Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-8-2006
Ocwen Loan Servicing v. Ezekoye
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1728
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"Ocwen Loan Servicing v. Ezekoye" (2006). 2006 Decisions. Paper 1144.
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APS-201
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1728
________________
OCWEN LOAN SERVICING, LLC
V.
ANDREW N. EZEKOYE; DOROTHY EZEKOYE,
or occupants of 120 Lynn Ann Drive, New Kensington, PA, 15068
Andrew N. Ezekoye and Dorothy Ezekoye,
Appellants
_________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 06-cv-00030)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
or for lack of appellate jurisdiction, or for Summary Action Under
Third Circuit LAR 27.4 and I.O.P. 10.6 on April 20, 2006
Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES
(Filed: May 8, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Andrew and Dorothy Ezekoye, proceeding pro se, appeal an order of the United
States District Court for the Western District of Pennsylvania remanding a complaint in
ejectment to Pennsylvania state court. Ocwen Loan Servicing, LLC filed the ejectment
complaint against the Ezekoyes after Ocwen obtained a judgment in a mortgage
foreclosure action in state court and title to the property at issue in a sheriff’s sale.
Dorothy Ezekoye filed a notice of removal in District Court, alleging that the District
Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332(a)(1), 1343(a), 1367, 1441(a),
1441(b) and 1443. The District Court, however, remanded the case to state court
pursuant to 28 U.S.C. § 1447(c) for lack of jurisdiction.
An order remanding a case to the state court from which it was removed is not
reviewable on appeal unless the case was removed pursuant to 28 U.S.C. § 1443. 28
U.S.C. § 1447(d). Thus, to the extent the Ezekoyes challenge the District Court’s remand
order with respect to the bases for removal other than § 1443, we will dismiss the appeal
for lack of jurisdiction. Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997). We have
jurisdiction to review the remand order to the extent the Ezekoyes assert that removal was
proper under § 1443. Id.
Section 1443 authorizes the removal of a state law action “[a]gainst any person
who is denied or cannot enforce in the courts of such State a right under any law
providing for the equal civil rights of citizens of the United States, or of all persons
within the jurisdiction thereof.” 28 U.S.C. § 1443(1). This provision applies in rare
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cases. Davis, 107 F.3d at 1048-49. A state court defendant must demonstrate both: (1)
that he is being deprived of rights guaranteed by a federal law “providing for . . . equal
civil rights”; and (2) that he is “‘denied or cannot enforce’ that right in the courts” of the
state. Id. at 1047 (quoting State of Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under
the first requirement, a defendant must allege a deprivation of rights guaranteed by a
federal law providing for specific civil rights stated in terms of racial equality. Id. Under
the second requirement, removal is available where the defendant’s federal civil rights
would inevitably be denied by the very act of being brought to trial in state court. Id. at
1050.
The Ezekoyes have not shown that § 1443 applies. In their answers to the
complaint in ejectment, the Ezekoyes raised several counterclaims under statutes
prohibiting abusive debt collection practices. They did not claim in their answer, nor do
they contend elsewhere, that they have suffered a deprivation of their civil rights based
upon their race. Moreover, the Ezekoyes do not assert an inability to enforce their equal
civil rights in state court.
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
To the extent the Ezekoyes appeal the District Court’s remand order with respect to the
bases for removal other than § 1443, we will dismiss the appeal for lack of appellate
jurisdiction. Dorothy Ezekoye’s motion for an injunction pending the disposition of this
appeal is denied.
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