Ulshafer v. PHH Mortgage Company

Filing 22

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr on 3/3/17 ORDERING for the reasons stated above, Plaintiff's Motion to Remand, ECF No. 5 , is GRANTED IN PART and DENIED IN PART. The case is REMANDED to the Colusa County Superior Court. However, Plaintiff is not entitled to attorney's fees. In light of the disposition of the Motion to Remand, Defendant's Motion to Dismiss, ECF No. 9 , is DENIED AS MOOT. CASE CLOSED(Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GAYLE ULSHAFER, an individual, 12 13 14 15 No. 2:16-cv-01141-MCE-CKD Plaintiff, v. MEMORANDUM AND ORDER PHH MORTGAGE COMPANY, a business entity; and DOES 1-25, inclusive, 16 Defendant. 17 18 Plaintiff Gayle Ulshafer originally filed this action in Colusa County Superior Court 19 against PHH Mortgage Corporation1 (“PHH”) alleging two claims for relief: (1) violation of 20 California’s Homeowner’s Bill of Rights (“HBOR”), Cal. Civ. Code §§ 2923–2924.5; and 21 (2) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code 22 §§ 17200–17204.2 23 Before the Court are two motions. First is Plaintiff’s Motion to Remand, 24 contending that this Court lacks jurisdiction because the amount in controversy does not 25 exceed $75,000. Pl.’s Mot., ECF No. 5. Moreover, Plaintiff asks this Court to award 26 1 27 Defendant is erroneously sued in the present matter as “PHH Mortgage Company.” 2 28 Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h). 1 1 attorney’s fees on the grounds that Defendant removed this action in bad faith. Pl.’s 2 Mot. at 1–2. Second is Defendant’s Motion to Dismiss, seeking dismissal of the lawsuit 3 pursuant to Federal Rule of Civil Procedure 12(b)(6).3 Def.’s Mot., ECF No. 9. 4 Defendant contends that the present action is barred by res judicata because the 5 Superior Court previously dismissed a similar action by Plaintiff with prejudice. Def.’s 6 Mot., ECF No. 9, at 1. 7 For the reasons set forth below, the Court GRANTS Plaintiff’s Motion in part and 8 remands this action back to the Colusa County Superior Court. However, the Court finds 9 no evidence that Defendant acted in bad faith, and thus DENIES Plaintiff’s request for 10 attorney’s fees. Finally, since the Court grants Plaintiff’s Motion, Defendant’s Motion to 11 Dismiss is DENIED as moot.4 12 13 BACKGROUND 14 15 Plaintiff purchased the property at 7011 North Avenue, Colusa, California 95932 16 (“Subject Property”) in 1998. Pl.’s Compl., ECF No. 1-1, ¶ 4. Defendant began servicing 17 Plaintiff’s mortgage loan for the Subject Property in 2008. Id. at ¶ 16. After refinancing 18 her home loan in 2005, Plaintiff underwent a loan modification with AmeriQuest 19 Mortgage Company on June 2, 2011, and received a lower adjustable interest rate. Id. 20 Plaintiff nevertheless began experiencing financial difficulties in February 2014, and 21 contacted Defendant to express concerns about her ability to make her mortgage 22 /// 23 24 25 26 27 28 3 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 4 Defendant also submits a Request for Judicial Notice (“RJN”) regarding various documents in support of its motion: (1) Plaintiff’s March 4, 2015, Complaint, Def.’s RJN, Ex. A, ECF No. 10-1; (2) Plaintiff’s February 16, 2016, Third Amended Complaint, Def.’s RJN, Ex. B, ECF No. 10-2; (3) the State Court’s April 22, 2016, Judgment of Dismissal, Def.’s RJN, Ex. C, ECF No. 10-3; and (4) the November 12, 2015, Notice of Trustee’s Sale, Def.’s Suppl. RJN, ECF No. 17-1. Plaintiff does not oppose these requests. Therefore, the Court GRANTS Defendant’s Requests for Judicial Notice as to the existence of those documents, but does not take judicial notice of the truth of their contents. 2 1 payments. Id. at ¶ 18. She subsequently submitted an application for a loan 2 modification to Defendant, allegedly upon Defendant’s advice. Pl.’s Compl. at ¶¶ 18–19. 3 On September 2, 2014, Plaintiff received a letter from Defendant denying her 4 request for a loan modification. Pl.’s Compl., ¶ 19. Plaintiff appealed this denial, and on 5 March 4, 2015, filed a complaint against Defendant in the Superior Court (“2015 6 Complaint”). Id. The 2015 Complaint alleged two causes of action: negligence and 7 violations of the UCL. Def.’s RJN, Ex. A, ECF No. 10-1, at 5–6. During this prior 8 litigation, Plaintiff reapplied for a loan modification. Pl.’s Compl., ¶ 19. However, after 9 the 2015 Complaint was dismissed with prejudice on April 4, 2016, Def.’s RJN, Ex. C, 10 ECF No. 10-3, at 1, Defendant sent Plaintiff a second loan modification denial letter, Pl.’s 11 Compl., ¶ 19. 12 Defendant conducted a Trustee Sale for the Subject Property on April 25, 2016. 13 Def.’s Opp’n, ECF No. 15, at 1. On the same day, Plaintiff filed a second lawsuit (the 14 present action) in Superior Court, contending in part that Defendant failed to fairly review 15 her loan modification request. Pl.’s Compl., ¶ 21. She also claims that Defendant 16 scheduled the Trustee Sale while her loan modification request was pending, which is 17 prohibited by HBOR. Id. at ¶¶ 20–21. Defendant removed the lawsuit to this Court on 18 the basis of diversity jurisdiction on May 26, 2016. ECF No. 1. 19 Through this action, Plaintiff seeks a judicial order requiring Defendant to review 20 her modification application in a fair manner. Id. at ¶ 24. She also seeks an injunction 21 preventing any foreclosure sales until Defendant complies with HBOR, restitution of “all 22 sums” paid to Defendant as a result of its allegedly unlawful actions, and statutory 23 damages. Id. at 10. 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 STANDARD 2 3 When a case “of which the district courts of the United States have original 4 jurisdiction” is initially brought in state court, the defendant may remove it to federal court 5 “embracing the place where such action is pending.” 28 U.S.C. § 1441(a). There are 6 two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 7 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court 8 has federal question jurisdiction in “all civil actions arising under the Constitution, laws, 9 or treaties of the United States.” Id. § 1331. A district court has diversity jurisdiction 10 “where the matter in controversy exceeds the sum or value of $75,000, . . . and is 11 between citizens of different states, or citizens of a State and citizens or subjects of a 12 foreign state.” Id. § 1332(a)(1)–(2). A defendant may remove any civil action from state court to federal district court if 13 14 the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). “The 15 party invoking the removal statute bears the burden of establishing federal jurisdiction.” 16 Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988) (citing Williams v. 17 Caterpillar Tractor Co., 786 F.2d 928, 940 (9th Cir. 1986)). Courts “strictly construe the 18 removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 19 (9th Cir. 1992). “[I]f there is any doubt as to the right of removal in the first instance,” the 20 motion for remand must be granted. Id. Therefore, “[i]f at any time before final judgment 21 it appears that the district court lacks subject matter jurisdiction, the case shall be 22 remanded” to state court. 28 U.S.C. § 1447(c). If the district court determines that removal was improper, then the court may also 23 24 award the plaintiff costs and attorney fees accrued in response to the defendant’s 25 removal. 28 U.S.C. § 1447(c). The court has broad discretion to award costs and fees 26 whenever it finds that removal was wrong as a matter of law. Balcorta v. Twentieth- 27 Century Fox Film Corp., 208 F.3d 1102, 1106 n.6 (9th Cir. 2000). 28 /// 4 1 ANALYSIS 2 3 The parties do not dispute diversity of citizenship; Plaintiff is a California resident 4 and Defendant is a New Jersey corporation. Pl.’s Compl., ¶¶ 4–5. Plaintiff’s Complaint 5 is silent on the amount in controversy, and, as the removing party, Defendant bears the 6 burden of establishing federal jurisdiction. Ethridge, 861 F.2d at 1393. It must do so by 7 a preponderance of the evidence. Gaus, 980 F.2d at 567. Furthermore, when more 8 than one claim is asserted against a defendant, amounts sought under each claim are 9 aggregated to determine the amount in controversy. Bank of Cal. Nat'l Asso. v. Twin 10 Harbors Lumber Co., 465 F.2d 489, 491 (9th Cir. 1972). Therefore, remand turns on 11 whether Defendant can show that the aggregated sum or value of Plaintiff’s claims meet 12 the jurisdictional minimum of $75,000. 13 A. 14 Defendant Has Not Carried Its Burden Of Establishing That The Amount In Controversy Exceeds $75,000 Plaintiff pleads three distinct avenues for relief: (1) statutory damages pursuant to 15 16 § 2924.12(b) of HBOR; (2) restitution pursuant to the UCL; and (3) injunctive relief 17 pursuant to § 2924.12(a) of HBOR. The Court considers each below. 18 1. 19 Plaintiff’s Statutory Damages Under § 2924.12(b) Cannot Exceed $50,000. California Civil Code § 2924.12(b) provides, in relevant part: 20 21 If the court finds that [a] material violation [of HBOR] was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of fifty thousand dollars ($50,000). 22 23 24 25 Plaintiff contends that her statutory damages under HBOR are limited to $50,000 26 because her actual damages do not exceed this amount. Pl.'s Mot., ECF No. 5, at 9–10. 27 Regardless of Plaintiff’s actual damages, the plain language of the statute limits recovery 28 /// 5 1 to $50,000 for claims under § 2924.12(b), and thus the Court uses that sum for the 2 purposes of determining the amount in controversy. 3 2. 4 5 Defendant has Not Established the Amount of Restitution Available Under the UCL. Defendant contends that Plaintiff’s restitution claim, made pursuant to the UCL, 6 provides an additional $35,000 in controversy. Def.’s Opp’n, ECF No. 15, at 3. In 7 support, Defendant offers the declaration of PHH employee Rhonda Cope that between 8 April 25, 2012 and April 25, 2016, Plaintiff paid a total of $35,655.66 in interest and fees 9 on her loan. Decl. of Rhonda Cope, ECF No. 16, ¶¶ 1–4. Defendant reasons that 10 because the statute of limitations for a UCL claim is four years, the amount in 11 controversy includes “all sums” paid by Plaintiff to Defendant in the four years preceding 12 this action. Def.’s Opp’n, ECF No. 15, at 3. 13 Defendant’s restitution calculation timeframe, from 2012 to 2016, is too broad, as 14 Plaintiff’s February 2014 loan modification request was not initially denied until 15 September 2014. Pl.’s Compl., ¶¶ 18–19. Thus, the relevant payments are only those 16 made, at the earliest, from February 2014 on. Additionally, Plaintiff asserts that she 17 made no home loan payments in the relevant timeframe, which is plausible in light of the 18 foreclosure of the Subject Property. Pl.’s Reply, ECF No. 18, at 4. Accordingly, the 19 Court finds Defendant has not met its burden in establishing the amount of restitution 20 available under the UCL. The Cope Declaration does not provide the month-by-month 21 (or even year-by-year) payment histories necessary to determine the amount Plaintiff 22 may recover under the UCL. Therefore, for the purposes of the pending Motion to 23 Remand, the Court considers the amount in controversy under the UCL claim to be $0. 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 3. 2 3 The Amount in Controversy Does Not Include the Value of the Subject Property, or Its Outstanding Loan. Plaintiff requests an order prohibiting “foreclosure sales” until Defendant complies 4 with HBOR, pursuant to California Civil Code § 2924.12(a).5 Pl.’s Compl. at 10. 5 Defendant contends the general rule on injunctions makes foreclosure the “object of the 6 litigation,” and thus brings the value of the loan, $455,194.07, into the amount in 7 controversy. Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); see also 8 Major v. Wells Fargo Bank, N.A., No. 14-CV-998-LAB-RBB, 2014 WL 4103936, at *3 9 (S.D. Cal. Aug. 18, 2014) (“[I]n actions arising out of the foreclosure of a plaintiff's home, 10 the amount in controversy may be established by the value of the property or by the 11 value of the loan.”). Conversely, Plaintiff contends that temporary injunction requests 12 under HBOR do not make foreclosure the “object of the litigation,” and thus Cohn’s 13 general rule does not apply. Pl.’s Reply, ECF No. 18, at 2–3. 14 Actions for temporary injunctions under HBOR highlight a significant split among 15 the district courts with regard to amount-in-controversy calculations. See generally 16 Perryman v. JPMorgan Chase Bank, N.A., No. 1:16-cv-00643-LJO-SKO, 2016 WL 17 4441210, at *4–5 (E.D. Cal. Aug. 23, 2016) (discussing the split among district courts in 18 applying the amount in controversy rule to temporary injunction requests preventing 19 foreclosure). In facts similar to the instant case, Perryman considered whether the value 20 of a property is properly included in the amount in controversy when injunctive relief is 21 sought pursuant to HBOR: 22 [E]njoining foreclosure temporarily to afford time to remedy alleged statutory violations related to a pending loan modification does not place the entire value of the underlying loan or property into controversy because the property is not the primary object of the litigation—the loan modification process is the primary focus. 23 24 25 26 27 28 5 Plaintiff’s Complaint requests “an order prohibiting foreclosure sales until C[alifornia] Civ[il] Code §[§] 2923-2924.5 have been complied with.” Pl.’s Compl. at 10 (emphasis added). As an initial matter, Defendant contends that the word “sales,” indicates that “Plaintiff not only sought to enjoin the foreclosure of her own loan, but also the loans of countless other borrowers in California.” Def.’s Opp’n, ECF No. 15, at 4. This argument is unavailing. Reading the Complaint in its entirety, the Court construes Plaintiff’s Complaint as seeking an injunction against foreclosure sales of only her property. 7 1 Id. at *12. This Court came to a similar conclusion in Vonderscher v. Green Tree 2 Servicing, LLC, No. 2:13-CV-00490-MCE-EFB, 2013 WL 1858431 (E.D. Cal. May 2, 3 2013), finding that the request for an injunction against potential foreclosure does not 4 necessarily include the value of the loan into the amount in controversy, id. at *3. 5 Furthermore, in Jerviss v. Select Portfolio Servicing, Inc., No. 2:15-CV-01904-MCE-KJN, 6 2015 WL 7572130, at *4 (E.D. Cal. Nov. 25, 2015), this Court explained that it “conducts 7 a functional analysis of the amount in controversy based on the plaintiff's primary 8 objective in bringing suit . . . [based on] whether the plaintiff primarily seeks to enjoin a 9 foreclosure or instead primarily seeks damages. In denying a motion to remand in 10 Jerviss, it was significant that, unlike in the instant case, “Plaintiffs’ prayer for relief [did] 11 not merely seek to delay foreclosure proceedings temporarily . . . pending a decision on 12 their loan modification application.” Id. at *4 (ellipsis in original). Instead, “Plaintiffs’ 13 request for an injunction [was] not time-limited in any way.” Id. at *4. 14 Here, Plaintiff’s requested injunction is limited in its duration until PHH complies 15 with the statutory protections of HBOR. Additionally, while Plaintiff’s foreclosure was 16 imminent when she filed this action, her Complaint did not seek to rescind her loan, or to 17 permanently enjoin Defendant from foreclosing on the Subject Property. See Ortiz v. 18 Seterus, Inc., No. LA CV16-01110 JAK (JEMx), 2016 WL 2968007, at *3 (C.D. Cal. 19 May 18, 2016) (finding that the “imminence” of foreclosure is not dipositive in 20 determining the object of the litigation, but rather “whether, at bottom, a plaintiff seeks to 21 rescind the loan at issue or permanently enjoin foreclosure”); Vergara v. Wells Fargo 22 Bank, N.A., No. SACV 15-00058-JLS (RNBx), 2015 WL 1240421, at *2 (C.D. Cal. Mar. 23 17, 2015) (“Courts have roundly rejected the argument that the amount in controversy is 24 the entire amount of the loan where a plaintiff seeks injunctive relief to enjoin a 25 foreclosure sale pending a loan modification.”) (emphasis removed). 26 Accordingly, the Court finds that the injunction preventing foreclosure is not the 27 object of the instant litigation, and that the value of the Subject Property’s loan, or of the 28 property itself, is not properly included in the amount in controversy. Therefore, 8 1 Defendant has not established by a preponderance of the evidence that the amount in 2 controversy exceeds $75,000. Because this Court lacks jurisdiction to adjudicate this 3 matter as pleaded in the Complaint,6 Plaintiff’s Motion to Remand is GRANTED. 4 B. 5 Despite Plaintiff’s assertion to the contrary, Defendant’s removal does not appear 6 to be in bad faith. While the Court has broad discretion to award costs and fees when it 7 finds that removal was unsubstantiated, Balcorta, 208 F.3d at 1106 n.6, Defendant’s 8 actions here do not warrant such a result. As discussed above, the split among district 9 courts on the application of the amount in controversy rule when applied to temporary Removal Was Not Made In Bad Faith 10 injunctions makes Defendant’s arguments objectively reasonable. See Martin v. Franklin 11 Capital Corp., 546 U.S. 132, 141 (2005) (“Absent unusual circumstances, courts may 12 award attorney’s fees under § 1447(c) only where the removing party lacked an 13 objectively reasonable basis for seeking removal.”). Therefore, the Court DENIES 14 Plaintiff’s request for attorney’s fees. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 6 27 28 Plaintiff’s Reply notes that “[u]ltimately, Plaintiff will seek to reverse the wrongful foreclosure and seek an injunction to enjoin the sale of the property to a third party.” Pl.’s Reply, ECF No. 18, at 5. As jurisdiction is analyzed based on the pleadings at the time of removal, Plaintiff’s future intentions are not considered in the Court’s analysis. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). 9 1 CONCLUSION 2 3 For the reasons stated above, Plaintiff’s Motion to Remand, ECF No. 5, is 4 GRANTED IN PART and DENIED IN PART. The case is remanded to the Colusa 5 County Superior Court. However, Plaintiff is not entitled to attorney’s fees. In light of the 6 disposition of the Motion to Remand, Defendant’s Motion to Dismiss, ECF No. 9, is 7 DENIED AS MOOT. 8 9 IT IS SO ORDERED. Dated: March 3, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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