Brown et al v. Wells Fargo Bank, N.A. et al
Filing
10
OPINION AND ORDER that the Court sua sponte DISMISSES this matter for lack of subject-matter jurisdiction, GRANTS Plaintiffs' Motion to Remand, and hereby REMANDS this matter to the Circuit Court for the City of Chesapeake,Virginia. The Court DENIES Plaintiffs' request for attorney's fees. Entered and filed 11/15/11. (Signed by District Judge Mark S. Davis on 11/15/11). Certified copy mailed to Clerk, Chesapeake Circuit Court, on 11/16/11.(ecav, )
UNITED STATES
DISTRICT COURT
EASTERN DISTRICT OF VIRGIN!
«^=
Norfolk Division
NATHAN BROWN,
and
TRACIE
BROWN,
Plaintiffs,
Civil Action No.2:llcv309
V.
WELLS
FARGO BANK,
N.A.,
and
SAMUEL I.
WHITE,
P.C.,
Defendants.
OPINION AND ORDER
This matter is before the Court on a Notice of Removal
the Circuit Court
to
Dismiss
("Wells
filed
Fargo")
(collectively,
the
"Plaintiffs").
this
that
that
matter
by
the
and
Defendants,
Samuel
"Defendants"),
Plaintiffs,
alleges
for the City of Chesapeake,
Nathan
The
this
Notice
Court
pursuant
Plaintiffs'
Brown
to
claims
of
has
28
and
a
Wells
Fargo
P.C.
("SIWPC")
Remand
filed
Motion
Tracie
Removal,
to
Brown
filed
federal-question
U.S.C.
arise
a Motion
White,
I
and
Virginia,
from
§
1331.
under
the
Bank,
N.A.
by
(collectively,
by
Defendants,
jurisdiction
Defendants
Home
over
allege
Affordable
Modification
federal
the
plausible
claims
for
only
and moved
"negligence"
Court
REMANDS
request
in
since
the
sponte DISMISSES
this
GRANTS
matter
Virginia.
to
this
for attorney's
to
no
private
Plaintiffs
on
the
matter
the
as
for
Court
a
allege
right
of
basis
for
they
contract"
and
forth
lack
to
Court
et
that
set
Motion
5201
to
challenged
ground
of
reasons
Circuit
However,
failed
is
Plaintiffs'
the
§
"breach
the
pursuant
U.S.C.
Defendants
of
provides
12
HAMP.
For
which
have
there
matter
claims
matter.
jurisdiction,
Act.
asserted by
remand
this
of
program
and guidelines
Plaintiffs
violations
state-law
sua
Chesapeake,
that
relief
to
federal
regulations
jurisdiction
alleged
matter
for
a
Stabilization
argue
alleged
federal
removal
the
Economic
Defendants
action
("HAMP"),
loan modification
Emergency
seq.
the
Program
of
below,
subject-
Remand,
for
DENIES
the
and
City
Plaintiffs'
fees.
I. FACTUAL AND PROCEDURAL HISTORY1
Plaintiffs
Compl.
I 13.
own
a
tract
of
On February 11,
land
2009,
in
Chesapeake,
Plaintiffs
Virginia.
received a
first
'The facts recited here are drawn from Plaintiffs' Complaint
and are assumed true for the purpose of deciding the motions
currently before the Court.
They are not to be considered
factual findings for any purpose other than consideration of the
pending
motions.
Consumeraf fairs. com,
(w[I]n
evaluating
a
See
Inc.,
591
Rule
Ltd.
v.
Cir.
2009)
12{b)(6) motion to dismiss,
a court
as true and construes these facts in
favorable to the plaintiff in weighing the legal
accepts all well-pled facts
the light most
Nemet
Chevrolet,
F.3d 250,
255
(4th
sufficiency of the complaint.").
mortgage
loan
Compl.
14.
I
Thompson,
from
On
P.C.
modification
order
and
24,
to
to
in
the
2010,
represent
avoid
asked
"Pam",
HJT
to
them
appropriate
September 27,
fax
that
Wells
Plaintiffs
Fargo
were
the
not
financial
Compl.
informed HJT
that
of
51
same
received
in
the
day.
were
Plaintiffs
affordability,
denied
but
she
Compl.
1
"Kathy"
for
29,
On
to
the
18.
On
confirmed
but
stated
active
2010,
loss
"Sherry"
the HAMP program
encouraged
f 21.
16.
HJT faxed
Compl.
for
loan
for the HAMP
S[ 17.
system
September
St
a
J.
data with Wells
documents,
On
Heath
documents
Compl.
the
computer
19.
resubmit an application.
hired
Compl.
appropriate
the
$262,515.
obtaining
Fargo representative
had
mitigation.
because
on
Wells
of
who approved Plaintiffs
documents
2010,
in
foreclosure.
Wells Fargo Loss Mitigation Department.
the
amount
Plaintiffs
HJT reviewed Plaintiffs'
Fargo representative
program
Fargo
September
("HJT")
in
the same day,
Wells
Plaintiffs
to
HJT reviewed Plaintiffs'
financial data with "Justin"
and re-faxed the loan modification
application.
On September 30,
Compl.
representative "Mike"
f 22.
informed
October
HJT
20,
that
2010,
the
Compl.
Wells
loan
on
October
27,
f 23.
Fargo
representative
modification
denied and to submit another one.
"Justin"
Wells Fargo
informed HJT that the foreclosure sale had
been postponed indefinitely.
On
2010,
2010,
Compl.
regarding
application
g[ 24.
the
"Evelia"
had
been
HJT spoke with
loan
modification
denial;
"Justin"
said
affordability.
using
old
another
Compl.
financial
loan
Compl.
ff
day.
On
HJT
29,
that
2010,
Plaintiffs
any notification.
Compl.
foreclosure
date
i
sale
34.
HJT
"Jacob",
who
Special
ij
of
the
Fargo
informed
35-37.
5 33.
had
HJT
Plan,
On
had
2010.
Wells
Fargo
sale
and
file.
on
December
had
informed
Compl.
the
g[g[
"Alan"
following
29,
2010,
denied
set
for
for
December
a
loan
he
7,
would
would
2010,
14,
financial
Plaintiffs
Wells
"Jacob"
informed HJT that a new
Plaintiffs'
which
December
been
"Jacob"
been
that
representative
qualify
process
HJT
2010.
data
with
for
that
learned
a
day.
that
the
Compl. 5 39.
Fargo
representative
informed HJT that a foreclosure sale date of January 19,
had been set,
sent
27,
representative
faxed
was
but Plaintiffs never received
foreclosure date had been postponed.
On
October
from HJT,
Fargo
2010,
reviewed
Forbearance
Compl.
they
foreclosure
HJT
Wells
modification on November 15,
Compl.
and
2010,
charge
which
Fargo
the
that
Wells
paystubs,
Wells
of
311 31-32.
November
informed
2010,
because
1,
documents
in
that
on
November
HJT
denied
calculations,
application
was
8,
were
learned
their
told
Hudson"
updated
Compl.
for
requested more
On November
requested
HJT
On
"Taylor"
"James
28-29.
25.
data
25-27.
been postponed,
that
5
Plaintiffs
modification
representative
HJT
that
and Wells Fargo was reviewing Plaintiffs'
"Lena"
2011,
loan for
possible
"Alan"
modification.
told
HJT
modification
Compl.
I
that
payments
On
February
41.
were
Plaintiffs
would
loan.
denied
be
its
filed
to
7,
a
caused
January
approved
on
for
months
2011,
a
13,
informed
modification
twelve
20,
February
"Alan"
HAMP
complaint
2011,
2011.
HJT
because
behind
loan
on
that
the
their
Plaintiffs
modify
severe
and
sought
a
preliminary
in the Circuit Court for the City of
allege
Wells
Plaintiffs'
negligently processed Plaintiffs'
which
been
2011,
than
a
Virginia.
contract
had
On
$ 43.
injunction on May 11,
Chesapeake,
40.
beginning
for
more
Compl.
Plaintiffs
1
Plaintiffs
with
Plaintiffs
original
Compl.
harm
to
first
Fargo
breached
mortgage
and
HAMP modification application,
Plaintiffs.
Compl.
53
44-64.
Plaintiffs also allege that SIWPC acted negligently in following
through with an
improper
established
between
Plaintiffs'
mortgage.
On
June
1,
foreclosure
Wells
Fargo
Compl.
2011,
and breached the contract
and
Plaintiffs
to
modify
flf 65-70.
Defendants
filed
which removed the action to this Court.
a
Notice
of
Removal,
Defendants claim that
this Court has jurisdiction over the matter since the outcome of
Plaintiffs'
claims
questions
federal
also
of
allege
that
Constitution,
laws,
will
require
law.
Notice
this
or
case
treaties
is
of
resolution
of
Removal
one
of
f
substantial
2.
Defendants
"arising
under
the United States"
the
pursuant
to
28
U.S.C.
filed a
22,
1331.
Motion
2011,
state
§
to
Id.
Dismiss
Plaintiffs
court.
Docket No.
Court
question
this
filed
must
a
over
the
jurisdiction exists
§
if
U.S.C.
§
laws,
1331.
exercised over
law
if
relief
«it
U.S.
Co.,
255
question
also
upon
Grable &
308,
313
Sons
Remand
whether
4.
On
this
are
treaties
at
180,
the
has
Metal
the
of
United
federal-
to
28
action
Prods,
v.
the
supplemental
States."
so
related
to
claims
in
can
implicating
that
the
28
be
federal
right
to
[federal
Darue Eng'g & Mfg.,
the
at
jurisdiction
claims pursuant
the
545
Kansas City Title & Trust
if
claims
U.S.C.
under
jurisdiction
[complaint]
(1921)).
over
they
to
Federal-
"arising
federal-question
199
Plaintiffs'
June
action
issue.2
ones
of
cause
it
case pursuant
(quoting Smith v.
aspects of
"are
No.
also
REVIEW
this
from
jurisdiction
exercise
Defendants
the construction or application of
(2005)
U.S.
in
state-law
'appears
depends
law].'"
or
Such
a
to
claims
claims
Plaintiffs'
Constitution,
Motion
day,
Docket
determine
question
1331
same
action.
STANDARD OF
first
jurisdiction
the
6.
II.
The
On
Court
federal-
issue,
the
Court
over
the
state-law
to 28
the
has
U.S.C.
action
§
may
1367 when
within
such
2 Defendants do not allege diversity of citizenship jurisdiction
as
a
1332,
ground
and
of
thus,
federal
the
jurisdiction
Court
will
question jurisdiction exists.
only
pursuant
consider
to
28
whether
U.S.C.
§
federal-
original
jurisdiction
controversy
under
Constitution."
n[W]hen
a
they
Article
28 U.S.C.
federal
matter jurisdiction,
entirety."
that
§
form part
III
of
of
the
court
Procedure,
determines
at
jurisdiction,
P.
Y &
concludes
H Corp.,
that
546
which
time
any
provides
that
Moreover,
ensure
that
as
whether
to
a
jurisdiction
subject-matter
such
court
Accord
jurisdiction
jurisdiction
des
(tt[Q]uestions
at
court.")
on
U.S.
any
de
Moore,
1990));
2d 688,
it
689
States
lacks
500,
subject-
by
party
(E.D.
Inc.
Va.
v.
2006)
Fed.
R.
Civ.
there
question
must
731
is
a
"raise
lack
without
of Ireland,
U.S.
Ivory,
court
duty
Corp.
or
the
independent
if
subject-matter
(2006).
subject-matter
own motion,"
F.3d 728,
either
UTrue,
an
456
514
'[i]f
lacks
and,
Ins.
Guinee,
129
concerning
time
or
of the Federal Rules
exists,
its
(citing North Carolina v.
(4th Cir.
Supp.
Bauxites
Plyler v.
raised
it
that
has
is proper
to the positions of the parties.
Compagnie
United
the court must dismiss the action."
12 (h) (3).
case
the court must dismiss the complaint in its
Arbaugh v.
Civil
same
1367.
This principle is embodied in Rule 12(h)(3)
of
the
694,
n.6
(1982).
Sci.,
(stating that
1997)
may
by
906 F.2d 999,
Page One
Ltd. v.
(4th Cir.
sponte
of
regard
702
jurisdiction
sua
to
Inc.,
be
[the]
1000 n.l
457
F.
"federal courts
are obligated to confront and address jurisdictional defects sua
sponte
'whenever
it
appears
the
court
lacks
subject
matter
jurisdiction'")
(4th Cir.
of
28
time
1999)).
U.S.C.
before
lacks
(quoting
§
1447,
final
§
which
judgment
it
above,
court
2.
Plaintiffs
jurisdiction
state
law
is
provides
any
that
that
the
case
"[i]f
at
district
shall
allege
the
in
their
be
court
remanded."
of
Defs.'
Br.
Notice
guideline
on
potential
Pis.'
case
Removal
rely
not
On the other hand,
in Opp'n to
to
question
claims
liability."
HAMP
of
"federal
tort,
instant
case
federal-question
that
and
the
of
this
Plaintiffs'
to Remand 5.
in
of
1331.
response
contracts
allegations
state law claims."
§
because
Plaintiffs
removed
ground
U.S.C.
law theories
of Mot.
have
the
28
of
federal
"that
to
improper
Law in Supp.
recast
654
DISCUSSION
on
argue
theories
alternative
to
648,
(c)
the
Defendants
solely
jurisdiction pursuant
f
F.3d
reiterated in paragraph
appears
jurisdiction,
190
1447{c).
noted
federal
Edwards,
further
III.
As
v.
This principle is
subject matter
28 U.S.C.
Lovern
Mem.
of
Defendants
are attempting
violations
Pl.'s Mot.
as
to Remand
8.
As
whether
a
threshold
it
Although
Complaint,
procedures
has
the
subject-matter
Plaintiffs
the
matter,
only
Complaint
and guidelines.
Court
sua
jurisdiction
allege
also
over
state-law
frequently
However,
8
sponte
for
the
considers
this
claims
refers
matter.
in
to
the
HAMP
following reasons,
and
consistent
that
the
with
mere
its
prior
reference
state-law
breach
to
federal-question
create
matter.
28 U.S.C.
To
the
fully
manner
important
claims
with
of
cannot
be
HAMP
authority
to
11-11091,
2011
("We
at
Chase
Mac.
.
*9-10
these
Bank,
{E.D.
.
claims
on
to
of
whether
11
§
(E.D.
5229,
against
No.
Va.
does
1,
have
not
this
private
instead
delegated
22255,
nothing
at
of
*4
2011)
11,
that
2010)
U.S.
("Courts
HAMP
does
Dist.
action
or
mortgage
a
in HAMP
J.P.
35507,
rejected
a private
Pennington v.
LEXIS 143157,
at
*10-
12
U.S.C.
right
of
action
Instead,
it
allows
private
servicers.
for
31,
universally
("The applicable statute,
create
HAMP
Oct.
LEXIS
create
held
No.
Bourdelais v.
not
a
N.A.,
implied
Dist.
is
compliance
America,
and servicers.");
2010 U.S.
expressly
participating
2011
of
for
{11th Cir.
express
it
creates
plaintiffs
but
Bank
affect
uniformly
cause
lenders
2:10cv361,
Aug.
over
HAMP
private
LEXIS
ground
right of action against
PNC Mortg.,
in
sufficient
HAMP,
no
3:10cv670,
Apr.
the
not
involve
courts
Nelson v.
that
No.
Va.
guidelines
allegations
gives borrowers a private right of action.");
Morgan
is
concludes
jurisdiction
that
Federal
granted
App.
.
Court
and
claims
complaint's
discussion
created
Freddie
agree
a
lenders,
U.S.
a
cases
action.
against
tort
subject-matter
how
start
borrowers
procedures
and
addressing
because
the
1331.
to
relief
2011)
§
understand
of
HAMP
contract
right
private
that
of
to
decisions,
those
the
aggrieved by
Secretary
right
of
with
of
the
action
the
the
actions
Treasury
against
delegation
strongly
implies
separate
cause
the
of
that
of
of
the
....
Treasury Department
The
creation
Secretary
enforcement
Congress
action
of
the
not
against
this
to
coupled
Freddie
intend
to
sue
private
Treasury,
authority
did
of
to
Mac,
create
participating
a
mortgage
servicers.").
The
Court's
absence
of
analysis
of
such
a
private
allegedly deficient
depending on how HAMP
is
For
that
example,
violations
in
cases
federal-question
the
claims
claim
on
upon
which
No.
{E.D.
Va.
cases
Mar.
that
can
be
a
2011).
breach
consistently
matter
Bank,
Va.
held
jurisdiction
N.A.,
No.
August
5,
2:llcv99,
2011
that
over
U.S.
of
U.S.
LEXIS
10
action
and
for
See
dismissed
to
Fowler
LEXIS
state a
v.
Aurora
73344,
and
tort
and procedures,
Dist.
v.
of
failure
contract
at
*4
Ellis
LEXIS
Am.'s
87552,
at
v.
86587,
subject-
Wells
Fargo
at
(E.D.
Servicing
*9-10
claims
this Court
federal-question
claims.
Asbury
Dist.
for
Dist.
lacks
such
2:llcvl51,
2011);
it
allegations.
when presented with removed
that merely reference HAMP guidelines
has
the
inferred the existence
granted.
However,
state-law
causes
jurisdiction
U.S.
impacts
in different ways
complaint's
12 (b) (6)
2011
action
claims
this Court has
2:10cv623,
allege
of
directly allege
of Rule
relief
31,
in
subject-matter
the basis
Loans,
Home
included
of HAMP itself,
of
right
(E.D.
*4
Co.,
No.
Va.
July
13,
2011)
HAMP,
(finding
that
and congressional
exercising
federal
Bank,
2:llcv89,
No.
Va.
July
for
12,
the
particularly
where
action");
2:10cv567,
of
see
2011
Dist.
"that
federal
U.S.
law
Dist.
Paine v.
LEXIS
83016,
LEXIS
Court
Wells
Fargo
at
not
71756,
a
Loan
at
*7
to
jurisdiction
had
diversity
relief
depend
on
law,
private
right
Servicing,
{E.D.
Va.
the matter would have been dismissed
subject-matter
{E.D.
federal
create
Litton
*12
right
of
under
this
necessarily
question
v.
exists
frustrated by
not
does
Sherman
action
Plaintiffs'
does
substantial
also
(noting that
U.S.
claims
a
of
jurisdiction");
(finding
state-law
of
2011)
2011
2011)
cause
intent would be
question
resolution
of
"no private
of
No.
July
for
1,
lack
citizenship
not
provided an alternate jurisdictional basis).
Plaintiffs'
removed
state-law contract
cause
of
merely
references
and tort
action.
attempt
to
action,
the
state-court
claims,
Therefore,
HAMP
directly
Court
concludes
subject-matter
jurisdiction.
to
the
a
on
relief
for
resolution
of
particularly where
a
and
federal
that
In
state-law
not
HAMP
law does
does
is
not
question
not
only
and
violation
no
alleges
HAMP violation
Plaintiffs'
other words,
claims
11
federal
procedures,
there
substantial
federal
a
because
guidelines
allege
Complaint
Complaint
does
not
cause
of
federal-question
Plaintiffs'
necessarily
of
create
right
depend
federal
law,
a private
right
of
action.
808
See Merrell
Dow Pharm.
Inc.
v.
Thomas,
478
U.S.
804,
(1986).
In
matter
Court
light
of
the
jurisdiction
does
not
Court's
over
reach
12(b)(6)
Motion
Instead,
the
pursuant
to
to
a
that
claims
decision
will
U.S.C.
subject-matter
Plaintiffs'
Dismiss
Court
28
conclusion
in
regarding
for
failure
because
subject-
matter,
Defendants'
Plaintiffs'
1447(c),
lacks
this
to
grant
§
it
state
jurisdiction based on Plaintiffs'
Rule
a
is
claim.
to
Motion
there
the
Remand
no
federal
mere references
to HAMP guidelines and procedures.
IV.
The
fees
may
Court
in
their
require
including
28
attorney's
removal."
(2005)
now
turns
Motion
§
fees
("Absent
of
just
fees,
v.
The
unusual
lacked
objectively
when
under
an
should be denied.").
Circuit
have
§
costs
on
order
a
result
the
only
reasonable
dismissed
basis
12
of
removal."
the
payment
U.S.
courts
the
for
reasonable
case
expenses,
546
where
cases
the
reasonableness
Corp.,
Although district
attorney's
actual
requiring
circumstances,
1447(c)
for
remanding
any
for
Capital
objectively
repeatedly
request
and
as
test
turn
Franklin
fees
"An
incurred
"should
attorney's
Conversely,
Plaintiffs'
Remand.
1447(c).
Martin
an
to
to
payment
attorney
U.S.C.
REQUEST FOR ATTORNEY'S FEES
of
the
132,
141
may
removing
seeking
basis
of
award
party
removal.
exists,
fees
courts within the Fourth
substantially
identical
to
the
instant
Thompson,
Circuit
may
one-many
Plaintiffs'
counsel,
P.C.-the United States Court of Appeals
has
not
properly
yet
be
addressed
removed
state-law
claims
guidelines
invoke
Therefore,
in
contrary,
filed by
to
merely
the
federal
absence
Defendants'
of
court
referencing
federal-question
the
issue
of
removal
of
for the Fourth
whether
on
the
that
and
jurisdiction.
precedent
instant
cases
theory
subject-matter
the
such
procedures
HAMP
controlling
Heath J.
case
to
to
this
the
Court
cannot be said to be objectively unreasonable.
See Kluksdahl v.
Muro
(E.D.
Pharm.,
Inc.,
886
F.
Supp.
535,
540
(denying plaintiff's request for costs and fees
Va.
1995)
for the removal
of a case to a federal court when district courts had decided an
issue but
the
the Fourth Circuit had not yet
issue).
Consequently,
Plaintiffs'
issued a decision on
request
for
attorney's
fees will be denied.
V.
For
the
DISMISSES
reasons
this
matter
GRANTS
Plaintiffs'
matter
to
Virginia.
the
stated
for
Circuit
The Clerk
above,
lack of
Motion
Additionally,
for attorney's
CONCLUSION
Court
subject-matter
to
Remand,
Court
for
the Court
the
and
the
DENIES
hereby
City
of
sua
sponte
jurisdiction,
REMANDS
this
Chesapeake,
Plaintiffs'
request
fees.
is
DIRECTED
to send a copy of
Order to all counsel of record.
13
this
Opinion and
IT
IS
SO ORDERED.
/s/
Mark S.
UNITED STATES
Norfolk,
November
Virginia
15
. 2Oil
14
Davis
DISTRICT JUDGE
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