United States District Court, N.D. West Virginia
NANCY C. LESHO Plaintiff,
SPECIALIZED LOAN SERVICES, LLC; and THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, as Trustee for the Certificate Holders of CWABS, Inc., Asset-Backed Certificates, Series 2006-20, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO AMEND COMPLAINT [DKT. NO. 34]
M. KEELEY, UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Amend Complaint filed by
the plaintiff, Nancy C. Lesho (“Lesho”), in which
she seeks “to add as a party the servicing agent to
which [her] account was transferred during the pendency of
this action.” For the following reasons, the Court
GRANTS the motion (Dkt. No. 34).
filed her original complaint in the Circuit Court of Harrison
County, West Virginia, against the defendants, Specialized
Loan Services, LLC (“SLS”), and The Bank of New
York Mellon, FKA The Bank of New York, as Trustee for the
Certificate Holders of CWABS, Inc., Asset-Backed
Certificates, Series 2006-20 (“BNY Mellon”)
(collectively, “the Defendants”) (Dkt. No. 1-2).
BNY Mellon is the holder of Lesho's mortgage loan, and
SLS was the loan servicer when Lesho filed her original
complaint. Id. at 8.
alleges that her home was completely destroyed by a fire in
June 2014, and that she was hospitalized due to complications
from a stroke for much of December 2015. Id. at 8-9.
Although Lesho claims that she never received notice of
foreclosure, SLS scheduled her home for a foreclosure sale on
January 7, 2016. When she contacted SLS, a representative
advised Lesho that her account was in arrears in the amount
of $3, 673, and that she would only be able to reinstate the
loan by paying attorney's fees and costs associated with
avoiding the foreclosure. Id. at 9-10. Lesho's
original complaint alleged four causes of action: 1) illegal
default fees, in violation of W.Va. Code §§
46A-2-127(g), 46A-2-115, and 46A-2-128, 2) misrepresentation
of amount due, in violation of W.Va. Code §
46A-2-127(d), 3) tortious interference with contract, and 4)
breach of contract. Id. 10-14.
February 10, 2016, the Defendants removed the case to this
Court pursuant to 28 U.S.C. § 1332 (Dkt. No. 1). The
Court held a scheduling conference on April 14, 2016, but
continued the case for 45 days because the parties were
engaged in preliminary settlement discussions (Dkt. No. 10).
When the parties failed to settle their dispute, the Court
entered a limited schedule on discovery and dispositive
motions on June 1, 2016 (Dkt. No. 15). Thereafter, on October
3, 2016, during a status conference, the parties placed on
the record the terms of an agreement to resolve the case, and
the Court directed them to notify it when each had fulfilled
its respective obligations under the settlement agreement
(Dkt. No. 22).
only through a status report filed on June 16, 2017, that the
parties advised the Court for the first time that servicing
of Lesho's mortgage loan had been transferred to
Shellpoint Mortgage Servicing, a division of New Penn
Financial, LLC (“Shellpoint”), and that the
parties were having difficulty finalizing their settlement
agreement (Dkt. No. 24). When the parties were unable to
submit a dismissal order by August 23, 2017, the Court
conducted a status conference on October 4, 2017, at which it
learned that the parties had not yet complied with the terms
of their settlement agreement (Dkt. No. 27). As a
consequence, the Court scheduled the case for trial beginning
on January 4, 2018 (Dkt. No. 35).
October 11, 2017, Lesho moved for leave to amend her
complaint to add Shellpoint as a defendant (Dkt. No. 34).
According to Lesho, after her loan was transferred to
Shellpoint in December 2016, it returned all five payments
she had made to SLS under the settlement agreement.
Id. at 2. As a result, Lesho seeks to assert a fifth
cause of action for illegal return of payments, in violation
of W.Va. Code § 46A-2-115(c) (Dkt. No. 34-1 at 9-10).
the rules, a plaintiff may amend her complaint “once as
a matter of course” within either 21 days after serving
the complaint, or 21 days after service of a responsive
pleading or a motion under Rule 12(b), (e), or (f), whichever
is earlier. Fed.R.Civ.P. 15(a)(1). “In all other cases,
a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
Court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Because SLS opposes
Lesho's proposed amendment (Dkt. No. 37), she may only
amend her complaint with the Court's leave.
grant or denial of a motion to amend is within the discretion
of the Court. Scott v. Family Dollar Stores, Inc.,
733 F.3d 105, 121 (4th Cir. 2013). “[D]elay . . . is
not sufficient reason to deny leave to amend.” Rather,
the Court should freely grant leave unless the amendment
“would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the
amendment would have been futile.” Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962));
see also Edwards v. City of Goldsboro, 178
F.3d 231 (4th Cir. 1999).
In the Fourth Circuit,
[w]hether an amendment is prejudicial will often be
determined by the nature of the amendment and its timing. A
common example of a prejudicial amendment is one that
“raises a new legal theory that would require the
gathering and analysis of facts not already considered by the
[defendant, and] is offered shortly before or during
trial.” An amendment is not prejudicial, by contrast,
if it merely adds an additional theory of recovery to the
facts already pled and is offered before any discovery has
Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)
(alteration in original). In other words, the further a case
progresses, the more likely it is that the defendant will be
prejudiced by an amendment. See Mayfield v. Nat'l
Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369,
379 (4th Cir. 2012) (citing Matrix Cap. ...