Peterson et al v. BAC Home Loan Servicing, L.P.

Filing 20

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,
Plaintiffs,
v.
BAC HOME LOAN SERVICING, LP,
Defendant.

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CIVIL ACTION NO.
3:11cv805-MHT
(WO)

OPINION AND ORDER
Plaintiffs

Carrie

Peterson

and

Chandra

J.

Hooks

brought suit in state court against defendant BAC Home
Loan Servicing, LP, alleging misrepresentation of late
fees, payment procedures, and insurance requirements for
a mortgage.
1446,

BAC

Pursuant to 28 U.S.C. §§ 1332, 1441, and
removed

this

case

to

federal

court

on

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.

I.
Where, as here, the defendant seeks to remove a case
on diversity-jurisdiction grounds and the damages have
not

been

specified

by

the

plaintiffs,

the

removing

defendant “must prove by a preponderance of the evidence
that the amount in controversy exceeds the $ 75,000
jurisdictional requirement.”

Leonard v. Enterprise Rent

A Car, 279 F.3d 967, 972 (11th Cir. 2002).

“A removing

defendant bears the burden of proving proper federal
jurisdiction.”

Id.

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, 1215 (11th Cir. 2007).

II.
BAC

holds

a

mortgage

on

property

plaintiffs in Macon County, Alabama.

2

held

by

the

Beginning in 2008,

the plaintiffs claim that BAC misrepresented certain
facts regarding the mortgage agreement.

For example,

they assert that BAC improperly charged them for property
insurance

even

insured.

though

During

the

this

property

dispute,

was

BAC

adequately

threatened

the

plaintiffs with foreclosure.
In

this

litigation,

misrepresentation,
negligence,

the

suppression,

wantonness,

plaintiffs
breach

intentional

of

contract,

infliction

emotional distress, trespass, and defamation.
compensatory and punitive damages.
declaratory
injunction

judgment
against

voiding

the

foreclosure.

claim

of

They seek

They do not seek a
mortgage
No

or

an

foreclosure

proceedings are currently pending against the plaintiffs.

III.
Because the plaintiffs’ complaint does not specify
the amount of damages sought in this case, the burden is
on

BAC

to

establish

the

jurisdictional

3

amount

by

a

See Leonard, 279 F.3d at

preponderance of the evidence.
972.

BAC believes that because the plaintiffs’ right to
the

“peaceful

possession

and

enjoyment

of

the[ir]

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
value

of

the

($ 70,400).

mortgage

note

($

62,400)

or

property

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).

4

This

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
plaintiffs]
mortgage

do[]
or

not
seek

challenge
an

the

validity

injunction

of

the

prohibiting

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
mortgage.

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

5

claims, the court could properly count them toward the
amount-in-controversy requirement.

As BAC bears the

burden of establishing federal jurisdiction, this court
cannot speculate as to what that amount might be.
Lowery,

483

F.3d

at

1215

(“The

absence

of

See

factual

allegations pertinent to the existence of jurisdiction is
dispositive

and,

in

such

absence,

the

existence

of

jurisdiction should not be divined by looking to the
stars.”).
Even

with

appropriate

the

value

benchmark,

of

BAC

the

comes

property
up

short

as

the

of

the

jurisdictional threshold: the property is appraised at
$ 70,400.

BAC attempts to make up the difference by

looking to damages awards in similar cases.
Removal, Doc. No. 1, at 4-6.

Notice of

The court has reviewed the

cited decisions and finds them unpersuasive.

Indeed,

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.

6

The court

declines to rest jurisdiction solely on an estimate of
potential damages.
*

*

*

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.
The

clerk

of

the

court

is

DIRECTED

to

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

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