1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE FOR GREENPOINT 

MORTGAGE FUNDING TRUST

MORTGAGE PASS THROUGH 

CERTIFICATES, SERIES 2006-AR4,

Plaintiff, Case No. 6:15-cv-00046-MC

v. OPINION AND ORDER

MARY R. DUNHAM, et al.

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiff U.S. Bank as Trustee for Greenpoint Mortgage Pass-Through Certificates Series 

AR4 (“U.S. Bank as Trustee”) moves for an order directing the action removed to this Court in 

the case of U.S. Bank National Assoc., as Trustee v. Mary R. Dunham, et al., filed in the Circuit 

Court for the State of Oregon, for the County of Lane as Case No. 161424269, be remanded to 

Lane County Circuit Court. See ECF No. 7. 

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2 – OPINION AND ORDER

Because Charles Barker III (“Barker”) is not a named defendant in the Lane County case 

and would not have been able to remove the case even if he were a defendant, and because 

Barker did not comply with the statutory requirements for removal, U.S. Bank as Trustee’s 

motion is GRANTED and Barker is hereby ORDERED to pay costs and fees incurred by U.S. 

Bank as Trustee in connection with this motion.

BACKGROUND

On December 2, 2014, U.S. Bank as Trustee filed a judicial foreclosure complaint 

against Mary R. Dunham, Citibank, Zuma Enterprises, LLC, and any other person claiming an 

interest in the property. Barker was not named in the complaint, but he claims to be a party to the 

action as the sole member of Zuma Enterprises, LLC, which owned the property at the time the 

complaint was filed. On December 29, 2014, Barker filed his own 62-page complaint with 18 

causes of action in federal court against U.S. Bank as Trustee and eight other banking and 

lending entities. See No. 3:14-cv-2050 (D. Or.). On January 9, 2015, Barker filed a Notice of 

Removal of the state court judicial foreclosure action and named all the parties from his federal 

complaint, most of whom were not parties to the underlying state foreclosure action and have no 

interest in the property. On January 14, 2015, Barker transferred the property in question to 

himself from Zuma Enterprises, LLC.

STANDARDS

Any civil action brought in a state court of which a federal district court would have 

original jurisdiction may be removed by the defendant or defendants to the federal court of the 

district and division where such action is pending. 28 U.S.C. § 1441(a). A civil action otherwise 

removable solely on the basis of diversity of citizenship may not be removed if any of the 

defendants is a citizen of the state in which such action is brought. 28 U.S.C. § 1441(b)(2). Even 

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3 – OPINION AND ORDER

if the defendant intends to present a defense or counterclaim that invokes federal law, “a 

defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that 

the case ‘arises under’ federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers 

Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983) (emphasis in original).

Procedurally, a defendant seeking to remove a state court action must attach the state 

court pleadings to the notice of removal. 28 U.S.C. § 1446(a). If at any time before final 

judgment it appears that the district court lacks subject matter jurisdiction, the case must be 

remanded. 28 U.S.C. § 1447(c). An order remanding the case may require payment of just costs 

and any actual expenses, including attorney fees, incurred as a result of the removal. Id.

DISCUSSION

Only a defendant may remove a case to federal court. Barker is not a named defendant in 

the underlying state foreclosure action. Even if Barker were a defendant, he is a resident of the 

state of Oregon, so he may not remove the Lane County case to federal court based solely on 

diversity of citizenship. See 28 U.S.C. § 1441(b)(2). Barker insists that his federal claims against 

the banks invoke federal jurisdiction, but removal jurisdiction stems only from the original 

complaint, irrespective of Barker’s federal defenses and counterclaims. Franchise Tax Bd., 463 

U.S. at 10. The state foreclosure action does not provide this Court with original subject matter 

jurisdiction, so this Court has no basis on which to grant removal of the state action.

Barker insists that the federal complaint he filed on December 29, 2014, is part of this 

case and asks this Court to consolidate the two. Barker is mistaken. The two cases are 

independent causes of action. The state foreclosure complaint is an action brought by U.S. Bank 

as Trustee against all potential owners of the property. Barker’s subsequent federal complaint is 

an action against various banking and lending entities, most of whom have no interest in the 

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4 – OPINION AND ORDER

property. Both causes of action may relate in some way to the property in question, but that fact 

does not make them identical cases. This Court could not consolidate the two cases unless it first 

had original jurisdiction over the state foreclosure action. For the reasons previously stated, 

federal subject matter jurisdiction does not exist in this case.

Under 28 U.S.C. § 1447(c), district courts have discretion to require payment of just costs 

and any actual expenses, including attorney fees, incurred as a result of an improper removal

action. In this case, the lack of any legal foundation on which to remove the state foreclosure 

action, as well as Barker’s failure to attach the underlying state pleadings or even pay the filing 

fee, justify costs and attorney fees in favor of U.S. Bank as Trustee.1

CONCLUSION

Accordingly, U.S. Bank as Trustee’s motion to remand, ECF No. 7, is GRANTED, and 

Barker is hereby ORDERED to pay costs and fees incurred by U.S. Bank as Trustee in 

connection with Barker’s improper removal.

IT IS SO ORDERED.

DATED this 16th day of March, 2015.

______/s/ Michael J. McShane________

Michael McShane

United States District Judge

 1 Barker’s motion to strike for failure to confer is DENIED. Barker’s Response states counsel for U.S. Bank as Trustee 

sent Barker a letter dated February 4, 2015 in an attempt to confer. Resp., 3.

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