IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

GWENDOLYN GILL CARANCHINI

) )

Petitioner,

) ) CASE NO. 4:11-cv-00464-DGK WRIT OF MANDAMUS

VS. BANK OF AMERICA, ET AL. Respondents.

) ) )

Comes now the plaintiff, Gwendolyn Gill Caranchini, hereinafter referred to as Petitioner, and moves this Court for an Order Pursuant to Rule 21 of the Federal Rules of Appellate Procedure (Writs of Mandamus) with regard to the following matter: I. Petitioner requests this Court either: 1. Order the District Court to immediately rule on the Motion for Remand filed by Petitioner in May 20111, and if denied by the District Court permit Petitioner to seek a Writ from that denial of Remand; or RELIEF SOUGHT

2. Find that the District Court has abused its discretion in refusing to Remand the lawsuit and therefore order remand of the case forthwith as Petitioner daily is denied her right of due process to pursue her case by the District Courts retention of a case (by failure to rule) over which it has no jurisdiction whatsoever. There is a companion case, Case No. 4:10-CV-00672 also before the same District Court which the District Court has refused to rule the Motion to Dismiss without prejudice filed by Petitioner, which likewise permits the District Court to retain jurisdiction over a matter (distinctly related to the instant case) over which the District Court has no jurisdiction. It is unclear whether this Writ will address that issue. Petitioner intends on filing a separate Writ on that matter if this Court will not permit consideration of that matter with this matter in one briefing and appearance. If a separate Writ is necessary, then Petitioner will seek to consolidate the writs. The facts set forth below should show the manner in which the first case is related to the present case and the Writ thereon. II. Issues Presented A. May a District Court refuse to rule a Motion for Remand that is pending before it contesting the diversity jurisdiction upon which the removal was based and thereby maintain or create jurisdiction over the matter by its refusal to rule?

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The original remand was filed in Case No. 4:10-cv-00672 in July 2010.

B. Is a District Courts refusal to rule a Motion for Remand an abuse of the Courts discretion requiring the Appellate Court to Order the District Court to rule? C. If a District Court has refused to rule a Motion for Remand and attempts to retain jurisdiction over a matter by its refusal to rule, may a federal appellate court rule the Motion for Remand upon a Writ being presented? D. Can this Court under Eighth Circuit precedents find fraudulent joinder of the trustee when the State Court Judge has ruled there is a viable and colorable claim against the Trustee and the Trustee itself refuses to agree to get out of the state court case by agreeing it has no interest in the Promissory Note or Deed of Trust? E. Does the doctrine of abstention prevent this Court from hearing a quiet title and declaratory judgment action on non federal property within a state as these matters and contracts on the property are better left to state courts? III. FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED This case has a contorted procedural background extending back to June of 2010 when this litigation was initially commenced in the Jackson County State Court and was assigned to the Honorable Ann Mesle, Division 7. It is necessary to set out this procedural history so that this Court understands the truly great lengths this District Judge has gone to maintain its hold over this matter and deny Petitioner the right to proceed in accord with basic due process. The Court

is surely aware of the undersigneds long history as a trial attorney in the Courts of this state. In those 35 years before state and federal as well as administrative forums, Petitioner has NEVER filed a Motion for Remand in any of the cases in which she was involved although dozens of her cases were removed to federal courts. The removal in this matter defies common sense. Petitioner might also add here that Judge Mesle herself has stated that this District Judge always remanded matters to her in the past. (This a comment off the record after the District Courts first refusal to remand and the second case had been commenced.) Lawyers with whom Petitioner communicated also stated that this District Judge always remanded matters. That has not been the case at bar. 1. This case grows out of a mortgage on Petitioners home in Jackson County, Missouri. 2. In the fall of 2009 Petitioner entered into a loan modification program with her servicer Wilshire; Petitioner completed all the terms of that loan modification and was told to expect the finalizing paperwork. 3. In early February 2010 instead of receiving the paperwork, Petitioner was informed that BAC Home Loan Servicing, a division of Bank of America, was taking over the loan and to make payments to them. Petitioner did so on March 1. 4. Petitioner communicated with BAC and was told they could not find anything on the loan modification and to send it immediate by fax which Petitioner did; Petitioner also sent it by

certified mail. 5. Petitioner was next informed to make three payments over the telephone, which Petitioner did and to fill out new paperwork, which Petitioner did. 6. Petitioner was next informed that BAC would not take her payments and Petitioner offered to put them in an escrow account which BAC refused to respond to. 7. Petitioner was then subsequently informed in a letter to make a payment but this payment was refused. 8. Petitioner had been doing research on these matters and was beginning to suspect there were problems with regard to BAC and BOAs handling of her loan modification. 9. Petitioner filed a lawsuit in Jackson County, Missouri on theories of quiet title, declaratory judgment, third party beneficiary of the HAMP program and other common law claim and it was served. 10. When Petitioner heard nothing, Petitioner sent a demand letter showing the basis for the claim and the absence of ownership by BAC or anyone of this note according to the Recorders of Deeds office. There was no response even though Petitioner had received a return green card showing receipt by the defendants prior to the expiration of the 30 day time period to respond to the lawsuit.

11. On or about the 30th day after service, the Bryan Cave law firm entered an appearance for all the defendants, including MERS, and filed an answernot a Motion to Dismiss and not a Removal. 12. Thereafter there were some informal meetings and Bryan Cave asked Petitioner to provide it with its entire file on the matter which Petitioner did, including the demand letter and other correspondence without presenting Petitioner with a formal request for production of documents. (Defendants have never answered any discovery propounded to them). 13. Petitioner was thereafter going out of town to the baptism of her granddaughter in Chicago and on the eve of that trip which defendants knew of and knew the purpose of, Bryan Cave filed a Removal action claiming as grounds therefor that there existed an exception to its untimely filing: that they did not know that the amount in controversy was in excess of $75,000 and that this was revealed to them in a demand letter they received after the 30 day time period. Defendants also sought to initiate foreclosure immediately. 14. Petitioner, based upon research, did not believe the Federal Court had jurisdiction to stop the foreclosure and filed a separate Temporary Restraining and Preliminary Injunction lawsuit which was assigned to the presiding judge in Jackson County. He set the hearing on it for the day after Petitioners return from Chicago. Unfortunately, while returning to Kansas City, Petitioners car broke down in DesMoines. Defendants would not take Petitioners telephone call and went to the hearing claiming that Petitioner did not appear and therefore the TRO

should be denied. Petitioner, however, had called the Presiding Judges clerk to advise her of the problem, and the Presiding Judge refused to dismiss with prejudice the TRO and only dismissed it subject to being re-brought where it currently stands as of this date.2 15. Petitioner then filed a Motion for Remand citing two key pieces of evidence: First, the note in question was for $300,000 and it was clear from the case law when there is no amount stated in the Petition, if it can be discerned from a note, that is the amount that is used to determine knowledge of diversity. The defendants ignored this totally. Second, Petitioner produced to the defendants and to the Court the green card showing unequivocally that the defendants had received the demand letter with the amount in excess of $75,000 three to four days prior to the expiration of the 30 day time period, and which defendants had been advised of by Petitioner in a meeting when Petitioner provided them a copy of the demand letter. Defendants had no case law that stated that the exception was allowed when the defendants ATTORNEYS did not receive the DEMAND LETTER INCLUDING THE INFORMATION.

Defendants have since taken the position they do not intend to foreclose pending this lawsuit and attempts to notify Petitioner of foreclosure proceedings has ceased although Petitioner daily checks the Jackson County Recorders Office to determine whether a Notice of Sale has been filed to proceed with foreclosure.

16. Despite the fact there was absolutely no basis for granting the removal, and there was even an indication that the defendants had lied to the District Court about when they had received the information on the amount in controversy, the District Court did not rule the remand. The case sat for months and months. This despite the fact that diversity is not to be granted as a basis for jurisdiction unless there is a clear showing. It was a clear and unequivocal abuse of discretion to continue to maintain jurisdiction when none existed. It was in Petitioners belief an attempt to deny Petitioner the right to process her case. As time passed, it became clear this was part of the District Courts bias against Petitioner after a stream of decisions which left no alternative as to the District Courts rulings against Petitioner. 17. After removal the District Court granted a stay on all discovery that had been filed with the lawsuit on the grounds that defendants had filed a Motion to Dismiss (not because of the remand filing). What was problematic here was that the discovery was not directed to all counts but the District Court insisted on a stay on ALL counts. 18. The District Court thereafter refused to permit processing of this case; no scheduling order, no ordering of defendants to engage in disclosures or a scheduling meeting, absolute no rulings on anything. The case sat. 19. Meanwhile Petitioner continued to do research on this daily changing area of the law and determined that the trustee on the Deed of Trust needed to be a party to the lawsuit; Petitioner, asked the defendants if they would agree; they would not. Petitioner talked to the

Courts law clerk who advised Petitioner that if she attempted to join the Trustee it could be considered an attempt to defeat diversity and subject her to sanctions. This should have been a clue to Petitioner that the Court was intent on maintaining jurisdiction over the case even though it had not ruled so. 20. Thereafter, Petitioner filed a new lawsuit in State Court which was again assigned to Judge Mesle. This lawsuit named the Trustee as the initial party defendant and additional parties were added to the lawsuit based upon statements in the defendants answer and investigation. (By this time MERS had its own counsel as counsel for the remaining defendants claimed a conflict.)3 Service was not initially had as the remand in the first case had not been ruled and Petitioner was hopeful the case would be remanded. 21. The Trustee filed a Motion to Dismiss and after hearing it was denied. The Circuit Court requested an amended (Second Amended) Petition filed. The Trustee did not object to the filing of an amended petition. After it was filed, he filed a second Motion to Dismiss This too was denied. However, during that hearing there was discussion about the Trustee getting out of the lawsuit much as Aegis Lending had, by giving an affidavit to the Court claiming it
3

Petitioner always found this disingenuous. Research into other cases ALWAYS showed that MERS was represented by the same lawyers as the Banks or Servicers. In fact, MERS has been found in some cases to be the partner of the banks and servicers given their agreements and has always contended at the least it is the nominee or beneficiary of the bank who obtained the loan, which Petitioner denies. Petitioner has been unable to find one case in which MERS has been separately represented.

had no interest in the note or the title; THE TRUSTEE REFUSED TO DO THAT AND ESSENTIALLY TOLD THE COURT NO. See Transcript Provided with this Writ. 22. During the hearing on that Motion to Dismiss a time was set for all the parties to appear before Judge Mesle as service was almost concluded on all the defendants on the Second Amended Petition. She stated off the record that she believed Carpenter v. Longan was controlling and that it appeared MERS had split the Note from the Deed of Trust and that she was also concerned because Chicago Title in a preliminary title report issued to Petitioner had found the title uninsurable. 23. Prior to the scheduling conference set for Judge Mesles Court, BOA/BAC entered an appearance but did not move to remove, rather filing a Motion to Dismiss. However, on the eve of the hearing two filings were made: 24. First, Citi as Trustee for MLMI2006-HE-5, which BOA/BAC claimed owned the Promissory note on the home (although there is no recorded interest by said entity in the Jackson County Recorders Office), entered an appearance through BOA/BACs lawyers and moved for a Change of Judge. 25. Petitioner filed an immediate Motion with the Presiding Judge in State Court who was to rule the Change of Judge that there needed to be briefing and a hearing on the Change of Judge request, rather than an automatic change of judge under State Court rules, because:

There had never been any service on this entity: all attempts at service had come back non est;

If Bryan Cave was representing Citi as Trustee, Bryan Cave had already entered an appearance for its clients and had neither entered an appearance for Citi nor filed an answer for Citi; Citi was therefore technically in default and had no right to file anything; Bryan Cave however claimed that no further attempts to serve Citi were necessary; why now is unclear but for the fact apparently Citi was the only possible entity that could raise the issue of a change of judge under the rules and therefore defendants needed it to suddenly come forward.

MLMI2006-HE-5 does not exist and defendants have not showed it exists and must show it does exist before this entity can file anything4;

Even if MLMI2006-HE-5 exists, which Petitioner denied, Petitioners note never made it into the trust and was not and is not in the trust as of the time of the lawsuit.

26. Almost simultaneously, MERS/MERSCORP filed a Motion for Removal based upon It has to be a first that an entity which has never filed any document in a lawsuit, suddenly comes forward out of the blue and files a change of judge. It is also a first for Petitioner, that she is contesting whether an entity she is suing exists, but that is and was the point of naming it for the quiet title action. Petitioner would add, that publication had been sought and commenced prior to this time and at no time did Citi as Trustee for MLMI2006-HE-5 come forward claiming it owned the note secured by the title even though BOA/BAC claimed it did own the note
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fraudulent joinder of the Trustee in the second action; it was not joined in by the remaining defendants; they merely consented to the removal5. 27. Petitioner filed an immediate Motion for Remand raising: First, there could be no fraudulent joinder because the state judge had ruled not once but twice that there were viable claims against the trustee and therefore under Eighth Circuit law joinder could not be considered fraudulent. Likewise, the District Court was not to reach substantive issues of the claims against the trustee as a basis for ruling the remand, which MERS was attempting to get the District Judge to do as the basis for denying remand. The Eighth Circuit has specifically stated repeatedly that underlying issues or claims against the alleged party which purportedly defeats diversity are not part of the remand ruling. Second, Petitioner also raised the prior grounds for denial of diversity jurisdiction in the preceding case. 28. This occurred in early May of 2011. The District Court has not ruled.

This in itself was somewhat strange; the defendants had always joined in lockstep with one anothers filings and now the remaining defendants were merely consenting to removal but not joining with MERS in the removal. Also, MERS had filed a document in the court indicating that it had advised its own client that neither it, the defendant nor the lawyers, were to file any frivolous pleadings (essentially), a document none of the other defendants had ever filed in the court. Also, considering that the Trustee had refused to come to Federal Court on February 18 of 2011 when the District Court had set a settlement conference, Petitioner found it interesting that

29. During the summer of 2011, Petitioner filed a Motion to Recuse the District Court citing the pattern in two separate cases of its refusal to timely rule Remands and essentially maintaining jurisdiction over diversity cases when it had no such jurisdiction. 30. In late September, Petitioner requested the District Court rule the Motion for Remand as well as the Motion to Dismiss in the first case which would then permit only one case to go forward. Rather than do so, the District Court set the matter for briefing asking the defendants to reply to a Motion that was solely directed to the District Court and did not require input from the defendants. 31. This Writ of Mandamus follows. IV. REASONS WHY THE WRIT SHOULD BE GRANTED Federal Courts are courts of limited jurisdiction and therefore are obligated to police their own jurisdiction, jurisdiction is never presumed. If there is no jurisdiction, the district court must remand. To do otherwise is a clear abuse of discretion. In a case decided September 7, 2011 in the 11th Circuit Court of Appeals, that Court noted that the District Court has an obligation to determine whether jurisdiction is appropriate. See Madzimoyo, v. The Bank of New York Mellon Trust Company, N.A., et al. D.C. Docket No. 1:09-cv-023550CAP. See also OBryan v. Chandler, 496 F.2d 402, (10th Cir. 1974), cert denied, 95 S.Ct. 245, 419 U.S. 986, 42 L.Ed .2d

now suddenly they were willing to join in the lawsuit in Federal Court.

194, rehearing denied, 95 S.Ct. 838, 420 U.S. 913, 42 L.Ed. 2d 845. See also United Mine Workers v. Gibbs, 383 L.Ed.2d 218 (1966) which speaks to the issue of the District Court addressing the issue sua sponte. Further, federal courts are obligated to police their own jurisdiction and must continually consider whether it has jurisdiction in a removed case and if it becomes clear it no longer has jurisdiction, it must remand. Rodriguez v. Genlyte, 392 F.Supp. 2d 102 (D. Mass. 2005) and Metro Furniture Rental Inc. v. Alessi, 770 F. Supp 198 (E.D.N.Y. 1991) There are three conditions for the issuance of a writ: First, the Party seeking the writ has no adequate remedy; Second, the Party seeking the writ must show his right is clear and indispensable; Third, this Court must be satisfied that the writ is appropriate. See Cheney v. U.S. District Court for the District of Columbia, U.S. Dist. Co, 2004, 124 S.Ct. 2576, 542 U.S. 367, 159 L.Ed. 2d 459, on remand, 406 F.3d 723. Finally see Bankers Life and Cas. Co. v. Holland, 74 S.Ct. 145, 346 U.S. 379, 98 L.Ed. 106 (U.S. Fla. 1953) which speaks to the issue of the traditional roll of mandamusto compel a lower court to do what it is required to do when it refuses to do so. A Writ of Mandamus is after all an extraordinary remedy reserved for the few exceptional circumstances such as an abuse of judicial

power, exceeding the courts jurisdiction or a judicial usurpation of power whose performance is positively commanded and so plainly prescribed as to be free from doubt. U.S. ex rel McQueen v. Wangelin, 527 F.2d 579 (CA. 8 1975). There are two possibilities with regard to the District Courts actions and inactions: First, the District Court does not recognize that there is a total lack of basis for diversity jurisdiction as clearly shown by the briefs filed by Petitioner; Second, more disturbing, as raised by Petitioners Motions to Recuse in both cases; the District Court does recognize there is no diversity and by sitting on the cases and refusing to remand or rule a Motion to Dismiss which would require remand, it is maintaining jurisdiction over these cases to deny Petitioner the opportunity to process her cases in accordance with due process. This District Court not once but twice refused to recognize the absence of diversity jurisdiction. Petitioner is entitled to a remand in these cases as for almost eighteen months she has been denied the opportunity to process these cases and get a clear title to her property as the law unequivocally provides in Missouri on numerous grounds. It must come to a halt. This Court must direct the District Court to rule and then permit this Petitioner to appeal or seek a writ on the denial of a remand which the District Court would surely find, or this Court should immediately remand the second, and possibly the first case to the State Court. All the requirements have been met: Petitioner has no adequate remedy at law; Petitioner has

shown a clear right and surely this Court must see that the fraudulent joinder claim as grounds for removal has no basis at all in this Courts precedents, especially in light of the fact that the State Court judge has not once but twice found that there are viable claims against the trustee. One other point. If the District Court believed that its denial of remand would be appropriate and this Court would so find, why not deny the remand and let Petitioner bring it to this Courts attention. By refusing to even rule, the District Court is sending a clear signal that there are no grounds for the removal and it will try to sit on the case as long as possible to deny processing of the case which may result in a finding for the Petitioner. That is the clear intent here. V. Documents Necessary for Determination of the Writ Petitioner believes the following documents are necessary for determination of the Writ: 1. First Amended Petition in State Court of the Second Filed Lawsuit 2. Second Amended Petition in State Court of the Second Filed Lawsuit 3. Trustees Motions to Dismiss First Amended Petition 4. State Courts Denial of Motion 5. Trustees Motion to Dismiss Second Amended Petition 6. State Courts Denial of Motion 7. Transcript of Hearing on Second Motion to Dismiss 8. BOA/BACs Motion to Dismiss 9. Citis Motion for Change of Judge 10. Petitioners Opposition to Change of Judge

11. MERS Removal 12. Petitioners Motion for Remand 13. MERS Objection to Remand 14. Petitioners Reply to Objection to Remand 15. Petitioners Motion for Recusal 16. Petitioners Request for Ruling on Remand WHEREFORE, Petitioner respectfully requests this Court grant her Writ of Mandamus and the relief requested. Respectfully submitted, ______________________________________ Gwen G. Caranchini, Pro Se 1203 W. 62nd Street Kansas City, Missouri 64113 816.223.7178 gwencaranchini@sbcglobal.net

Certificate of Service I hereby certify that the above document was filed at the United States District Court for the Western District of Missouri, and copies were served by email upon John Polhemus, Staci Schorgl, Steve Aaron, and Patrick Murphy this 6th day of October 2011. ____________________________________ Gwen G. Caranchini