Ashley v. Bank of America, N.A. et al

Filing 21

ORDER GRANTING Plaintiff's 5 Motion to Remand action to the Superior Court of Cherokee County. Signed by Judge Richard W. Story on 6/21/2012. (adg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LEIF ASHLEY,
Plaintiff,
v.
BANK OF AMERICA, N.A., et
al.,
Defendants.

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CIVIL ACTION NO.
1:11-CV-3762-RWS

ORDER
This case comes before the Court on Plaintiff’s Motion for Injunctive
Relief [2], Defendants’ Motion to Dismiss [4], Plaintiff’s Motion to Remand to
State Court [5], and Plaintiff’s Motion to Compel Defendant’s Certificate of
Interested Persons and Corporate Disclosure Statement [8]. After a review of
the record, the Court enters the following order.
I. Factual Summary1
In October 2005, Plaintiff Leif Ashley filed an application with
Countrywide Home Loans, Inc. (“Countrywide”) d/b/a America’s Wholesale
Lender (“AWL”) to refinance his residential mortgage obligation on his home

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at 849 Canton Valley Drive, Canton, Georgia 30114. That application was
approved, and Plaintiff obtained a mortgage loan from AWL in the principal
amount of $315,000. The loan specifically identified AWL as the “Lender” and
was made payable to AWL. As security for the loan, Plaintiff executed a
security deed which named Mortgage Electronic Registration Systems, Inc.
(“MERS”) (solely as nominee for the lender, its successors and assigns) as the
“grantee.”
In January 2006, Plaintiff’s loan was “apparently” pooled with others
into the CHL Mortgage Pass-Through Trust, 2006-3, a common law New York
Trust “of which Defendant [Bank of New York Mellon (“BNYM”)] purports to
serve as Trustee.” The Trust’s Pool Servicing Agreement stated that BNYM
would acquire the loan no later than January 31, 2006. However, no such
transfer occurred until August 9, 2011, when MERS for the first time assigned
all rights in Plaintiff’s loan to BNYM as trustee.
Countrywide serviced Plaintiff’s loan until Countrywide was acquired by
Defendant Bank of America, N.A. (“BOA”) in January 2008. Following the
acquisition, Defendant BOA continued servicing Plaintiff’s loan.

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In early 2008, Plaintiff fell behind on his mortgage payments, and MERS
published a Notice of Sale Under Power, declaring its intent to foreclose on the
property. However, after the Notice was published and prior to foreclosure,
Plaintiff cured the default. After a subsequent attempt to modify the loan in
August 2011, Defendant BOA told the Plaintiff that it had the full power to
negotiate the terms of the loan but that it was going to foreclose on October 4,
2011. On September 9, 2011, BOA published a Notice of Sale Under Power
which alleged that Plaintiff was in default and listed BNYM as Plaintiff’s
Attorney-In-Fact.
On September 30, 2011, Plaintiff filed suit in Cherokee Superior Court
against the Defendants, requesting that court to declare who is Plaintiff’s
secured creditor, to enjoin the foreclosure sale, and asserting substantive counts
of fraud, negligent misrepresentation, and gross negligence. Essentially,
Plaintiff alleges that neither BOA nor BNYM are Plaintiff’s secured creditors;
thus, neither of these entities may foreclose on the property. On November 2,
2011, the Defendants removed the action to this Court, relying upon diversity
jurisdiction. The Defendants then filed a motion to dismiss, and the Plaintiff has
filed a motion to remand. The Court will consider each motion in turn.
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II. Motion to Remand
Plaintiff first moves to remand this action, arguing that the Defendants
have not proved by a preponderance of the evidence that the amount in
controversy exceeds $75,000. A defendant may only remove an action from
state court if the federal court would possess original jurisdiction over the
subject matter. 28 U.S.C. § 1441(a). The district court may exercise original
jurisdiction where the amount in controversy exceeds $75,000 and the suit is
between citizens of different states. 28 U.S.C. § 1332(a)(1). In the present case,
the parties do not dispute that they are citizens of different states; the only
question is whether the amount in controversy has been satisfied.
When determining subject-matter jurisdiction, a court must construe the
removal statute narrowly and resolve any uncertainties in favor of remand.
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Further, the
party seeking removal bears the burden of establishing federal jurisdiction.
Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005). The
burden a defendant must satisfy depends upon whether the plaintiff specified
the amount of damages in the complaint. When a plaintiff makes an unspecified
claim for damages, as was done here, a removing defendant has a lesser burden
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and must establish damages by a preponderance of the evidence. Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), rev’d on other
grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076-77 (11th Cir. 2001).

The Eleventh Circuit has stated:
When a plaintiff seeks injunctive or declaratory relief, the amount
in controversy is the monetary value of the object of the litigation
from the plaintiff’s perspective . . . . In other words, the value of
the requested injunctive relief is the monetary value of the benefit
that would flow to the plaintiff if the injunction were granted.
Cohen, 204 F.3d at 1077. A federal court cannot find that it has subject-matter
jurisdiction if the benefit a plaintiff could receive is “too speculative and
immeasurable to satisfy the amount in controversy requirement.” Leonard v.
Enterprise Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002). To determine the
amount in controversy
the court considers the document received by the defendants from
the plaintiff – be it the initial complaint or a later received paper –
and determines whether that document and the notice of removal
unambiguously establish federal jurisdiction . . . . In assessing
whether removal was proper in such a case, the district court has
before it only the limited universe of evidence available when the
motion to remand is filed – i.e., the notice of removal and
accompanying documents. If that evidence is insufficient to
establish that removal was proper or that jurisdiction was present,
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neither the defendants nor the court may speculate in an attempt to
make up for the notice’s failings . . . . The absence of factual
allegations pertinent to the existence of jurisdiction is dispositive
and, in such absence, the existence of jurisdiction should not be
divined by looking to the stars.
Lowery v. Ala. Power Co., 483 F.3d 1184, 1213-1215 (11th Cir. 2007).
Defendants’ Notice of Removal only states one fact to support this
Court’s jurisdiction–that the original loan amount was $315,000. However, that
fact does not support that the value of this litigation is greater than $75,000.
Defendants argue that because the “Plaintiff’s apparent request for
declaratory relief or injunctive relief, if granted, would place the property and
its ownership in controversy and Plaintiff appears to seek sole title and
ownership of the property free from encumbrances of the loan,” Plaintiff’s
claim exceeds the amount in controversy requirement. Def.’s Opp., Dkt. No.
[13] at 6. However, the Complaint makes no such demand. Plaintiff does not
contest that he has an outstanding loan on the property, rather he contests
whether the Defendants are secured creditors such that they could institute
foreclosure proceedings. See Cmpl., Dkt. No. [1-1] at ¶¶ 18-31. Essentially, his
declaratory judgment count seeks to have “doubt and uncertainty” regarding
who owns the loan resolved–not to have the loan declared invalid. See id. at ¶
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30. Thus, the original loan amount has no bearing on this Court’s subject matter
jurisdiction. See Horace v. LaSalle Bank Nat’l Ass’n, No. 3:08-CV-1019-MHT,
2009 WL 426467 (M.D. Ala. Feb. 17, 2009) (finding that the defendant’s sole
basis of the amount in controversy requirement–the value of the loan–did not
meet the preponderance of the evidence test for jurisdiction because the plaintiff
did not claim that her property should be free of that encumbrance).
As well, the injunction seeks only to prevent these Defendants–who
Plaintiff alleges have no standing–from foreclosing on his loan. Thus, the value
he would receive from such an injunction is the ultimate benefit to him–the
ability to stay in his still-encumbered home. Because the Court can only
speculate what equity Plaintiff has in his home or what value he would obtain
from not being foreclosed upon, this request does not satisfy the amount in
controversy requirement either.
Defendants also argue that “the mere request of punitive damages meets
the jurisdictional amount in controversy to be in federal court.” Def.’s Opp.,
Dkt. No. [13] at 5. However, Defendants’ supporting citations do not stand for
such a proposition. In Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1336 (5th
Cir. 1995), the Fifth Circuit did state that “[a] court, in applying only common
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sense, would find that if the plaintiffs were successful” they would exceed the
amount in controversy. However, that case involved 512 plaintiffs, three
companies, and asserted a “wide variety of harm” which was allegedly caused
by the defendants. Common sense would support the Fifth Circuit’s decision,
but does not support an amount in controversy greater than $75,000 here when
no foreclosure has occurred.
As well, Napier v. Wal-Mart Stores East, LP, No. 4:04-CV-0010-SEBWGH, 2004 WL 950657, at *1-2 (S.D. Ind. April 26, 2004), does not stand for
Defendant’s broad assertion. In Napier, the plaintiff alleged that the defendant
had been publicly wrongly stopped for shoplifting and, in the attempt to arrest
her, the defendant “forcefully grabbed her by the upper arm and then held her
breast and struggled with her enough for her blouse and jacket to be removed in
the process.” Id. As a result, plaintiff alleged that her damages consisted of
“bruising on her body, mental anguish, trauma, loss of reputation in the
community, humiliation and loss of self respect.” Id. Plaintiff’s claims also
triggered a statutory punitive provision which capped punitive damages at
$50,000. The court ruled that underlying “false arrest, false imprisonment,
defamation, and assault and battery” claims in conjunction with the punitive
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potential was sufficient to exceed the $75,000 hurdle. However, contrary to
Defendants’ assertion, simply pleading a punitive damages request did not
exceed the amount in controversy requirement; rather, plaintiff’s potential
damages in conjunction with the punitive cap did.2
Here, the Court finds that the Defendants have not met their burden that
Plaintiff’s claims exceed the amount in controversy requirement. As to punitive
damages, the only intentional tort which Plaintiff alleges is fraud, and the only
conduct which supports that count is that the Defendants held themselves out to
be the secured creditors when they were not. But, it is unclear what damages
have flowed from that misrepresentation since the foreclosure has not occurred
and the Plaintiff remains in his home. Even looking at all of the potential claims
in conjunction, the Court could only speculate that Plaintiff’s damages exceed
$75,000 as the only fact which Defendants’ alleged in their Notice of Removal
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Defendants’ final citation also does not stand for their general proposition.
Smith v. Associates Capital Bank, No. 1:99-CV-301-P-A, 1999 WL 33537131, at *67 (N.D. Miss. Dec. 6, 1999) concerned whether a punitive award should be aggregated
among sixteen individual plaintiffs such that each would exceed the amount in
controversy requirement. After first finding that the full value of the potential award
would count against each of the individual plaintiffs, the Court further found the
defendants’ citations to two multi-million dollar punitive awards by juries in the same
state for the same claims were sufficient to support the amount in controversy
requirement. Again, the pleading of punitive damages did not meet the requirement,
the evidence did.
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is ultimately irrelevant and the Complaint does not provide any additional
factual support. As this Court can only speculate that Plaintiff’s damages
exceed $75,000, Plaintiff’s Motion to Remand [5] is GRANTED.
III. Conclusion
Based on the foregoing, Plaintiff’s Motion to Remand [5] is GRANTED.
The Clerk is directed to REMAND this action to the Superior Court of
Cherokee County.
SO ORDERED, this 21st day of June, 2012.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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