Case: 11-10978

Date Filed: 09/07/2011

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UNITED STATES COURT OF APPEALS For the Eleventh Circuit ______________ No. 11-10978 ______________ District Court Docket No. 1:09-cv-02355-CAP FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEP 07, 2011 JOHN LEY CLERK

WEKESA O. MADZIMOYO, llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant, versus THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., f.k.a. The Bank of New York Trust Company, N.A., JP MORGAN CHASE BANK, N.A., GMAC MORTGAGE, LLC, MCCURDY & CANDLER, LLC, ANTHONY DEMARLO, Attorney, llllllllllllllllllllllllllllllllllllllllDefendants - Appellees. __________________________________________ Appeal from the United States District Court for the Northern District of Georgia __________________________________________ JUDGMENT It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court. Entered: September 07, 2011 For the Court: John Ley, Clerk of Court By: Nancy M. Gilman

Case: 11-10978

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT No. 11-10978 Non-Argument Calendar ________________________ D.C. Docket No. 1:09-cv-02355-CAP WEKESA O. MADZIMOYO, Plaintiff-Appellant, versus THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., f.k.a. The Bank of New York Trust Company, N.A., JP MORGAN CHASE BANK, N.A., GMAC MORTGAGE, LLC, MCCURDY & CANDLER, LLC, ANTHONY DEMARLO, Attorney, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (September 7, 2011) Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
SEP 07, 2011 JOHN LEY CLERK FILED

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PER CURIAM: Wekesa Madzimoyo, proceeding pro se, appeals the district courts judgment on the pleadings in favor of the defendants. Because we conclude that the district court lacked removal jurisdiction, we vacate and remand. In July 2009, Madzimoyo filed an emergency petition in state court seeking a temporary restraining order (TRO) to stop foreclosure proceedings on his home by defendants Bank of New York Mellon Trust Company, JP Morgan Chase Bank, McCurdy & Candler, and attorney Anthony DeMarlo. According to the petition, none of the defendants was the original lender and there was no evidence that the original lender had transferred its rights to any defendant. In support of his petition, Madzimoyo submitted correspondence sent to the defendants in which he sought to verify their rights over the mortgage. Some of the correspondence referenced the Fair Debt Collection Practice Act (FDCPA) and Regulation Z, the Truth-in-Lending regulations. The state court issued the TRO and scheduled a hearing on the petition to stop the foreclosure. The day before the scheduled hearing in state court, the defendants removed the petition to federal district court in the Northern District of Georgia, asserting federal-question jurisdiction because Madzimoyo had alleged violations of the FDCPA and Regulation Z. Madzimoyo moved to remand to state court, disputing

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that he raised any basis for federal jurisdiction. The magistrate judge denied the motion to remand, finding that Madzimoyos petition raised federal questions under the FDCPA and Regulation Z. The defendants then moved for judgment on the pleadings. In a brief in support of the motion, the defendants argued that the FDCPA and Regulation Z claims failed because Madzimoyo had not alleged any violation of these statutes. The magistrate judge recommended that the motion for judgment on the pleadings be granted. The district court adopted the recommendation, over Madzimoyos objections, and granted judgment on the pleadings. This appeal followed. On appeal, both parties address the merits of the order granting judgment on the pleadings, and there is no discussion of the district courts jurisdiction over Madzimoyos action. Nevertheless, we are obliged to notice any lack of jurisdiction regardless of whether the question is raised by the parties themselves. Edge v. Sumter Cnty. Sch. Dist., 775 F.2d 1509, 1513 (11th Cir. 1985). We review questions of subject-matter jurisdiction de novo. Romero v. Drummond Co., 552 F.3d 1303, 1313 (11th Cir. 2008). We consider sua sponte whether the district court had removal jurisdiction. Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1280 (11th Cir. 2005).

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Under the removal statute: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. 1441(b). In other words, to be removable on federal-question jurisdiction grounds, the case must arise under federal law. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807-08 (1986). The well-pleaded complaint rule instructs that a case does not arise under federal law unless a federal question is presented on the face of the plaintiffs complaint. Id. at 808; Kemp v. Intl Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 11 (1983)). A federal question is presented by the complaint when the suit relies on a federal cause of action or where the vindication of a right under state law necessarily turned on some construction of federal law. See Merrell Dow, 478 U.S. at 808. Under this latter analysis, federal question jurisdiction should be narrowly construed. See id. at 810-14. [T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction, even where the interpretation of federal law may constitute an element of the state

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cause of action. Id. at 813. More recently, the Supreme Court fashioned another test for deciding whether federal courts should exercise federal question jurisdiction over removed state court proceedings: does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Grable & Sons Metal Prods., Inc. v. Darue Engg & Mfg., 545 U.S. 308, 314 (2005). If the plaintiff elects to bring only state law causes of action in state court, no federal question will appear in the complaint that could satisfy the well-pleaded complaint rule, and the case may not be removed to federal court. Kemp, 109 F.3d at 712. Upon review of the record, we conclude that the district court should not have exercised federal-question jurisdiction upon the removal of this case. Although Madzimoyos petition referenced federal laws in passing, none of his causes of action relied on even the interpretation of federal law. Rather, Madzimoyo merely asserted that he requested his loan information from the mortgage companies in accordance with federal law to show that he had acted diligently and merited state relief. Accordingly, we vacate the judgment of the district court and remand with instructions that the district court remand the proceeding to the state court. VACATED AND REMANDED.
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Case: 11-10978

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 John Ley Clerk of Court For rules and forms visit www.ca11.uscourts.gov

September 07, 2011 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 11-10978-CC Case Style: Wekesa Madzimoyo v. Bank of New York Mellon Trust, et al District Court Docket No: 1:09-cv-02355-CAP Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to Rule 36 of the Federal Rules of Appellate Procedure. Fed.R.App.P. 39, 40 and 41, and the corresponding circuit rules govern costs and attorney's fees, petitions for rehearing, and mandate, respectively. The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-6(k) and 40-1 Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later). Pursuant to Fed.R.App.P. 39, each party bears their own costs on appeal. For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Brenda F. Wiegmann, CC at (404) 335-6174. Sincerely, JOHN LEY, Clerk of Court Reply to: Nancy M. Gilman Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

Case: 11-10978

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 John Ley Clerk of Court For rules and forms visit www.ca11.uscourts.gov

October 12, 2011 James N. Hatten Richard B. Russell Bldg & US Courthouse 75 SPRING ST SW STE 2211 ATLANTA, GA 30303-3309 Appeal Number: 11-10978-CC Case Style: Wekesa Madzimoyo v. Bank of New York Mellon Trust, et al District Court Docket No: 1:09-cv-02355-CAP The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court. The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk. The record on appeal will be returned as a later date. A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued. Sincerely, JOHN LEY, Clerk of Court Reply to: Brenda F. Wiegmann Phone #: (404) 335-6174 Enclosure(s) MDT-1 Letter Issuing Mandate

Case: 11-10978

Date Filed: 2) (2 of 10/12/2011

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UNITED STATES COURT OF APPEALS For the Eleventh Circuit ______________ No. 11-10978 ______________ District Court Docket No. 1:09-cv-02355-CAP FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEP 07, 2011 JOHN LEY CLERK

WEKESA O. MADZIMOYO, llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant, versus THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., f.k.a. The Bank of New York Trust Company, N.A., JP MORGAN CHASE BANK, N.A., GMAC MORTGAGE, LLC, MCCURDY & CANDLER, LLC, ANTHONY DEMARLO, Attorney, llllllllllllllllllllllllllllllllllllllllDefendants - Appellees. __________________________________________ Appeal from the United States District Court for the Northern District of Georgia __________________________________________ JUDGMENT It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court. Entered: September 07, 2011 For the Court: John Ley, Clerk of Court By: Nancy M. Gilman

ISSUED AS MANDATE: October 12, 2011

Case: 11-10978

Date Filed: 05/23/2011

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RECORD NO. 11-10978-CC In The

United States Court of Appeals

For The Eleventh Circuit

WEKEZA O. MADZIMOYO,
Plaintiff-Appellant,

v. GMAC MORTGAGE LLC, JP MORGAN CHASE BANK, BANK OF NEW YORK MELLON TRUST COMPANY and McCURDY & CANDLER, LLC
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION _______________ BRIEF OF APPELLEE, McCURDY & CANDLER LLC _______________
Frank R. Olson McCurdy & Candler, LLC 3525 Piedmont Road, N.E. Building 6, Suite 700 Atlanta, GA 30305 (404) 373-1612 (678) 891-5769 facsimile folson@mccurdycandler.com Counsel for Appellee McCurdy & Candler LLC

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APPELLEES CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Certificate of Interested Persons and Corporate Disclosure Statement contained in their Brief of Appellees. Further, McCurdy & Candler LLC states there is no publicly held corporation that owns 10% or more of its stock.

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STATEMENT REGARDING ORAL ARGUMENT Appellee McCurdy & Candler, LLC does not desire oral argument. Appellee McCurdy & Candler, LLC believes that this entire case filed by Appellant, including this instant appeal, is frivolous, that existing precedent controls over every claim or issue presented by Appellant, and that oral argument is not necessary. Appellee McCurdy & Candler, LLC believes the briefs of the parties fully suffice to inform this Court of all issues and relevant case law. TABLE OF CONTENTS Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Table of Contents contained in their Brief of Appellees. STATEMENT OF JURISDICTION Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Statement of Jurisdiction contained in their Brief of Appellees, and states that same is fully sufficient to address this appeal and the issues herein. INTRODUCTION Appellee McCurdy & Candler, LLC adopts and incorporates herein by

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reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Introduction contained in their Brief of Appellees, and states that same is fully sufficient to address this appeal and the issues herein. STATEMENT OF THE CASE Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Statement of the Case contained in their Brief of Appellees, and states that same is fully sufficient to address this appeal and the issues herein. SUMMARY OF THE ARGUMENT Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Summary of the Argument contained in their Brief of Appellees, and states that same is fully sufficient to address this appeal and the issues herein. ARGUMENT AND CITATION OF AUTHORITY Appellee McCurdy & Candler, LLC adopts and incorporates herein by reference, for the sake of brevity, Appellees GMAC Mortgage LLC, JP Morgan Chase Bank, and Bank of New York Mellon Trust Companys Argument and

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Citation of Authority in their Brief of Appellees, and states that same is fully sufficient to address this appeal and the issues herein. CONCLUSION Appellee McCurdy & Candler LLC respectfully requests that this Court AFFIRM the February 1, 2011 order of the United States District Court for the Northern District of Georgia, Atlanta Division [R3-42; R3-43], and grant to Appellees such other and further relief herein as is proper. Respectfully submitted this 12th day of May, 2011.

/s/ Frank R. Olson Georgia Bar No. 553077 Attorney for Appellee McCurdy & Candler LLC McCurdy & Candler, LLC 3525 Piedmont Road, N.E. Building 6, Suite 700 Atlanta, GA 30305 (404) 373-1612 (678) 891-5769 facsimile folson@mccurdycandler.com

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B) because: this brief contains 857 words. This brief also complies with the typeface requirements of Fed.R.App. P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Word 2007 in 14 point Times New Roman font. This 12 day of May, 2011. /s/ Frank R. Olson Georgia Bar No. 553077 Attorney for Appellee McCurdy & Candler LLC McCurdy & Candler, LLC 3525 Piedmont Road, N.E. Building 6, Suite 700 Atlanta, GA 30305 (404) 373-1612 (678) 891-5769 facsimile folson@mccurdycandler.com

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CERTIFICATE OF SERVICE

This is to certify that Appellee McCurdy & Candler LLC has this day served all parties in the foregoing matter with a copy of the BRIEF OF APPELLEE McCURDY & CANDLER LLC by ECF filing and by placing same in the United States Mail with sufficient postage affixed thereon to insure delivery to: Wekeza O. Madzimoyo 852 Brafferton Place Stone Mountain, GA 30083 William Loeffler, Esq. Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308 This 12 day of May, 2011. /s/ Frank R. Olson Georgia Bar No. 553077 Attorney for Appellee McCurdy & Candler LLC McCurdy & Candler, LLC 3525 Piedmont Road, N.E. Building 6, Suite 700 Atlanta, GA 30305 (404) 373-1612 (678) 891-5769 facsimile folson@mccurdycandler.com