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Puckett v. Ocwen Loan Servicing, LLC

United States District Court, S.D. West Virginia, Beckley Division

December 20, 2016




         The Court has reviewed the Defendant's Motion to Transfer Venue (Document 32), Defendant Ocwen Loan Servicing LLC's Memorandum in Support of Its Motion to Transfer Venue (Document 33), Plaintiff, Billy Puckett's Opposition to Defendant's Motion to Transfer Venue (Document 47), and Defendant Ocwen Loan Servicing, LLC's Reply in Support of Its Motion to Transfer Venue (Document 49), as well as all attached exhibits.

         In addition, the Court has reviewed Defendant Ocwen Loan Servicing, LLC's Motion to Dismiss Amended Complaint (Document 15), Defendant Ocwen Loan Servicing, LLC's Memorandum in Support of Its Motion to Dismiss Plaintiff's Amended Complaint (Document 16), the Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (Document 18), and the Defendant's Reply in Support of Its Motion to Dismiss Plaintiff's Amended Complaint (Document 19). The Court has also reviewed all attached exhibits, as well as the Plaintiff's First Amended Complaint (Document 12). After careful consideration, for the reasons stated herein, the Court finds that the motion to transfer and the motion to dismiss should both be denied.


         The Plaintiff, Billy Puckett, initiated this suit in the Circuit Court of Raleigh County on June 1, 2016. He named Ocwen Loan Servicing as the Defendant. Ocwen removed the matter to this Court, citing diversity jurisdiction, on June 30, 2016. Mr. Puckett subsequently filed an amended complaint on July 21, 2016. He currently resides in Rock, Mercer County, West Virginia. Ocwen is a Delaware corporation with its principal place of business in Florida.

         This litigation involves a parcel of real property consisting of approximately 0.87 acres, with a residence, located in Princeton, Mercer County, West Virginia. Mr. Puckett and his wife, April Puckett, entered into an agreement to purchase the property from Ms. Puckett's parents on August 1, 2008. The purchase price was $37, 000, to be paid in monthly installments of $250, without interest. The seller had the right to terminate the agreement if the Pucketts failed to make a payment for more than ten days beyond its due date, and prior payments would be considered “liquidated damages and rent for the breach of this agreement.” (Lease Purchase Agreement at 3, att'd as Ex. A to Def.'s Mot. to Dismiss.) Under the terms of the agreement, the buyers were responsible for property taxes, insurance, maintenance, and repairs. The agreement was recorded in the office of the clerk of the Mercer County Commission.

         Mr. and Ms. Puckett, together with their four children, resided in a home on the property after entering into the purchase agreement. In February, 2011, an Ocwen employee called Mr. Puckett and asserted that Ocwen had a lien against the property with a first mortgage or deed of trust, requiring payments of $500 per month with 22 years remaining. Mr. Puckett denied the existence of such a loan. The Ocwen employee said that if the payments were not made, Mr. Puckett and his family would be evicted in ninety (90) days, the locks would be changed, and any personal belongings in the house would be auctioned off.

         As a result of the conversation, Mr. Puckett and his family made repairs to a mobile home in Spanishburg, West Virginia, and moved into it in May, 2011. Sometime between May and October, 2011, Ocwen agents entered the Princeton property, placed padlocks on the doors, and placed placards on the home “identifying themselves as agents of Ocwen who secured Mr. Puckett's home on behalf of Ocwen.” (Am. Compl. at ¶ 11.) Ocwen maintained, controlled, and insured the home thereafter, and the padlocks and placards remained until January 5, 2016, when Ocwen's attorney provided the keys to the padlocks to Mr. Puckett's attorney. During Ocwen's period of possession, the property was damaged, and Ocwen made an insurance claim but did not repair the damage.

         After the Pucketts left their home, Ms. Puckett retained counsel and learned that Ocwen did not have an enforceable lien, mortgage, or deed of trust against the property. Ocwen instead held a deed of trust against an adjacent parcel of property with a mobile home. Ocwen “threatened to file an action to ‘reform' Ocwen's deed of trust on the adjoining property to establish a lien against Mr. Puckett's property” although “Ocwen had no lien of record against Mr. Puckett's property.” (Id. at ¶ 15.) The Pucketts incurred economic expenses, as well as stress and anxiety, as a result of the move, which caused three children to transfer to new schools while the fourth lived with his grandmother temporarily to finish the school year. Mr. Puckett asserts causes of action for invasion of privacy, trespass, slander of title, intentional or reckless infliction of emotional distress, and conversion. He seeks compensatory and punitive damages.

         Ocwen filed a motion to dismiss on July 7, 2016, shortly after removing this action to federal court. Mr. Puckett filed his first amended complaint on July 21, 2016, and Ocwen filed its motion to dismiss the amended complaint on August 4, 2016. On November 3, 2016, Ocwen filed its motion to transfer venue from the Beckley division to the Bluefield division of the District Court for the Southern District of West Virginia. Both motions are now fully briefed. The Court will first address the motion to transfer.


         Ocwen requests that this matter be transferred to the Bluefield division under 28 U.S.C. § 1404(a), because the property in question is located within that division and the Plaintiff and his family live within that division. Ocwen argues that West Virginia law favors resolution of claims involving real property and/or property insurance within the county where the property is located. It further suggests that a jury view of the property may be appropriate in this case, and that it may be necessary for the parties to visit the property during discovery. Mr. Puckett opposes transfer, noting that venue is proper in the Beckley division, and that Ocwen admits that, as it is headquartered out of state, a transfer will not increase its convenience. He states that the Bluefield courthouse is about thirty-five miles closer for him and his witnesses than the Beckley courthouse, and contends that there is no appreciable difference in convenience for his witnesses or sources of proof. Both parties accuse one another of forum shopping.

         Courts may transfer venue “for the convenience of parties and witnesses, in the interest of justice” when venue is proper in both the transferring district and in another district. 28 U.S.C. § 1404(a). The Fourth Circuit has established four factors for consideration in deciding motions to transfer under § 1404(a): “(1) the weight accorded to plaintiff's choice of venue; (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Trustees of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015).[1] “As a general rule, a plaintiff's choice of venue is entitled to substantial weight in determining whether transfer is appropriate.” Id.; see also Ashcraft v. Core Labs. LP, No. 2:15-CV-03192, 2016 WL 1222154, at *3 (S.D. W.Va. Mar. 28, 2016) (Johnston, J.) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) statement that “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.”).

         The Court finds no reason to disturb the Plaintiff's choice of venue in this case. The distance between the two divisions is minimal, limiting concerns regarding the convenience of either Mr. Puckett or any local witnesses. The Defendant does not suggest it has offices or witnesses for whom Bluefield is more convenient. A jury view of the property seems unlikely to be necessary, based on the allegations. A transfer of venue would have no impact on any visit to the property made by the parties and their attorneys and/or witnesses during discovery, as there is no reason such a visit would include a stop at the relevant courthouse. There is no dispute between the parties that venue is proper in either division, and state law venue preferences, to whatever extent they would counsel for the action to be located in a particular county in state court, have little bearing on appropriate venue in federal court. Cf. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953) (noting that 28 U.S.C. § 1441 provides that the proper venue for cases removed from state court is the district court embracing the place where the action is pending, and § 1391, which otherwise governs proper federal venue, is not applicable to removed cases); Smith v. JP Morgan Chase Bank, N.A., 727 F.Supp.2d 476, 479 (S.D. W.Va. 2010) (Goodwin, J.). Thus, the Court finds that the Defendant's motion to transfer venue should be denied and will proceed to address the motion to dismiss.

         STANDARD ...

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