[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12302

Non-Argument Calendar

____________________

PETER OTOH, 

Plaintiff-Appellant,

versus

FEDERAL NATIONAL MORTGAGE ASSOCIATION, 

VRMTG ASSET TRUST, 

NATIONSTAR MORTGAGE, LLC, 

d.b.a. Mr. Cooper,

NEWREZ LLC, 

d.b.a. Shellpoint Mortgage Servicing,

AUCTION.COM ENTERPRISES, LLC, et al.,

Defendants-Appellees.

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2 Opinion of the Court 23-12302

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:23-cv-02444-TCB

____________________

Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

PER CURIAM:

Plaintiff Peter Otoh, pro se, appeals (1) the district court’s 

denial of his motion to remand this case back to state court for lack 

of diversity of citizenship and (2) the district court’s subsequent 

grant of the defendants’ motions to dismiss Otoh’s complaint. 

In Georgia state court, Otoh brought this suit alleging state 

law claims against seven defendants, including VRMTG Asset 

Trust (the “VRMTG Trust”). Subsequently, three defendants 

removed the case to the United States District Court for the 

Northern District of Georgia. In a single sentence, the district court 

denied Otoh’s motion to remand, concluding there was diversity 

jurisdiction. 

On appeal, Otoh asserts that removal was improper because 

the defendants failed to prove that the parties—in particular, Otoh, 

a citizen of Georgia, and the VRMTG Trust—were completely 

diverse and that removal jurisdiction existed. After review, we

conclude that the defendants’ notice of removal did not properly 

allege the citizenship of the VRMTG Trust and therefore did not 

establish diversity of citizenship between Otoh and the VRMTG 

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23-12302 Opinion of the Court 3

Trust. Accordingly, we vacate the district court’s judgment and its 

orders denying Otoh’s motions to remand and granting the 

defendants’ motions to dismiss. We remand for further briefing 

and for the district court to consider whether complete diversity 

between the parties exists in this case. 

I. FACTUAL BACKGROUND

A. Otoh’s State Court Complaint

On May 8, 2023, Otoh filed this action in the Superior Court 

of Gwinnett County, Georgia, naming as defendants: (1) the 

VRMTG Trust; (2) the alleged owner trustee of the VRMTG Trust, 

identified as the U.S. Bank Trust National Association (“the U.S. 

Bank Trustee”); (3) Federal National Mortgage Association 

(“Fannie Mae”); (4) Nationstar Mortgage, LLC, d/b/a Mr. Cooper 

(“Nationstar”); (5) Mr. Cooper Group (“Mr. Cooper”); (6) Newrez, 

LLC, d/b/a Shellpoint Mortgage Servicing (“Shellpoint”); and (7) 

Auction.com Enterprises, LLC (“Auction.com”) (collectively, “the 

defendants”). 

Otoh’s complaint alleged, inter alia, intentional infliction of 

emotional distress by the defendants in their attempt to foreclose 

and sell his home. Otoh sought cancelation of a security deed on 

his property, hundreds of millions of dollars in monetary relief, and 

various forms of equitable relief. Otoh’s complaint alleged that 

defendant VRMTG Trust was assigned an invalid security deed 

that was being used to foreclose on Otoh’s home, causing him 

severe emotional distress. 

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B. Defendants’ Notice of Removal

On May 31, 2023, defendants Shellpoint, the VRMTG Trust, 

and the U.S. Bank Trustee (“the removing defendants”) filed a 

notice of removal to move Otoh’s action to federal court based on 

diversity jurisdiction under 28 U.S.C. § 1332. The removing 

defendants’ notice of removal stated that: (1) Otoh was a Georgia 

citizen; (2) Shellpoint was a citizen of Delaware and New York; (3) 

Fannie Mae was a citizen of the District of Columbia; (4) Nationstar 

was a citizen of Delaware and Texas; (5) Mr. Cooper was a citizen 

of Delaware and Texas; (6) Auction.com was a citizen of Delaware 

and California; and (7) the U.S. Bank Trustee was a citizen of Ohio. 

As to defendant VRMTG Trust itself, the notice of removal 

stated it was a Delaware statutory trust, the U.S. Bank Trustee was 

an active trustee, and thus only the U.S. Bank Trustee’s citizenship 

was examined for purposes of diversity jurisdiction, as follows: 

Defendant VRMTG Asset Trust (the “Trust”) is a 

Delaware statutory trust registered with the 

Delaware Department of State, Division of 

Corporations, as File Number 6757776, and 

Defendant U.S. Bank the trustee for the Trust. The 

Trust is a securitized trust that holds mortgagebacked securities for the benefit of its 

certificateholders. U.S. Bank is the registered agent of 

the Trust, and, pursuant to the pooling and servicing 

agreement and all other governing documents, 

manages the Trust in an active capacity, including the 

holding, managing, and disposing of assets, as well as 

having the power to control all litigation involving 

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the Trust. As an active trustee, U.S. Bank is the real 

party in interest and therefore the party whose 

citizenship is to be examined for citizenship purposes. 

. . . U.S. Bank, the Trustee of the Trust, is a citizen of 

Ohio for the purposes of diversity jurisdiction.

(Footnote omitted.) Claiming only the U.S. Bank Trustee’s 

citizenship was relevant, the notice of removal did not allege the 

citizenship of the VRMTG Trust or of the beneficiaries of the 

VRMTG Trust.

C. Denial of Motion to Remand and Dismissal of Complaint

Otoh moved to remand the case back to state court, arguing

in relevant part, that diversity jurisdiction was lacking. Otoh 

argued that, as an unincorporated entity, the VRMTG Trust has 

the citizenship of all its members. He also argued that the 

defendants had not established the VRMTG Trust’s citizenship 

because they did not allege, or present evidence of, the citizenship 

of the Trust’s certificateholders. 

On June 5, 2023, without waiting for the removing 

defendants’ response or holding a hearing, the district court denied 

Otoh’s motion to remand, stating “[i]t appear[ed] that Defendants 

properly removed th[e] case and that diversity jurisdiction 

exist[ed].” 

In a separate order on June 21, 2023, the district court 

granted the defendants’ motions to dismiss, finding that Otoh’s 

action was “duplicative and vexatious.” 

Otoh timely appealed. 

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II. STANDARD OF REVIEW

“We review de novo whether a district court properly 

exercised removal jurisdiction.” McGee v. Sentinel Offender Servs., 

LLC, 719 F.3d 1236, 1241 (11th Cir. 2013). We likewise review de 

novo a district court’s denial of a motion to remand a case back to 

state court. Blevins v. Aksut, 849 F.3d 1016, 1018 (11th Cir. 2017). 

III. DISCUSSION

A. Removal Based on Diversity Jurisdiction

A state-court defendant may remove a case to federal court 

“if the case could have been filed in federal court originally.” Hill 

v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1314 (11th Cir. 2004); 28 

U.S.C. § 1441(a). The federal district courts have original 

jurisdiction over all civil actions where the amount in controversy 

exceeds $75,000 and all plaintiffs have diverse citizenship from all 

defendants. 28 U.S.C. § 1332(a); Univ. of S. Ala. v. Am. Tobacco Co., 

168 F.3d 405, 412 (11th Cir. 1999). 

When a defendant removes a case to federal court on 

diversity grounds, the district court must remand the case back to 

the state court if the parties are not completely diverse. See

Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 

2006). “A party seeking to remove a case to federal court bears the 

burden of establishing federal jurisdiction.” McGee, 719 F.3d at 

1241. 

However, a failure to establish complete diversity in a notice 

of removal is a procedural defect that the defendant must be given 

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an opportunity to cure. Corp. Mgmt. Advisors, Inc. v. Artjen 

Complexus, Inc., 561 F.3d 1294, 1296-97 (11th Cir. 2009) (reversing 

district court’s sua sponte order remanding case because notice of 

removal failed to allege complete diversity). A district court should 

determine whether removal jurisdiction exists before addressing 

the merits of any other issue. Univ. of S. Ala., 168 F.3d at 411.

B. Type of Trust for Purposes of Citizenship

To properly assess whether the removing defendants 

sufficiently alleged complete diversity in this case, we must first 

determine the nature of the VRMTG Trust. 

An artificial entity other than a corporation generally has the 

citizenship of all its members. Americold Realty Tr. v. Conagra Foods, 

Inc., 577 U.S. 378, 381 (2016). In Americold, the Supreme Court 

addressed the citizenship of a real estate investment trust organized 

under Maryland law. Id. at 382. Because Maryland law treated real 

estate investment trusts as separate legal entities that could sue and 

be sued, the Supreme Court determined that the trust was an 

unincorporated entity which possessed the citizenship of all of its 

members, rather than a “traditional trust.” Id. at 383. 

A “traditional trust,” in contrast, is generally a fiduciary 

relationship regarding property where the trust cannot sue and be 

sued as an entity under state law. Alliant Tax Credit 31, Inc. v. 

Murphy, 924 F.3d 1134, 1143 (11th Cir. 2019). Whether a trust is 

traditional depends on the law of the state where the trust is 

formed. Id. If state law confers “juridical person status” on a trust 

itself, it is not a “traditional trust.” Id. (quotation marks omitted). 

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Applying Americold, this Court has stated that “[a] ‘traditional trust’ 

holds the citizenship of its trustee, not of its beneficiaries.” Id. That 

the entity is named a “trust” does not affect the analysis. Americold, 

577 U.S. at 383. 

Here, the VRMTG Trust was formed in Delaware. 

Therefore, we must turn to Delaware law to determine whether 

the VRMTG Trust is a “traditional trust” or an artificial entity other 

than a corporation. See id. at 382-83. 

The parties agree that the VRMTG Trust is a Delaware 

statutory trust. See Delaware Department of State, Division of 

Corporations, File Number 6757776 (listing the VRMTG Trust as 

a statutory trust). Under Delaware law, a statutory trust is a 

separate legal entity. See 12 DEL. CODE ANN. §§ 3801(i), 3805. “A 

statutory trust may sue and be sued,” and “may be sued for debts 

and other obligations or liabilities contracted or incurred by the 

trustees or other authorized persons.” Id. § 3804(a). An owner of 

a beneficial interest in a statutory trust is “entitled to the same 

limitation of personal liability extended to stockholders of private 

corporations for profit.” Id. §§ 3801(a), 3803(a). 

Given the foregoing, the VRMTG Trust is not a “traditional 

trust” because Delaware confers juridical person status on the trust 

itself. See Americold, 577 U.S. at 383; 12 DEL. CODE ANN. §§ 3801(i), 

3804(a), 3805; Delaware Department of State, Division of 

Corporations, File Number 6757776. While the notice of removal 

states that the U.S. Bank Trustee controls all litigation for the 

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VRMTG Trust, Delaware law provides that the VRMTG Trust 

may itself be haled into court. See 12 DEL. CODE ANN. § 3804(a). 

The defendants point out that this Court recently affirmed 

the denial of a motion to remand in another removed state court 

action Otoh filed against some of the same defendants. In that 

appeal, this Court concluded, inter alia, that the notice of removal 

filed in that action “adequately stated that there was total diversity 

of the parties.” See Otoh v. Fed. Nat’l Mortg. Ass’n, 2023 WL 4623614, 

at *2 (11th Cir. July 19, 2023). In that case, however, Otoh sued the 

U.S. Bank Trustee, but not the VRMTG Trust itself. See id. at *1. 

Therefore, neither the VRMTG Trust’s citizenship, nor the type of 

trust it is, was at issue in that appeal.

C. Citizenship of the VRMTG Trust

Because the VRMTG Trust has juridical person status and is 

not a traditional trust, it does not hold the citizenship of its trustee. 

Instead, we must look to the citizenship of the VRMTG Trust’s 

beneficiaries to determine its citizenship. See Americold, 577 U.S. at 

382-83; Alliant, 924 F.3d at 1143. Here, however, the removing 

defendants failed to allege in their notice of removal the citizenship 

of VRMTG Trust’s beneficiaries. Nor are the beneficiaries’ 

citizenships evident from the record. 

Where, as here, the notice of removal and other pleadings 

are inadequate for us to determine that diversity jurisdiction exists,

the proper course is to vacate and remand to the district court to 

determine the citizenship of the parties. See Rolling Greens MHP, 

L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022-23 (11th Cir. 

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2004); Williams v. Best Buy Co., 269 F.3d 1316, 1320-21 (11th Cir. 

2001). 

On appeal, the defendants defend the district court’s denial 

of Otoh’s motion to remand by arguing (incorrectly) that only the 

citizenship of the U.S. Bank Trustee as an active trustee “matters 

for purposes of diversity jurisdiction.”1 However, the defendants 

alternatively ask this Court to remand for the district court to 

determine any necessary jurisdictional facts, which would include 

the VRMTG Trust’s citizenship. We note also that the defendants 

were not given an opportunity to respond to Otoh’s motion to 

remand in the district court. Accordingly, on remand, the district 

court shall afford the defendants the opportunity to respond to 

Otoh’s motion to remand and raise any arguments in opposition,

1 The defendants argue that Navarro Savings Ass’n v. Lee, 446 U.S. 458 (1980) is 

determinative here and mandates that the citizenship of the VRMTG Trust be 

that of its trustee—the U.S. Bank Trustee. But that argument is foreclosed by 

Americold. In Americold, the Supreme Court reiterated that:

Navarro had nothing to do with the citizenship of a trust. 

Rather, Navarro reaffirmed a separate rule that when a trustee 

files a lawsuit in her name, her jurisdictional citizenship is the 

State to which she belongs—as is true of any natural person. 

This rule coexists with our discussion above that when an 

artificial entity is sued in its name, it takes the citizenship of 

each of its members.

Americold, 577 U.S. at 382-83 (alterations adopted) (quotation marks and 

citations omitted). In other words, whether the U.S. Bank Trustee is the real 

party in interest is a separate question from what the citizenship of the 

VRMTG Trust is, and Americold makes clear that Navarro has no bearing on 

the latter question, which is the one raised is this appeal. 

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and, if necessary, to amend their notice of removal to establish 

complete diversity of citizenship. See Artjen Complexus, 561 F.3d at 

1297.2 

IV. CONCLUSION

Accordingly, we vacate the judgment of the district court, 

the district court’s June 5, 2023 order denying plaintiff Otoh’s 

motions for remand, and the district court’s June 21, 2023 order 

granting the defendants’ motions to dismiss. We remand for the 

district court to determine whether complete diversity of 

citizenship exists between the parties consistent with this opinion.3 

VACATED AND REMANDED.

2 Plaintiffs are “the master of the complaint” and are free to avoid federal 

jurisdiction if the method of avoidance is not fraudulent. Scimone v. Carnival 

Corp., 720 F.3d 876, 882 (11th Cir. 2013). The defendants state in passing that 

Otoh named the VRMTG Trust as a defendant to defeat diversity jurisdiction, 

but do not argue in this appeal that the VRMTG Trust was fraudulently joined. 

Therefore, we do not address fraudulent joinder. However, on remand, given 

our ruling above and the fact that in the district court the defendants did not 

have an opportunity to respond to Otoh’s motion to remand, nothing herein 

precludes the defendants from raising that issue.

3 Because we vacate and remand for a determination as to whether there is 

diversity jurisdiction, we express no opinion as to the merits of Otoh’s 

complaint or the defendants’ motions to dismiss.

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