United States District Court, S.D. West Virginia, Charleston
JESSICA A. STOLER, Plaintiff,
PENNYMAC LOAN SERVICES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
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,
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.
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.
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.
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
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.
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)).
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)).
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.
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.
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