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Vincent v. CitiMortgage, Inc.

United States District Court, N.D. West Virginia

November 13, 2017

DANETTE VINCENT f/k/a DANETTE BOYD, Plaintiff,
v.
CITIMORTGAGE, INC. and CITICORP HOME MORTGAGE SERVICES, INC., Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         This is a consumer credit case arising out of a home mortgage loan. The plaintiff, Danette Vincent, filed this civil action in the Circuit Court of Brooke County, West Virginia. The defendants, CitiMortgage, Inc. (“CitiMortgage”) and CitiCorp Home Mortgage Services, Inc. (“CitiCorp”), removed the case to this Court citing diversity jurisdiction. The plaintiff then filed a motion to remand, which is fully briefed and ripe for decision. For the following reasons, the plaintiff's motion to remand is denied.

         I. Background

         The plaintiff obtained a residential home mortgage loan from HomeSense Financial Corporation in April 2000. The plaintiff alleges that the deed of trust for that mortgage loan expressly prohibits the lender from charging the borrower attorney's fees. CitiCorp became the holder of the mortgage through a series of assignments, at which point CitiMortgage began serving as the loan servicer. As the loan servicer, CitiMortgage took actions, including the assessment of fees, on behalf of CitiCorp, the loan holder. CitiMortgage modified the loan in April 2002, by extending the loan term and resetting the interest rate to 12.00% per annum. The interest rate was previously set at 13.49% per annum, which the plaintiff had a difficult time managing.

         The plaintiff alleges that the defendants breached the mortgage contract and engaged in unfair debt collection practices. Specifically, the plaintiff alleges that CitiMortgage “assessed unlawful default fees to the loan” and “made multiple misrepresentations to the Plaintiff by overstating balances, which include unlawful fees.” ECF No. 1-1 at 7. The plaintiff alleges that the unlawful fees included “property inspection fees, legal expenses and attorney's fees, where no foreclosure sale was even held.” ECF No. 1-1 at 7. Count I of the complaint asserts the breach of contract claim against both defendants, and Count II asserts the unfair debt collection claim against both defendants. The plaintiff alleges that CitiCorp, the loan holder, is vicariously liable for the acts and omissions of CitiMortgage, the loan servicer. ECF No. 1-1 at 6.

         In the notice of removal, the defendants assert that this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $75, 000.00 exclusive of interests and costs. The defendants state that there is complete diversity because the plaintiff is a West Virginia citizen, defendant CitiMortgage is a Delaware corporation with its principal place of business in Missouri, and defendant Citicorp is a North Carolina corporation with its principal place of business in Missouri. The defendants allege that the amount in controversy exceeds $75, 000.00 exclusive of interests and costs based on the plaintiff's settlement demand of $175, 000.00.

         After removal to this Court, the plaintiff filed a motion to remand arguing that the defendants' notice of removal is untimely because the defendants failed to file it within 30 days after it could “first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). There is no dispute that the parties are completely diverse.

         II. Applicable Law

         A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75, 000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). However, if federal jurisdiction arises only by virtue of the parties' diverse citizenship, such an action “shall be removable only if none of the . . . defendants is a citizen of the State in which such action is brought.” Tomlin v. Office of Law Enforcement Tech. Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.Va. May 7, 2007). The party seeking removal bears the burden of establishing federal jurisdiction. See In re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29 F.3d at 151.

         Further, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey v. Alabama Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007) (“In assessing whether removal was proper . . . the district court has before it only the limited universe of evidence available when the motion to remand is filed.”); O'Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL 2551163 (N.D. W.Va. June 27, 2011); Marshall v. Kimble, No. 5:10CV127, 2011 WL 43034, at *3 (N.D. W.Va. Jan. 6, 2011) (“The defendant's removal cannot be based on speculation; rather, it must be based on facts as they exist at the time of removal.”); Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.Va. May 12, 2011) (“The amount in controversy is determined by considering the judgment that would be entered if the plaintiff prevailed on the merits of his case as it stands at the time of removal.”) (internal citations omitted).

         III. Discussion

         There is no dispute that complete diversity exists. The only issue is whether the amount in controversy was ascertainable before the plaintiff's settlement demand of $175, 000.00. The plaintiff argues that the defendants' notice of removal is untimely because it was ascertainable that the case was removable before the plaintiff's settlement demand of $175, 000.00. The defendants argue that the plaintiff's settlement demand was their first notice that the amount in controversy exceeded $75, 000.00, and, thus, that their notice of removal, filed within 30 days of the settlement demand, was timely.

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been ...

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