Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Raspet v. Shellpoint Mortgage Servicing

United States District Court, N.D. West Virginia

April 13, 2018

WILLIAM RASPET, JR.; and DONNA RASPET, Plaintiffs,
v.
SHELLPOINT MORTGAGE SERVICING, a Division of New Penn Financial, LLC; and THE BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee on Behalf of the Holders of CWABS, Inc., Asset Backed Certificates, Series 2005-10, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO REMAND [DKT. NO. 7]

          IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE.

         On December 7, 2017, the plaintiffs, William and Donna Raspet (collectively, “the Raspets”), filed a complaint in the Circuit Court of Harrison County, West Virginia, against defendants Shellpoint Mortgage Servicing, A Division of New Penn Financial, LLC (“Shellpoint”), and The Bank of New York Mellon, f/k/a The Bank of New York, As Trustee, on Behalf of the Holders of CWABS, Inc., Asset Backed Certificates, Series 2005-10 (“BONY”) (Dkt. No. 1-1). In reliance on diversity jurisdiction under 28 U.S.C. § 1332, Shellpoint and BONY removed the case to this Court on January 26, 2018 (Dkt. No. 1). The Raspets moved to remand, contending that Shellpoint and BONY failed to establish that the amount in controversy exceeds $75, 000. For the reasons that follow, the Court DENIES the Raspets' motion (Dkt. No. 7).

         I. BACKGROUND

         According to the Raspets, “[t]his case involves mortgage loan servicer abuse and seeks to rescind the needless foreclosure of [their] home” (Dkt. No. 1-1 at 4). On June 24, 2005, the Raspets entered into a $142, 400 mortgage loan with Countrywide Home Loans, Inc., which was secured by their home at 108 Jennifer Lane, Bridgeport, West Virginia. Id. at 4-5. Unfortunately, they “suffered a significant reduction of household income in 2011 when . . . Donna Raspet became disabled.” By 2014, the Raspets had fallen behind on their mortgage payments, but were able to obtain a loan modification. Id. at 5. In 2016, however, “William Raspet, Jr. was forced to take alternative employment at a significant reduction of income.” Id. at 6.

         On December 1, 2016, Shellpoint began servicing the Raspets' mortgage loan, now held by BONY. Id. at 5-6. Shellpoint solicited the Raspets to apply for a further loan modification that would lower their payment and bring the loan current. Id. at 6. Although the Raspets submitted a complete loan modification application on January 12, 2017, Shellpoint erroneously advised that they had failed to include necessary pay stubs and an IRS Form 4506-T. Consequently, the Raspets again provided the necessary documents and continued to allow their arrears to grow based on Shellpoint's “representations of assistance.” Id. On April 27, 2017, Shellpoint notified the Raspets that their application had been denied, and that it was closing their file for failure to provide the requested documents. Thereafter, the defendants sold the Raspets' home at a foreclosure sale. Id.

         In their complaint filed in state court, the Raspets contend that the defendants wrongfully caused them “economic loss, annoyance and inconvenience, stress and worry, and fear of the loss of their home, ” through the defendants' negligent acts and violations of the West Virginia Consumer Credit and Protection Act. Id. at 7-8. The Raspets seek actual damages, civil penalties, and appropriate equitable relief, including rescission of the defendants' foreclosure sale of their home. Id. at 1, 7-8.

         On January 26, 2018, Shellpoint and BONY, both diverse from the Raspets, removed the case to this Court (Dkt. No. 1). To establish the amount in controversy, they attached to their notice of removal proof that the value of the deed of trust was $142, 400, the Raspets' property is assessed for $202, 900, and the property sold for $181, 129.43 at the August 2017 foreclosure sale. The defendants subsequently filed their answer on February 2, 2018 (Dkt. No. 3). On February 23, 2018, the Raspets filed the pending motion to remand, in which they argue that the value of their home is not the appropriate measure of the amount in controversy (Dkt. No. 7).

         II. STANDARD OF REVIEW

         Title 28 U.S.C. § 1441(a) provides that “any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants.” See also King v. Marriott Int'l, Inc., 337 F.3d 421, 424 (4th Cir. 2003). Nonetheless, “federal courts, unlike state courts, are courts of limited jurisdiction, created by Congress with specified jurisdictional requirements and limitations, ” Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008), and federalism counsels that removal jurisdiction should be strictly construed. Palisades Collections LLC v. Shorts, 552 F.3d 327, 334 (4th Cir. 2008) (citing Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005)).

         “The burden of establishing federal jurisdiction is placed upon the party seeking the removal.” Mulcahey v. Columbia Organic Chems., Inc., 29 F.3d 148, 151 (4th Cir. 1994). As this Court has previously noted, “[a]ll doubts about the propriety of removal should be resolved in favor of retaining state court jurisdiction, ” and thus remanding a case to state court. Vitatoe v. Mylan Pharmaceuticals, Inc., 1:08cv85, 2008 WL 3540462, at *2 (N.D.W.Va. Aug. 13, 2008) (citing Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999)).

         When a removing defendant relies on diversity jurisdiction, and the plaintiff “does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [$75, 000].” Francis v. Allstate Ins. Co., 709 F.3d 362, 367 (4th Cir. 2013) (alteration in original) (quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). “[T]he test for determining the amount in controversy in a diversity proceeding is ‘the pecuniary result to either party which [a] judgment would produce.'” Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002) (quoting Gov't Emps. Ins. Co. v. Lolly, 327 F.2d 568, 569 (4th Cir. 1964)). “In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.” Francis, 709 F.3d at 367 (quoting Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977)); see also Lang v. Wells Fargo Home Mortgage, Inc., No. 3:13-CV-60, 2013 WL 12210772, at *3-*4 (N.D.W.Va. Sept. 23, 2013).

         III. DISCUSSION

         The question presented is whether the Raspets have placed the full value of their home at issue in this litigation by seeking “to rescind the needless foreclosure of [their] home” (Dkt. No. 1-1 at 4). The Court concludes that the value of the Raspets' home is the appropriate measure of the amount in controversy, and that the defendants have met their burden to establish by a preponderance of the evidence that the value of the Raspets' home exceeds $75, 000.

         A plaintiff seeking to rescind a foreclosure sale places the value of the home at issue in the litigation. In Hudak v. Selene Finance LP, the plaintiffs secured a $130, 845 mortgage loan. Five years later, they filed for bankruptcy, and were discharged from their personal obligation on the loan. No. 1:15-CV-20, 2015 WL 1539740, at *1 (N.D.W.Va. Apr. 7, 2015) (Keeley, J.). Nonetheless, the plaintiffs continued to make regular payments until about a year later. When the plaintiffs fell behind, the servicer rejected their request for a loan modification and scheduled a foreclosure sale. The plaintiffs filed a lawsuit against the servicer in state court, seeking specific ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.