Baker v. Robinson Tait, P.S. et al

Filing 50

ORDER granting 22 Motion to Remand; denying without prejudice 35 Motion to Dismiss to renewal in state court. Signed by Judge John W. Sedwick on 5/17/17. (JLH, COURT STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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Henry E. Baker,

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Plaintiff,
vs.

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Robinson Tait, P.S., et al.
Defendants.

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3:16-cv-00236 JWS
ORDER AND OPINION
[Re: Motion at Docket 22]

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I. MOTION PRESENTED

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Defendant Ocwen Loan Servicing, LLC (“Ocwen”) removed this case from the

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Alaska Superior Court to this court pursuant to 28 U.S.C. § 1446. At docket 22 plaintif f

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Henry E. Baker (“Baker”) moves pursuant to 28 U.S.C. § 1447(c) to remand the case

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based on the lack of subject matter jurisdiction. Baker supports his motion with his own

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affidavit at docket 23 and a memorandum at docket 24. Ocwen opposes the motion at

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docket 33, supported by a memorandum at docket 34. Baker replies at docket 40.
Oral argument was not requested and would not assist the court.

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II. BACKGROUND
According to Baker’s complaint, defendant Robinson Tait, P.S. (“Robinson Tait”)

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is attempting to sell his home at foreclosure as the successor trustee of a deed of trust

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(“DOT”) to which Ocwen is the purported beneficiary. Baker alleges that his home loan

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is a “VA loan,”1 meaning that Ocwen is contractually prohibited from foreclosing on him

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without first notifying the Secretary of Veteran’s Affairs of the possible foreclosure2 and

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informing him “of his right to contact the VA for mortgage assistance.”3 Baker claims

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that Ocwen breached the parties’ contract by not complying with these requirements.4
Baker also asserts a number of claims against Robinson Tait. He claims that
Robinson Tait:
(1) is committing wrongful foreclosure by attempting to foreclose on him
even though Ocwen has not complied with its contractual obligations;5
(2) lacks authority to act as the DOT’s successor trustee due to an invalid
appointment;6
(3) violated Alaska’s Unfair Trade Practices and Consumer Protection Act
(“UTPCPA”)7 by sending him a misleading notice, dated April 19, 2016,
that violates the Fair Debt Collection Practice Act (“FDCPA”) 8 because it

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Doc. 6-4 at 2 ¶ 10.

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Id. at 5 ¶ 22 (citing 38 U.S.C. § 3732).

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Id. (citing 38 C.F.R. § 36.4350).

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Id. at 6 ¶ 28.

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Id. at 8 ¶ 36.

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Id. at 3 ¶ 15; 7 ¶ 32.
AS 45.50.471–.561.
15 U.S.C. § 1692–92p.

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“fails to tell [him] how to contact his original creditor and that, if [he]
requested verification of the debt, all collection activity by [Ocwen and
Robinson Tait] would cease;”9

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(4) violated the UTPCPA by falsely claiming that it is the successor trustee
under the DOT;10
(5) violated the UTPCPA by issuing Baker a misleading and confusing
notice of default (“NOD”);11
(6) violated the UTPCPA by misstating which entity executed the allegedly
invalid appointment;12 and
(7) violated its fiduciary duty to Baker by acting in the above-described
manner.13

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Baker’s complaint seeks actual and statutory damages and an injunction prohibiting

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Ocwen and Robinson Tait from foreclosing on him until (1) Ocwen complies with the

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rules and regulations governing VA loans14 and (2) they both “comply with the Alaska

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statute governing non-judicial foreclosures.”15
Ocwen’s notice of removal asserts that this court has both federal question and
diversity jurisdiction.16

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Doc. 6-4 at 8–9 ¶ 39. See also id. at 3 ¶ 16.

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Id. at 9 ¶ 42.

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Id. ¶ 45.

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Id. at 10 ¶ 49.

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Id. at 6 ¶ 26.

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Id. at 7 ¶ 30.
Id. ¶ 33.
Doc. 1.

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III. STANDARD OF REVIEW

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“A motion to remand is the proper procedure for challenging removal.”17 The

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removal statute should be strictly construed against removal and any doubts as to the

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right of removal are to be resolved in favor of remand to the state court. 18 “The

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presumption against removal means that ‘the defendant always has the burden of

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establishing removal is proper.’”19 That is, the defendant has the burden of proving all

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jurisdictional facts.

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IV. DISCUSSION

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A.

Federal Question Jurisdiction
A defendant may remove to federal court any state court action that the plaintiff

could have brought “in federal district court originally, 28 U.S.C. § 1441(a), as a civil

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action ‘arising under the Constitution, laws, or treaties of the United States,’ § 1331.” 20

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The Supreme Court has long held that even state-law claims can satisfy federal “arising

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under” jurisdiction if they “implicate significant federal issues.”21 Although this means

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that state-law claims are not kept out of federal court “simply because they appeared in

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state raiment,” “federal issue” is not “a password opening federal courts to any state
action embracing a point of federal law.”22 To determine whether a federal issue

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Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

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Id.

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Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).
Id.
Id. at 314.

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suffices to confer “arising under” jurisdiction, the court must determine whether “a
federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and

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(4) capable of resolution in federal court without disrupting the federal-state balance
approved by Congress” (the Grable factors).23

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Ocwen argues that Baker’s complaint raises two federal issues: (1) whether the
rules that govern VA loans “cited in the complaint carry the force of law and whether
Defendants violated them; and (2) whether [the FDCPA] is enforceable against

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Defendants and whether they violated it.”24 The court will apply the Grable factors to
these two arguments in turn.

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1.

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The VA rules

Baker alleges that Ocwen has violated two rules governing VA loans: 38 U.S.C.

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§ 3732 and 38 C.F.R. § 36.4350 (the “VA rules”). As Ocwen observes, these alleged

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VA rules violations relate to three of Baker’s causes of actions: Baker’s breach-of-

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contract claim is based on Ocwen’s alleged VA rules violations;25 and Baker’s second

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wrongful foreclosure claim and breach-of-fiduciary-duty claim (at least in part) are

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based on Robinson Tait’s decision to proceed with foreclosure despite Ocwen’s alleged

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VA rules violations.26 The parties do not dispute that these are all state-law causes of

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action.

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Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013) (citing Grable, 545 U.S. at 314).

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Doc. 34 at 1–2.
Doc. 6-4 at 6–7 at ¶ 28.
Id. at 8 ¶ 36.

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Applying the first Grable factor, Ocwen argues that Baker’s causes of action
necessarily raise a federal issue: whether Ocwen violated the VA rules. 27 Baker

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disagrees. For example, he states that his breach-of-contract claim merely requires

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him to show that Ocwen had a contractual duty, Ocwen breached that duty, and Baker

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suffered damages as a result.28 On a superficial level, Baker is correct. Yet his

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argument is unpersuasive. When applying the first Grable factor, the court’s job is not

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to focus on the prima facie elements of the state cause of action, but rather to

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determine “litigation reality.”29 In reality, Baker must show that Ocwen violated the VA

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rules in order to prevail on his breach-of-contract claim because that is the only breach

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alleged by Baker. The first Grable factor is satisfied.

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Ocwen’s argument founders on Grable’s next two factors. With regard to these

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factors, which ask whether the issue raised is “actually disputed and substantial,”

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Ocwen merely concludes without explanation that “the interpretation of federal law is it

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is [sic] determinative to the outcome.”30 This vague statement is insufficient to meet

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Ocwen’s burden. In order to invoke this court’s limited jurisdiction, Ocwen must at least

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establish the basis of the parties’ dispute. For example, in Grable the plaintiff
interpreted 26 U.S.C. § 6335 to require personal service of a written seizure notice; the

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Doc. 34 at 7–8.

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Doc. 24 at 7.

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13D Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3562 (3d ed.
2017). See, e.g., Gunn, 133 S. Ct. at 1065 (noting the prima facie elements of a legal
malpractice claim under Texas law, but holding that the plaintiff’s particular claim necessarily
raised a federal issue because the court would be required to apply federal patent law to the
facts of the case).
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Doc. 34 at 8.

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defendant interpreted that same statute as allowing service by certified mail.31 In Gunn,
the plaintiff argued that a particular provision of federal patent law applied to the facts

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that would have changed the outcome of the plaintiff’s patent case if his lawyer had

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presented such an argument; the defendant argued that the provision did not apply.32

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Here, the court has no idea what Ocwen’s interpretation of the VA rules is, or how

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Baker’s interpretation differs from Ocwen’s.33

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This deficiency relates not only to the question whether the meaning of the VA

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rules is “actually disputed,” but also whether the parties’ dispute is substantial. “The

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‘substantial question’ branch of federal question jurisdiction is exceedingly narrow—a

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‘special and small category’ of cases.”34 The substantiality factor requires Ocwen to

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show that the parties’ dispute is regarding “an important issue of federal law that

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sensibly belongs in a federal court.35 Although Ocwen notes the federal government’s
undeniable interest in “maintaining its military and looking after veterans,”36 it does not

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Grable, 545 at 314–15.
Gunn, 133 S. Ct. at 1065.

See, e.g., Goldman v. Citigroup Glob. Markets Inc., 834 F.3d 242, 257 (3d Cir. 2016)
(holding that no question of federal law was actually disputed because the parties’ dispute was
factual in nature); Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1300 (11th Cir. 2008)
(“[W]e are not persuaded that the meaning of the relevant federal law is unclear. Here, the
defendants correctly concede that federal law prohibits participation by both buyers and sellers
in straw purchases of firearms.”); Eastman v. Marine Mech. Corp., 438 F.3d 544, 552 (6th Cir.
2006) (defendant failed to show that the “meaning of the two statutes cited by the plaintiff is . . .
in serious dispute.”).
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Gilmore v. Weatherford, 694 F.3d 1160 (10th Cir. 2012) (quoting Empire Healthchoice
Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006)).

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Grable, 545 U.S. at 315.
Doc. 34 at 9.

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explain how this case might substantially affect that interest. The court has no idea
whether the outcome of this case “could turn on a new interpretation of a federal statute

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or regulation which will govern a large number of cases,” or if the parties’ dispute “is the

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sort of ‘fact-bound and situation-specific’ claim whose resolution is unlikely to have any

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impact on the development of federal law.”37

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Because Ocwen has failed to establish the second and third Grable factors, the
court need not consider whether the fourth Grable factor is satisfied.

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2.

The FDCPA

Baker’s four UTPCPA causes of action against Robinson Tait cross-reference
the FDCPA.38 Each claim alleges that Robinson Tait made a false or misleading
statement that violates both the FDCPA and the UTPCPA. Ocwen argues that these

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state-law causes of action raise federal issues that suffice to confer federal question
jurisdiction. The court disagrees.
Nevada v. Bank of America39 is on point. There, the State of Nevada brought an
action against Bank of America alleging “that Bank of America misled Nevada

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consumers about the terms and operation of its home mortgage modification and
foreclosure processes, in violation of the Nevada Deceptive Trade Practices Act”

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Municipality of Mayaguez v. Corporacion Para el Desarrollo del Oeste, Inc., 726 F.3d
8, 14–15 (1st Cir. 2013) (quoting Empire Healthchoice, 547 U.S. at 701). See also
Brown-Parker v. Wachovia Mortg., No. CV 12-00810-RGK, 2012 WL 10640836, at *2 (C.D. Cal.
Apr. 26, 2012) (“The interpretation of any HAMP provisions that may be necessary to resolve a
breach of contract claim does not raise a substantial issue of federal law.”).

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Count V, VI, VII, and VIII. Doc. 6-4 at 8–10.
Nevada v. Bank of Am. Corp., 672 F.3d 661 (9th Cir. 2012).

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(“DTPA”).40 The DTPA gives the Nevada Attorney General authority to bring a civil
action against any person who “has engaged or is engaging in a deceptive trade

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practice.”41 Similar to Baker’s complaint in this case, Nevada’s complaint cross-

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referenced federal law: Nevada alleged that some of Bank of America’s actionable

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misrepresentations related to the federal Home Affordable Mortgage Program

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(“HAMP”)42 and constituted violations of the FDCPA.43

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In holding that federal question jurisdiction did not exist, the Ninth Circuit found

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that Nevada’s complaint did not satisfy the first or fourth Grable factors. The court held

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that the first factor (whether a federal issue was “necessarily raised”) was not satisfied

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because any federal law theories of liability were alternative and independent to state

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law theories. “‘When a claim can be supported by alternative and independent

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theories—one of which is a state law theory and one of which is a federal law

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theory—federal question jurisdiction does not attach because f ederal law is not a

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necessary element of the claim.’”44 Although the Nevada statute contains a “borrowing”

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provision, making it a violation of the DTPA to violate a “federal statute or regulation

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relating to the sale or lease of goods or services,”45 that does not automatically convert

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Id. at 664 (citing the DTPA, Nev. Rev. Stat. §§ 598.0903–.0999).

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Nev. Rev. Stat. § 598.0963(3).

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12 U.S.C. § 5219a.

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Nevada, 672 F.3d at 674. See also id. at 675 (“The gravamen of the Complaint is that
Bank of America violated Nevada’s DTPA through numerous misrepresentations, some about
the HAMP program, and some which also violate the FDCPA.”).

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Id. at 675 (quoting Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996)).
Nev. Rev. Stat. § 598.0923(3).

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all DTPA claims subject to that provision into federal causes of action.46 “Nevada’s
glancing reference to federal law is insufficient to confer federal jurisdiction over

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Nevada’s state law claims.”47
With regard to the fourth Grable factor, the Ninth Circuit observed that “[s]tate

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courts frequently handle state-law consumer protection suits that refer to or are

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predicated on standards set forth in federal statutes.”48 To hold that federal courts have

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jurisdiction over all of these cases would “‘herald[ ] a potentially enormous shift of

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traditionally state cases into federal courts.’”49
In order for Baker to prevail on his UTPCPA claims, he must establish that
Robinson Tait has committed “unfair or deceptive acts or practices in the conduct of
trade or commerce.”50 As Ocwen points out, the text of the UTPCPA does not contain a

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borrowing provision that makes it a per se violation of the UTPCPA to violate a federal

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consumer protection statute. But, the UTPCPA does state that “[i]n interpreting

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AS 45.50.471 due consideration and great weight should be given the interpretations of

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. . . § 5(a)(1) of the Federal Trade Commission Act.”51 Relying on this provision, the

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Nevada, 672 F.3d at 675. See also Lippitt v. Raymond James Fin. Servs., Inc., 340
F.3d 1033, 1043 (9th Cir. 2003) (“Lippitt does not have to rely on a violation of the Exchange
Act nor an infraction of an NYSE rule or regulation to bring a UCL claim in California state court.
He merely has to allege that Defendants’ conduct was either unfair or fraudulent.”).
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Nevada, 672 F.3d at 675.

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Id. at 676.

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Id. (quoting Grable, 545 U.S. at 319).
AS 45.50.471(a).
AS 45.50.545 (citing 15 U.S.C. § 45(a)(1)).

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Alaska Supreme Court has held that a violation of the FDCPA “is inescapably an ‘unfair
or deceptive act [ ] or practice[ ]” under AS 45.50.471(a)” because it falls “within at least

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the penumbra of some . . . statutory . . . concept of unfairness.”52 Thus, establishing

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Robinson Tait’s FDCPA violations is sufficient but unnecessary to Baker’s claims. This

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is essentially the same situation presented in Nevada.53

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Ocwen has not met its burden of proving federal question jurisdiction.
B.

Diversity Jurisdiction

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A defendant may also remove to federal court any state court action of which the

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federal district court has original diversity jurisdiction54 because it is between citizens of

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different states and the matter in controversy exceeds $75,000. 55 There is no dispute

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here that this action is between citizens of different states. The parties dispute whether

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the amount in controversy exceeds $75,000.
If a defendant seeks removal based on diversity jurisdiction, “the sum demanded
in good faith in the initial pleading shall be deemed to be the amount in controversy.”56
Where, as here, “the plaintiff’s complaint does not state the amount in controversy, the

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Alaska Tr., LLC v. Ambridge, 372 P.3d 207, 226 (Alaska 2016) (quoting State v.
O’Neill Investigations, Inc., 609 P.2d 520, 535 (Alaska 1980)).

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Ocwen’s reliance on Holmes v. Cornerstone Credit Servs., No. 3:10-cv-0002-RRB,
2010 U.S. Dist. LEXIS 44638 (D. Alaska May 6, 2010), is misplaced. Contrary to Ocwen’s
description, the complaint in Holmes did not merely reference the FDCPA; it requested
injunctive relief under the FDCPA. Based on that request, the court held that federal question
jurisdiction existed. Id. at *8.

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28 U.S.C. § 1441(a).
28 U.S.C. § 1332(a).
28 U.S.C. § 1446(c)(2).

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defendant’s notice of removal may do so.”57 “Evidence establishing the amount is
required by § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the

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defendant’s allegation.”58 “If the plaintiff contests the defendant’s allegation, “both sides

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submit proof and the court decides, by a preponderance of the evidence, whether the

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amount-in-controversy requirement has been satisfied.”59 The removing defendant

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bears the burden proof.60 Thus, “the defendant must establish facts showing that the

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amount in controversy requirement is met, after which the burden shifts to the plaintiff

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seeking remand to show that the requirement is not met.”61
Ocwen asserts that Baker’s alleged damages are likely to be approximately
$48,000.62 It bases this amount on a number of assumptions. Ocwen assumes that
Baker will likely assert that he is entitled to recover the difference between his current

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home equity ($0) and what his home equity would be if Ocwen had complied with the

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VA rules and he had received a loan modification ($16,000). Ocwen calculates this

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$16,000 figure by stating that Baker would have accrued $1,000 in equity each of the

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sixteen months between September 2015 to January 2017. Then, Ocwen multiples this

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Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 551 (2014) (citing
28 U.S.C. § 1446(c)(2)(A)).

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Id. at 554.
Id. at 554.
Urbino v. Orkin Servs. of California, Inc., 726 F.3d 1118, 1121-22 (9th Cir. 2013).

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14AA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3702.2 (4th
ed. 2017).
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Doc. 34 at 17–18.

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$16,000 figure by three in accord with the UTPCPA’s treble damages provision63 to
reach $48,000. Ocwen arrives at an amount in controversy that exceeds the

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jurisdictional minimum by adding approximately $32,000 in attorney’s fees and the likely

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$15,000 cost of re-initiating foreclosure proceedings if Baker’s requests for injunctive

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relief are granted.64 Ocwen submits no evidence in support of any of these

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calculations. Baker refutes them, asserting that he is seeking only $2,000 in statutory

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damages.65

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Ocwen’s argument is unpersuasive for at least three reasons. First, by failing to

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submit any evidence in support of its calculations, Ocwen has again fallen well short of

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meeting its burden. “[A] defendant cannot establish removal jurisdiction by mere

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speculation and conjecture;” 66 the removing defendant must support its allegations with

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proof. The proof may come in the form of either direct or circumstantial evidence, but
Ocwen cannot simply pull figures from thin air.67
Second, even assuming without deciding that Ocwen has accurately calculated
Baker’s attorney’s fees, Ocwen has failed to articulate any reasonable basis for its

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AS 45.50.531(a).

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Doc. 34 at 18–20.

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Doc. 40 at 4.

66

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Ibarra v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). See also
14AA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3702.2 (“Conclusory
assertions will not be sufficient, especially since removal jurisdiction is to be construed
narrowly.”).
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Ibarra, 775 F.3d at 1199 (“As with other important areas of our law, evidence may be
direct or circumstantial. In either event, a damages assessment may require a chain of
reasoning that includes assumptions. When that is so, those assumptions cannot be pulled
from thin air but need some reasonable ground underlying them.”).

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assumption that Baker would be accruing $1,000 in equity each month if he had
received a loan modification in September 2015, or for its assumption that it will cost

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$15,000 to comply with Baker’s requested injunction. Ocwen supports these
calculations with neither evidence nor any articulated rationale.

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Third and finally, Baker concedes that his actual damages are less than $167

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per UTPCPA violation, entitling him to statutory damages of $2,000 for all four of his

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UTPCPA causes of action. Having stipulated to the value of these claims, Baker will be

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bound by that stipulation as he pursues his case in the state court system. Thus, even

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if Ocwen’s estimates for attorney’s fees and injunctive relief costs are accurate, the

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amount in controversy would still be below the jurisdictional threshold.

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V. CONCLUSION

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For the reasons set forth above, Baker’s motion to remand at docket 22 is

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granted. Ocwen’s pending motion to dismiss at docket 35 is denied without prejudice to

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renewal in state court. The case is remanded to the Alaska Superior Court from which

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it was removed.
DATED this 17th day of May 2017.

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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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