Blake v. Bank of America, N.A. et al

Filing 23

MEMORANDUM OPINION AND ORDER that Blake's 10 MOTION to Remand is DENIED. Signed by Honorable Judge Mark E. Fuller on 7/6/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
SUSAN H. BLAKE,
Plaintiff,
v.
BANK OF AMERICA, N.A., et al.,
Defendants.

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Case No. 3:11-cv-242-MEF

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Plaintiff Susan Blake’s (“Blake”) Motion to
Remand, filed April 19, 2011. (Doc. # 10). The Defendants Bank of America, N.A.
(“Bank of America”) and BAC Home Loans Servicing, L.P. (“BAC” and collectively
“Defendants”) removed this action from the Circuit Court of Lee County, Alabama based
on diversity jurisdiction. For the foregoing reasons, Blake’s Motion to Remand is
DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
In 1997, Blake entered into a mortgage contract on a residential property located in
Auburn, Alabama. At the time of the alleged misconduct on the part of the Defendants,
Bank of America and BAC serviced Blake’s mortgage. According to Blake, the
Defendants improperly accelerated the debt Blake owed, instituted an illegal foreclosure,
engaged in a conspiracy to create false defaults for the purpose of charging fees, breached
the mortgage contract, and engaged in other wanton, malicious, and intentional conduct.

(Doc. # 1 Ex. 4). Blake’s complaint includes four causes of action—negligent mortgage
servicing, wanton mortgage serving, breach of contract, and civil conspiracy. Blake seeks
compensatory damages, including those for mental anguish, and punitive damages. (Doc.
# 1). A tax appraisal done for tax year 2010 indicates that Blake’s home is valued at
$245,210. (Doc. # 19 Ex. B). At the time that the motion for remand was filed, Blake
owed $183,127.37 on the mortgage. (Doc. # 19 Ex. C).
On March 31, 2011 the Defendants removed this action based on the allegations in
the complaint, asserting that this Court has diversity jurisdiction over the case pursuant to
28 U.S.C. § 1332. In other words, this is a case governed by paragraph one of 28 U.S.C.
§ 1446. The Notice of Removal states that all parties are diverse. Blake is an individual
citizen of Alabama. Bank of America is a national banking association with its main
office, as set out in its articles of association, in North Carolina.1 BAC is a limited
partnership with two partners—BANA LP, LLC and BAC GP, LLC. Bank of America is
the only member of both BANA LP, LLC and BAC GP, LLC. As discussed above, Bank
of America is a citizen of North Carolina. Hence, BAC is also a citizen of North
Carolina.2 According to the New Jersey Secretary of State, Defendant Best Interest Rate
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28 U.S.C. § 1348 provides that “[a]ll national banking associations shall, for the
purposes of all other actions by or against them, be deemed citizens of the States in which
they are respectively located.” For purposes of § 1348, a national bank is located “in the
State designated in its articles of association as its main office.” Wachovia Bank v.
Schmidt, 546 U.S. 303, 319 (2006).
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A limited partnership’s citizenship is determined from the citizenship of its
partners, and a limited liability company’s citizenship is determined from the citizenship
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Mortgage Company, LLC has one member who is a citizen of New Jersey. Accordingly,
Best Interest Rate Mortgage Company, LLC is a citizen of New Jersey.3
II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994); Wymbs v. Republican State Exec. Comm., 719 F.2d 1072, 1076 (11th Cir.
1983). As such, federal courts only have the power to hear cases that they have been
authorized to hear by the Constitution or the Congress of the United States. Kokkonen,
511 U.S. at 377.
Pursuant to 28 U.S.C. § 1332 , federal courts have jurisdiction in civil actions “in
which the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between citizens of different states.” A party may remove a case
within thirty days of receiving the initial pleading setting forth the claim for relief upon
which such action is based. See 28 U.S.C. § 1441(a). If the case is not removable from
the face of the complaint, the defendant may file a notice of removal within 30 days of
receiving some “other paper” which makes the case removable. See 28 U.S.C. § 1446(b).
of each of its members. Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C.,
374 F.3d 1020, 1022 (11th Cir. 2004).
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Best Interest Rate Mortgage Company, LLC cannot be located and has not yet
been served. Therefore, its consent to removal is not necessary. See Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202, 1208 (11th Cir. 2008) (“[A] defendant has no
obligation to participate in any removal procedure prior to his receipt of formal service of
judicial process.”).
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In no circumstance may the defendant remove the case under § 1332(a) more than one
year after the action has commenced. Id.
After removal, however, the non-removing party may move for remand, which will
be granted if “it appears that the district court lacks subject matter jurisdiction.” See 28
U.S.C. § 1447(c). Because removal jurisdiction raises significant federalism concerns,
“removal statutes are construed narrowly; where plaintiff and defendant clash about
jurisdiction, uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095.
When the initial pleading does not specify the damages sought, the removing party
bears the burden of establishing by a preponderance of the evidence that the jurisdictional
requirements have been met. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir.
2010); Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir. 2007). “In some cases, this
burden requires the removing defendant to provide additional evidence demonstrating that
removal is proper.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).
III. DISCUSSION
Blake’s complaint does not contain a specified amount of damages. Accordingly,
the Defendants must demonstrate by a preponderance of the evidence that the
jurisdictional requirements have been met in this case. See Pretka, 608 F.3d at 752.
A. Consideration of Blake’s request to enjoin foreclosure
In an attempt to do so, the Defendants contend that because Blake has requested
the Court to enjoin any foreclosure proceeding against her, the entire value of her home is

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in controversy. Her property, valued at $245,210, is worth much more than the
jurisdictional threshold of $75,000. In her motion to remand and her reply brief, Blake
claims that there is no foreclosure pending on her property and that any reference to a
foreclosure in her complaint is a mistake. (Doc. # 20). She encourages the Court to
disregard all references to a foreclosure in her complaint when determining whether the
amount in controversy requirements have been met.
This Court cannot do so. Blake’s attorney signed the complaint, and her signature
“constitutes a certificate by the attorney that the attorney has read the pleading, motion, or
other paper” and that “to the best of the attorney’s knowledge, information, and belief
there is good ground to support it.” Ala. R. Civ. P. 11.4 Blake has not cited to this Court
any authority for the proposition that the Court can selectively ignore allegations
contained in her complaint. Blake has made no attempt to formally amend her complaint
to remove the ‘mistakes.’ Additionally, Blake’s contention that her complaint contains
mere ‘mistakes’ strains credulity. The word foreclosure appears in paragraphs 6, 19, 20
,21, 29, 30, 31, 45, 46, and 50 of the complaint. The complaint states that “the action is
brought to enjoin foreclosure instituted in Lee County, Alabama.” Blake goes on to list 7
enumerated reasons why “the foreclosure is improper and illegal.” She repeatedly

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Blake’s attorney filed the complaint in state court, and accordingly the Alabama
Rules of Civil Procedure apply. However, Federal Rule of Civil Procedure 11 embodies
the same principles—when an attorney signs a pleading, he or she makes a representation
to the court that the factual allegations contained therein “have evidentiary support.”
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contends that the Defendants do not have standing to foreclose on her property “and yet
they did so in violation of the law.”
Even had Blake sought leave to amend her complaint to eliminate the foreclosure
language, the Court would be required to determine removal jurisdiction based on the
original complaint. This Court must look to the complaint as it was written at the time of
removal to determine whether the applicable jurisdictional requirements have been met.
Poore v. Am.-Amicable Life Ins. Co., 218 F.3d 1287, 1290–91 (11th Cir. 2000); Conn.
State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.7 (refusing to
consider the plaintiff’s amended complaint because the amendments were made after
removal and “removal jurisdiction is determined at the time of removal, and ‘events
occurring after removal . . . do not oust the district court’s jurisdiction.’”). At the time
the case was removed, the complaint alleged that an illegal foreclosure proceeding had
been instituted on Blake’s property. Therefore, when determining whether of not federal
court jurisdiction exists in this case, this Court will consider the value of an injunction as
part of the amount in controversy.
B. Determining the value of injunctive relief
“[T]he value of the injunctive relief is the monetary value of the benefit that would
flow to the plaintiff if the injunction were granted.” Morrison v. Allstate Indem. Co., 228
F.3d 1255, 1268 (11th Cir. 2000). The value of the object of the litigation is solely
measured from the plaintiff’s point of view. See Ericsson GE Mobile Commnc’ns Inc. v.

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Motorola Commnc’ns & Elecs., Inc., 120 F.3d 216 (11th Cir. 1997). In this case, the
Court must determine the value to Blake of enjoining the foreclosure of her home. As
Judge Watkins pointed out in Mapp v. Deusche Bank Nat’l Trust Co., No. 3:08-cv-695WKW, 2009 WL 3664118, at *4 (M.D. Ala. Oct. 28, 2009), foreclosure would require the
homeowner to forfeit the right to “peacefully possess and enjoy [her] home.” Foreclosure
would also cost the homeowner title to the house. Id. Therefore, from the plaintiff’s
perspective, “it is the whole title and its ‘bundle of rights’” that is at issue. Id. In
monetary terms, these benefits, objects, and rights are best measured by the value of the
home itself.” Id.5
In this case, the value of the home was determined to be $245,210. This amount is
well over the jurisdictional threshold. Accordingly, the Defendants have satisfied their
burden of demonstrating the amount in controversy to a preponderance of the evidence.

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There is a split of authority in this circuit about how best to measure the amount
in controversy when the plaintiff seeks to enjoin a foreclosure. This Court once
determined that the best measure is the amount of equity the plaintiff has in his house.
See Sanders v. Homecomings Fin., LLC, No. 2:08-cv-369-MEF, 2009 WL 1151868
(M.D. Ala. April 29, 2009). Other courts have found that when injunctive relief would
only temporarily delay a foreclosure, the amount in controversy is the value of the
temporary delay. See James v. U.S. Bank Nat’l Assoc., No. 09-cv-247-MHT, 2009 WL
2170045, at *2 (M.D. Ala. July 17, 2009). However, the more recent and thorough statelaw analysis contained in Mapp is the most persuasive. Additionally, Blake has not
contested the application of the principle contained in Mapp. In fact, she fails to present
any contrary authority whatsoever.
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IV. CONCLUSION
It is hereby ORDERED that for the foregoing reasons, Blake’s Motion to Remand
(Doc. # 10) is DENIED.

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Done this the 6 day of June, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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