PROCTOR v. COUNTRYWIDE FINANCIAL CORPORATION et al

Filing 96

ORDER granting 84 Motion to Remand to State Court. 1. This case is remanded to the Circuit Court of the First Judicial Circuit for Walton County, Florida. 2. The clerk is directed to close the file. Signed by JUDGE RICHARD SMOAK on 6/13/2011. (cc: Walton County Circuit Court) (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

FRED C. PROCTOR, JR.,
Plaintiff,
vs.

CASE NO. 3:10cv149/RS-MD

COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware
corporation; COUNTRYWIDE HOME
LOANS, INC., a New York corporation;
BAC HOME LOANS SERVICING, LP, a
Texas Limited Partnership; LARRY WRIGHT,
Individually; WRIGHT & ASSOCIATES OF
NORTHWEST FLORIDA, INC., a Florida
corporation; CHRISTOPHER LEE PEAVY,
Individually; JAMES A. PEAVY, JR.,
Individually; ANDREW PICKEL, Individually;
and PEAVY AND ASSOCIATES, INC.,
a Florida corporation,
Defendants.
_______________________________________
COUNTRYWIDE HOME LOANS, INC., a
New York corporation,
Counter-Plaintiff,
vs.
FRED C. PROCTOR, JR.,
Counter-Defendant.
_______________________________________/

ORDER
Before me is the Plaintiff’s Motion To Remand For Lack Of Subject Matter
Jurisdiction (Doc. 84). Defendants’ Response (Doc. 91) contends that remand is
improper because the allegations of Paragraph 64 of the Complaint (Doc. 1-3) (Count

II) “implicate violations of the federal Fair Credit Reporting Act (FCRA)”.
The three counts remaining against the present Defendants allege claims arising
under Florida law. Count I is entitled “DECEPTIVE AND UNFAIR TRADE PRACTICES,
CHAPTER 501, Part II Florida Statutes.” Count II is entitled “FRAUD”. Count III is
entitled “CIVIL CONSPIRACY TO DEFRAUD”. Paragraph 64, on which Defendants
rely, is one of the allegations in Count II for common law fraud:
“64. Plaintiff has sustained substantial damages, including impairment of
his credit, purported income based on forgiveness of debt, loss of ability to
refinance his home mortgages at reduced rates, as a consequence of the
false statements, material misrepresentations and fraud perpetrated by
Defendants Wright, Countrywide, Pickel, and Peavy.”
However, the very next numbered paragraph removes any doubt that Count II of
Plaintiffs’ Complaint does not allege violations of the Fair Credit Reporting Act, 15
U.S.C. §1681, et seq;:
“65. Pursuant to Section 627.792, Florida Statutes and Florida law,
Defendants Wright, Countrywide, Pickel, and Peavy are liable for the
fraud, defalcation, and misappropriation by Defendants Wright,
Countrywide, Pickel, and Peavy.”
If that were not enough, Count V entitled “VIOLATIONS OF THE FAIR CREDIT
REPORTING ACT, 15 U.S.C. §1681, ET SEQ”, asserted claims against only the nowdismissed Defendants, Countrywide Financial Corporation, Countrywide Home Loans,
Inc., and BAC Home Loan Servicing, LP. The present Defendants are not named in
Count V. Defendants’ argument that “Plaintiffs’ allegations implicate violations of the
federal Fair Credit Reporting Act (FCRA)” attempts to be too clever by far. It is very
clear that the remaining Counts, I, II, and III, allege only state law claims. Remand is
required.

IT IS ORDERED:
1.

This case is remanded to the Circuit Court of the First Judicial Circuit for
Walton County, Florida.

2.

The clerk is directed to close the file.

ORDERED on June 13, 2011.

/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE