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Stoler v. Pennymac Loan Services, LLC

United States District Court, S.D. West Virginia, Charleston

December 6, 2018

JESSICA A. STOLER, Plaintiff,
v.
PENNYMAC LOAN SERVICES, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is plaintiff Jessica L. Stoler's motion to remand to the Circuit Court of Kanawha County, West Virginia, filed July 17, 2018. Defendant PennyMac Loan Services, LLC, ("PennyMac"), filed a response in opposition on August 3, 2018, to which the plaintiff replied on August 10, 2018.

         I. Background

         This case involves the plaintiff s April 2014 $109, 693.00 Single Family Housing Guaranteed Loan Program mortgage loan, serviced by defendant PennyMac. Compl. at ¶ 4 . In February 2017, plaintiff began having difficulty affording her monthly loan payments of $547.68; she requested but was denied assistance from PennyMac. Id. at ¶¶ 7-8; Defendant's Opposition, ECF # 18, Ex. A at 6. In May 2017, plaintiff's situation worsened when she lost her job; she again requested assistance from PennyMac. Id. at ¶ 9. PennyMac then provided plaintiff with a forbearance plan, allegedly with the assurance that, at the end of it, her loan would be permanently modified. Id. at ¶ 10.

         In November 2017, plaintiff became unable to make her forbearance payments because her unemployment income expired. Id. at ¶ 11. According to the complaint, she then contacted PennyMac several times to inquire about permanent modification of her loan. Id. at ¶¶ 12-13. PennyMac allegedly did not respond to these inquiries until January, after they already scheduled a foreclosure sale for January 30, 2018. Id. at ¶¶ 13, 15, 16. PennyMac denied plaintiff's request because it was made too close to a scheduled foreclosure, which plaintiff disputes. Id. at ¶ 16. By early January 2018, plaintiff regained employment and was able to make her monthly mortgage payments but could not afford the arrearage that had accumulated during the prior months. Id. at ¶ 14.

         On January 25, 2018, plaintiff contacted PennyMac, notifying it of alleged servicing violations and requesting that future communications be directed to plaintiff s counsel. Id. at ¶ 17. Plaintiff accuses PennyMac of nonetheless continuing to contact her directly to collect payment. Id. at ¶ 18. Plaintiff further accuses PennyMac of failing to put forth a good faith effort to achieve a sustainable payment plan and refusing to properly process her requests for loss mitigation. Id. at ¶ 19. Plaintiff asserts that she remains able to pay her regular monthly payments but cannot afford the "accrued arrears." Id. at ¶ 21.

         Plaintiff filed this action in the Circuit Court of Kanawha County on May 2, 2018, asserting four counts under state law. Plaintiff does not specify the amount of damages she seeks, yet she asserts that she is entitled to the following: for Count I alleging violations of the West Virginia Consumer Credit Protection Act ("WVCCPA"), she seeks maximum civil penalties of $1, 000 for each violation pursuant to W.Va. Code § 46A-5-101-106, actual damages, attorney's fees and costs, and such other relief the court deems equitable and just; for Count II alleging negligence, she seeks appropriate equitable relief, actual damages, attorney's fees, and such other relief the court deems equitable and just; for Count III alleging tortious interference with contract, she seeks actual damages, punitive damages, attorney's fees, and such other relief the court deems equitable and just; and for Count IV alleging estoppel, she seeks appropriate equitable relief, actual damages, and such other relief the court deems equitable and just.

         PennyMac removed the action to this court on June 1, 2018, pursuant to the court's diversity jurisdiction. The plaintiff now objects to the removal, claiming that the amount in controversy does not meet the $75, 000 requirement. The parties do not dispute that they are completely diverse.

         II. Discussion

         "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "Removal jurisdiction is to be construed narrowly, and when jurisdiction is doubtful, remand is proper." Caufield v. EMC Mortg. Corp., 803 F.Supp.2d 519, 529 (S.D. W.Va. 2011) (citing Mulcahey v. Columbia Organic Chemicals Co. Inc., 29 F.3d 148, 151 (4th Cir.1994)).

         The court is vested with original jurisdiction of all actions between citizens of different states when the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1). "'Estimating the amount in controversy is not nuclear science, as a removing defendant is somewhat constrained by the plaintiff." Scott v. Cricket Commc'ns, LLC, 865 F.3d 189, 196 (4th Cir. 2017) (quoting S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1317 (11th Cir. 2014)). "[P]laintiffs are free to purposely omit information that would allow a defendant to allege the amount in controversy with pinpoint precision." Id., (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 94 (2005)). Accordingly, for cases in which the plaintiff has made an unspecified demand for damages in state court, a defendant asserting the existence of federal diversity jurisdiction is tasked with proving by a "preponderance of the evidence that the value of the matter in controversy exceeds the jurisdictional amount. This test is framed alternatively as a requirement that a defendant demonstrate that it is more likely than not that the amount in controversy exceeds the jurisdictional amount." Landmark Corp. v. Apogee Coal Co., 945 F.Supp. 932, 935 (S.D. W.Va. 1996) (citing Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992)).

         In calculating this amount, the court "looks to the totality of the circumstances, including the complaint, the type and extent of the plaintiff's injuries, the amounts awarded in similar cases, and losses incurred to date of removal." Scaralto v. Ferrell, 826 F.Supp.2d 960, 963-64 (S.D. W.Va. 2011). The court uses this information "to estimate what a reasonable plaintiff would demand or claim. If the court thinks that a reasonable plaintiff would claim more than $75, 000, then the defendant has met its burden of proof." Id.

         PennyMac argues two alternative methods for establishing the amount in controversy: first, that the amount of damages sought, alone, exceeds $75, 000; and second, that the total value of the home and/or the loan is in controversy. Finding the first argument dispositive, the court does not address the second.

         Although the plaintiff s complaint does not contain a demand for a specific monetary award, the complaint nonetheless reflects a claim for damages in excess of $75, 000. The court herein ...


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