                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2006

Ocwen Loan Servicing v. Ezekoye
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1728




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"Ocwen Loan Servicing v. Ezekoye" (2006). 2006 Decisions. Paper 1144.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1144


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APS-201
                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-1728
                                  ________________

                          OCWEN LOAN SERVICING, LLC

                                            V.

                  ANDREW N. EZEKOYE; DOROTHY EZEKOYE,
           or occupants of 120 Lynn Ann Drive, New Kensington, PA, 15068

                       Andrew N. Ezekoye and Dorothy Ezekoye,
                                              Appellants
                        _________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                            (W.D. Pa. Civ. No. 06-cv-00030)
                      District Judge: Honorable Arthur J. Schwab
                    _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
            or for lack of appellate jurisdiction, or for Summary Action Under
                Third Circuit LAR 27.4 and I.O.P. 10.6 on April 20, 2006


          Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES

                                  (Filed: May 8, 2006)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM
       Andrew and Dorothy Ezekoye, proceeding pro se, appeal an order of the United

States District Court for the Western District of Pennsylvania remanding a complaint in

ejectment to Pennsylvania state court. Ocwen Loan Servicing, LLC filed the ejectment

complaint against the Ezekoyes after Ocwen obtained a judgment in a mortgage

foreclosure action in state court and title to the property at issue in a sheriff’s sale.

Dorothy Ezekoye filed a notice of removal in District Court, alleging that the District

Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332(a)(1), 1343(a), 1367, 1441(a),

1441(b) and 1443. The District Court, however, remanded the case to state court

pursuant to 28 U.S.C. § 1447(c) for lack of jurisdiction.

       An order remanding a case to the state court from which it was removed is not

reviewable on appeal unless the case was removed pursuant to 28 U.S.C. § 1443. 28

U.S.C. § 1447(d). Thus, to the extent the Ezekoyes challenge the District Court’s remand

order with respect to the bases for removal other than § 1443, we will dismiss the appeal

for lack of jurisdiction. Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997). We have

jurisdiction to review the remand order to the extent the Ezekoyes assert that removal was

proper under § 1443. Id.

       Section 1443 authorizes the removal of a state law action “[a]gainst any person

who is denied or cannot enforce in the courts of such State a right under any law

providing for the equal civil rights of citizens of the United States, or of all persons

within the jurisdiction thereof.” 28 U.S.C. § 1443(1). This provision applies in rare



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cases. Davis, 107 F.3d at 1048-49. A state court defendant must demonstrate both: (1)

that he is being deprived of rights guaranteed by a federal law “providing for . . . equal

civil rights”; and (2) that he is “‘denied or cannot enforce’ that right in the courts” of the

state. Id. at 1047 (quoting State of Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under

the first requirement, a defendant must allege a deprivation of rights guaranteed by a

federal law providing for specific civil rights stated in terms of racial equality. Id. Under

the second requirement, removal is available where the defendant’s federal civil rights

would inevitably be denied by the very act of being brought to trial in state court. Id. at

1050.

        The Ezekoyes have not shown that § 1443 applies. In their answers to the

complaint in ejectment, the Ezekoyes raised several counterclaims under statutes

prohibiting abusive debt collection practices. They did not claim in their answer, nor do

they contend elsewhere, that they have suffered a deprivation of their civil rights based

upon their race. Moreover, the Ezekoyes do not assert an inability to enforce their equal

civil rights in state court.

        Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

To the extent the Ezekoyes appeal the District Court’s remand order with respect to the

bases for removal other than § 1443, we will dismiss the appeal for lack of appellate

jurisdiction. Dorothy Ezekoye’s motion for an injunction pending the disposition of this

appeal is denied.



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