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Cox v. United States Dep't of Agriculture

United States District Court, D. Nevada

December 10, 2012

LARRY L. COX et al., Plaintiffs,
v.
U.S. DEPARTMENT OF AGRICULTURE, Defendant

Larry L Cox, Plaintiff, Pro se, Yerington, NV.

Renee M Cox, Plaintiff, Pro se, Yerington, NV.

For United States Department of Agriculture, Defendant: Holly A. Vance, U.S. Attorney's Office, Reno, NV.

OPINION

Page 1062

ORDER

ROBERT C. JONES, United States District Judge.

This case is a removed Petition for Judicial Review (" PJR" ) originally filed in the Third Judicial District Court of Lyon County pursuant to Nevada Foreclosure Mediation Rule 21(1). Defendant U.S. Department of Agriculture (" USDA" ) has moved to dismiss. For the reasons given herein, the Court denies the motion and remands the case.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs Larry L. Cox and Renee M. Cox are mortgagors of real property in Lyon County who filed the present PJR in the state district court in that county, requesting review of state Foreclosure Mediation Program (" FMP" ) proceedings between Plaintiffs and Defendant. ( See PJR, Mar. 8, 2011, ECF No. 1, at 5). Defendant attended the mediation but argued that it was prevented from modifying either the interest rate or loan term by federal statute. ( See id. 5). Plaintiffs allege Defendant therefore failed to comply with the FMP because it failed to participate in good faith, sent no agent to the mediation with authority to modify the loan, and failed timely to provide required documents to the mediator. ( See id. ). Plaintiffs ask the Court to lower the interest rate to no higher than 6.5% and extend the loan term to thirty years, with a monthly payment not to exceed $500 and with any past due amount to be amortized into the loan; to fine the USDA; and to award fees, costs, and lost wages. ( See id. 7-9). Defendant removed and has moved to dismiss.

II. LEGAL STANDARDS

" A party to the mediation may file a petition for judicial review with the district court in the county where the notice of default was properly recorded. A hearing shall be held, to the extent that the court deems necessary, for the limited purposes of determining bad faith, enforcing agreements made between the parties within the

Page 1063

Program, including temporary agreements, and determining appropriate sanctions pursuant to NRS Chapter 107 as amended." Nev. FMP Rule 21(1) (2011).

In the present case, Plaintiffs have sued the USDA, so removal is available under 28 U.S.C. § 1442(a)(1). However, it is not entirely clear whether a PJR is generally removable under § 1441, which provides for removal jurisdiction wherever the federal court would have had original jurisdiction. This Court in a previous case assumed without deciding that such actions were removable. See Lucero v. Bank of Am. Home Loans, LLC, No. 2:1 1-cv-1326-RCJ-RJJ, 2012 WL 359465, at *3 (D. Nev. Feb. 2, 2012) (Jones, C.J.) (citing former Nev. FMP Rule 6(1) (2009)). Another court of this District has determined that when a PJR is filed in a case where there has in fact been no mediation, the action is generally removable as a civil action because the complaint is not a PJR subject to the Nevada FMP Rules. See Prasad v. BAC Home Loan Servicing LP, No. 2:10-cv-01857-RLH-PAL, 2011 WL 1304257, at *3 (D. Nev. Apr. 1, 2011) (Hunt, C.J.). That court suggested that had there been a mediation, a PJR might not be removable because the state district courts would have had exclusive jurisdiction over a PJR. See id. ...


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