Horace v. Lasalle Bank National Association et al

Filing 32

OPINION AND ORDER, it is the Order, Judgment, and Decree of the court that plaintiff Phyllis Horace's #25 MOTION to Remand to State Court filed by Phyllis Horace is granted and that, pursuant to 28 USC 1447 (c), this cause is remanded to the CC of Russell County, AL for want of subject-matter jurisdiction; The clerk of the court is directed to take appropriate steps to effect the remand. Signed by Honorable Myron H. Thompson on 2/17/09. (Attachments: #1 appeals checklist)(mailed cert copy to CC Russell Co, AL)(vma, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

PHYLLIS HORACE,

) ) Plaintiff, ) ) v. ) ) LaSALLE BANK NATIONAL ) ASSOCIATION, as trustee ) for Certificate Holders ) of Bear Stearns Asset ) Backed Securities I LLC, ) Asset Backed Certificates, ) Series 2006-EC2, et al., ) ) Defendants. )

CIVIL ACTION NO. 3:08cv1019-MHT (WO)

OPINION AND ORDER Plaintiff Phyllis Horace brought this lawsuit in state court seeking damages arising out of an improper loan and attempted foreclosure by defendant LaSalle Bank National Association and other defendants. LaSalle Bank

removed this lawsuit based on diversity-of-citizenship jurisdiction. 28 U.S.C. §§ 1441, 1331. Horace now moves

for remand arguing, inter alia, that the bank has failed to demonstrate that the $ 75,000 amount-in-controversy

requirement is met in this case.

Because the court

agrees that the amount-in-controversy requirement is not met, Horace's remand motion will be granted.

I. LaSalle Bank contacted Horace in October 2008

informing her that $ 300,263.63 was due on her two-year adjustable-rate mortgage and that it intended to

foreclose on her property in November.

Before the bank

could foreclose, however, Horace filed this action in state court, where she obtained a temporary-restraining order to enjoin foreclosure until that court could hear evidence in the case. to this federal court. Essentially, Horace alleges that LaSalle Bank engaged in predatory lending, giving her the loan knowing she would never be able to repay and intending to gain a windfall from foreclosure. She therefore brings a LaSalle Bank then removed the case

variety of claims against the bank, including negligent-

2

and

wanton-mortgage

servicing,

unjust

enrichment,

wrongful foreclosure, and breach of contract.

II. 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 for

diversity jurisdiction is met.

Leonard v. Enterprise The

Rent-a-Car, 279 F.3d 967, 972 (11th Cir. 2002).

defendant must do so by presenting documents received from the plaintiff "which contain an unambiguous

statement that clearly establishes federal jurisdiction." Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 n. 63 (11th Cir. 2007). The court may not "speculate in an Id. at

attempt to make up for the notice's failings." 1213.

"If the jurisdictional amount is either stated

clearly on the face of the documents before the court, or

3

readily

deducible

from

them,

then

the

court

has

jurisdiction. 1211.

If not, the court must remand."

Id. at

Finally, "Removal 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. 1994).

III. LaSalle Bank admits that the "true gravamen" of Horace's complaint is the "unspecified amount of damages" she seeks "as a result of alleged negligence and fraud associated with the procurement of the mortgage." Resp. M. Rem. at 6 (doc. no. 31). contends that the $ 75,000 Defs.'

Nevertheless, the bank amount-in-controversy

requirement is met simply because the original value of the mortgage was $ 283,500. The court disagrees.

Horace does not claim that there is no mortgage on

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her property or that her property should be wholly free from encumbrance; in other words, the entire value of the mortgage is not at issue. Rather, Horace seeks damages

for LaSalle Bank's wrongful conduct in procuring the mortgage. The notice of removal contains very few facts. There is certainly nothing on the face of the complaint

unambiguously stating how much Horace seeks in damages, nor can the court "readily deduce" the damages simply by looking to the value of the underlying mortgage. Any

attempt to determine the amount in controversy based on the notice of removal would thus require the court to engage the kind of unguided speculation explicitly

prohibited by Lowery. remanded to state court*

Therefore, this case will be

* This decision finds support in Wood v. Option One Mortg. Corp., 580 F. Supp. 2d 1248 (N.D. Ala. 2008) (Hopkins, J.), where the court also remanded an action based on wrongful foreclosure and improper mortgage. In that case, the mortgage obligation was $ 145,000, but the court remanded, explaining that Lowery prevented the defendant from removing the case based simply on (continued...) 5

Finally, because the court determines that this case should be remanded for want of subject-matter

jurisdiction, it is unnecessary to consider the other arguments presented in Horace's motion to remand. *** Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court that plaintiff Phyllis Horace's motion to

remand (doc. no. 25) is granted and that, pursuant to 28 U.S.C. § 1447(c), this cause is remanded to the Circuit Court of Russell County, Alabama for want of subjectmatter jurisdiction. The clerk of the court is DIRECTED to take

appropriate steps to effect the remand. DONE, this the 17th day of February, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

(...continued) plaintiffs "assertion of claims for wrongful foreclosure and improper mortgage charges and their demand for unspecified compensatory and punitive damages." Id. at 1252.