Collins v. Bank of New York Mellon, et al
Filing
25
ORDER AND REASONS: IT IS ORDERED that the above-captioned matter is TRANSFERRED to the Southern District of Mississippi, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/31/2018.(jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REKENA COLLINS
CIVIL ACTION
VERSUS
NO. 18-396
BANK OF NEW YORK MELLON, ET AL.
SECTION “B”(3)
ORDER AND REASONS
After Defendant Bayview Loan Servicing LLC filed a motion to
dismiss (Rec. Doc. 14), the Court ordered the parties to file
supplemental memoranda “about the propriety of transferring the
above-captioned matter to the Southern District of Mississippi.”
Rec. Doc. 21. Plaintiff Rekena Collins and Defendant Bayview Loan
Servicing LLC timely filed the supplemental memoranda. Rec. Docs.
22, 23. For the reasons discussed below,
IT IS ORDERED that the above-captioned matter is TRANSFERRED
to the Southern District of Mississippi.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In June 2015, Plaintiff filed Chapter 7 bankruptcy in the
Southern District of Mississippi. See Rec. Doc. 1 ¶ 7. One of her
assets was a piece of property located in Waveland, Mississippi.
See Rec. Doc. 1-3. One of her liabilities was the mortgage on that
property; the mortgage was held by Bank of America. See Rec. Doc.
1 ¶¶ 6, 9. In September 2015, the Waveland property was abandoned
from the bankruptcy estate and Bank of America was allowed to
proceed with foreclosure. See Rec. Doc. 1-2. Later that same month,
1
the
bankruptcy
court
issued
an
order
discharging
Plaintiff’s
liability for the debts she owed when she filed for Chapter 7
bankruptcy. See Rec. Doc. 14-4 at 2-3.
According to the Complaint, Bank of America sold the mortgage
on the Waveland property to Bayview Loan Servicing LLC in January
2016. See Rec. Doc. 1 ¶ 9. Bayview corresponded with Plaintiff
about the mortgage in 2016. See id. ¶ 10. In January 2017, Bayview
sent a Form 1099-A to Plaintiff at an address in Bay St. Louis,
Mississippi. See Rec. Docs. 1 ¶ 11; 1-3. Plaintiff alleges that,
by sending her the Form 1099-A, Bayview “ma[de] her responsible
for” “an outstanding principal balance of $120,919.47” “on her
personal income taxes.” Rec. Doc. 1 ¶ 11.
On January 18, 2018, Petitioner filed the instant complaint
against Bayview, Bank of America, and Bank of New York Mellon.1
Rec. Doc. 1. Plaintiff alleges that Defendants Bank of New York
Mellon and Bank of America were negligent and grossly negligent
when they sold the mortgage on the Waveland property to Bayview,
that Bayview was negligent when it charged off the mortgage on the
Waveland property, and that all Defendants violated the Fair Debt
Collection Practices Act “FDCPA” by causing Plaintiff to incur a
personal tax liability from the sale of the mortgage on the
Waveland property. See id.
1
Bank of New York Mellon was served, but has filed no responsive
pleadings. See Rec. Doc. 13. Bank of America has not been served.
2
LAW AND ANALYSIS
Generally, “the venue of all civil actions brought in district
courts of the United States” is determined by 28 U.S.C. § 1391(b).
Under § 1391(b),
a civil action may be brought in (1) a judicial
district in which any defendant resides, if all
defendants are residents of the State in which the
district is located; (2) a judicial district in
which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial
part of property that is the subject of the action
is situated; or (3) if there is no district in which
an action may otherwise be brought as provided in
this section, any judicial district in which any
defendant is subject to the court’s personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b). If the case falls within one of the categories
in § 1391(b), “venue is proper; if it does not, venue is improper.”
Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49, 56
(2013).
When venue is improper, a district court “shall dismiss, or
if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.” 28
U.S.C. § 1406. Even when venue is proper, “a district court may
transfer any civil action to any other district or division where
it might have been brought” “[f]or the convenience of parties and
witnesses, in the interest of justice.” 28 U.S.C. § 1404. A
district court may raise the issue of venue sua sponte. See Mills
v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989); Jarvis
3
Christian Coll. V. Exxon Corp., 845 F.2d 523, 528-29 (5th Cir.
1988); Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919
(5th Cir. 1998).
Venue is not proper in the Eastern District of Louisiana. See
28 U.S.C. § 1391(b). Defendants are not domiciled in Louisiana and
their principal places of business are not located here. See Rec.
Doc. 1 ¶¶ 2-3. Moreover, Plaintiff’s lawsuit does not arise out of
Defendants’ contacts with the state of Louisiana; in fact, all of
the alleged activities occurred in Mississippi. See id. ¶¶ 7, 11;
Rec. Doc. 1-3. Therefore, Defendants are not residents of Louisiana
for purposes of this case. See 28 U.S.C. § 1391(b)(1), (c)(2).
None of the events, omissions, or property involved in this case
occurred or are located in the Eastern District of Louisiana. See
id. ¶¶ 7, 11; Rec. Doc. 1-3. Therefore, § 1391(b)(2) does not make
the Eastern District of Louisiana a proper venue. Because venue is
improper, this Court “shall dismiss, or if it be in the interest
of justice, transfer [the] case to any district or division in
which it could have been brought.”2 28 U.S.C. § 1406(a).
Transfer is in the interest of justice because Plaintiff
indicates that she wishes to pursue her case in the Southern
District of Mississippi. See Rec. Doc. 22. The Southern District
2
Because the above-captioned matter could have been brought in
the
Southern
District
of
Mississippi,
§ 1391(b)(3)
is
inapplicable.
4
of Mississippi retains jurisdiction over the bankruptcy discharge
order, which it may enforce via its contempt power. See Rec. Docs.
14-1 at 6; 22 at 3-4; In re Cano, 410 B.R. 506, 545-48 (Bankr.
S.D. Tex. 2009). Furthermore, because the Eastern District of
Louisiana and the Southern District of Mississippi are adjacent
judicial districts, there will be little practical impact on the
parties going forward.
Transfer
to
the
Southern
District
of
Mississippi
is
appropriate because venue is proper and that court will have
personal jurisdiction over Bayview. Venue is proper in the Southern
District of Mississippi because the events at the center of this
case
occurred
there.
See
28
U.S.C.
§ 1391(b)(2).
Plaintiff’s
bankruptcy proceeding was conducted in the Southern District of
Mississippi. See Rec. Doc. 1 ¶ 7. The Waveland property is located
in the Southern District of Mississippi. See Rec. Doc. 1-3. The
Form 1099-A was sent to Plaintiff’s address in the Southern
District of Mississippi. See Rec. Docs. 1 ¶ 11; 1-3.
The Southern District of Mississippi would have personal
jurisdiction
over
Bayview
because
this
case
arises
out
of
Defendants’ purposeful decision to conduct business in the state
of Mississippi, namely by purchasing the mortgage on the Waveland
property and then communicating with Plaintiff about the mortgage.
For
the
Southern
jurisdiction
over
District
Defendant,
of
Mississippi
the
case
5
must
to
have
comport
personal
with
the
Mississippi long-arm statute and the Due Process Clause of the
Fourteenth Amendment. See ITL Int’l, Inc. v. Constenla, S.A., 669
F.3d 493, 496-97 (5th Cir. 2012).
The
Mississippi
long-arm
statute
authorizes
jurisdiction over “any nonresident . . . who shall
[1] make a contract with a resident of this state
to be performed in whole or in part by any party in
this state, or who shall [2] commit a tort in whole
or in part in this state against a resident or
nonresident of this state, or who shall [3] do any
business or perform any character of work or
service in this state.”
Id. at 497 (quoting Miss. Code § 13-3-57). The third prong—the
“doing business” prong—has a “broad scope” and “‘applies to any
person
or
corporation
performing
any
character
of
work
in’”
Mississippi. Id. at 498 (quoting Estate of Jones v. Phillips ex
rel. Phillips, 992 So. 2d 1131, 1139 (Miss. 2008)). Bayview is a
loan servicing company, purchased a loan on a Mississippi property,
and then initiated multiple communications with a Mississippi
resident about the loan. See Rec. Doc. 1 ¶¶ 3, 9-10. According to
the Mississippi Secretary of State, Bayview is registered to do
business in Mississippi. Therefore, Bayview conducted business in
Mississippi and is subject to the Mississippi long-arm statute.
See ITL Int’l, 669 F.3d at 498. Bayview is also subject to the
Mississippi
long-arm
statute
under
the
tort
prong
because
Plaintiff alleges that Bayview engaged in improper debt collection
against her when she was a Mississippi resident. See Rec. Doc. 1
¶¶ 26-29; Elwood v. Cobra Collection Agency, No. 06cv91, 2006 WL
6
3694594, at *2 (S.D. Miss. Dec. 14, 2006) (alleged violation of
the
Fair
Debt
Collections
Practices
act
while
plaintiff
was
resident of Mississippi satisfies the tort prong of the Mississippi
long-arm statute).
Conducting this case in the Southern District of Mississippi
is also consistent with due process. See Elwood, 2006 WL 3694594,
at *3-4 (reasoning that Southern District of Mississippi had
specific
jurisdiction
communications
about
over
an
nonresident
outstanding
defendant
debt
to
a
who
sent
Mississippi
resident). There is no indication that Bayview is subject to
general
jurisdiction
in
Mississippi,
but
there
is
specific
jurisdiction. With respect to specific jurisdiction, “due process
requires
(1)
minimum
contacts
by
the
defendant
purposefully
directed at the forum state, (2) a nexus between the defendant’s
contacts and the plaintiff’s claims, and (3) that the exercise of
jurisdiction over the defendant be fair and reasonable.” ITL Int’l,
669 F.3d at 498.
Bayview
has
purposefully
directed
various
activities
at
Mississippi, including purchasing the mortgage on the Waveland
property, communicating with Plaintiff about said mortgage, and
sending the Form 1099-A to Plaintiff in Mississippi. Plaintiff’s
claims
arise
from
these
activities;
Plaintiff
alleges
that
Bayview’s actions in Mississippi violated the discharge order and
the FDCPA. It is fair and reasonable for a federal court in
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Mississippi to hear this case because doing so will not impose a
meaningfully different burden on Bayview compared to litigating in
the
Eastern
District
of
Louisiana,
will
better
respects
Mississippi’s interest in the case, and will be more efficient
given that the bankruptcy discharge order was issued in the
Southern District of Mississippi. See Luv N. Care, Ltd. v. InstaMix, Inc., 438 F.3d 465, 473-74 (5th Cir. 2006) (“In conducting
the fairness inquiry, we examine (1) the burden on the nonresident
defendant, (2) the forum state’s interests, (3) the plaintiff’s
interest in securing relief, (4) the interest of the interstate
judicial system in the efficient administration of justice, and
(5) the shared interest of the several states in furthering
fundamental social policies.”).
New Orleans, Louisiana, this 31st day of August, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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