 17.

Furthermore, a Certiiicate of Search from the State of Califomia Department of Business

 

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Oversight confirms that in March 2006, Fremont Investment & Loan “was licensed to conduct the

business of an industrial bank.” Defs.’ Suppl. Mem. In Resp. to Ct.’s March 6, 2015 Order Ex. A,
ECF No. 20. Fremont Investment did not cease operating as bank and become inactive until 2008,
Pl.’s Suppl. Mem. in Resp. to Mar. 5, 2015 Order 2, ECF No. 19, more than two years after the
execution of Deed Il. The Stewards have conceded that “Fremont was, at one time, a commercial,
state-chartered, non-federal reserve bank.” ld. at 1.

Furthermore, this is not the first time this Court has considered whether § 26-1100 et seq.
applies to Fremont Investment. Previously, this Court has found that Fremont Investment was a
“bank” according to Section 1102(1) and was therefore not subject to the Mortgage Lender and
Broker Act. See Blue v. Fremont Inv. & Loan, 562 F. Supp. 2d 33, 44 (D.D.C. 2008) (disrnissing
claim under D.C. Mortgage Lender and Broker Act because Fremont was exempt under D.C. Code
§ 26-1102(1)); see also 111 re Stevenson, No. 06-00306, 2013 WL 8149438, at *13 (Bankr. D.D.C.
Jan. 4, 2013) (holding that Fremont Investment qualified for exemption as a bank under D.C. Code
§ 26-1 102(1) and striking borrower’s asserted defense that loan issued by Fremont Investment Was
invalid due to not being licensed in District of Columbia).

In light of the above-described documents and precedent, it is clear that Fremont
lnvestment was a “bank” for the purposes of Section 1102(1) in March 2006, and was therefore
exempt from the licensing requirement of Section 1114(1)(10).

The D.C. Loan Shark Act is similarly inapplicable to this case because the loan in question
is greater than $25,000. According to the Loan Shark Act, “[i]t shall be unlawful and illegal to
engage in the Distn`ct of Columbia in the business of loaning money upon which a rate of interest
greater than 6% per annum is charged on any security of any kind, direct or collateral, tangible or

intangible, without procuring license.” D.C. Code § 26-901(a). However, “[n]o provision of this

 

[law] shall apply with respect to any loan, or to the making of any loan . . . [g]reater than $25,000.”
D.C. Code § 26-912(a)(5). The Stewards have not challenged this interpretation of the Loan Shark
Act in their response to the Goldman Sachs and Litton’s motion to dismiss.

In this case, the loan in question was for $156,000. Defs.’ Mem. in Supp. of Mot. Dismiss
ll. This exempts it from the licensing requirements of the Loan Shark Act which the Stewards
allege has been violated. See Poblez‘e v. Indymac Bank, 657 F. Supp. 2d 86, 95-96 (D.D.C. 2009)
(citing D.C. Code § 26-912(a)(5)) (the Loan Shark Act did not apply to loans of $688,000 and
$177,000 because “the D.C. Loan Shark Act explicitly exempts from its coverage loans greater
than $25,000”). Because the Stewards failed to challenge this interpretation, “the court may treat
the argument as conceded.” Id. at 95.

Because neither of the statutes which the Stewards assert were violated apply to the loan
or to the institutions in question, Goldman Sachs and Litton’s motion to dismiss Will be granted
Because the case against Goldman Sachs and Litton Will be dismissed, the Stewards’ motion to
consolidate is moot.

B. Motion to Remand

The Stewards are not permitted to remove U.S. Bank’s case against them to federal court.

The Stewards removed U.S. Bank’s case to federal court on the basis of jurisdiction under

§ 1332(a). Defs.’ Notice of Removal 2, ECF No. l. However, “[a] civil action otherwise
removable solely on the basis of the jurisdiction under section l332(a) of this title may not be

removed if any of the parties in interest properly joined and served as defendants is a citizen of the
State in which such action is brought.” 28 U.S.C. § l44l(b)(2); see also Brooks' v. Dz`strict of
Columbia, 819 F. Supp. 67, 68 (D.D.C. 1993); Strategic Lien Acquisitions LLC v. Republic of

Zaire, 344 F. Supp. 2d 145, 146 (D.D.C. 2004) (“[S]ection 1441(b) only permits a defendant to

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remove a case to federal district court based on the diversity of the parties if ‘no defendant is a

577

citizen of the State in which such action is brought. (quoting Caterpillar, Inc. v. Lewis, 519 U.S.
61, 62 (1996)) (internal quotation marks omitted)).

In Brooks, the plaintiff sued the District of Columbia for injuries allegedly sustained when
the plaintiff was caught in the crossfire between D.C. police officers and third parties. 819 F.
Supp. 67, 68. The District of Columbia removed the case on the basis of diversity jurisdiction but
the District Court remanded it because the defendants were residents of the forum in which the
case had been initially filed and therefore “the case is not one subject to removal.” Id. ln Strategic
Lien Acquisitions, the defendant removed a foreclosure action to the federal court. 344 F. Supp.
2d at 146. However, the defendant admitted that he was a permanent resident alien of the District
of Columbia and therefore, for the purposes of analysis, a citizen of the Distn'ct of Columbia. Id.
at 146. Because he was also a defendant in the foreclosure action, which had been brought in the
District of Columbia, “he [could not] remove the foreclosure action on the basis of the Court’s
diversity jurisdiction.” Id. at 147.

U.S. Bank originally filed this case in the Superior Court for the District of Columbia.
Defs.’ Notice of Removal l. The Stewards removed it to the District Court. Id. “[A] Defendant
may not remove a case to federal court on the basis of diversity when the suit was filed in the
Defendant’s home state.” Brooks, 819 F. Supp. at 68. Similarly to the defendant in Strategz'c Lien
Acquisitions, defendant Karim Steward is a resident of the District of Columbia. Defs.’ Notice of
Removal 3. Therefore, the Stewards are not permitted to remove this case to federal court.

In their Opposition, the Stewards do not challenge U.S. Bank’s interpretation of the statute,

nor do the Stewards challenge the residency of defendant Karim Steward. Instead, the Stewards

argue that joinder of U.S. Bank to the preexisting federal case would have been permissive and

 

 

that the motion to consolidate the cases should be decided before the motion to remand. Defs.’

Mem. in Supp. of Opp’n to Pl.’s Mot. To Remand 2, ECF No. lO. These arguments are not
persuasive “Even where an action could have been originally brought in federal court, the
defendant may not remove the state action to federal court if the defendant is a citizen of the state
in which the action was tiled.” Brooks, 819 F. Supp. at 68. Additionally, the Court does not need
to address the motion to consolidate because the preexisting federal case has been dismissed
V. CONCLUSION

The Stewards’ case against Goldman Sachs and Litton will be dismissed because Goldman
Sachs and Litton are exempt from the licensing requirements and regulations of the D.C. Mortgage
Lender and Broker Act and the D.C. Loan Shark Act. Fremont Investment was a “bank” under
§ 26-1102(1) and therefore was exempt from § 26-1114. The loan in question was for an amount
greater than $25,000 and therefore was exempt from the Loan Shark Act provisions Because one
of the cases which the Stewards have moved to consolidate will be dismissed, the motion to
consolidate is moot. Finally, U.S. Bank’s motion to remand will be granted because defendant

Karim Steward is a resident of the District of Columbia, the forum in which the case was originally

filed.

Separate orders in each case will be issued this date.

Dated: 92 1 z ll ge ,

Hono le Royce C. Lamberth
United States Distn`ct Court

