Foster et al v. Bank of America, N.A.
Filing
16
ORDER denying Plaintiffs' 8 Motion to Remand. Signed by Judge Richard W. Story on 5/9/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DAVID FOSTER and
WANDA FOSTER,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
Defendant.
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CIVIL ACTION NO.
1:12-CV-04372-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion to Remand [8].
After reviewing the record, the Court enters the following order.
Background1
This case arises out of the foreclosure sale of Plaintiffs David
Foster and Wanda Foster’s property, located at 136 Royal Oaks Drive, Canton,
Georgia, 30115 (the “Property”).
On or about December 28, 2008, Plaintiffs executed a security deed (the
“Security Deed”) in favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”) as grantee/nominee for Sierra Pacific Mortgage Company, Inc.
1
All facts are drawn from the Complaint [1-1] and documents attached to
Defendant’s Notice of Removal [1].
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(“Sierra Pacific”). (Defs.’ Notice of Removal, Ex. B (the Security Deed), Dkt.
[1-2] at 1-3.) Plaintiffs entered into a loan agreement (the “Loan”) with Sierra
Pacific for the principal amount of $334,800.00, plus interest. (Id. at 2.) In
2012, Plaintiffs fell behind on their Loan payments. (Compl., Dkt. [1-1] ¶ 8.)
The Property was sold at a nonjudicial foreclosure sale in July 2012. (Id. ¶ 9;
Def.’s Opp’n to Pls.’ Mot. to Remand, Ex. A (“Deed Under Power”), Dkt. [101].)
On October 22, 2012, Plaintiffs, through counsel, filed a Complaint in the
Superior Court of Fulton County, naming Bank of America, N.A. (“BANA”) as
Defendant.2 (Dkt. [1-1].) Plaintiffs enumerate causes of action for wrongful
foreclosure (Count I), lack of proper notice of foreclosure sale and failure to
correctly identify entities with proper authority (Count II), and failure to fairly
exercise power of sale clause (Count III). (Compl., Dkt. [1-1].) Plaintiffs claim
that their injuries include “losing possession and all equity” in the Property.
(Id. ¶¶ 26, 36, 47.) Plaintiffs seek “compensatory and punitive damages in an
2
BANA is the only defendant named in the Complaint. According to
Plaintiffs, BANA identified itself as the “secured creditor” and the foreclosing entity.
(Compl., Dkt. [1-1] ¶¶ 11-15.) However, BANA’s interest in the Property is not at
issue in the Motion to Remand currently before the Court.
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amount to be determined at time of trial, attorney’s fees and costs.” (Id. at 1112 of 13.)
Defendant removed the case to this Court on December 19, 2012 on the
basis of diversity jurisdiction under 28 U.S.C. §1332. (Notice of Removal, Dkt.
[1] ¶ 7.) Plaintiffs now move to remand this action to state court, arguing that
Defendant has not proved by a preponderance of the evidence that the amount
in controversy exceeds $75,000. (Dkt. [8].)
Discussion
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). Federal district courts 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 requirement 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.
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Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005). When a
plaintiff makes an unspecified claim for damages – the case here – a removing
defendant 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).
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, neither
the defendants nor the court may speculate in an attempt to
make up for the notice’s failings.
Lowery v. Ala. Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007).
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While Plaintiffs’ Complaint does not allege damages of a sum certain,
Defendant’s Notice of Removal highlights three facts that support this Court’s
jurisdiction. First, Defendant states that Plaintiffs’ claims arise from the Loan,
which was originally secured for $334,800. (Defs.’ Notice of Removal, Dkt.
[1] ¶ 14; Defs.’ Notice of Removal, Ex. B (the Security Deed), Dkt. [1-2] at 2.)
Second, Defendant alleges that the amount outstanding and owed by Plaintiffs
on the Loan at the time this action was filed was $320,667.12. (Defs.’ Notice of
Removal, Dkt. [1] ¶ 14; Defs.’ Notice of Removal, Ex. C (Plaintiffs’ Loan
Payment History), Dkt. [1-3].) Third, Defendant asserts that the Property is
currently appraised at a value of $239,100. (Defs.’ Notice of Removal, Dkt. [1]
¶ 15; Defs.’ Notice of Removal, Ex. D, Dkt. [1-2] at 2.)
“[C]ourts often look to the value of the loan as evidenced by the security
deed to determine the amount in controversy in a foreclosure case.” Milburn v.
Aegis Wholesale Corp., 1:12-CV-01886-RWS, 2013 WL 1136983, at *5 (N.D.
Ga. Mar. 18, 2013) (citing Reynolds v. JPMorgan Chase Bank N.A., No. 5:11CV-311 (MTT), 2011 WL 5835925, at *2 (M.D. Ga. Nov. 21, 2011) (“[T]he
security deed meets the amount-in-controversy requirement.”)). Here, the
Security Deed shows that the original value of Plaintiffs’ Loan was $334,800.00
(Defs.’ Notice of Removal, Ex. B (the Security Deed), Dkt. [1-2] at 2), and
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Plaintiffs’ Loan payment history shows that the outstanding balance is
$320,677.12. (Defs.’ Notice of Removal, Ex. C (Plaintiffs’ Loan Payment
History), Dkt. [1-3].) Additionally, the Property was sold at foreclosure for
$262,686.04. (Def.’s Opp’n to Pls.’ Mot. to Remand, Ex. A (“Deed Under
Power”), Dkt. [10-1].) Aside from statements that they have “negative equity”
in the Property (Pls.’ Mot. to Remand, Dkt. [8] at 2-3),3 Plaintiffs do not allege
any specific facts or put forward any evidence to show that the amount in
controversy requirement has not been met.
In light of the record and the foregoing authority, the Court finds that
Defendant has shown by a preponderance of the evidence that the $75,000
amount in controversy requirement is satisfied. Accordingly, Plaintiffs’ Motion
to Remand [8] is DENIED.
Conclusion
Based on the foregoing, Plaintiffs’ Motion to Remand [8] is DENIED.
3
Plaintiffs “negative equity” argument is belied by the injuries they claim to
have suffered as a result of Defendant’s conduct: “losing. . . all equity in [the
Property].” (Compl., Dkt. [1-1] ¶ 47.)
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SO ORDERED, this 9th day of May, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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