Motion for Remand: Tool for Counteracting the Notice of Removal


COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

SEE FULL MOTION FOR REMAND HERE—> 2011-08-01, Motion to Remand to the Arizona Superior Court for Maricopa County – 2

The form attached is from a pro se litigant whom I consider to be particularly savvy in the ways of Court and the issues at hand. I present it, not as the perfect model, but something that I think is well drafted and potentially successful as a vehicle for reversing the removal of a state court action to federal court. It goes without saying that every Judge wants to clear his docket. The removal notice takes the case off of the State Judge’s calendar, making him happy and places on the calendar of the assigned federal judge, which makes him/her unhappy.

Assumption is the enemy of good tactics. Most pro se litigants and lawyers alike see a notice of removal as the kiss of death in terms of the case ever being heard in state court. And most attorneys are a little more reluctant to take on a federal case, in which all motions and filings must be accompanied by a good memorandum of law, with a few exceptions. It is a fatal error in most instances if you Fail to attach a memorandum of law arguing (a) why what you are filing is the right thing to file and (b) arguing why the merits of the pending matter (not the whole case!) should be decided in your favor.

But the notice of removal while seemingly bulletproof is far from it. Reports from all over the country prove that point, where the Notice of removal is met with a Motion to Remand back to state court and the motion to remand is granted. Getting your case back to state court puts the pretenders at greater risk because the state court judges are more concerned with state laws than the federal judges, just by virtue of what they do every day.

The basis for removal is often specious (false). And like all the other pleadings and exhibits and proffering by lawyers it is often a fraud upon the court. Witness the case at hand where the lawyer who filed the notice stated in the notice that the other defendants were in agreement with removal, but they had already elected to file motions in the state court, thus waiving their right to removal.

In addition to being blatantly false (cause for a Rule 11 frivolous pleading), the filing also might be evidence of the fact that in truth, most pretenders’ lawyers don’t know who they represent. They say they do but they don’t. And that is because of the shell game being played out every day during the litigation process where one party pops up one place as the “creditor” and then another pops up when the first one is knocked down. It’s like a child’s game but the stakes are very high and the practice is contrary to the rules of ethics and discipline of every attorney.

The reason why the lawyers don’t know who they represent is because the banks themselves are confused and the command center, mostly out of Chicago, is poorly designed and works inefficiently. So a law firm gets a request from someone who is NOT the client or potential client in the case at bar, asking for them to defend the case, but the lawyer never actually hears from the actual client or anyone authorized to speak for the actual client. That is why I am a proponent of the Motion to Prove Authority to represent — which nails down the actual client, and prevents the lawyer from asserting representation of other pretenders who obviously have adverse interests. I have seen cases simply disappear when that motion is filed.

Lawyers who represent BOA and other such banks would do well to remember that these cases might come back  and haunt them for knowingly presenting false information and frivolous pleadings to the court. While it is true that only a handful of states have passed rules that require the lawyer to vouch for the proffers made in court and the actual evidence offered, it is already in the rules of ethics and conduct of every state that a lawyer may not present evidence or make any statement that he knows is false or that he would know if he had done the due diligence that is required of every lawyer before they go into court.

At this point it seems that lawyers for the pretender banks are ignoring the basic elements of their ethical duties and disciplinary rules and should be held to task administratively through the Bar Association grievance procedure as well as being held financially accountable by the Courts for having breached an element so basic to court procedure.

38 Responses

  1. Question.

    If an attorney alleges to be “attorney In Fact” for the plaintiff (pretender lender) I would assume then that the plaintiff would have to give the alleged Attorney In Fact a Power Of Attorney in order to represent the Plaintiff right?

    And if the alleged Attorney in Fact is in direct violation of the law.
    (In my case alleged attorney for the plaintiff is in violation of F.S. 454.20, Rule 2.060(f) and posted the Non-Resident Cost Bond as “Attorney in Fact as Surety” on behalf of the plaintiff.)

    Then wouldn’t it be fair to say that since the alleged attorney in fact is in conflict and violation of the law that the attorney for the plaintiff should not be allowed to represent the plaintiff?

    here is the law.
    454.11 Powers of attorneys.—Every attorney duly admitted or authorized to practice in this state shall have the right to appear before any court of the state, or any public board, committee, or officer in the interest of any client, and may appear as amicus curiae when so permitted. All attorneys shall be deemed officers of the court for the administration of justice, and amenable to the rules and discipline of the court in all matters of order or procedure not in conflict with the constitution or laws of this state.
    History.—s. 11, ch. 10175, 1925; CGL 4189; s. 7, ch. 22858, 1945.

    in a recent motion to dismiss hearing, Judge Selph in Bartow, FL Did not care that the attorney was in violation of F.S. 454.20, Rule 2.060(f) (amongst other reasons to dismiss) and allowed the attorney to get away with it.

    I would love to hear every ones opinions and ideas or recommendations on this matter. reply to this post + email me if you have time. Thank you!

  2. id like to see that too as I need one in Missouri

  3. can any one provide me with a template of

    “Motion to prove authority to represent”
    for the state of Florida?

    or can some one provide me a link where i can find the Florida statutes on power of attorney.

  4. @John Gault … Neil appears not to want to post my previous message so, I will stop posting on his website. If you want clarification, get an attorney that knows the stuff and get them to explain it to you. They’re licensed to practice law and their advice is not construed as UPL.

  5. @Dave K. – you said:
    “Did you bother to tell these folks that if they end up filing bankruptcy that some of their affirmative defenses (because of the improperly-plead remand motion) may be lost and they’ll end up on the street anyway?”
    I can only figure that something in a remand motion (or mere participation) is an admission, 86ing an affirmative defense elsewhere or even in the initial action, but I sure dont’ get it. If you would care to, maybe you could explain this? I know you have the homeowners best interest at heart.

  6. Johngault

    You have exceptional insight into these issues so far as I’m concerned

    I’ve known tons of incompetent attorneys. Lazy most of them. These cases take WORK. Who’s going to pay for that

    Keep on. I read all your posts

  7. If pro se litigants had to wait to find qualified attorneys who have been doing “this” for 25 to 30 years, a lot of them would be waiting a very long time. I could be wrong. When I see a list of cases where attorneys (4 or 5 count?) have made successful bids for remand back to state court in THESE cases, I guess I’ll know I’m wrong.
    I still believe, tho, the best efforts are made against a threshold issue – jurisdiction. Courts may only hear cases where the guy who wants something is entitled to invoke the jurisdiction of the court, and that starts with evidence of his own injury. The p’ing match is what constitutes evidence of that interest/injury and making the proper argument to bring that threshold issue before the court.
    Before James may nail Arthur for smashing the Jeep, James needs to establish interest in that Jeep. Sounds simple, but apparantly it isn’t.

    Most people do the best they can with what they’ve got. Pro se’s don’t make any worse ‘bad law’ than attorneys imo. If a pro se (or an attorney) makes the wrong arguments, it’s not ‘bad law; it’s precedent to no proper argument.

  8. Yes, tnharry, I think MERS is “undercapitalized”, and by design. It’s owned by MERSCorp, tho, right? Somone much cleverer than me will find a path to those gazillions, altho efforts to ditch those gazillions are either under way or completed by now is my best guess. Dave Krieger,who wrote “Clouded Titles” and weighs in here only now and then probably has an educated guess on that one. So, DK, is the money over in the Bahamas, too?

  9. Boots

    Ok so long as you’re still there fighting those creeps you’re winning

    You’re doing better than I, for sure

  10. marie,
    when i filed my case originally in state court, i included FDCPA as one of the causes of action aside from the Ca Rosenthal Act, Fraud, quite title, declaratory relief, since the FDCPA is Federal question the pretenders lender’s attorneys moved it to federal court. then i objected the removal and asked the court to remanded back to state court because foreclosure procedures are entirely a state jurisdiction. so the federal judge dismissed the FDCPA with prejudice so it could be heard in state court at the same time the Ca Rosenthal Act cause of action could be pursued and other cause of actions. If i objected the dismissal with prejudice on FDCPA then it sounds like i agree to have my case in Federal court. The FDCPA is the only federal question on my lawsuit.

    my case is still pending in the state court after it remanded back to Ca state court. The FDCPA was entirely dismissed but I could still pursue it under Rosenthal Act.

    This is what the pretender lenders wants to have the case be heard in Federal court instead of state court. so by having the federal judge remanded it back to state court is a victory for me.

  11. Boots

    No offense, but having a count dismissed w/prejudice doesn’t look like success to me. Just the way the cookie crumbled (remand)?when the fed court found no basis for that cause of action and basis for fed jurisdiction ended.

  12. there are exceptions. but what makes me suspicious is why would the federal claim be dismissed–was the statute of limitations pass and therefore the claim not viable? Is that why it was dismissed? It that was the case then the judge did it to help you out–not always the case especially in fed court.

  13. when i filed my case in state court here in Ca. the attorneys for pretender lenders filed a motion for removal to Federal court because of Federal Questions which is FDCPA violations. I objected the removal and the Federal Court remanded it back to state court but dismissed the FDCPA cause of action with prejudice.

    As a pro se, i successfully did it.

  14. Whip, remand is not as described. Defendants remove cases from state to fed court on two grounds: diversity of citizenship with amt in controversy in exc of 75,000 or removal based upon a fed question. If no diversity you can move to remand. Remand is not the right word to go to bankrtupcy court. You don’t do a remand from state court to bankrtupcy court. If there is a summary judgment in state court on your case, you can’t start over in fed district court. If there is sj in state court whether you have grounds in fed bankrtupcy court if you take bankrtupcy is for the trustee to determine and the bankrtupcy court. Again, this is why removal/remand is generally not for pro se litigants. Very complex rules.

  15. Whip – I don’t deny those were all real words, but put together the way you put them they make no sense whatsoever

  16. If you get the Shaft in circuit court a la Summery JUD., whos going to Bitch about a REMAND to FED COURT ( Bankruptcy ) where you’d get a better chance with a JUD or Trustee that is anti-pretender lender on the POC.

  17. Ok, here is how this issue arrises. First, the bank or servicer claims some trust owns your PN. In my case MLMI2006-HE-5. (This was not recorded at any time). It may be recorded, it may not be. But they claim that entity owns your PN. You determine thru an expert that the Pool which allegedly has your note is empty, or your PN never went into the Pool, or the Pool lost its tax exempt status and is technically defunct. Fast forward. They move to foreclose in the name of Citi as Trustee for MLMI2006-HE-5 (whether or not recorded).(This is not the same trustee who sues to foreclose mind you) Your defense to the foreclosure action, is lack of standing, lack of jurisdiction, etc etc. Or you file an offensive quiet title action and declaratory judgment action claiming you have superior title (qt action) and nothing is owed on the note. (DC) Or you are in bankrtupcy court and some entity moves to lift the stay to sell your house and you raise they don’t have standing. (All the same issue but depending on the court stated different ways). Some defendant (the servicer, the trustee for the trust, Mers–all of whom have been sued) say whoa we own the note or have the right to foreclose on the note. You then say “prove it”– Or the attorney representing the servicer and/or MERS, or the attorney separately representing mers enters an appearance for the trust or the trustee of the trust and denies all. Now what? You file a “reply” and deny they reprsent the entity because you can’t represent an entity that does not exist? Capache??? (that’s italian). How can any lawyer claim to represent a non existent entity? How can any servicer claim it is servicing for a non existent entity? How can MERS claim it is the beneficiary for a non existent entity? So two step process: determine whether the trust does exist legally–then if not, question the right to represent a non entity– This is common sense folks. Does not take a lawyer to figure this out-As I used to say to juries: Don’t leave yoru brains at the entrance to the courthouse. Common sense decides or should decide legal issues. We forget that. That being said, don’t get wound up with the technicalities of securitization. That’s not the issue, the issue is does the trust exist and was your note in it at any time and does the trust exist now legally. Go from there. Sorry. We forget about common sense too often in these issues. Judges like common sense–they don’t like a lot of procedural garbage. Same issue on removal/remand. They remove to fed court–do they have the right to do so–it all comes down to the same issue folks. But you have to do it procedurally correct or you loose. That’s the problem with pro se litigants–they mix apples and oranges and court’s want apples or oranges in different baskets. Don’t use the right words, you loose. The pro se litigants winning are super paralegals, or experts, or former attorneys, or pro se litigants with behind the scenes lawyres. Pro se litigants that are not in these categories loose and loose big time including their house and make bad case law. So when you hear a pro se litigant won–don’t think you can automaticfally. check it out.

  18. its not in mo or ks. There is another way to go about it if you think about it. I’ve done it in state court but cannot explain how I did it because it is UPL. Motion is pending.

  19. If you have done yoru research, MERS is not bankrupty or undercapitalized. It is set up to be bankruptcy remote as it has no assets. MERs parent corporation is not bankrtupcy remote and is the one with the money and that’s why they too are often sued. Their money may be off shore since Arnold is now gone who started it but is why both entities are sued.

  20. “Authority to represent” what? Trust is empty. No conveyance. Trust is not real party in interest. Trust is not affected by automatic stay or by foreclosure. Yet Trust is trying to foreclose…correct?

  21. My reply a few moments ago was in response to John Gault’s comments. He/she is not an attorney and is not even a paralegal. I have a real problem with Gault’s comments. Do not encourage pro se litigants to do this. As for anyone asking anyone how to do this representation motion, Garfield has no right to give out legal advice so don’t ask him. Go do your research. Its really a problem suggesting these things on line and then putting people in a position of asking about them and we cannot comment on them. There aer ways to address the issue in the same way as this type of motion, but those of us who know how who are not lawyers, or even if we are lawyers, cannot tell people on these blogs how to do it without having a problem with the bar association. Neil quit it.

  22. I disagree and I don’t think you have a clue what you are talking about. When you have 25 to 30 years of doing this you get to make that comment until then–you don’t. Remands are very difficult and pro ses need to be extra careful.

  23. I’ve only seen this Motion to Prove Authority in Texas. It could be in some state courts’ local rules, but the main reports of it I’ve found have been in TX

  24. Neil,

    how could we plead of the Motion to Prove Authority to Represent against the lawyers who represent pretender lenders, creditors, trustees, AND BENEFICIARIES? I know for a fact, these law firm are not attorneys for the Defendants I am suing because most of the documents they are presenting as judicial notices are all inconsistent with other documents such as naming MERS as beneficiary granting its interest to XXXX banks, then the substitution of trustee, substituting different entity YYY beneficiary which executed, acknowledged and recorded in different time.

    I think different hands handling those documents signed by robo- signers did not know the other documents, that’s why all the documentation are not consistent with each other. It proves that people who fabricated those documents in order to start the foreclosure process are not aware of other documents needed to be consistent. Examples: assignment of deed were usually instructed by a law firm who were hired by the loan servicer ( see Jeffrey Stephan Deposition) instructing the loan servicer to put the name of the beneficiaries on the assignment of deed from MERS to the Trustee of the Pool of Trust or to the Loan Servicer itself. While at the same time, the loan servicer hired a debt collectors to collect a debt by sending an unrecorded Notice of Default. These debt collectors on the NOD usually described themselves as either an agent of beneficiaries, or agent of the trustees, original trustees, duly appointed substituted trustees. These debt collectors wear a different Hats, they don’t even know who they are. Usually in my case, the substitution of trustee were recorded after the assignment of deed naming them (debt collectors) as the SubstitutedTrustee if you don’t cure the default. But the problems these people who executed and recorded the SUBS did not name the correct beneficiaries based on the assignment of deed that was recorded prior to substitution of trustee, the debt collectors named different beneficiaries on the recorded Subs, in other words, the assignment of deed has different beneficiary while the substitution also has different beneficiaries. By summing this up only the beneficiaries, mortgagee or their authorized agents to act as Trustees under the deed. if two different beneficiaries claiming to have interest in one property, those assignment of deed and the substitution is void based on the two different beneficiaries claiming different interest in order to foreclosed.
    The problems with these lawyers representing the pretender lenders, they have not examine the foreclosure documents and its content so all their motion to demmuree were based on those fraudulent documents manufactured by its attorneys itself, the debt collectors posing as the Trustee who has the right to conduct power of sale.

    I think the best thing to disable these attorneys is to file what Neil suggested a Motion to Prove Authority to Represent. I would love to explore this matter. Any help? I am a pro se.

  25. Am I the only one seeing the irony that this post details a plaintiff’s effort to get the case back into state court while the first posting today is an opinion issued by the same state court decided against the homeowner? Bad timing i guess

  26. that may be john, but don’t you think MERS is in all likelihood under-capitalized to the point that they’re basically judgment proof anyway? i thought we’d had some posts along those lines before. anyway, that result wouldn’t surprise me if and when someone does get a bog judgment against them

  27. Upke NJ has a successful motion to remand back to state court. Think it’s posted at scribd. If not, I’ll post it. No pro se unless he has been God-awful unreasonable and shown disrespect for the court numerous times is gonna get a 10k sanction for filing a warranted motion to remand. It may be denied, but that doesn’t often include a frivolous showing. I’ll tell you what’s frivioous and an absolute abuse of process – trying to take a home you have no interest in.
    The Upke litigants also forced the banksters to retain separate counsel, citing potential conflict of interest when the finger pointing begins. MERS is ‘remiss’ in allowing banksters to do a lot of things in its name. We haven’t gotten to that, but it’s coming. MERS latest mandate to its members was just a cya to try to put the onus on the bankster for the appropriateness of the assignments it now says record before foreclosing in the banksters’ names. But it’s too late. MERS assumed a certain amt of responsibility when it chose to be a nominee placeholder in the dot, and even more by its bs allegation of “agency”. MERS, you want “agency”? I know it’s just a matter of time before you’re going to get some, and not what you had in mind.

  28. Don’t know if you are old enough–remember the picture of the flower child of the 60’s with the flower she hands and put in the soldier’s gun barrel? That is what we have to do–kill them with kindness and win. Take care my friend

  29. @tnharry

    Apparently MJRF were able to convince the Federal Judge to remand
    my case with false accusations before I was even aware there was a Motion to Dismiss since MJRF never sent me the Motion to Dismiss till after the case was remanded.

    If you remember Timothy Rooney is the same attorney who with the corrupt referee Penny Stark auctioned off my two condos to straw buyers with the void ab initio judgments signed while the case was under Federal jurisdiction.

    MJRF after doing their damage no longer work for
    Astoria Federal S & L

    For these kind of people like Timothy Rooney you have to depend on Kama and hope bad things happen in their lives.

  30. Neil,

    Sorry but you’ve stepped over the line on this one!

    Which one of these pro se litigants is willing to get sanctioned for $10,000 for screwing one of these up? Did you bother to tell these folks that if they end up filing bankruptcy that some of their affirmative defenses (because of the improperly-plead remand motion) may be lost and they’ll end up on the street anyway?

    Posting these case-specific pleadings is not the answer. Telling people they can do this pro se (without informing them that this is a paralegal that wrote this after hours upon hours of research) is giving bad legal advice. How can you live with yourself?

    People are desperate. Desperate times call for desperate measures.
    People do stupid things out of desperation. You can’t fix stupid, especially when you’re living in a tent!

    Dave Krieger

  31. @Gwen – wasn’t trying to jeopardize that, just curious. it sounds like you’ve been through quite an ordeal.

  32. some disciplinary courts could consider it upl if i followed up with comments. I don’t like being pt in that position and I will not comment or tell you how to reply or adapt for your own case. I can send only what is filed. nothing else., if you want what is filed you can email me but don’t expect any comment other than the filed docs in the two cases. there is a motion for remand, a reply to the opp to the motion for remand, a motion for reconsideration, a reply to the opp to the motion for remand in case one. in case two there is a motion for remand, a reply to the opp to the motion for remand. I do not think that PACER in the Western District of Mo allows access to public records. If they do, you may access there. the name of the case(s) are Gwendolyn Gill Caranchini, aka Gwen Gill Caranchini v. Bank of America et al. The cases were originally filed under those names in the Jackson County, Missouri (16th Judicial Circuit) before Judge Mesle in May and September of 2010. My email is You could easily be contacted by the Bar as Bars are getting very aggressive about UPL in these cases. I will not do anything to jeopardize my reinstatement to practice so that I can actually help people. My own case has been an amazing learning experience and for the first tinme in 12 years I really want to practice again. Sitting for the Bar exam when you are 63 and everyone around you is young enough to be your grandchild was true experience. I might add I am taking the Professional Responsibility test this Friday in KC and I do real estate so I am very busy. Also for all I know you are a plant by the bar or the defendants to set me up. I won’t be set up by anyone. My life experience is the subject of a book being published and if you read that you will undderstand. I was shot at, nearly run over, had my home invaded and subjected to hundreds of thousands of dollars of sanctions and legal fees. It took ten years to get me disbarred and it was called a witch hunt by the judge hearing the case. But good old Stephen Limbaugh Rush’s brother wrote the disbarment opinion. GM was the perpetrator along with some federal judges. So have been there done that and lost well over a $1m. So I want to get licensed again to help folks. Please don’t jeopardize that.

  33. @Gwen – how would pro se filings be considered the unauthorized practice of law? and if they’re filed in court, they are a matter of public record already, so I wouldn’t be concerned about sharing them

  34. I probably did 20 removal cases as a discrimination lawyer–that is cases I filed in state court that were removed. This took place over 25 years. Not once did I ever see grounds for remand except for one case and that was a case where the defendant ended up admitting he screwed up and it got remanded. Since I started my own case, I have moved for remand not once but twiice and a motion for reconsider. I had filed an initial case when I was a “novice” in thsi area that had no fed claim, the defendants had answered but I thought that was the end of it. It wasn’t. Defendants flat out lied about when they had knowledge of the amount of in controversy (claiming that a settlement letter told them and the lawyers did not get the letter until after the 30 day time period.) This is irrelevant. The client got it within the 30 days and I had a receiipt. Also the note was in excess of $75,000. The fed judge ignored this and refused to remand. I then moved for reconsideration several months later based upon the Forde Magistrate’s abstention ruling in Arizona and a Fed Judge’s ruling in Maine I believe that TRO was not available. Also denied. Meanwhile I pled a new case in State court because the fed judge just sat on the case and refused to amend anything. This new case pled against the Trustee which I now understood I could do and added additional claims. I thought well no way–again, I was wrong. MERS moved to remove even after others had answered (In the 8th Cir it does not have to be the first person served who can remove–it has to be the reply of any def served.–not true in all circuits apparently and thsi is a change in the law from 10 years ago). This time MERS claimed I fraudulently joined. I countered in the remand on the grounds that the state court judge had already ruled in the case against the trustee while I was waiting for sevice on other defendants) that there was a viable claim against the trustee, not once but twice, and therefore fraudulent joinder was not permissible given those rulings. MERS has not backed down. The fed judge has not ruled and also has not ruled on the dismissal of the first lawsuit–again just sitting on the case. I might add I filed a motion to recuse this judge in both the first and second cases because of his bias. Under the law in federal and state courts, until the recusal is ruled nothing else can be ruled. The judge’s response has been basically not to rule anything. Therefore the cases sit. Remand is available but very technical and you have to be sure to raise all the appropriate issues. If the remand is denied, then a Writ of Prohibition or Appeal to the Federal Circuit Court of Appeals can be taken immediately on the grounds that the District Court does not have jurisdiction to hear the case. The Ct. of Appeals must take it–it can hear the argument or just remand to the district court with an order to remand. Again, this is not a brief that some pro se litigant should attempt without a lot of research. It is technically very detailed. Im waiting to hear on the results of my bar exam and hopefully will again practice sometime this fall but currently am not admitted to practice and therefore my pro se filings might be considered the UPL and I will not and cannot post.

  35. doesn’t appear the motion was ever filed. plaintiff has to file a response to the Defendants’ motions to dismiss today or it’ll be over…

  36. Correction: … with a “securitized” loan, imo.

  37. It has always been by contention, and it has always baffled me as to why anger is directed mostly at banks and pretender lenders when lawyers should equally share the blame. Fraud outside of court is practiced by banks and pretender lenders, but lawyers bring the fraud before the courts in these foreclosure cases. I’m not sure about other states, but in my state a corporate entity cannot represent itself in court, they must have a lawyer. So any decent lawyer would refrain from representing the “lender” with a “securitized” imo.

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