Mark S. Cornwall v. BSI Financial Services, Inc. et al

Filing 24

ORDER GRANTING MOTION TO REMAND 11 AND DENYING DEFENDANTS MOTION TO DISMISS AS MOOT 7 by Judge Otis D. Wright, II: Case Remanded to San Luis Obispo Superior Court, Case no. 15CV0625. (MD JS-6. Case Terminated); (lc) Modified on 3/4/2016 (lc).

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United States District Court
Central District of California

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Case No. 2:15-CV-9850-ODW-AGR

MARK S. CORNWALL,
Plaintiff,

ORDER GRANTING MOTION TO

v.

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BSI FINANCIAL SERVICES, INC., d/b/a REMAND AND DENYING

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SERVIS ONE, INC.; ARLP TRUST 3;

DEFENDANT’S MOTION TO

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and DOES 1–50, inclusive,

DISMISS AS MOOT [7, 11]

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Defendants.
I.

INTRODUCTION

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Plaintiff Mark S. Cornwall (“Cornwall”) moves to remand this action to San

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Luis Obispo County Superior Court for lack of subject matter jurisdiction (Motion to

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Remand [“Remand Mot.”] 1–2, ECF No. 11.) and Defendant BSI Financial Services,

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Inc., doing business as Servis One (hereinafter “Servis One”), simultaneously moves

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to dismiss. (Motion to Dismiss [“Dismiss Mot.”], EFC No. 7.) In his remand motion,

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Plaintiff argues that Servis One has failed to establish diversity jurisdiction under 28

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U.S.C. § 1332(a), as Defendant cannot show that the amount in controversy exceeds

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the jurisdictional minimum of $75,000. (Id. 7–8.) In response, Servis One argues that

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the value of the object of the litigation satisfies the jurisdictional minimum. (Notice

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of Removal [“Notice”] 6, ECF No. 1.) For the reasons discussed below, the Court

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finds that Servis One’s Removal does not meet the standards set forth by 28 U.S.C. §

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1332(a), and without a basis for federal jurisdiction, the Court hereby REMANDS

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this case and DISMISSES Defendant’s motion to dismiss as MOOT.1

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II.

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FACTUAL BACKGROUND

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Plaintiff’s’ claims arise from a refinanced mortgage agreement between

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Countrywide Home Loans, Inc. (“Countrywide”) and Plaintiff’s brother, Tod Tucker

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Cornwall (“Borrower”) in the amount of $500,000. (Complaint [“Compl.”] ¶ 9,

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Notice, Ex. A, EFC No. 1.)

In connection with the loan, Borrower executed a

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promissory note secured by a deed of trust (”Deed”). Id. Cornwall claims that

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Countrywide did not disburse the loan in full to Borrower.2 (Id. ¶ 10.) According to

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Cornwall, Borrower deeded the home, located at 51 Mannix Avenue, Cayucos,

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California, (“Property”) to him on June 17, 2010. (Id. ¶¶ 2, 12.) Borrower passed

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away in February 2011, and Cornwall alleges that the loan was current at the time of

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Borrower’s death. (Id. ¶ 13.) Cornwall claims that he has lived on the Property since

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June of 2010, and sets forth in his unjust enrichment claim that he has since invested

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approximately $58,000 into the Property. (Id. ¶¶ 12, 40.) Since its disbursement,

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Countrywide sold and transferred the loan to several loan servicers, including Bank of

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America Home Servicing, LP (“BA”). (Id. ¶¶ 11, 16, 21.) BA has since assigned the

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Deed to Defendant ARLP Trust 3 (“ARLP”) (Id. ¶ 18.), and the loan’s current servicer

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is Servis One, a Delaware corporation with its principal place of business in Texas.3

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(Id. ¶ 21; Notice 5.)

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After carefully considering the papers filed in support of and in opposition to the Motions, the
Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 715.
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Cornwall does not dispute the validity of this loan, as he waived his ability to do so in a previous
action. (Opposition to Motion to Remand [“Remand Opp’n”] 3, EFC No. 19.)
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In its Notice of Removal, Servis One offers citizenship and residency information for each
defendant, except for ARLP Trust 3—instead, Servis One offers the citizenship of Wilmington
Savings Fund Society, which is not a party to this suit. (Notice 5.)

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Servis One contends that Cornwall’s suit at bar is merely an attempt to stall

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foreclosure. (Dismiss Mot. 1.) Cornwall maintains that he has the money to pay the

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mortgage, and is willing to do so, but needs an accounting to determine how much is

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owed. (Opposition to Motion to Dismiss [“Dismiss Opp’n”] 2–3.) Cornwall alleges

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that the current amount of indebtedness is unknown, and that the amounts due listed in

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his mortgage statements vary erratically. (Compl. ¶ 26; Cornwall Decl. 6, Remand

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Mot. Exs. I, J.) To illustrate his argument, Cornwall points to Servis One and its

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predecessor’s own statements—the balance due jumped over $36,000 in a two month

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time period, from $121, 232.15 to $157,589.86. (Ex. I at 1–2.) Cornwall also asserts

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that he made attempts outside of litigation to obtain an accounting without success.

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(Remand Mot. 3, 5.)

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On November 23, 2015, Cornwall filed this action in San Luis Obispo County

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Superior Court.

(Compl. 1.)

Servis One removed the action to this Court on

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December 22, 2015 on the basis of diversity jurisdiction under 28 U.S.C. § 1332.

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(Notice 1.) On December 30, 2015, Servis One also moved to dismiss the Complaint.

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(Dismiss Mot. 1.) On January 11, 2016, Plaintiff opposed Servis One’s Motion to

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Dismiss and moved to remand this action. (Dismiss Opp’n 1; Remand Mot. 2–3.)

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The Remand Motion is now before the Court for decision.

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III.

LEGAL STANDARD

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Federal courts are courts of limited jurisdiction, having subject-matter

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jurisdiction only over matters authorized by the Constitution and Congress. U.S.

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Const. art. III, § 2, cl. 1; e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

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375, 377 (1994). A suit filed in state court may be removed to federal court if the

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federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a).

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But courts strictly construe the removal statute against removal jurisdiction, and

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“[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal

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in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The

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party seeking removal bears the burden of establishing federal jurisdiction. Durham v.

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Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (citing Gaus, 980 F.2d

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at 566).

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Federal courts have original jurisdiction where an action presents a federal

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question under 28 U.S.C. § 1331, or has diversity of citizenship under 28 U.S.C. §

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1332. A defendant may remove a case from a state court to a federal court pursuant to

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the federal removal statute, 28 U.S.C. § 1441, on the basis of either federal question or

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diversity jurisdiction. To exercise diversity jurisdiction, a federal court must find

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complete diversity of citizenship among the adverse parties, and the amount in

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controversy must exceed $75,000, usually exclusive of interest and costs. 28 U.S.C. §

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1332(a).

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IV.

DISCUSSION

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The parties dispute whether the amount in controversy and diversity of

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citizenship requirements have been satisfied. Servis One argues that the value of the

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object of litigation is the Property itself and that the value is well over the

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jurisdictional minimum. (Notice 6.) Servis one also indicates that Cornwall seeks

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compensation for $58,000 in improvements to the Property, and those improvements,

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together with an undetermined amount of disgorgement, restitution, and special

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damages, will satisfy the jurisdictional minimum. (Id.) Cornwall, in turn, argues that

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Servis One’s mere speculation cannot satisfy their burden in establishing that the

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amount in controversy and diversity of citizenship requirements are met. (Remand

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Opp’n 2.) Cornwall further argues that the object of this litigation is not the Property
itself, but rather the balance of the outstanding mortgage. (Id.) While Servis One
vigorously argues that Cornwall is merely trying to delay foreclosure, Cornwall

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counters that, after an accurate accounting, he will make the necessary payments.
(Id.) This Court considers each element of diversity jurisdiction in turn.

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A.

Amount in Controversy

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Where, as here, a plaintiff’s state court complaint does not specify a particular

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amount of damages, the defendant has the burden of establishing, by a preponderance

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of the evidence, that the amount in controversy exceeds the jurisdictional amount.

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Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). Therefore,

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as the proponent of federal jurisdiction, Servis One bears the burden of showing that it

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is “more likely than not” that the amount in controversy exceeds $75,000. Id. at 398.

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Defendants can meet this burden by offering facts that support the contention that the

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amount in controversy exceeds the jurisdictional minimum, or producing evidence of

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jury verdicts for damages awarded in cases with analogous facts. Simmons v. PCR

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Tech., 209 F. Supp. 2d 1029, 1033–34 (N.D. Cal. 2002). The removal statute is
strictly construed against removal jurisdiction. Emrich v. Touche Ross & Co., 846
F.2d 1190, 1195 (9th Cir. 1988). Therefore, where doubt whether the right to removal

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exists, a case should be remanded to state court. Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992).
Cornwall’s Complaint does not specify the exact amount of damages he seeks;

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his claims are instead for an accounting and related damages. (Compl. 10–12.) While

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Cornwall does seek $58,000 in damages under his unjust enrichment claim (Remand

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Mot. 4.), that amount does not meet the jurisdictional minimum and Servis One has

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not offered any specific evidence of disgorgement, restitution, or special damages that

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may bring the amount in controversy past the jurisdictional threshold of $75,000. (See

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Notice 6.) As in Gaus v. Miles, Inc., where “the plaintiff does not claim damages in

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excess of the jurisdictional minimum and the defendant offers “no facts whatsoever”

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to show that the amount in controversy exceeds the jurisdictional minimum, then the

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defendant has not borne the burden on removal of proving that the amount in

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controversy requirement is satisfied.” Singer v. State Farm Mut. Auto. Ins. Co., 116

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F.3d 373, 376 (9th Cir. 1997) (citing Gaus, 980 F.2d at 567). Just like the defendant

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in Gaus, Servis One has not shown the amount in controversy to be satisfied. (See

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Notice 6.)

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mortgage, Servis One cannot meet its burden of showing that the amount in

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controversy exceeds $75,000.

Therefore, without knowing the outstanding balance on the Property

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While Plaintiff does not seek to invalidate the underlying mortgage, cases

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seeking rescission likewise look to the mortgage to determine whether the amount in

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controversy requirement is met. In such rescission actions, “some district courts in the

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Ninth Circuit have relied on the amount of [the] indebtedness ..., while others have

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looked to the fair market value of the property to determine whether the amount in

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controversy requirement is met.” Reyes v. Wells Fargo Bank, N.A., No. C–10–01667
JCS, 2010 WL 2629785, *5 (N.D. Cal. June 29, 2010). When considering the amount
of indebtedness, district courts in this circuit have disagreed as to whether the total

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value of the loan or the plaintiff’s current indebtedness should be used to determine
the amount in controversy. Compare Garcia v. Citibank, N.A., No. 2:09–CV–03387–
JAM–DAD, 2010 WL 1658569, *2 (E.D. Cal. Apr. 23, 2010) (“Here … [t]he subject

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loan amount was originally $221,000.00, excluding interest. As such, if the contract

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were rescinded, the value of relief would be at least $221,000.00, which far exceeds

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the requisite amount in controversy.”) with Reyes, 2010 WL 2629785 at *6

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(“[D]ocuments attached to the Complaint indicate that the amount of unpaid debt on

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the loan at the time of the trustee’s sale was $460,946.68. Therefore, [the] method of

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valuing the litigation puts this case over the $75,000.00 amount in controversy

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threshold.”).

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Here, the value of the original loan was $500,000. (Compl. ¶ 9.) However,

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since Cornwall claims that the $500,000 was never dispersed to Borrower, using it to

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determine the amount in controversy would not only be unfair to Cornwall, but it

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would be insensible. If the loan amount was in fact never dispersed, and this Court

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chose to use the value of the loan, it would be akin to choosing a number at random to

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determine the amount in controversy. Because Servis One will not share with this

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Court, nor with Cornwall, an accounting showing any disbursements made on the

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loan, we cannot use the value of the loan to determine the amount in controversy.

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Similarly, the current amount of indebtedness is also unknown. (Compl. ¶ 26.) Servis

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One is challenging Cornwall’s accounting action, and is also the only party that knows

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the outstanding balance on the mortgage; the Court finds that Servis One cannot have

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it both ways, and simultaneously swear that the debt exceeds $75,000 while also

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challenging any action that forces it to prove up that number. Therefore, because

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doubt as to the jurisdictional minimum—and to the right of removal—exists, this case

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should be remanded to state court. (Gaus, 980 F.2d at 566.)

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B.

Diversity of Citizenship
To establish the citizenship of a natural person for purposes of diversity

jurisdiction, a party must (a) be a citizen of the United States, and (b) be domiciled in
a state of the United States. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th

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Cir. 2001). A corporation is deemed to be a citizen of every state and foreign state by

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which it has been incorporated and of the state or foreign state where it has its

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principal place of business. 28 U.S.C. § 1332(c)(1).

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Here, it is undisputed that Cornwall is a citizen of California. (Notice 5;

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Remand Mot. 4.)

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incorporated in Delaware and that its principal place of business is in Texas. (Remand

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Motion Reply 5, ECF No. 21.) However, Defendant’s Notice of Removal fails to

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allege the citizenship of ALRP, and instead lists the deed trustee as Wilmington

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Savings Fund Society, FSB. (Notice 5.) Wilmington is not named as a party to this

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action, and therefore its citizenship is of no consequence. Without knowing the

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Furthermore, Cornwall does not dispute that Servis One is

citizenship of each named defendant, the Court cannot ensure complete diversity. The

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Supreme Court “ha[s] consistently interpreted § 1332 as requiring complete diversity:

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In a case with multiple plaintiffs and multiple defendants, the presence in the action of

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a single plaintiff from the same State as a single defendant deprives the district court

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of original diversity jurisdiction over the entire action.”

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Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

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diversity elements for each party, including ALRP, Servis One’s removal action must

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again fail. (Notice 5.)

Exxon Mobil Corp. v.

Therefore, without satisfying the

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V.

CONCLUSION

For the reasons discussed above, the Court finds that there is no subject matter
jurisdiction over this action under 28 U.S.C. § 1332.

Accordingly, the Court

GRANTS Plaintiff’s Remand Motion and DENIES Defendant’s Motion to Dismiss
as MOOT. (ECF No. 11.) This action shall be remanded to the San Luis Obispo
County Superior Court, case number 15-CV-0625. The Clerk of the Court shall close
this case.

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IT IS SO ORDERED.

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March 4, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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