United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION TO REMAND [DKT. NO. 7]
M. KEELEY, UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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.
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).
STANDARD OF REVIEW
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.
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)).
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).
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.
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 ...