Carter v. National City Mortgage, Inc.

Filing 24

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR REMAND AND DENYING MOTION FOR CHANGE OF VENUE. The Court denies the 4 Motion to Remand to State Court and the 8 Motion to Change Venue. Signed by District Judge Irene M. Keeley on 6/24/14. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TIMOTHY W. CARTER,
Plaintiff,

v.

//

CIVIL ACTION NO. 1:14CV70
(Judge Keeley)

NATIONAL CITY MORTGAGE, INC.,
n/k/a PNC Mortgage, Inc.,
Defendant.

MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND [DKT. NO. 4] AND
DENYING MOTION TO CHANGE VENUE [DKT. NO. 8]
Pending before the Court is the motion to remand (Dkt. No. 4),
filed by the plaintiff, Timothy W. Carter (“Carter”), and the
motion to change venue (Dkt. No. 8), filed by the defendant, PNC
Bank, N.A. (“PNC”).

For the following reasons, the Court DENIES

both motions.
I. BACKGROUND
On February 20, 2009, Carter and his wife closed on a $186,631
mortgage loan through Shenandoah Mortgage, LLC in order to purchase
a home in Martinsburg, West Virginia.

On the same day, PNC

acquired the servicing rights to the loan.

After making the

monthly payments on the loan to PNC for over two years, Carter was
laid off from his construction job in late 2011.

Consequently, in

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
February 2012, Carter fell two months behind in his mortgage
payments. Although able to resume payments once he began receiving
unemployment benefits, Carter was never able to bring them current.
Eventually, Carter contacted PNC to inquire regarding loss
mitigation alternatives to foreclosure. Allegedly, PNC advised
Carter to stop making payments until he received a repayment plan,
and told him to submit his financial information. Carter submitted
his paperwork to PNC in May 2013. Two months later, when he
regained stable employment, he updated his information.
PNC

received

the

updated

information,

it

required

Although
Carter

to

resubmit his paperwork and repeatedly told him not to make payments
pending approval of a loss mitigation alternative plan.
On October 28, 2013, PNC denied Carter a loss mitigation
alternative to foreclosure. Carter contacted the company to obtain
an explanation of the denial, which he claims was never provided to
him. Accordingly, in his complaint, Carter alleges that PNC acted
in bad faith by delaying its review of his paperwork and ultimately
denying him a loss mitigation alternative.

Furthermore, Carter

alleges that the instructions of PNC that he not make payments
prolonged and worsened his indebtedness.
Around

the

same

time

Carter

submitted

his

initial

loss

mitigation alternative paperwork to PNC in May 2013, he also filed
2

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
a petition for bankruptcy.

On August 27, 2013, the bankruptcy

court granted him a discharge of indebtedness.

On January 16,

2014, the same court granted PNC’s motion for relief from the
automatic

stay

as

to

PNC’s

interest

in

Carter’s

house.

Accordingly, PNC scheduled a foreclosure sale for March 18, 2014,
which it canceled when Carter filed his complaint in the Circuit
Court of Harrison County, West Virginia on March 17, 2014.
The complaint asserts multiple violations of W. Va. Code §§
46A-2-127 and 46A-2-128 resulting from fraudulent, deceptive, and
misleading representations, as well as unconscionable means of
collection, for which Carter seeks the maximum statutory penalties,
actual damages, and attorneys’ fees. It also alleges negligence
arising from a “special relationship” between the parties, for
which he seeks equitable relief, actual damages, and attorneys’
fees. As well, the complaint asserts tortious interference with
contract

and

seeks

actual

and

punitive

damages,

as

well

as

attorneys’ fees. It also claims estoppel, demanding equitable
relief and actual damages. There also are claims for fraud that
seek actual and punitive damages, equitable relief, and attorneys’
fees,

as well as an alternative allegation for breach of contract

that asks the Court to enjoin foreclosure and grant equitable and
declaratory relief, compensatory damages, and attorneys’ fees
3

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
PNC removed the case to this Court on April 18, 2014, invoking
the Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332.
With regard to the amount in controversy, PNC’s notice of removal
alleged that the amount in controversy consisted of the sum of the
(I) civil penalties, (ii) attorneys’ fees, (iii) punitive damages,
and (iv) outstanding loan balance, an amount well in excess of the
$75,000 threshold. Carter disagrees with PNC’s calculation and
filed a motion to remand the case to the Harrison County Circuit
Court on April 24, 2014.

In his motion to remand,

Carter argues

that the civil penalties, attorneys’ fees, and punitive damages
that could be awarded are too speculative to be included in the
amount in controversy calculation and, further, that the Court
should not include the loan balance because he is seeking only a
temporary injunction on foreclosure.
II. DISCUSSION
A. Motion to Remand
Among the prerequisites for diversity jurisdiction is the
statutory requirement that “the matter in controversy exceeds the
sum or value of $75,000.”

28 U.S.C. § 1332.

“In this circuit, it

is settled that the test for determining the amount in controversy
in a diversity proceeding is ‘the pecuniary result to either party

4

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
which [a] judgment would produce.’”

Dixon v. Edwards, 290 F.3d

699, 710 (4th Cir. 2002) (quoting Gov’t Emps. Ins. Co. v. Lally,
327 F.2d 568, 569 (4th Cir. 1964)) (alteration in original).
removal,

the

burden

of

alleging

jurisdiction

lies

Upon

with

the

defendant. See Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 199-200 (4th Cir. 2008).

To determine whether the removing

defendant has met his or her burden of alleging the requisite
amount in controversy, 28 U.S.C. § 1446(c)(2) instructs district
courts to apply a “preponderance of the evidence” standard.
As for the value of injunctive relief, “it is well established
that the amount in controversy is measured by the value of the
object of the litigation.”

Francis v. Allstate Ins. Co., 709 F.3d

362, 367 (4th Cir. 2013) (quoting Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 347 (1977)). Although Carter has not defined
the

object

of

the

litigation

in

this

case,

PNC

contends

it

includes, among other things, the outstanding loan balance, alleged
to be $176,140.77.

(Dkt. No. 9-8).

The District Court for the Southern District of West Virginia
addressed this exact issue in Winnell v. HSBC Mortg. Srvcs., Inc.,
No. 2:11CV561, 2011 WL 5118805, at *2 (S.D.W. Va. Oct. 28, 2011).
There, the plaintiff requested an “injunction prohibiting the
Defendant from initiating foreclosure proceedings.” Id. at *2. The
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CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
plaintiff’s personal liability on the loan had been discharged
through bankruptcy, leaving foreclosure as the defendant’s only
means of recovering the loan balance of $85,359.95. Id.

The

district court reasoned that because foreclosure was the only
recourse available to the defendant the object of the litigation
was the outstanding loan balance.

Id.

This Court later distinguished Winnell in Bohigian v. Flagstar
Bank, FSB, No. 1:11CV181, 2012 WL 112322, at *1 (N.D.W. Va. Jan.
12, 2012). In Bohigian, as here, the plaintiff’s complaint sought
to “enjoin the Defendant from taking possession or scheduling
foreclosure of Plaintiff’s home,” and the plaintiff later argued
that the injunction sought was merely temporary.

Id. at *2.

Although the Court acknowledged the reasonableness of a temporary,
versus permanent, injunction, it distinguished Winnell on other
grounds. Id. at *2-3. First, it noted that the plaintiff remained
personally liable for the loan balance and had stipulated that “all
of her alleged damages . . . [were] no greater than $75,000.”
at *1.

Id.

Moreover, the defendant had provided no evidence that the

outstanding
threshold.

balance

on

the

loan

exceeded

the

jurisdictional

Id. at *3.

Here, these distinguishing factors are not present. Carter’s
liability on the loan has been discharged through bankruptcy.
6

Nor

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
has Carter stipulated that the amount in controversy is less than
the jurisdictional threshold. Furthermore, the record clearly
establishes the amount of the outstanding loan balance.

(Dkt. No.

9-8). For these reasons, the holding in Winnell is apposite, and
the Court therefore concludes that the outstanding loan balance,
which clearly satisfies the amount in controversy, is the object of
the litigation.1
B.

Motion to Transfer Venue
For

removed

actions,

venue

is

governed

by

28

U.S.C.

§ 1441(a); the general venue statute, 28 U.S.C. § 1391, does not
apply.

Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665

(1953); see also Smith v. JP Morgan Chase Bank, N.A., 727 F. Supp.
2d 476, 479 (S.D.W. Va. 2010).

If properly removed, a district

court may transfer a case to any other district where it could have
been filed pursuant to 28 U.S.C. § 1404(a).

Additionally, “a

plaintiff may ordinarily select his forum unless there are factors
of convenience sufficiently important to the parties and the court
to occasion denying him that choice.”

Ellicott Mach. Corp. v.

Modern Welding Co., 502 F.2d 178, 180 (4th Cir. 1974).

1

Because the outstanding loan balance satisfies the amount in
controversy, the Court does not address whether civil penalties,
attorneys’ fees, and punitive damages are too speculative to be included
in the calculation.

7

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
PNC seeks to transfer this case to another division within the
same district on the basis that the Martinsburg point of holding
court would be a more convenient forum because the subject property
is located in Martinsburg and the events giving rise to this action
occurred there. PNC claims that convenience of the parties and
witnesses

should

outweigh

Carter’s

choice

in

forum.

However,

“unless the balance is strongly in favor of the defendant, the
plaintiffs’ choice of forum should rarely be disturbed.”

Morehead

v. Barksdale, 263 F.2d 117, 119 (4th Cir. 1959).
Relying on Klay v. AXA Equitable Life Ins. Co., No. 5:08CV118,
2009 WL 36759, at *3 (N.D.W. Va. Jan. 6, 2009), and Eclipse IP, LLC
v. ECCO USA, Inc., No. 5:12CV160, 2013 WL 58386675, at *4-5 (N.D.W.
Va. Oct. 30, 2013), PNC urges the Court to give less weight to
Carter’s choice of forum because Clarksburg is not his home, and
none of the events giving rise to the litigation occurred in
Clarksburg.

In Klay, the court disregarded the plaintiff’s forum

choice in West Virginia because he was a resident of Pennsylvania.
Likewise, in Eclipse, the corporate plaintiff filed in the Northern
District of West Virginia despite having headquarters in Florida
and operations in New Hampshire. Both of these cases, however,
involved a transfer not only between districts but also circuits.
Here, PNC seeks to transfer to a different division within the same
8

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
district and the differences in litigation carry no significance.
Thus, Carter’s choice of forum should be afforded substantial
weight.
Even though Carter lives in Martinsburg, he chose to file his
case in the Circuit Court of Harrison County in Clarksburg, West
Virginia.

PNC then properly removed it to the Clarksburg Division

of the Northern District of West Virginia.

PNC has failed to

demonstrate that there are factors of convenience under 28 U.S.C.
§ 1404(a) sufficient to overcome the weight typically given to
Carter’s choice in forum. Although the subject property is located
in Martinsburg, this fact does not establish that Martinsburg would
be a more convenient forum for PNC, a Pennsylvania corporation.
Moreover, this is not a case where the defendant’s choice of forum
has a depth of experience with the state substantive law to be
applied.

Thus, the Court finds no compelling reason to disregard

Carter’s forum choice and transfer this case to another division
within the same district.
III. CONCLUSION
In conclusion, for all the reasons discussed, the Court DENIES
Carter’s motion to remand and DENIES PNC’s motion to transfer
venue.

9

CARTER V. NATIONAL CITY MORTGAGE, INC.,

1:14CV70

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
REMAND AND DENYING MOTION TO CHANGE VENUE
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: June 24, 2014
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

10