Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Unifund CCR Partners v. Peak

September 7, 2006

UNIFUND CCR PARTNERS PLAINTIFF
v.
EDMOND JOE PEAK, III DEFENDANT/THIRD-PARTY PLAINTIFF
v.
HOSTO & BUCHAN, PLLC AND NCO FINANCIAL SYSTEMS, INC. THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER SUA SPONTE REMANDING ACTION

For the reasons stated below, the Court finds, sua sponte, that federal question subject matter jurisdiction over this case is lacking. The Court therefore remands this action back to the state court from which it was removed.

PROCEDURAL BACKGROUND

On August 2, 2006, Third Party Defendant NCO Financial Systems, Inc. ("NCO") caused this action to be removed from the state court where it was then pending. As cause for the removal, NCO invokes the Court's federal question jurisdiction based upon the assertion by Defendant and Third Party Defendant Edmond Joe Peak, III ("PEAK") of a federal cause of action in his Third Party Complaint.

A review of the underlying pleadings filed in state court prior to removal reveals the following:

In February of 2006, Plaintiff Unifund CCR Partners ("CCR") filed a Complaint against the Defendant Edmond Peak III.*fn1 The five paragraph, two-page Complaint alleges that CCR is the assignee of an identified credit card account which Defendant PEAK obtained from Citibank Universal Card Services. The Complaint further alleges that Defendant PEAK owes a past due balance of $9,252.18, plus interest in the sum of $7,542.50, for a total amount due of $16,794.69, plus costs, attorney's fees, and post-judgment interest.

On the face of the Complaint, there is no federal subject matter jurisdiction.

On April 10, 2006, Defendant PEAK, proceeding pro se, filed an Answer and Counterclaim. Therein, PEAK acknowledges making charges to the card, states that he placed the card with a debt settlement company after he was unable to pay charges on the account, and disputes the amount owed. PEAK also asserts a Counterclaim contending that CCR violated the Fair Debt Collection Practices Act ("FDCPA").

On May 5, 2006, Plaintiff CCR filed a pleading entitled "Answer and Motion to Dismiss." Therein, CCR seeks the dismissal of the federal FDCPA claim pursuant to Ark. R. Civ. P. 12(b)(6).

On May 17, 2006, Defendant PEAK, still proceeding pro se, filed a response to Plaintiff CCR's Answer to Counterclaim and Motion to Dismiss.

On July 6, 2006, Defendant PEAK, represented by counsel, filed one pleading entitled, "Motion to Dismiss; Conditional Amended Answer; First Amended Counterclaim; Third-Party Complaint." The First Amended Counterclaim and the Third Party Complaint both assert causes of action under the FDCPA, 15 U.S.C. § 1692, et seq. In addition to clarifying the FDCPA claim against the Plaintiff CCR, PEAK asserts the same federal cause of action against Third Party Defendants Hosto & Buchan, PLLC ("HOSTO") and NCO Financial Systems, Inc. ("NCO"). PEAK contends that the Plaintiff and Third Party Defendants are all "debt collectors" as defined by the FDCPA who have directly and through agent(s) unlawfully attempted to collect the debt at issue by letter and by phone calls.

DISCUSSION

Because subject matter jurisdiction cannot be waived, it is the duty of this Court to consider sua sponte whether the pleadings filed justify the exercise of federal subject matter jurisdiction. State of Mo. ex rel. Missouri Highway and Transp. Com'n v. Cuffley, 112 F.3d 1332, 1334 (8th Cir. 1997). When jurisdiction is found to be lacking, the Court is obligated to remand improperly removed actions back to state court. Norwood v. Simmons, 788 F.Supp. 1020, 1023 (W.D. Ark. 1991).

A defendant has a right to remove a case from state to federal court if the plaintiff's cause of action arises under federal law. See 28 U.S.C. § 1441(b). The federal courts have jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1994). It is not enough that an issue of federal statutory or constitutional law is present in the case. The "well-pleaded complaint" rule limits federal question jurisdiction to those cases in which the plaintiff's own complaint establishes that the action arises under federal law. See Franchise Tax Board of California v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.