1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0155p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

VIOLA CHAMBERS, 

Plaintiff-Appellant, 

v. 

HSBC BANK USA, N.A., et al., 

Defendants-Appellees. 

┐

│

│

│

│

│

│

│

┘

No. 14-1606 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:13-cv-14451—Nancy G. Edmunds, District Judge. 

Decided and Filed: July 17, 2015 

Before: MERRITT, MOORE, and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Herman J. Anderson, HERMAN J. ANDERSON, PLLC, Detroit, Michigan, for 

Appellant. Ari Charlip, James A. Martone, DICKINSON WRIGHT PLLC, Troy, Michigan for 

HSBC Bank Appellees. David A. Breuch, Jonathan R. Schulz, CLARK HILL PLC, 

Birmingham, Michigan, for Signature Group Appellees. 

_________________ 

OPINION

_________________ 

BERNICE BOUIE DONALD, Circuit Judge. Plaintiff-Appellant Viola Chambers 

(“Chambers”) appeals from a district court order dismissing her claims of fraud against HSBC 

Bank, USA, and numerous other defendants.1

 Chambers also asserts that the district court erred 

 1

Chambers named 26 defendants below, and renames them all on appeal: HSBC Bank USA, N.A. 

(“HSBC”); Mortgage Electronic Registration Systems, Inc. (“MERS”); Signature Group Holdings, Inc. (“SGH 

Inc.”); Signature Group Holdings, LLC (“SGH LLC”); Ocwen Loan Servicing, LLC (“Ocwen”); Litton Loan 

>
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 2 

when it dismissed her motion for remand as moot. For the reasons that follow, we AFFIRM the 

judgment of the district court. 

I. 

 On April 5, 2006, Chambers and her son purchased a residential condominium in Novi, 

Michigan. The total cost of the condo was $608,294.00. They financed the purchase with 

$25,000.00 from Chambers’ personal funds and obtained a mortgage loan from Fremont 

Investment and Loan (“FILC”) in the amount of $583,294.00 (the “first mortgage”). Chambers 

and her son also took a second mortgage loan on the property from FILC in the amount of 

$166,635.00 (the “second mortgage”). On April 8, 2006, Chambers’ son transferred his interest 

in the condo to Chambers by quitclaim deed. In the following years, the mortgages were 

collectively assigned to defendant HSBC.2

 

 Chambers defaulted on the first mortgage, making her last payment on June 10, 2008. 

The second mortgage was discharged on January 5, 2009. On December 19, 2012, HSBC, 

through its agent Miller Law, began non-judicial foreclosure proceedings against the condo by 

publishing a notice in the Oakland County News. On January 22, 2013, the Oakland County 

Deputy Sheriff sold Chambers’ condo to HSBC for $744,734.33. 

 In September 2013,3

 Chambers filed suit in Oakland County Circuit Court, demanding 

that the sheriff’s sale be voided on multiple bases. Chambers claimed, inter alia, (1) that HSBC 

did not comply with Michigan law governing foreclosure by advertisement because it failed to 

mail her “written notices containing the information specified in [Mich. Comp. Laws (“MCL”)] 

§ 600.3205a(1)[,]” including notification of her right to request a loan modification; (2) that all 

defendants—HSBC, its agents, and others—“acting in concert together and with each other, 

willfully, knowingly and purposefully failed to comply with the mandatory notice provisions” of 

 Servicing LP (“Litton”); Randall S. Miller & Associates, PC (“Miller Law”); Orlans Associates, PC; John 

Alexander; Leticia A. Arias; Debra Avla; Connie Baker; Denise Balley; Russell Castillo; Jami Dorbiala; Karen 

Koronowski (“Koronowski”); Randall S. Miller (“Miller”); Noemi Morales; Susan C. Myers; Vanessa Pinc; Alice 

Rojas; Naomi Smith; William Trudgeon (“Trudgeon”); Leticia Turner; Cynthia Van Patten (“Van Patten”); and 

Jasmin Vazquez. 

2

The chain of title regarding Chambers’ mortgage is discussed in detail in the district court’s order of 

March 11, 2014. 

3

Chambers initially filed her complaint on or about September 6, 2013, and filed an amended complaint on 

or about September 16, 2013. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 3 

Michigan law, and committed fraud in doing so; and (3) that multiple conveyances of the 

mortgage were flawed, rendering HSBC legally incapable of foreclosing on the property. 

Chambers included as defendants not only HSBC and its agents, but numerous other companies 

and individuals whose name or signature appear in the chain of title.4

 In Counts 1 through 4, 

Chambers asked the court to declare void the foreclosure and sheriff’s sale; in Count 5, she 

requested conversion damages under MCL § 600.2919a.5

 

 HSBC, MERS, Ocwen, and Litton (collectively, the “Removing Defendants”) filed a 

motion to remove the case to federal court. In response, Chambers filed a motion for remand to 

state court. A plethora of other motions followed. Of relevance to the appeal at bar, the 

Removing Defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6); 

defendants SGH, Inc., SGH LLC, and Van Patten moved for judgment on the pleadings pursuant 

to Fed. R. Civ. P. 12(c); and Chambers moved for sanctions against defendants and to strike 

Removing Defendants’ motion to dismiss. The district court granted defendants’ motions to 

dismiss and for judgment on the pleadings, denied Chambers’ motions for sanctions and to 

strike, and denied Chambers’ outstanding motion for remand as moot. Chambers now appeals. 

II. 

 Chambers asserts a number of arguments on appeal regarding both the district court’s 

decision not to remand the case to state court and its dismissal of her claims on the merits. We 

find none of these arguments persuasive. 

A. 

 Chambers claims that the district court committed reversible error when it failed to 

remand the case to state court for several reasons: (1) the Removing Defendants failed to obtain 

consent from all necessary defendants; (2) the non-diverse defendants, including Koronowski, 

were properly joined, and therefore remain subject to the unanimity rule; and (3) the motion for 

remand cannot be mooted because “a challenge to subject matter jurisdiction is never moot in a 

removed case.” Chambers’ arguments are unavailing. 

 4

See supra n.1. 

5

As discussed by the district court, MCL § 600.2919a explicitly deals with the conversion of personal 

property, not real estate. Count 5 is not at issue on appeal. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 4 

 Most of Chambers’ jurisdictional claims address various aspects of the same issue: that a 

defendant seeking removal to federal court must obtain the consent of all other “properly joined 

and served” defendants to ensure the motion is unanimous. 28 U.S.C. § 1446(b)(2)(A). This 

requirement, otherwise known as the “rule of unanimity,” ensures that all defendants have a say 

before a case involving their interests is removed from state court. See, e.g., Farnsworth v. 

Nationstar Mortgage, LLC, 569 F. App’x 421, 424 (6th Cir. 2014) (“The rule of unanimity 

requires that in order for a notice of removal to be properly before the court, all defendants who 

have been served or otherwise properly joined in the action must either join in the removal, or 

file a written consent to the removal.”) (quoting Brierly v. Alusuisse Flexible Packaging, Inc., 

184 F.3d 527, 533 n.3 (6th Cir. 1999)) (internal quotation marks omitted). 

 By its terms, however, § 1446(b)(2) only requires the consent of properly joined 

defendants; the consent of a defendant that has been fraudulently joined is not necessary. Walker 

v. Philip Morris USA, Inc., 443 F. App’x 946, 951 (6th Cir. 2011) (“[A] party who removes a 

case involving non-diverse parties to federal court on diversity grounds will defeat a motion to 

remand if it can show that the non-diverse parties were fraudulently joined.”) (quoting Saginaw 

Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009)). To show that a party was 

fraudulently joined, and therefore consent from that party is not required for unanimity, the 

removing defendants must show that there is no colorable cause of action against that party. Id. 

(“Fraudulent joinder occurs when the non-removing party joins a party against whom there is no 

colorable cause of action.”). In other words, “[t]o prove fraudulent joinder, the removing party 

must present sufficient evidence that a plaintiff could not have established a cause of action 

against non-diverse defendants under state law.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 

(6th Cir. 1999). 

 In this case, the Removing Defendants filed a motion to remove the case to federal court, 

and in a related memorandum,6

 asserted that the non-diverse defendants—Orleans Associates, 

P.C., Miller Law, and individuals Miller, Trudgeon, and Koronowski—had been fraudulently 

joined, making their consent for removal unnecessary. On November 25, 2013, Chambers 

 6

In light of the non-diverse defendants named in the case, the district court issued a show-cause order to the 

Removing Defendants requiring them to apply the fraudulent joinder standard to each non-diverse defendant. The 

referenced memorandum is the Removing Defendants’ response to this order. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 5 

responded with a motion for remand to state court. Chambers argued that she had presented a 

colorable claim in particular against Koronowski, and that Koronowski was therefore a properlyjoined, non-diverse defendant requiring remand. However, rather than ruling on the motion for 

remand directly, the district court found the non-diverse defendants were fraudulently joined, 

dismissed them from the case, and declared the motion for remand moot. 

 On appeal, Chambers argues the district court committed reversible error by failing to 

rule on the motion for remand. The Removing Defendants respond that Chambers’ motion was 

time-barred, because it was filed more than 30 days after the notice of removal. But Chambers 

contends that her motion cannot be time-barred because it contained an objection to subject 

matter jurisdiction, which may be raised at any time. We find they are both partially correct. 

Chambers is correct that a challenge to subject matter jurisdiction over a removed case 

may be raised at any time before final judgment. See Page v. City of Southfield, 45 F.3d 128, 

133 (6th Cir. 1995) (“[L]ack of subject matter jurisdiction . . . requires the court to remand at any 

time prior to final judgment.”). But we have held that a breach of the rule of unanimity is a 

procedural issue, not a substantive one. Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516-17 

(6th Cir. 2003) (discussing “technical defects in the removal procedure, such as a breach of the 

rule of unanimity”) (citing 28 U.S.C. § 1447(c) and Page, 45 F.3d at 133). Violation of the rule 

of unanimity was the sole grounds of Chambers’ motion for remand regarding all the non-diverse 

defendants, save one: Koronowski. Accordingly, we must decide on the merits whether 

Koronowski was properly or fraudulently joined, but we need not address the other defendants’ 

joinder if her motion was not timely filed. 

1. 

 In support of removal, the Removing Defendants argued that Chambers had alleged no 

colorable cause of action against Koronowski, which rendered Koronowski’s joinder as a 

defendant fraudulent. Koronowski, a paralegal and notary at Miller Law, had been named only 

in Count 4, under which the sole relief Chambers sought was to void the Sheriff’s sale of the 

property. As Chambers sought no monetary or other relief that Koronowski could legally 

provide, the Removing Defendants argued, Chambers had not alleged a colorable claim against 

her under Michigan law. The district court noted in its order to dismiss that a claim seeking to 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 6 

have a Sheriff’s sale voided was “clearly improper to assert against a paralegal at a private law 

firm.” We agree. Chambers failed to assert a claim against Koronowski that could reasonably 

result in liability under state law. Coyne, 183 F.3d at 493; see also Alexander v. Elec. Data Sys. 

Corp., 13 F.3d 940, 949 (6th Cir. 1994) (“[T]he question is whether there is arguably a 

reasonable basis for predicting that the state law might impose liability on the facts involved.”). 

Koronowski was fraudulently joined; her designation as a defendant does not provide grounds 

for remand. It was not reversible error, therefore, for the district court to declare moot 

Chambers’ motion for remand. 

2. 

Unlike her arguments regarding Koronowski’s joinder, Chambers’ arguments that the 

other non-diverse defendants were properly joined were made solely to establish that their 

consent was necessary for unanimity. Under 28 U.S.C. § 1447(c), “[a] motion to remand the 

case on the basis of any defect other than lack of subject matter jurisdiction must be made within 

30 days after the filing of the notice of removal.” Thus, Chambers’ motion for remand had to be 

filed within 30 days of the date of filing of the notice of removal. The parties dispute whether 

this is the case. 

The Removing Defendants filed their notice of removal with the district court on October 

23, 2013. However, the filing fee was not received until the next day, which Chambers argues 

makes the “date of filing” October 24, 2013. If the 30-day window opened October 23, then it 

closed November 22. If, however, the 30-day window opened October 24, then it closed on 

November 23, a Saturday. Under Fed. R. Civ. P. 6(a)(1)(C), the deadline would be the following 

Monday, November 25—the date on which Chambers submitted the motion for remand. 

The Federal Rules of Civil Procedure state that electronic filing may be governed by local 

rule. Fed. R. Civ. P. 5(d)(3) (“A court may, by local rule, allow papers to be filed, signed, or 

verified by electronic means that are consistent with any technical standards established by the 

Judicial Conference of the United States.”). Thus, we look to the rules of the district court to 

determine the notice of removal filing date. The Electronic Filing Policies and Procedures for 

the Eastern District of Michigan define a notice of removal as an “initiating paper” for the 

purposes of filing. Elec. Filing Pol’y & P., E.D.M.I. (Rev. Mar. 2010) (“EDMI”) 1(f). The rules 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 7 

explain that an initiating paper is considered “filed” when the “initiating paper has been uploaded 

and a judicial officer has been assigned to the case[,]” EDMI 6(a), not when the requisite fee is 

paid, Searcy v. Cnty. of Oakland, 735 F. Supp. 2d 759, 768 (E.D. Mich. 2010). As the district 

court has explained, “[t]he filing fee can be paid routinely up to seven days after ‘filing.’ If it is 

not paid within this time frame, the assigned judge is contacted, but the case remains ‘filed’ until 

it is dismissed by a judge.” Id. at 768. 

In Searcy v. County of Oakland, the district court addressed whether an initiating paper 

was “filed” on the date it was uploaded and assigned to a judicial officer or the date when the fee 

was paid. The court unequivocally stated that the date of filing was the former: 

The complaint in this case was uploaded and the undersigned was assigned to the 

matter on July 29, 2009. That is when the case was “filed” under local 

practice[.] . . . No filing fee was paid then[.] . . . The fee was not paid until August 

12, 2009, and summonses were issued the next day. The fee payment was tardy, 

and the plaintiff's attorney was careless. . . .[But] the non-payment of the fee did 

not upset the “filed” status of the complaint. The Court concludes, therefore, that 

this case was commenced . . . on July 29, 2009. 

Id. 

Accordingly, we find that the notice of removal was filed on October 23, 2013. The 

district court docket for this case clearly states that the notice of removal was received and 

logged by an officer of the court on October 23, 2013, making that the date of filing. As such, 

the motion for remand was timely only if filed by November 22, 2013. Chambers’ motion for 

remand was time-barred regarding the other defendants. Accordingly, it was not reversible error 

for the district court to declare the motion moot. 

B. 

 Chambers also argues that the district court erred in dismissing her claims on the merits 

under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(c) because she: 1) alleged wrongdoing 

outside the ordinary course of the mortgage transactions at issue and 2) made a clear showing of 

the prejudice she suffered as a result. Chambers avers that she is therefore entitled to have the 

foreclosure sale set aside. We disagree. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 8 

 We review de novo a district court’s dismissal of a case under Rule 12(b)(6). Garcia v. 

Fed. Nat. Mortgage Ass’n, 782 F.3d 736, 739 (6th Cir. 2015). To survive a Rule 12(b)(6) 

motion, a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim [for] 

relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We review a district court’s 

grant of a Rule 12(c) motion for judgment on the pleadings under the same standard. JPMorgan 

Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). 

 Michigan law governs our review of Chambers’ claims on the merits. Conlin v. 

Mortgage Elec. Registration Sys., Inc., 714 F.3d 355, 358 (6th Cir. 2013) (“Where, as here, 

federal jurisdiction is based on diversity, this Court applies the substantive law of the forum 

state—in this case, Michigan.”) (citing Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th 

Cir.2008)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). Michigan foreclosure 

statutes provide a mortgagor six months from the date of the sheriff’s sale to redeem the 

property, after which the mortgagor’s “right, title, and interest in and to the property” are 

extinguished. Conlin, 714 F.3d at 359 (citing MCL § 600.3236 and Piotrowski v. State Land 

Office Bd., 4 N.W.2d 514, 517 (Mich. 1942)). Once the statutory redemption period lapses, a 

mortgagor asking the courts to set aside a sheriff’s sale must make a “clear showing of fraud or 

irregularity.” Id. (quoting Schulthies v. Baron, 167 N.W.2d 784, 785 (Mich. Ct. App. 1969) and 

referencing Sweet Air Inv., Inc. v. Kenney, 739 N.W.2d 656, 659 (Mich. Ct. App. 2007)). “[N]ot 

just any type of fraud will suffice.” Wilson v. HSBC Bank, N.A., 594 F. App’x 852, 856 (6th Cir. 

2014) (quoting Conlin, 714 F.3d at 360). The fraud or irregularity must relate to the foreclosure 

procedure itself. Holliday v. Wells Fargo Bank, NA, 569 F. App’x 366, 368 (6th Cir. 2014). 

 Michigan law also requires a plaintiff seeking to set aside a foreclosure sale to show that 

she was prejudiced by the defendant’s failure to comply with Michigan’s foreclosure statute. 

Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329, 337 (Mich. 2012). “To demonstrate such 

prejudice, [the plaintiff] must show that [she] would have been in a better position to preserve 

[her] interest in the property absent defendant’s noncompliance with the statute.” Id. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 9 

 On appeal, Chambers asserts that the defendants committed fraud against her when they, 

“acting in concert with their legal counsel, deliberately engaged in wrongful conduct that 

deprived her of notice about her right to seek a loan modification” as required by the Michigan 

statute. (Appellant Br. 42-43 (citing MCL § 600.3205a(1)).) Chambers was prejudiced, she 

claims, because the defendants’ failure to provide full notice deprived her of the chance to seek a 

loan modification. (Appellant Br. 44.) She does not, however, dispute that she received timely 

notice otherwise. It is also undisputed that Chambers did not file her complaint in state court 

until well after the six-month redemption period ended.7 

 Assuming arguendo that Chambers makes a sufficient claim of fraud and even prejudice, 

she nonetheless fails to state a claim upon which relief may be granted because she did not act 

within the redemption period. We have held that a plaintiff claiming that a bank failed to notify 

him of his right to seek loan modification cannot have the foreclosure sale set aside after the 

redemption period. Elsheick v. Select Portfolio Servicing, 566 F. App’x 492, 499 (6th Cir. 

2014). In Elsheick, the plaintiff claimed that the defendants denied him access to a loan 

modification agreement when it failed to provide him proper notice under § 600.3205a. Id. 

Elsheick requested that the district court set aside the completed foreclosure by advertisement. 

The district court declined, and we affirmed, explaining that Elsheick’s sole remedy under the 

statute was the ability, during the redemption period, to request that a foreclosure by 

advertisement be converted into a judicial foreclosure. Id. (citing MCL § 600.3205c(8)). The 

relief he sought was simply not available for the violation he alleged. Id. Furthermore, we noted 

that Elsheick’s failure to seek the exclusive remedy available to him was the cause of any 

prejudice he might have suffered, rendering the fraud exception inapplicable in his case. Id. 

(citing Smith v. Bank of Am. Corp., 485 F. App’x 749, 756 (6th Cir. 2012) and Kim, 825 N.W.2d 

at 337). 

 Similarly, in Wilson v. HSBC Bank, N.A., Wilson asserted a claim of wrongful 

foreclosure against HSBC for failure to comply with Michigan’s notice requirements under 

§§ 600.3204 and 600.3205a. Wilson, 594 F. App’x at 857. Like Chambers, Wilson averred that 

HSBC failed to send her notice of her statutory right to a loan modification, and requested that 

 7

The sheriff’s sale took place on January 22, 2013. Chambers filed suit in state court in September 2013. 

See supra n.3. 
No. 14-1606 Chambers v. HSBC Bank USA, N.A., et al. Page 10 

the completed foreclosure sale of her property be set aside on that basis. Id. Even assuming 

HSBC had violated the statute as Wilson alleged, we again held that Wilson’s only available 

remedy was conversion of the foreclosure prior to the sheriff’s sale. Id. (citing Elsheick, 566 F. 

App’x at 499). Because Wilson did not take advantage of her sole possible remedy when it was 

available, we found we could not retroactively set aside the foreclosure. Id. 

 The same rationale and result apply in this case. Chambers had the opportunity during 

the redemption period following the January 2013 foreclosure sale to request that a court convert 

the foreclosure by advertisement into a judicial foreclosure. She failed not only to act during the 

requisite time period, but also failed to request the exclusive remedy the district court could 

grant. Accordingly, the district court properly dismissed her claims under 12(b)(6) and 12(c). 

III. 

 For the foregoing reasons, we AFFIRM the decision of the district court.