HOOVER v. WELLS FARGO BANK, N.A. et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 3/3/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROSE MARY HOOVER,

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Plaintiff,

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Civil Action No. 2:14-cv-00139

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v.

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WELLS FARGO BANK, ET AL,
Defendants.

Judge Mark R. Hornak

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)

)

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MEMORANDUM OPINION
Mark R. Hornak, United States District Judge

In this civil action, the Plaintiff, Rose Mary Hoover, sought pennission to file her pro se
Complaint in forma pauperis ("IFP"), pursuant to 28 U.S.c. § 1915. Pursuant to the command of
that statute, this Court is obligated to review that Complaint to confinn that it states a claim upon
which relief may be granted. In this case, the Plaintiff, an elderly, pro se and IFP filer, appears to
claim that the Defendants, Wells Fargo Bank, N.A. and the Federal National Mortgage
Association, foreclosed on her home in state court, and now intend to sell it via Sheriff s Sale, all
in violation of a number of regulatory orders issued in the past several years under the federal
Home Affordable Modification Program ("HAMP").
This Court recently examined and applied the rules established by that statute, the
Supreme Court and our Court of Appeals for such a review. First, the Court is to consider the
stated financial status of the Plaintiff, and her eligibility for IFP status. The Court has perfonned
that review, and has concluded that while it is a closer call than the usual case due to Plaintiffs
pension and automobiles coupled with a pair of residential mortgages, she is so eligible. I Second,

1 When Plaintiffs "representatives" appeared at the Clerk's office to file the Complaint and its various collateral
papers, because it appeared that a non-lawyer relative of the Plaintiff was attempting to do so as a "power of

I am to consider whether the Complaint is "frivolous". In this context, that means that the Court
is to apply the same standard that it would apply in evaluating a Motion to Dismiss a civil
complaint under Fed. R. Civ. P. 12(b)(6), giving due consideration that as a pro se litigant, the
Plaintiff is held to a somewhat less precise and demanding pleading standard. See Detar et al. v.
United States Government, No. 13-1499,2014 WL 517715, *1-*3 (W.D. Pa. February 7, 2014).

In this consideration, the Court must determine if the Complaint contains sufficient
factual allegations, beyond simple conclusions, that would support the Court's exercise of Article

III subject matter jurisdiction, and which set forth a plausible claim for relief. Id. While some
added latitude is provided to pro se litigants, such a Complaint must allege sufficient facts to
support a cognizable claim for legal relief, whether the pro se plaintiff has specifically identified
the applicable law or not. Where, as here, the Complaint alleges one or more civil rights
violations, if it nonetheless falls short of these standards, the Court must grant the Plaintiff at
least one (1) opportunity to amend the Complaint, unless it concludes that doing so would be
futile.ld.

When these standards are applied here, it is apparent that the Complaint fails to set forth
the basis for the exercise of this Court's subject matter jurisdiction. The Complaint alleges that
this Court has federal subject matter jurisdiction under 28 U.S.C. § 1331, that is as a case arising
under the Constitution, laws or treaties of the United States, commonly known as "federal
question" jurisdiction. All of the allegations and attachments to the Complaint and its
accompanying request for a temporary restraining order focus on HAMP, and various actions
taken by federal regulators in furtherance of it, including arrangements reached with the

attorney" the Miscellaneous Judge on duty that day entered an Order requiring Plaintiff to enter her appearance pro
se or face dismissal of this action, without prejudice. ECF No.2. The cover sheet of the Complaint, and the Court's
docket, appear to now reflect that Plaintiff is now appearing pro se.

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Defendant Wells Fargo in terms of how it would handle foreclosures so as to conform to HAMP.
Plaintiff claims that the Defendants did not abide by those federal regulatory mandates.
The rub is that the federal courts have uniformly held that HAMP and its attendant
regulatory edicts do not create a private right of action which would support a federal claim by
an individual plaintiff, such as Plaintiff, and in this case, which would be the predicate for the
exercise of federal subject matter jurisdiction. See Spaulding v. Wells Fargo Bank, NA., 714 F.
th

3d 769 (4 Cir. 2013); Sinclair v. CUi Mortgage, Inc., 519 Fed. Appx. 737 (3d Cir. 2013), cert.
denied, 134 S. Ct. 1054 (2014); Miller v. Chase Home Finance LLC, 677 F. 3d 1113
2012); Wigod v. Wells Fargo Bank, NA. 673 F. 3d 547

(7th

Cir. 2012); Brecker v.

r

(lIth
t

Cir.

Republic

Mortgage Bankers, Inc., 2013 WL 5729783 (D. N.J. Oct. 21, 2013); Brown v. Wells Fargo Bank,
NA., 2011 WL 5593174 (E.D. Va. 2011). Particularly in light of the direction from our Court of

Appeals in Sinclair, this Court cannot construe HAMP as providing the direct, private right of
action the existence of which would be essential to the Plaintiff's invocation of federal question
jurisdiction in this case.
There is also no diversity jurisdiction, if the Plaintiff's claims are construed as claims
arising under a theory of state law. The Complaint alleges that the Plaintiff, and each of the
Defendants, are all citizens of different states (Pennsylvania for the Plaintiff, and Delaware,
California and the District of Columbia for the Defendants). Thus, there would be complete
diversity of the parties, but nowhere in the Complaint or its myriad of attachments is there any
basis to conclude that the amount in controversy, exclusive of costs and interest, exceeds
$75,000, as required by 28 U.S.C. § 1332. The best that there is is as set out in Exhibit "D" to the
Plaintiff's Motion for a temporary restraining order seeking to stop a Sheriff's Sale in Allegheny
County, Pennsylvania, which lists what appears to be the unpaid balance on the involved

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mortgage at $66,288.20 as of June 25, 2012. That does not cross the claim valuation threshold set
by federal law.
Plaintiff is a sympathetic claimant, and it may well be that she possesses one or more
defenses to an impending Sheriff s Sale based in whole or in part on HAMP, but that is
insufficient to allow for the exercise of jurisdiction in this Court. Further, the Court has
examined the Complaint in conformity with the direction of our Court of Appeals in Grayson v.
Mayview State Hasp., 293 F. 3d 103 (3d Cir. 2002), which requires, in those cases alleging some

sort of civil rights claim, that an insufficient Complaint may be dismissed but without prejudice,
with the Plaintiff being granted leave to amend her Complaint to state a claim for relief, unless
doing so would be futile. Given the matters set forth above, this Court can divine no basis for
amendment which would support federal subject matter jurisdiction, and in any event, in these
circumstances, the proper course is dismissal without prejudice for want of federal subject matter
jurisdiction. That will, of course, leave the Plaintiff with the ability to assert her claims and
related efforts to stop the involved Sheriffs Sale in state court, the forum in which the
underlying proceedings began.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge
Dated: March 3,2014
cc: Rose Mary Hoover

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