Stottlemire et al v. Caliber Home Loans, Inc. et al
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO REMAND: It is ORDERED that Plaintiffs' 12 Motion to Remand to State Court is hereby GRANTED and this case is REMANDED to the Circuit Court of Marion County, WV. The Plaintiffs' request for costs and fees is DENIED. Signed by Chief Judge Gina M. Groh on 1/20/17. (copy Cir. Clerk)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
and TINA STOTTLEMIRE,
CIVIL ACTION NO.: 1:16-CV-118
CALIBER HOME LOANS, INC.,
and LOAN STAR FUNDING, LLC,
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ MOTION TO REMAND
Currently pending before the Court is the Plaintiffs’ Motion to Remand [ECF No.
12], filed on September 21, 2016. This matter became ripe for review on October 12,
2016. For the following reasons, the Court GRANTS the motion.
On May 12, 2016, the Plaintiffs filed a complaint in the Circuit Court of Marion
County, West Virginia, alleging common law fraud and violations of the West Virginia
Consumer Credit and Protection Act (“WVCCPA”) against Caliber Home Loans, Inc.
(“Caliber”), and Loan Star Funding, LLC (“Loan Star”). Specifically, the Plaintiffs allege
that Caliber and, through an agency relationship, Loan Star made misrepresentations in
order to obtain information in violation of West Virginia Code § 46A-2-127; engaged in
unconscionable conduct in violation of § 46A-2-128; made fraudulent misrepresentations,
statements and suppressions; refused to apply loan payments to their account in violation
of § 46A-2-115; and failed and refused to provide account information upon request in
violation of § 46A-2-114, -115, -127(c) and -128. On June 16, 2016, Caliber removed the
case to this Court based upon diversity jurisdiction. On September 21, 2016, the Plaintiffs’
filed the instant motion to remand, arguing that Caliber failed to meet its burden in
demonstrating that the amount in controversy is in excess of $75,000.
II. Applicable Law
The party seeking removal bears the burden of establishing federal jurisdiction.
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). When
removal is based upon diversity and the complaint does not specify the amount of
damages, the removing party must prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000. Bell v. Werner Enters., Inc., Civil Action No.
5:11CV18, 2011 WL 1297115, at *5 (N.D. W. Va. Apr. 5, 2011); Adkins v. Wells Fargo
Fin. W. Va., Inc., Civil Action No. 5:09-cv-00405, 2009 WL 1659922, at *2 (S.D. W. Va.
June 15, 2009). In other words, the removing party must “show that it is more likely than
not” that the jurisdictional amount is met. Briggs v. Nationstar Mortg., LLC, Civil Action
No. 3:15-CV-24, 2015 WL 2354605, at *4 (N.D. W. Va. May 15, 2015) (internal quotations
and citation omitted). Evidence of the amount in controversy in the form of speculation
will not suffice.
Bell, 2011 WL 1297115, at *6; McWha v. Otway, Civil Action No.
5:06CV164, 2007 WL 2362898, at *2 (N.D. W. Va. Aug. 15, 2007); see also Caufield v.
EMC Mortg. Corp., 803 F. Supp. 2d 519, 528 (S.D. W. Va. 2011) (“The mere possibility
that the plaintiff . . . could meet [the amount in controversy] is not enough to give this court
jurisdiction.” (emphasis in original)). Rather, it must be proven by “actual evidence.”
McNickle v. Am. Express Co., Civil Action No. 5:13CV60, 2013 WL 4040574, at *3 (N.D.
W. Va. Aug. 8, 2013) (citing Bartnikowski v. NVR, Inc., 307 F. App’x 730, 737 (4th Cir.
2009)). Removal jurisdiction must be strictly construed and all doubts regarding removal
should be resolved in favor of remand to state court. Mulcahey, 29 F.3d at 151; Marshal
v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993).
Contrary to Caliber’s assertion, the value of this case is not measured by the worth
of the Plaintiffs’ home. Rather, it is measured by the claims alleged and the relief
requested in the complaint. Here, the Plaintiffs allege common law fraud and violations
of West Virginia Code § 46A-2-114, -115, -127 and -128. They request the maximum
applicable civil penalties under the WVCCPA, actual damages, attorney fees, punitive
damages in regard to their fraud claim, joint and several liability, and any other relief the
Court deems equitable and just. The only monetary amount specified in the Plaintiffs’
complaint is on page three regarding the purchase price of their home.
Caliber claims that the Plaintiffs assert sixteen WVCCPA violations, resulting in
$16,000 worth of statutory penalties.
In assessing the amount in controversy, the
maximum recovery available under the WVCCPA may be used. See Jefferson v. Quicken
Loans, Inc., Civil Action No. 5:13CV59, 2013 WL 3812099, at *2 (N.D. W. Va. July 19,
2013) (collecting cases).
West Virginia Code § 46A-5-101 provides penalties for
WVCCPA violations, which are subject to adjustment to account for inflation, see W. Va.
Code § 46A-5-106. Caliber states that the “Plaintiffs appear to allege at least 16 violations
of the WVCCPA.” ECF No. 1 at 4 (emphasis added). Caliber admits, and a review of the
complaint confirms, that the number of WVCCPA violations alleged by the Plaintiffs is not
readily determinable. Thus, the amount of statutory penalties provided by Caliber is
based on conjecture, which does not qualify as evidence regarding the jurisdictional
See Bell, 2011 WL 1297115, at *6; McWha, 2007 WL 2362898, at *2.
Accordingly, Caliber’s estimation of statutory penalties is not used by this Court in
determining the amount in controversy.
Caliber projects that the Plaintiffs “may receive as much as $25,000 in attorney’s
fees.” ECF No. 1 at 6. Generally, attorney fees are excluded when determining the
jurisdictional amount in diversity cases. Dunlap v. Green Tree Servicing, LLC, No. Civ.A.
2:05-0311, 2005 WL 3177881, at *5 (S.D. W. Va. Nov. 28, 2005). However, they may be
included if they are allowed by statute or explicitly provided for by contract. Id. Attorney
fees are available under the WVCCPA,1 and thus may be used to calculate the amount
in controversy in this case if supported by actual evidence. In its notice of removal and
response, Caliber references attorney fees awarded in cases in the Southern District of
West Virginia, but “[a]ttorney’s fees in this case cannot be accurately predicted by
reference to attorney’s fees awarded in other cases under the WVCCPA.” See McNickle,
2013 WL 4040574, at *3. Moreover, because attorney fees are awarded at the discretion
of the court, the likelihood of their distribution is uncertain and cannot be used here to
compute the amount in controversy. See Kelley v. Sallie Mae, Inc., Civil Action No.
5:14cv138, 2015 WL 1650080, at *9 (N.D. W. Va. Apr. 14, 2015) (first citing W. Va. Code
§ 46A-5-104; then citing Chevy Chase Bank v. McCamant, 512 S.E.2d 217, 227 (W. Va.
1998)); see also McNickle, 2013 WL 4040574, at *2-3. Therefore, the Court does not
Specifically, § 46A-5-104 allows courts to award “reasonable attorney fees” for any WVCCPA claim
alleging “illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice.”
take Caliber’s valuation of attorney fees into consideration in calculating the jurisdictional
Caliber contends that the “Plaintiffs may recover more than $5,000 in actual
damages in this case.” ECF No. 1 at 7. However, this approximation of actual damages—
again based upon case law from the Southern District of West Virginia—“is not evidence;
it is an assumption.” Bartnikowski, 307 F. App’x at 738. At the time of removal, there
was no evidence regarding the amount of actual damages suffered by the Plaintiffs in this
case. See Adkins, 2009 WL 1659922, at *3. Caliber alleges that, based upon the
recovery awarded in Clements v. HSBC Auto Finance, Inc., Civil Action No. 5:09-cv00086, 2011 WL 2976558, at *5 (S.D. W. Va. July 21, 2011), and the Plaintiffs’ assertion
here that they suffered stress, worry and fear of losing their home, actual damages may
exceed $5,000. Actual damages awarded in another case have no bearing on the actual
damages at issue in this matter and Caliber’s assertion that the Plaintiffs’ stress, worry
and fear of losing their home equates to $5,000 in recovery is purely speculative.
Therefore, the Court disregards this figure.
Caliber argues that the Plaintiffs “may recover as much as $45,000 in punitive
damages.” ECF No. 1 at 7. If available under the applicable law, punitive damages are
included in calculating the amount in controversy. Judy v. JK Harris & Co., Civil Action
No. 2:10-cv-01276, 2011 WL 4499316, at *7 (S.D. W. Va. Sept. 27, 2011) (citing 14B
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3702 (4th ed.
2011)). However, when they are “proffered for the purpose of achieving the jurisdictional
amount,” they “should be carefully examined.” Saval v. BL Ltd., 710 F.2d 1027, 1033 (4th
Cir. 1983). Punitive damages are not available under the WVCCPA. See Patrick v. PHH
Mortg. Corp., 937 F. Supp. 2d 773, 787 (N.D. W. Va. 2013) (“[T]he penalty provision of
the WVCCPA has been interpreted to preclude the award of punitive damages.” (internal
quotations and citations omitted)). Therefore, here, only the Plaintiffs’ common law fraud
claim carries a possibility of punitive recovery. Caliber derives its punitive damages total
from its estimation of actual damages for WVCCPA violations.
punitive damages cannot be awarded under the WVCCPA, its estimation is flawed.
Moreover, there is no tangible support—only conjecture—indicating the amount of
punitive damages recoverable under the Plaintiffs’ fraud claim. Accordingly, the Court
does not include Caliber’s proffer of punitive damages in its calculation of the amount in
Fees and Costs Incurred from Removal
In their motion to remand, the Plaintiffs request that they be reimbursed the fees
and costs associated with removal. Awarding costs and expenses under 28 U.S.C.
§ 1447(c) is discretionary. Martin v. Franklin Capitol Corp., 546 U.S. 132, 136 (2005);
see also In re Lowe, 102 F.3d 731, 733 n.2 (4th Cir. 1996). Although a showing of bad
faith is not required, Lowe, 102 F.3d at 733 n.2, there must at least be evidence that the
removing party “lacked an objectively reasonable basis for seeking removal,” Martin, 546
U.S. at 141. Upon consideration, the Court does not find that Caliber’s removal was
objectively unreasonable. Indeed, absent a blanket assertion, the Plaintiffs do not specify
how it was unreasonable. Therefore, the Court declines to award fees and costs under
There is no evidence in the record to support Caliber’s claim that the amount in
controversy in this case exceeds $75,000. A review of the state court documents reveals
no actual evidence of the monetary damages at issue. In conclusion, Caliber falls short
of the required preponderance of the evidence standard by demonstrating only the mere
possibility of an amount in controversy greater than $75,000. It points to evidence and
circumstances in other cases, but no concrete evidence in this case, which would
establish the jurisdictional amount. The Court will not engage in speculation to obtain
Accordingly, the Court GRANTS the Plaintiffs’ Motion to Remand [ECF No. 12]
and ORDERS this case REMANDED to the Circuit Court of Marion County, West Virginia.
The Plaintiff’s request for costs and fees under 28 U.S.C. § 1447(c) is DENIED.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
and to the Circuit Court of Marion County, West Virginia.
DATED: January 20, 2017
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