Alonso v. Bank of America, N.A.

Filing 26

ORDER: Plaintiffs' Motion to Remand (Doc. # 6 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 2/21/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ABELARDO ALONSO, ET AL.,
Plaintiffs,
v.

Case No. 8:17-cv-238-T-33MAP

BANK OF AMERICA, N.A.,
Defendant.
______________________________/
ORDER
This

cause

comes

before

the

Court

pursuant

to

Plaintiffs’ Motion to Remand and Memorandum in Support (Doc.
## 6, 7), filed on February 1, 2017. Defendant Bank of America
responded on February 15, 2017. (Doc. # 21). For the reasons
that follow, the Motion is denied.
I.

Background
Plaintiffs, thirty individuals and couples in total, are

all Florida citizens who attempted to obtain mortgage loan
modifications from their loan servicer, Bank of America,
through the federal Home Affordable Modification Program
(HAMP). (Doc. # 2 at ¶¶ 1, 6). But, as part of a fraudulent
scheme to increase foreclosures and the servicing fees it
could

then

collect,

Bank

of

America

allegedly

delayed

reviewing Plaintiffs’ loan modification applications, charged

1

them fraudulent fees, and ultimately did not approve their
applications.

(Id.

at

¶¶

18-34;

591-611).

Plaintiffs

subsequently lost their homes in foreclosure proceedings.
(Id. at ¶¶ 51, 70, 89, 108, 128, 144, 162, 180, 198, 217,
235, 254, 273, 292, 311, 330, 349, 368, 387, 406, 424, 442,
460, 478, 496, 514, 532, 550, 568, 586).
Plaintiffs filed their 119-page Complaint in state court
on December 30, 2016, asserting two claims against Bank of
America: Count I for common law fraud and Count II for
violation of Florida’s Deceptive and Unfair Trade Practices
Act (FDUPTA), Fla. Stat. § 501.201 et seq. (Id. at 115-116).
Plaintiffs seek compensatory damages, as well as treble
damages and attorney’s fees for the FDUPTA claim. (Id. at
119). Regarding their actual damages, Plaintiffs allege that:
As a direct and proximate cause of the knowing
misrepresentations
by
BOA
described
in
the
Complaint, Plaintiffs suffered damages including
but not limited to their time spent, the costs for
sending their HAMP applications on multiple
occasions when BOA had no intention of reviewing
it, the loss of time spent sending and re-sending
the HAMP application, damage to their credit, the
loss of their home and the equity in that home, the
loss of future equity in the home as well as the
loss of some or all of the funds paid to BOA for
trial payments for which BOA applied to fraudulent
inspection fees, late fees and wrongful fees for
which BOA applied their trial payments and
profited.
(Doc. # 2 at ¶ 599)(emphasis added). Plaintiffs reiterate:

2

The policies, acts, and practices by BOA alleged
herein were intended to result and did result in
the loss of money for mail, fax Fed Ex and hand
delivery and time spent by Plaintiffs in sending
applications and financial documents to BOA, when
BOA
had
no
intention
of
processing
the
applications, damage to their credit, the loss of
their home and the equity in that home, the loss of
future equity in the home as well as the loss of
some or all of the funds paid to BOA for trial
payments for which BOA applied to fraudulent
inspection fees, late fees and other wrongful fees
for which BOA applied their trial payments and
profited. These losses were a direct result of
BOA’s purposeful scheme to deceive the Federal
Government in order to increase the BOA’s profits
by avoiding the directives and requirements of
HAMP.
(Doc. # 2 at ¶ 610)(emphasis added).
Bank of America removed the case to federal court on
January 30, 2017, on the basis of both diversity and federal
question jurisdiction. (Doc. # 1). Plaintiffs subsequently
filed their Motion to Remand and Memorandum in Support (Doc.
## 6, 7) on February 1, 2017, arguing that their claims do
not arise under federal law and that the amount in controversy
requirement for diversity jurisdiction has not been met. Bank
of America responded on February 15, 2017. (Doc. # 21). The
Motion is ripe for review.
II.

Discussion
When

jurisdiction

is

premised

upon

diversity

of

citizenship, 28 U.S.C. § 1332(a) requires complete diversity

3

of citizenship and that “the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs.”
Removal statutes are strictly construed against removal.
Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108 (1941).
Any doubt as to proper subject matter jurisdiction should be
resolved against removal. Butler v. Polk, 592 F.2d 1293, 1296
(5th Cir. 1979).
The removing defendant has the burden of establishing
the existence of federal jurisdiction by a preponderance of
the

evidence

and

the

removing

party

establishing its right to remove.
Inc.,

269

F.3d

jurisdictional

1316,

amount

1319
is

present

facts

Williams v. Best Buy Co.

(11th

not

must

Cir.

facially

2001).

apparent

If

“the

from

the

complaint, the court should look to the notice of removal and
may require evidence relevant to the amount in controversy at
the time the case was removed.” Williams v. Best Buy Co., 269
F.3d

1316,

1319

unspecified,

the

(11th

Cir.

removing

2001).

party

When

bears

“damages

the

burden

are
of

establishing the jurisdictional amount by a preponderance of
the evidence.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1208
(11th Cir. 2007).
Here,

Plaintiffs

do

not

contest

that

diversity

of

citizenship exists. Rather, they assert that Bank of America
4

has not established by a preponderance of the evidence that
the amount in controversy exceeds $75,000. (Doc. # 6 at 2;
Doc. # 7 at 4). Plaintiffs insist that Bank of America’s use
of

their

home

loan

amounts

to

establish

the

amount

in

controversy is impermissible. (Doc. # 7 at 4). They maintain
that the total values of their former homes are not in
controversy “because [Plaintiffs] do[] not challenge the
validity of the mortgage[s] or seek an injunction prohibiting
foreclosure.” White v. Wells Fargo Home Mortg., No. 1:11-cv408-MHT, 2011 WL 3666613, at *3 (M.D. Ala. Aug. 22, 2011).
But, the Complaint explicitly enumerates “the loss of
their home and the equity in that home, [and] the loss of
future equity in the home” as part of Plaintiffs’ actual
damages.

(Doc.

#

2

at

¶¶

599,

610).

Given

Plaintiffs’

statement that they lost both the equity they had accumulated
and the future equity they would have accumulated if they had
not lost their homes, the Court agrees with Bank of America
that

Plaintiffs’

allegation

“basically

amounts

to

an

allegation that they were injured to the tune of their
property values.” (Doc. # 1 at 5). For that reason, the cases
cited by Plaintiffs, which state that home values should not
be

considered

part

of

the

amount

5

in

controversy

where

plaintiffs do not challenge the foreclosure of their homes or
the validity of their mortgages, are inapposite.
In White, White filed her action against Wells Fargo in
state

court,

fraudulent
negligent

bringing

numerous

misrepresentation,
servicing

3666613, at *1.

of

White’s

state

breach

claims,
of

mortgage.

including

contract,
White,

2011

and
WL

At that time, the foreclosure proceedings

against her were still pending — so, she had not yet lost her
home or the accumulated or future equity in that home. Id.;
see also Horace v. LaSalle Bank Nat’l Ass’n, No. 3:08-cv1019-MHT,

2009

WL

426467,

at

*1-2

(M.D.

Ala.

Feb.

17,

2009)(remanding case that was brought before foreclosure
proceedings were initiated and sought damages suffered “‘as
a result of alleged negligence and fraud associated with the
procurement of the mortgage’” (emphasis added)).
Rather, in her complaint, “White [sought] damages based
on Wells Fargo’s alleged practice of misrepresenting the
nature of White’s obligations and charging unjustified fees.”
White, 2011 WL 3666613, at *3. The court remanded the case
and noted “it is difficult to imagine that [White’s] claims,
which rest primarily on allegedly excessive fees that Wells
Fargo charged during the five years it serviced her $150,000

6

home mortgage, are worth more than half the initial value of
the mortgage.” Id.
In an order citing White, the court in Hamilton v. Bank
of America, N.A., No. 2:16-cv-505-WKW (M.D. Ala. Oct. 25,
2016), sua sponte directed Bank of America to show cause why
the case should not be remanded where the plaintiff alleged
damages including “the loss of equity in the home” and the
“loss of future equity in the home.” However, the court did
not rule that remand was required, as Bank of America chose
to stipulate to remand for that particular case “[w]ithout
making any admissions of law or fact” about whether removal
had been proper. (Doc. # 6-2; Doc. # 21 at 4 n.1). That order
did not analyze the amounts of accumulated and future equity
in plaintiff’s home, although those were explicitly included
as damages. Nor did the order actually remand the case. Thus,
the Court does not find Hamilton persuasive here, given the
briefing and extensive evidence of Plaintiffs’ home values
and equity provided by Bank of America.
Finally, in Macks v. U.S. Bank Nat’l Ass’n, No. 2:10cv-357-MHT, 2010 WL 2976200 (M.D. Ala. July 23, 2010), the
court

remanded

the

case

because

the

entire

value

of

plaintiffs’ property was not in controversy. The plaintiffs
sought only injunctive relief — a temporary restraining order
7

seeking to enjoin foreclosure until one of the defendants
proved

its

determining

ownership
the

of

value

the
of

mortgage.
the

Id.

injunctive

at

*2.

Even

relief

from

plaintiffs’ perspective, the court determined that the value
of a delay in foreclosure was “certainly worth much less than
the property itself.” Id.
While

the

Complaint

here

also

claims

damages

for

unjustified fees and the Motion emphasizes that Plaintiffs do
not

challenge

the

foreclosures

or

validity

of

their

mortgages, the face of the Complaint reveals that the value
of their homes, including the accumulated and future equity
in those homes, is at issue. Plaintiffs are the masters of
their

Complaint,

and

could

have

foreclosed

removal

by

drafting their pleading to allege damages below the amount in
controversy requirement. Manley v. Ford Motor Co., 17 F. Supp.
3d 1375, 1379 (N.D. Ga. 2014)(“Except where Congress has
granted federal courts exclusive jurisdiction, plaintiffs are
the ‘master of the complaint and are free to avoid federal
jurisdiction by structuring their case to fall short of a
requirement of federal jurisdiction.’” (quoting Scimone v.
Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013)(internal
citation and quotation marks omitted))).

8

Plaintiffs chose to put the value of their lost homes in
controversy and the Court will not ignore Plaintiffs’ own
statement of their damages in determining the propriety of
removal. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 770 (11th Cir. 2010)(stating that a district court should
not “suspend reality or shelve common sense in determining
whether

the

establishes

face
the

of

a

complaint,

jurisdictional

or

amount.”

other

document,

(quoting

Roe

v.

Michelin N. Am., Inc., 637 F. Supp. 2d 995, 999 (M.D. Ala.
2009))).
Therefore,
Plaintiffs’

the

homes

Court
should

determines
be

that

included

the

values

of

in

the

amount

in

controversy. As evidence of the value of Plaintiffs’ homes,
Bank of America has disclosed the amounts of all Plaintiffs’
loans, which were taken out to purchase their homes. The
smallest mortgage loan was for $75,050.00, while the largest
loan was for $262,150.00. (Doc. # 1 at 5). Bank of America
also

provides

the

appraised

values

for

all

but

two

of

Plaintiffs’ homes: the lowest appraised value was $100,000
for Plaintiff Plutarco Santos, and the highest appraised
value was $355,000 for Plaintiff Rafael Uribe. (Doc. # 21-1
at

¶¶ 17-18).

Thus, the value of each Plaintiff’s home

exceeded the amount in controversy threshold.
9

But, even if the total value of Plaintiffs’ homes was
not the correct measure of damages, Bank of America also
provides its calculation for Plaintiffs’ equity in their
homes,

which

Plaintiffs

explicitly

include

among

their

damages. (Doc. # 21 at 5). Bank of America calculates the
Plaintiffs’ equity by subtracting the amounts of the loan
balances from the appraised values of the homes. (Id.); see
In

re

Moulton,

393

B.R.

752,

766

(Bankr.

N.D.

Ala.

2008)(calculating debtor’s equity in his home by subtracting
the loan balance from the appraised value of the home).
Excluding the other types of damages alleged and not
trebling

the

damages,

the

accumulated

equity

in

two

of

Plaintiffs’ homes exceeds the $75,000 threshold: Plaintiff
Rafael Uribe had $97,563.81 in equity in his home, and
Plaintiffs Carlos Cedeno and Maria Villacis had $159,027.88
in equity in their home. (Id.; Doc. # 21-1 at ¶¶ 18, 23).
Thus, even if the Court had not already determined that the
entire value of the homes were in controversy, the amount in
controversy threshold was met by some Plaintiffs using the
more conservative equity calculation. Therefore, the Court
still could have retained supplemental jurisdiction over the
claims of the Plaintiffs whose home equity did not exceed the
amount in controversy threshold. See 28 U.S.C. § 1367(a)
10

(“[I]n any civil action of which the district courts have
original

jurisdiction,

the

district

courts

shall

have

supplemental jurisdiction over all other claims that are so
related

to

claims

in

jurisdiction

that

they

controversy.

.

.

.

the

action

form

Such

part

within
of

supplemental

the

such

original

same

case

jurisdiction

or

shall

include claims that involve the joinder or intervention of
additional parties.”).
The Court finds that Bank of America has established by
a preponderance of the evidence that the amount in controversy
exceeds

$75,000,

such

that

the

Court

may

exercise

its

diversity jurisdiction.1 Therefore, Plaintiffs’ Motion to
Remand is denied.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiffs’ Motion to Remand (Doc. # 6) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
21st day of February, 2017.

As the Court has determined that it has jurisdiction over this case on
the basis of diversity of citizenship, analysis of whether federal
question jurisdiction exists is unnecessary.
1

11

12