Peterson et al v. BAC Home Loan Servicing, L.P.
OPINION AND ORDER that it is the ORDER, JUDGMENT and DECREE of the court that plfs Carrie Peterson and Chandra Hooks' 10 motion to remand is granted and that pursuant to 28 U.S.C. 1447(c), this case is remanded to the Circuit Court of Macon Co unty, Alabama for want of jurisdiction; further ORDERING that all other pending motions are left for resolution by the state court after remand; directing the clerk to take appropriate steps to effect the remand. Signed by Honorable Judge Myron H. Thompson on 12/6/11. (Attachments: # 1 civil appeals checklist). Certified copy mailed to Clerk, Circuit Court of Macon County, Alabama.(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CARRIE PETERSON and
CHANDRA J. HOOKS,
BAC HOME LOAN SERVICING, LP,
CIVIL ACTION NO.
OPINION AND ORDER
brought suit in state court against defendant BAC Home
Loan Servicing, LP, alleging misrepresentation of late
fees, payment procedures, and insurance requirements for
Pursuant to 28 U.S.C. §§ 1332, 1441, and
diversity-of-citizenship grounds. The plaintiffs move to
remand to state court because BAC has failed to satisfy
its burden of demonstrating that the $ 75,000 amount-incontroversy requirement for diversity jurisdiction has
been met in this case.
For the reasons that follow, the
plaintiffs’ remand motion will be granted.
Where, as here, the defendant seeks to remove a case
on diversity-jurisdiction grounds and the damages have
defendant “must prove by a preponderance of the evidence
that the amount in controversy exceeds the $ 75,000
Leonard v. Enterprise Rent
A Car, 279 F.3d 967, 972 (11th Cir. 2002).
defendant bears the burden of proving proper federal
The court may not “speculate in an
attempt to make up for the notice’s failings.”
Alabama Power Co., 483 F.3d 1184, 1215 (11th Cir. 2007).
plaintiffs in Macon County, Alabama.
Beginning in 2008,
the plaintiffs claim that BAC misrepresented certain
facts regarding the mortgage agreement.
they assert that BAC improperly charged them for property
plaintiffs with foreclosure.
emotional distress, trespass, and defamation.
compensatory and punitive damages.
They do not seek a
proceedings are currently pending against the plaintiffs.
Because the plaintiffs’ complaint does not specify
the amount of damages sought in this case, the burden is
See Leonard, 279 F.3d at
preponderance of the evidence.
BAC believes that because the plaintiffs’ right to
property [is] at stake,” Mapp v. Deutsche Bank Nat’l
Trust Co., 2009 WL 3664118, *3 n.7 (M.D. Ala. Oct. 28,
2009) (Watkins, J.), the amount in controversy is the
Notice of Removal, Doc. No. 1, at 5.
The plaintiffs respond that the value of the property
is not at issue in this litigation.
They seek only
repayment of the overcharged mortgage fees, emotional
distress damages, and punitive damages.
They do not seek
to invalidate the mortgage agreement in its entirety.
The court recognizes that the determination of the
“amount-in-controversy” for a disputed mortgage’s value
has spawned a variety of approaches.
See Mapp, 2009 WL
at *1 (describing four different approaches to addressing
this question in Alabama federal district courts).
court, however, has been clear that, when a mortgage’s
validity is not at stake, the value of the property
itself is not the amount in controversy. See White v.
Wells Fargo Home Mortgage, 2011 WL 3666613, *3 (M.D. Ala.
Aug. 22, 2011) (Thompson, J.) (“But neither the total
value of the property, nor [the plaintiffs’] current
debt, represents the amount in controversy because [the
foreclosure.”); James v. U.S. Bank Nat’l Ass’n, 2009 WL
2170045 (M.D. Ala. July 17, 2009) (Thompson, J.) (same).
Here, the plaintiffs requested neither declaratory
nor injunctive relief.
A judgment for them entered by
this court or the Alabama state court would not void the
BAC, therefore, cannot count the value of the
mortgage for amount-in-controversy purposes.
The court notes that BAC has failed to provide any
estimate of the allegedly overpaid fees.
As these fees
are the basis for the plaintiffs’ compensatory damages
claims, the court could properly count them toward the
As BAC bears the
burden of establishing federal jurisdiction, this court
cannot speculate as to what that amount might be.
allegations pertinent to the existence of jurisdiction is
jurisdiction should not be divined by looking to the
jurisdictional threshold: the property is appraised at
BAC attempts to make up the difference by
looking to damages awards in similar cases.
Removal, Doc. No. 1, at 4-6.
The court has reviewed the
cited decisions and finds them unpersuasive.
without the value of the mortgage, BAC would need to
establish by a preponderance of the evidence that damages
in excess of $ 75,000 would be awarded.
declines to rest jurisdiction solely on an estimate of
Accordingly, it is the ORDER, JUDGMENT, and DECREE of
the court that plaintiffs Carrie Peterson and Chandra
J.Hooks’s motion to remand (Doc. No. 10) is granted and
that, pursuant to 28 U.S.C. § 1447(c), this case is
remanded to the Circuit Court of Macon County, Alabama
for want of jurisdiction.
It is further ORDERED that all other pending motions
are left for resolution by the state court after remand.
appropriate steps to effect the remand.
This case is closed.
DONE, this the 6th day of December, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?