TWO FEDERAL COURTS IN FLORIDA REFUSE BORROWERS’ ATTEMPTS TO REMOVE FORECLOSURE CASE TO FEDERAL COURT

Diaz Anselmo recently celebrated another victory in federal court when Florida’s Eleventh Circuit affirmed the Middle District’s refusal to remove a foreclosure case from circuit court in Osceola County, Florida, to federal court. U.S. Bank, Nat'l Ass'n v. Taveras, No. 23-13384, 2025 U.S. App. LEXIS 11271 (11th Cir. May 9, 2025). Valeria and Eliezer Taveras took out a mortgage in 2006 and defaulted on their loan in 2008. US Bank initiated foreclosure proceedings in 2016; three years later the Taverases sought to remove the matter to Florida’s Middle District based on diversity jurisdiction. The Taverases are U.S. citizens living in Spain.

In September 2019 the Middle District remanded the matter finding there to be a lack of diversity jurisdiction and the request for removal to be untimely. Back in state court, the matter slowly progressed to summary judgment scheduled for August 23, 2023. Two days before the hearing, the Taverases sought again to remove the matter to the Middle District. This time, the Taverases argued that removal was appropriate based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 and civil rights jurisdiction pursuant to 28 U.S.C. § 1443.

US Bank again sought remand to the state court and sought an award of attorneys’ fees and costs pursuant to 28 U.S.C. § 1447. US Bank argued the pleadings did not involve a federal question, there was no diversity jurisdiction (as previously determined) and the removal notice was untimely. In response, the Taverases filed an amended removal notice arguing that their request to remove was timely based on the “Revival Doctrine Exception,” § 1443 was not subject to timeliness restrictions, and that US Bank’s bad faith actions prevented them from requesting removal earlier.

Again, the Middle District rejected the Taverases’ arguments finding there to be no diversity jurisdiction, the request for removal to be untimely, and there to be no proof that US Bank acted in bad faith to prevent or delay removal. The Court also rejected the Taverases’ § 1331 argument that their “preemption defense” raised a federal question finding it to be unsupported and conclusory. Lastly, the Middle District awarded US Bank fees and costs because the Taverases had “no objectively reasonable basis for removal.” The Court did not expressly address its jurisdiction under § 1443.

The Taverases appealed to the Eleventh Circuit arguing that removal was proper under § 1443 and the district court’s failure to address that argument was error. The Taverases also argued that it was an abuse of discretion for the district court to award fees and costs under 28 U.S.C. § 1447(c). The Eleventh Circuit determined it had jurisdiction to review the matter de novo since § 1447(d) “expressly allows for appellate review of remand of a removal based on § 1443.

Firstly, the Court acknowledged that the Middle District did not address its jurisdiction under § 1443; however, the Court explained that it “construe[s] a failure to address a ground for removal as an implicit denial of that ground.” Moving on, the Court explained that § 1443 provides that “civil rights cases” can be removed from state to federal court if two requirements are met: (1) “[T]he defendant must show that the right he relies upon arises under a federal law providing for specific civil rights stated in terms of racial equality;” and (2) “he must show that he has been denied or cannot enforce that right in state court.”

The Court found the Taverases had met the first prong of § 1443 by invoking a violation of the Fair Housing Act and the Civil Right Act of 1964. However, the Court found the Taverases’ allegations insufficient to satisfy the second prong of § 1443 because they “failed to demonstrate that their federal civil rights will be predictably denied by the Florida courts.” The Court elaborated that the Taverases failed to explain why an “otherwise facially neutral foreclosure action was filed for a prohibited or discriminatory purpose” and noted that there were no federal laws that allowed a mortgagor to default on a loan or “immunize[d] them from foreclosure for doing so.”

The Court also rejected the Taverases’ argument that the district court’s award of fees and costs constituted an abuse of discretion. The Court agreed with the Middle District that the Taverases did not have “an objectively reasonable basis for believing that they could remove pursuant to § 1443.” A fee award was also appropriate given the timing of the second removal request right before a dispositive hearing suggesting “the type of ‘gamesmanship’ for which the Supreme Court explicitly endorsed awarding costs and fees…” Although this is a non-binding decision, it provides a coherent basis for challenging Judge Sullivan’s holding in Bartelstein.

1 Taveras, at *1. Future references to this case are to this citation until indicated otherwise.

2 Taveras, at *4.

3 Taveras, at *2. Future references to this case are to this citation until indicated otherwise.

4 Taveras, at *3. Future references to this case are to this citation until indicated otherwise.

5 Taveras, at *3-4. Future references to this case are to this citation until indicated otherwise.

6 Taveras, at *4. Future references to this case are to this citation until indicated otherwise

7 Taveras, at *5. Future references to this case are to this citation until indicated otherwise.

8 Taveras, at *7.

9 Taveras, at *5.

10 Taveras, at *7.

11 Taveras, at *7-8 (internal citations and quotation marks omitted).

12 Taveras, at *9-10.

13 Taveras, at *10. Future references to this case are to this citation until indicated otherwise.

14 Taveras, at *12-13.

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