Brown et al v. Ocwen Loan Servicing, LLC
OPINION AND ORDER that it is the ORDER, JUDGMENT and DECREE of the court that plaintiffs Joseph D. Brown, Jr. and Nadine Brown's 12 motion to remand is GRANTED and that, pursuant to 28 U.S.C. 1447(c), this cause is remanded to the Circuit Court of Bullock County, Alabama for want of jurisdiction; directing the clerk to take appropriate steps to effect the remand. Signed by Honorable Judge Myron H. Thompson on 7/6/11. Certified copy mailed to Circuit Court Clerk.(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOSEPH D. BROWN, JR. and
) CIVIL ACTION NO.
OCWEN LOAN SERVICING, LLC, )
OPINION AND ORDER
Plaintiffs Joseph D. Brown, Jr. and Nadine Brown
arising out of past-due payment notices sent and late
fees charged by defendant Ocwen Loan Servicing, LLC.
Ocwen removed the lawsuit under 28 U.S.C. §§ 1332, 1441,
& 1446 (diversity).
The Browns now move for remand to
state court because Ocwen has failed to demonstrate that
the $ 75,000 amount in controversy required for diversity
jurisdiction has been met in this case.
For the reasons
that follow, the Browns’ remand motion will be granted.
For purposes of removal pursuant to diversity-ofcitizenship jurisdiction, where damages have not been
specified by the plaintiff, a removing defendant has the
burden of proving by a preponderance of the evidence that
the $ 75,000 amount-in-controversy requirement is met.
Leonard v. Enterprise Rent-a-Car, 279 F.3d 967, 972 (11th
The court may not “speculate in an attempt
to make up for the notice’s failings.”
Lowery v. Alabama
Power Co., 483 F.3d 1184, 1211 n. 63 (11th Cir. 2007).
Finally, “[r]emoval statutes are construed narrowly;
where plaintiff and defendant clash about jurisdiction,
uncertainties are to be resolved in favor of remand.”
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.
Facing default, the Browns entered into a foreclosure
prevention and repayment agreement with Ocwen in December
The agreement included a down payment and new
terms for payments due the first of the month from
January through May 2010, after which time the Browns
would resume regular mortgage payments as established by
the original terms of the mortgage loan.
In late December 2009, prior to the first due date
under the new agreement, the Browns received a past-due
Later, in May 2010, the Browns received a past-
due notice for a payment that had already been made.
According to the Browns, Ocwen consistently sent the
Browns notices of past-due payments and charged late fees
for payments that were made in full and in a timely
The Browns filed suit against Ocwen in an Alabama
state court, alleging negligence and wantonness regarding
the servicing of their loan.
Before their claims could
be heard, Ocwen removed the case to federal court.
The Browns do not seek forgiveness of their loan, nor
an injunction against foreclosure.
Instead, they argue
that Ocwen negligently charged mortgage servicing fees
and sent late payment notices not warranted under the
They further argue that Ocwen did so
wantonly, with reckless indifference to the consequences,
in an attempt to create a false delinquency or default
for the purpose of generating fee income and
on the Browns’ home.
The Browns seek actual and punitive
damages for injuries sustained, including loss of access
to credit, payment of improper fees, and mental anguish
and emotional damages related to the servicing of their
The Browns do not specify the damages sought for any
of their claims.
Ocwen, however, contends that this case
belongs in federal court.
Ocwen argues that the opposing
parties are from different States and that the $ 75,000
amount-in-controversy requirement is met by the value of
the home, because “Plaintiffs seek a permanent injunction
from foreclosure and because they have put the entire
mortgage in dispute in this action.”
Def’s Resp. in Opp.
to Remand at 2 (Doc. No. 15); see 28 U.S.C. § 1332.
making this argument, Ocwen focuses on the value of
injunctive relief, not the damages stemming from the
Browns’ tort claims.
Ocwen’s argument does not persuade
All parties concede that the damages sought by the
stipulated to the court that the damages sought are less
contest this assertion.
Instead, Ocwen predicated its removal action on the
value of injunctive relief.
In Ocwen’s opposition to the
“permanent injunction preventing Ocwen foreclosing on the
entirety in dispute.
Def’s Resp. in Opp. to Remand at 6
(Doc. No. 15).
In the complaint, the Browns appear to be
asking for injunctive relief: “The Plaintiffs ... ask of
continuing with its foreclosure sale until such time as
the material averments of the Plaintiffs’ complaint have
Comp. at 3 (Doc. No. 1-4).
However, in the
motion to remand, the Browns stated they seek relief
related to the servicing of their loan and could not be
seeking injunctive relief because Ocwen is not the owner
of the note or mortgage.
Mot. to Remand at 9 (Doc. No.
During oral argument, the Browns stated that their
inclusion of a request for injunctive relief in the
complaint was a “mistake,” and they stipulated to the
court they are not seeking injunctive relief.
is a fairly significant “mistake,” the court may take
stipulated facts into account when deciding motions to
See, e.g., Darden v. Ford Consumer Finance Co.,
Inc., 200 F.3d 753, 755 (11th Cir. 2000) (finding amount
narrowed by plaintiffs’ stipulation that each individual
class member will neither request nor accept damages in
excess of $ 75,000).
More importantly, the evidence is
conclusive that an injunction could not lie because Ocwen
does not own the mortgage.
Moreover, even if an injunction would lie, Ocwen has
not demonstrated by a preponderance of the evidence that
the amount in controversy is met.
The Browns requested
interim injunctive relief, that is, an injunction until
the claims in their complaint regarding notice and fees
have been resolved.
From the Browns’ perspective, the
monetary value of the injunctive relief is not the entire
value of the property, as Ocwen alleges; rather, it is
the value of a delay in foreclosure.
See Macks v. U.S.
Bank National Association, 2010 WL 2976200, at *2 (M.D.
controversy is the value of a delay in foreclosure); see
also James v. U.S. Bank Nat. Ass’n, 2009 WL 2170045, at
*4-5 (M.D. Ala. 2009) (Thompson, J.) (same).
may be important to the Browns, it is worth much less
than the $ 106,000 value of the property, and the court
cannot simply rely on the value of the mortgage or the
property to determine that amount.
2976200, at *2; see also James,
2009 WL 2170045, at *5.
Another way to look at the jurisdictional amount
issue might be to ask: If a plaintiff could and were to
seek to sell to someone else the claims in his lawsuit,
with the assumption that there is a reasonable certainty
the plaintiff would prevail on his viable claims, could
the plaintiff in good faith ask for more than $ 75,000
for the claims?
Here, in this case, the answer is
And, if the question were modified to ask
if a reasonable buyer would be willing to pay more than
$ 75,000, the answer would be the same.
Therefore, Ocwen has failed to present any evidence
that clearly establishes that the amount in controversy
in this case exceeds the jurisdictional threshold of $ 75,000.
Accordingly, it is the ORDER, JUDGMENT and DECREE of
the court that plaintiffs Joseph D. Brown, Jr. and Nadine
Brown’s motion to remand (Doc. No. 12) is granted and
that, pursuant to 28 U.S.C. § 1447(c), this cause is
remanded to the Circuit Court of Bullock County, Alabama
for want of jurisdiction.
appropriate steps to effect the remand.
DONE, this the 6th day of July, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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