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Florida Court Hears Foreclosure Case Despite a Notice of Removal to Federal Court

The Honorable Chad K. Alvaro, a Circuit Court Judge in Osceola County, Florida, has granted U.S. Bank’s motion to proceed with its foreclosure case in the state trial court despite the borrowers’ notice of removal to federal court. U.S. Bank, National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust v. Valeria Taveras, etc., Ninth Circuit, Case No. 2016 CA 000916 (September 1, 2023).

US Bank filed a mortgage foreclosure action against Taveras in 2016 in state circuit court. In 2019, Taveras tried to remove the case to federal court alleging that there was a federal question at issue and diversity between the parties. To remove a case from state court to federal court certain prerequisites must be met. For example, the parties must be from different states, or the issue raised in the complaint must pertain to a federal question.

However, the federal court disagreed and remanded the matter back to the state circuit court finding neither federal question jurisdiction nor diversity between the parties. The court also noted the notice of removal was untimely.

More than four years later, on August 22, 2023, the day before multiple hearings were scheduled to be heard, Taveras filed a second notice of removal to federal court despite the passage of time (since Taveras’ first attempt at removal was untimely), and despite the fact the issues and parties in the circuit court matter remained the same. Taveras timed the filing of the notice of removal with the intension of delaying the August 23rd hearings. Knowing that a notice of removal typically would divest the trial court of jurisdiction, on August 23rd US Bank moved to proceed with the hearings noting the federal court’s prior refusal to remove the matter from the state court.

Judge Alvaro entertained US Bank’s motion to proceed and entered an order the following week finding Taveras’ notice of removal raised the same grounds as the previous notice and clearly was untimely based on the federal court’s previous ruling. Judge Alvaro, citing the Fifth DCA, explained Taveras’ notice of removal did not divest the state court of jurisdiction because “a state court retains jurisdiction to act when a federal court … denies a removal petition which is based on the same grounds as a previously denied removal petition.”

Relying on a Florida Supreme Court case—Wilson v. Sandstrom, 317 So. 2d 732, 740-1 (Fla. 1975)—Judge Alvaro elaborated that the proceedings after a notice of removal “are valid if the suit was not in fact removable,” so despite Taveras’ failure to appear for the hearings scheduled in state court, the court’s findings and subsequent order are valid and will withstand any challenges on appeal. Hopefully, this order will prevent additional delays in the case brought on by frivolous filings.

About Author: Kathleen Achille

Kathleen Achille is the Managing Attorney of the Florida Litigation Group for Diaz, Anselmo & Associates. She also handles general civil litigation matters, hearings, depositions, evidentiary hearings, non-jury trials, and assists with some appeals. Ms. Achille has been a civil litigation practitioner since 2009. Prior to that, she was an Assistant State Attorney in the Seventeenth Judicial Circuit of Florida, handling all manner of jury trials from simple misdemeanors to life felonies. Achille received her Juris Doctor from the University of Florida in 1998, and her Bachelor of Arts from the University of Florida in 1995. She is licensed to practice law in Florida and is admitted in the U.S. District Court, Southern District of Florida. Achille may be reached by phone at (954) 564-0071 or email [email protected].

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