Pirillo et al v. PNC Mortgage Corporation
Filing
19
MEMORANDUM OPINION AND ORDER granting 11 Motion to Remand. The Court REMANDS this case to the Circuit Court of Monongalia County, West Virginia, and CANCELS the Scheduling Conference currently set for Wednesday, March 7, at2:30 p.m. Signed by District Judge Irene M. Keeley on 3/7/2012. (Certified copy to the Clerk of the Circuit Court of Monongalia County)(kd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NICK N. PIRILLO, JR., individually
and on behalf of a class of persons,
JILL PIRILLO, individually and on
behalf of a class of persons,
Plaintiffs,
v.
//
CIVIL ACTION NO. 1:12CV7
(Judge Keeley)
PNC MORTGAGE CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND [DKT. NO.11]
Pending before the Court is the plaintiffs’ motion to remand
(dkt. no. 11). As discussed below, the Court GRANTS the motion and
REMANDS this case to the Circuit Court of Monongalia County, West
Virginia.
I.
This case arises from the allegedly abusive loan servicing
practices of the defendant, PNC Mortgage Corporation (“PNC”). The
plaintiffs, Nick and Jill Pirillo, individually and on behalf of a
putative class, allege that PNC, the servicer of their home
mortgage loan, charged them attorneys’ fees in violation of both
the West Virginia Consumer Credit Protection Act (“WVCCPA”) and
their underlying loan contract.
On November 30, 2011, the plaintiffs filed a complaint against
PNC in the Circuit Court of Monongalia County, West Virginia,
PIRILLO, ET AL. v. PNC MORTGAGE CORPORATION
1:12CV7
MEMORANDUM OPINION AND ORDER
asserting three causes of action: (1) Breach of Contract; (2)
Illegal Debt Collection in violation of W. Va. Code §§ 46A-2115(a), -127(g), -128(c), and -128(d) (collection of attorneys’
fees); and (3) Illegal Debt Collection in violation of W. Va. Code
§ 46A-2-127(d) (false representation of amount of claim). As
relief, the plaintiffs request (1) all relief available to class
members, including civil penalties, actual damages, compensatory
damages, interest, attorneys’ fees, and costs; (2) a declaration
that PNC breached the parties’ contract; (3) a single civil penalty
of $4,600 for the individual claims in Counts II and III; (4)
cancellation or refund of the $1,471.66 charge for attorneys’ fees;
(5) reasonable attorney’s fees and costs; (6) pre- and postjudgment interest; and (7) “[a]ll other relief the Court deems
appropriate.” (Dkt. No. 3-1 at 8).
On January 6, 2012, PNC timely removed the case pursuant to 28
U.S.C.
§
1332(d)(2),
the
Class
Action
Fairness
Act
of
2005
(“CAFA”). The plaintiffs filed a motion to remand on January 27,
2012. This motion is now fully briefed, and the matter is ripe for
the Court’s review.
II.
Federal district courts have “original jurisdiction of any
civil action in which the matter in controversy exceeds the sum or
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1:12CV7
MEMORANDUM OPINION AND ORDER
value of $5,000,000, exclusive of interest and costs, and is a
class action in which . . . any member of a class of plaintiffs,”
consisting of at least 100 members, “is a citizen of a State
different from any defendant.” 28 U.S.C. §§ 1332(d)(2), (d)(5). A
state class action satisfying these requirements may be removed by
the defendant to the “district court of the United States for the
district and division within which such action is pending.” 28
U.S.C. § 1446; see also 28 U.S.C. § 1453. The party seeking removal
bears the burden of establishing federal jurisdiction, Strawn v.
AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008), and that
party “must supply evidence to support his claim regarding the
amount at issue in case.” McCoy v. Erie Ins. Co., 147 F. Supp. 2d
481, 489 (S.D. W. Va. 2001).
removal
should
be
resolved
All doubts about the propriety of
in
favor
of
retaining
state
jurisdiction. Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
Cir. 1999).
III.
There is no question that diversity of citizenship exists
between the plaintiffs and PNC. The only issues presented by the
pending motion to remand are whether the defendant has established
(1) that the putative class contains 100 or more persons, and (2)
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MEMORANDUM OPINION AND ORDER
that the amount in controversy exceeds $5,000,000. See 28 U.S.C.
§§ 1332(d)(2), (d)(5).
A.
The complaint identifies the putative class as:
All West Virginia citizens at the time of the filing of
this action who, within the applicable statute of
limitations preceding the filing of this action through
the date of class certification, had or have loans
serviced by the Defendant.
(Dkt. No. 3-1 at 6). Based on this plain language, PNC urges the
Court to find that the proposed class consists of 4,460 members,
i.e., all borrowers in West Virginia with loans serviced by PNC as
of January 6, 2012. (Dkt. No. 16-1 at 2). The complaint’s class
definition is indeed as broad as PNC suggests. The Court, however,
does not read portions of the complaint in a vacuum; rather, “when
determining who is a member of the proposed class, the complaint
must be read as a whole.” Caufield v. EMC Mortgage Corp., 803 F.
Supp. 2d 519, 526 (S.D. W. Va. 2011); see also Krivonyak v. Fifth
Third Bank, No. 2:09-cv-00549, 2009 WL 2392092, at *5 (S.D. W. Va.
Aug. 4, 2009).
The plaintiffs’ complaint contains three class claims that
describe in some detail the allegedly illegal manner in which PNC
serviced loans: (1) assessing
contract; (2) assessing
attorneys’ fees in violation of the
attorneys’ fees in violation of the
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MEMORANDUM OPINION AND ORDER
WVCCPA; and (3) falsely representing the amount of a claim in
violation of the WVCCPA. (Dkt. No. 3-1 at 7-8). As evidenced by
these specific allegations, the plaintiffs’ proposed class can
consist
only
of
those
borrowers
whose
loans
were
unlawfully
assessed attorneys’ fees by PNC. See Caufield, 803 F. Supp. 2d at
526 (“A borrower whose loan was not serviced in the manner alleged
in the complaint cannot be a member of the class.”); Krivonyak,
2009 WL 2392092, at *5 n.1 (“[T]he class cannot include members who
do not share the same injury, that is, if someone was not charged
the fees at issue in this case then they simply cannot be a part of
the class.”). Accordingly, the defendant’s broad characterization
of the putative class finds no support when the class definition is
read in the context of the complaint as a whole.
Further, there is no evidence in the present record that would
allow the Court to determine that the proposed class, as defined
above, contains at least 100 members. PNC argues that, of its 4,460
West
Virginia
borrowers,
698
loans
are
at
least
120
days
delinquent, rendering them “likely” to face foreclosure, “which
would,” in turn, “necessitate expenditures of attorney’s fees
related to that foreclosure.” (Dkt. No. 16-1 at 2). This highly
speculative argument focuses solely on what might happen in the
future, assuming hypothetically that PNC will foreclose on the
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delinquent loans and then, hypothetically, that PNC will charge the
borrowers for the attorneys’ fees related to those foreclosures.
However, “[r]emoval cannot be based on speculation; rather, it must
be based on facts as they exist at the time of removal.” Kelford v.
Bank of America, 1:11-cv-146, 2011 WL 5593790, at *3 (N.D. W. Va.
Nov. 17, 2011) (citing Varela v. Wal–Mart Stores, East, Inc., 86 F.
Supp.
2d
1109,
1112
(D.N.M.
2000)).
The
defendant’s
vague
predictions of what it is “likely” to do at some unknown point in
the future cannot serve as a basis for removing this case under
CAFA. As such, the Court finds that PNC has not carried its burden
of establishing that the proposed class has at least 100 members.
B.
PNC also fails to demonstrate that the amount in controversy
in this case exceeds $5,000,000. Notably, the whole of PNC’s
amount-in-controversy argument is centered around a different
complaint than the one it actually removed. As PNC itself argues,
it “based the jurisdictional amount on the fact that Plaintiffs had
previously requested an injunction on behalf of the entire class.”
(Dkt. No. 16 at 9) (emphasis added).
On September 2, 2011, the plaintiffs filed a complaint in the
Circuit Court of Monongalia County that was, according to PNC,
“virtually identical” to the complaint at issue in the instant
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case. (Dkt. No. 3 at 3). PNC removed the September 2011 complaint
to this Court on October 13, 2011, and the plaintiffs voluntarily
dismissed the case four days later. (1:11CV165 Dkt. No. 6).
Although the current complaint requests no injunctive or other
equitable relief, the now-dismissed September 2011 complaint, which
was likewise a putative class action, requested “[an] injunction
prohibiting PNC from initiating foreclosure proceedings on any
accounts in West Virginia where the loans were serviced in the
manner described above.” (Dkt. No. 3-4 at 6). PNC seizes upon this
request, which exists only in the September 2011 complaint, to
argue that the plaintiffs in the instant case are actually seeking
permanent foreclosure injunctions for the class, injunctions which
should be valued at the full principal balance of each class
member’s loan.
PNC’s
syllogistic
amount-in-controversy
fallacy:
the
argument
plaintiffs’
first
is
essentially
complaint
a
sought
injunctive relief; the plaintiffs’ current complaint seeks “[a]ll
other relief the Court deems appropriate” (dkt. no. 3-1 at 8);
therefore, the current complaint must also seek injunctive relief.
The plaintiffs, however, as “master[s] of [their] complaint,” are
entitled to re-formulate their claims. Custer v. Sweeny, 89 F.3d
1156, 1165 (4th Cir. 1996); see also Morgan v. Gay, 471 F.3d 469,
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PIRILLO, ET AL. v. PNC MORTGAGE CORPORATION
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474 (3d Cir. 2006) (“CAFA does not change the proposition that the
plaintiff is the master of her own claim.”). Although PNC presents
the prior pleading as concrete proof that the plaintiffs believe
injunctive relief to be appropriate, even going so far as to say
the plaintiffs “cannot un-ring that bell,” (dkt. no. 16 at 6), the
fact that the plaintiffs revised their complaint to remove this
request gives rise equally to the supposition that they determined
injunctive relief would, in fact, be inappropriate in this case.
It is well-established that the Court should examine the
complaint at the time of removal in order to determine the amount
in controversy. See St. Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U.S. 283, 292 (1938) (“Moreover, the status of the case as
disclosed by the plaintiff’s complaint is controlling in the case
of a removal.”); Hicks v. Universal Housing, Inc., 792 F. Supp.
482, 484 (S.D. W. Va. 1992) (“The courts have long held that the
question of jurisdictional amount for purposes of removal is
controlled by the allegations of plaintiff’s complaint as those
allegations exist at the time the petition for removal is filed.”);
White v. Chase Bank USA, NA, No. 2:08–1370, 2009 WL 2762060, at *2
(S.D. W. Va. Aug. 26, 2009) (“Although the court may consider the
entirety of the record at the time of removal, the starting point
of its analysis clearly must be the allegations of the Complaint,
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itself.”). Here, the plaintiffs’ complaint contains no request for
equitable
or
injunctive
relief,
the
plaintiffs
themselves
unequivocally state that they “are not seeking injunctive relief,”
(dkt. no. 17 at 1), and the defendant has not made a plausible
argument that the plaintiffs are falsely representing the value of
their case. In these circumstances, the Court “simply will not rely
on a standard pleading device — to request any additional relief
the
court
deems
appropriate
—
as
a
veiled
request
for
an
injunction.” Besse v. Gen. Motors Corp., 317 F. Supp. 2d 646, 651
(D.S.C. 2004). Accordingly, the Court finds that PNC has failed to
establish that the amount in controversy exceeds the jurisdictional
threshold of $5,000,000.
IV.
In conclusion, for the reasons discussed, the Court GRANTS the
plaintiffs’ motion to remand (dkt. no. 11), REMANDS this case to
the Circuit Court of Monongalia County, West Virginia, and CANCELS
the Scheduling Conference currently set for Wednesday, March 7, at
2:30 p.m.
It is so ORDERED.
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PIRILLO, ET AL. v. PNC MORTGAGE CORPORATION
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MEMORANDUM OPINION AND ORDER
The Court directs the Clerk to transmit copies of this Order
to counsel of record and send a certified copy to the Clerk of the
Circuit Court of Monongalia County, West Virginia.
DATED: March 7, 2012
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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