Cole v. Wells Fargo Bank

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DUANE COLE AND SUSAN PERKINS,
Appellants,
v. Case No. 5D15-2118
WELLS FARGO BANK NATIONAL
ASSOCIATION, ETC., ET AL.,
Appellees.
________________________________/
Opinion filed September 23, 2016
Appeal from the Circuit Court
for Hernando County,
Donald E. Scaglione, Judge.
Duane Cole and Susan Perkins, Spring Hill,
pro se.
Kimberly S. Mello and Laura Bassini, of
Greenberg Traurig, P.A., Tampa, and
Patrick G. Broderick, Greenberg Traurig,
P.A., West Palm Beach, for Appellee, Wells
Fargo Bank National Association as
Trustee for Soundview Home Loan Trust
2007-OPTS, Asset-Backed Certificates,
Series 2007-OPTS.
No Appearance for other Appellee.
PER CURIAM.
Duane Cole and Susan Perkins appeal the final judgment of foreclosure entered
against them in favor of Wells Fargo Bank, National Association as Trustee for Soundview
Home Loan Trust 2007-OPTS, Asset-Backed Certificates, Series 2007-OPTS ("Wells
Fargo"). Because the trial court rendered the final judgment after the filing of a notice of
removal to federal court and before the federal court remanded the case back to the trial
court, the trial court lacked jurisdiction to enter the final judgment.1 See Musa v. Wells
Fargo Del. Tr. Co., 181 So. 3d 1275, 1284 (Fla. 1st DCA 2015) (“We hold the final
judgment entered by the court below after removal of the case to federal court (and prior
to remand) is void because the circuit court no longer had jurisdiction.”); Preston v.
Allstate Ins. Co., 627 So. 2d 1322, 1324 (Fla. 3d DCA 1993) (concluding that the filing of
a notice of removal divests the state court of jurisdiction until the federal court enters an
order of remand); see also Maseda v. Honda Motor Co., 861 F.2d 1248, 1254-55 (11th
Cir. 1988) ("[A]fter 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." (footnote omitted) (citations
omitted)). But see Perez v. Fed. Nat'l Mortg. Ass'n, 41 Fla. L. Weekly D1445 (Fla. 5th
1 Wells Fargo argues that the actions of the trial court after removal are not void
because the case was, in fact, not removable. See Wilson v. Sandstrom, 317 So. 2d 732,
740-41 (Fla. 1975) (citing Metro. Cas. Ins. Co. v. Stevens, 312 U.S. 563, 566 (1941)).
However, the current version of the removal statute states that after removal "[t]he State
court shall proceed no further unless and until the case is remanded." 28 U.S.C. §
1446(d) (2015). The holdings in Wilson and Metropolitan Casualty were based on a
version of the removal statute that was repealed in 1948, which expressly permitted state
courts to ignore notices of removal that were legally insufficient. See 28 U.S.C. § 72
(1946); Musa v. Wells Fargo Del. Tr. Co., 181 So. 3d 1275, 1277-78 (Fla. 1st DCA 2015)
(citing Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 455-56 (N.D. 1992)). "There
is all but unanimity on the proposition that amendments to the removal statute in 1948
effectively changed the result in Metropolitan Casualty so that a state court adjudication,
while a removal petition is pending in federal court, is void, even if the federal court
subsequently determines that the case is not removable." Musa, 181 So. 3d at 1279
(footnote admitted) (quoting Rub, 481 N.W.2d at 455-56).
2
DCA June 17, 2016) (recognizing exception where a state court retains jurisdiction to act
when there are multiple filings of removal petitions and the federal court subsequently
denies a removal petition asserting the same grounds as previously denied petition (citing
Heilman v. Dep't of Rev., 727 So. 2d 958, 960 (Fla. 4th DCA 1998))). Accordingly, we
reverse.2
REVERSED.
EVANDER, BERGER and WALLIS, JJ., concur.
2 We note, with approval, Judge Bilbrey's concurring opinion in Musa cautioning
defendants of the potential consequences of removing a case to federal court as a delay
tactic. 181 So. 3d at 1284 ("[U]pon remand, the state court can assess sanctions for fraud
on the court. While a variety of sanctions are available to the state court upon remand
following an improper removal, '[t]he striking of a party's pleadings "has long been an
available and often favored remedy for a party's misconduct in the litigation process.'"
(citing Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So. 3d 1034, 1038 (Fla.
3d DCA 2012))).
3