Vincent v. CitiMortgage, Inc. et al

Filing 17

MEMORANDUM OPINION AND ORDER DENYING 6 PLAINTIFF'S MOTION TO REMAND. Signed by Senior Judge Frederick P. Stamp, Jr. on 11/13/2017. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DANETTE VINCENT
f/k/a DANETTE BOYD,
Plaintiff,
v.

Criminal Action No. 5:17CV109
(STAMP)

CITIMORTGAGE, INC. and
CITICORP HOME MORTGAGE
SERVICES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
This is a consumer credit case arising out of a home mortgage
loan.

The plaintiff, Danette Vincent, filed this civil action in

the Circuit Court of Brooke County, West Virginia. The defendants,
CitiMortgage, Inc. (“CitiMortgage”) and CitiCorp Home Mortgage
Services, Inc. (“CitiCorp”), removed the case to this Court citing
diversity jurisdiction.

The plaintiff then filed a motion to

remand, which is fully briefed and ripe for decision.

For the

following reasons, the plaintiff’s motion to remand is denied.
I.

Background

The plaintiff obtained a residential home mortgage loan from
HomeSense Financial Corporation in April 2000.

The plaintiff

alleges that the deed of trust for that mortgage loan expressly
prohibits the lender from charging the borrower attorney’s fees.
CitiCorp became the holder of the mortgage through a series of
assignments, at which point CitiMortgage began serving as the loan

servicer.

As

the

loan

servicer,

CitiMortgage

took

actions,

including the assessment of fees, on behalf of CitiCorp, the loan
holder. CitiMortgage modified the loan in April 2002, by extending
the loan term and resetting the interest rate to 12.00% per annum.
The interest rate was previously set at 13.49% per annum, which the
plaintiff had a difficult time managing.
The

plaintiff

alleges

that

the

defendants

breached

the

mortgage contract and engaged in unfair debt collection practices.
Specifically, the plaintiff alleges that CitiMortgage “assessed
unlawful

default

fees

to

the

loan”

and

“made

multiple

misrepresentations to the Plaintiff by overstating balances, which
include unlawful fees.”

ECF No. 1-1 at 7.

The plaintiff alleges

that the unlawful fees included “property inspection fees, legal
expenses and attorney’s fees, where no foreclosure sale was even
held.”

ECF No. 1-1 at 7.

Count I of the complaint asserts the

breach of contract claim against both defendants, and Count II
asserts the unfair debt collection claim against both defendants.
The

plaintiff

alleges

that

CitiCorp,

the

loan

holder,

is

vicariously liable for the acts and omissions of CitiMortgage, the
loan servicer.

ECF No. 1-1 at 6.

In the notice of removal, the defendants assert that this
Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332
because the parties are of diverse citizenship and the amount in
controversy exceeds $75,000.00 exclusive of interests and costs.

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The defendants state that there is complete diversity because the
plaintiff is a West Virginia citizen, defendant CitiMortgage is a
Delaware corporation with its principal place of business in
Missouri, and defendant Citicorp is a North Carolina corporation
with its principal place of business in Missouri.

The defendants

allege that the amount in controversy exceeds $75,000.00 exclusive
of interests and costs based on the plaintiff’s settlement demand
of $175,000.00.
After removal to this Court, the plaintiff filed a motion to
remand arguing that the defendants’ notice of removal is untimely
because the defendants failed to file it within 30 days after it
could “first be ascertained that the case is one which is or has
become removable.”

28 U.S.C. § 1446(b)(3).

There is no dispute

that the parties are completely diverse.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the

amount

in

controversy

exceeds

$75,000.00,

interests and costs pursuant to 28 U.S.C. § 1332(a).

exclusive

of

However, if

federal jurisdiction arises only by virtue of the parties’ diverse

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citizenship, such an action “shall be removable only if none of the
. . . defendants is a citizen of the State in which such action is
brought.”

Tomlin

v.

Office

of

Law

Enforcement

Tech.

Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.
Va. May 7, 2007).

The party seeking removal bears the burden of

establishing federal jurisdiction.

See In re Blackwater Security

Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v.
Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994).

Removal jurisdiction is strictly construed, and if federal

jurisdiction is doubtful, the federal court must remand.

Hartley

v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29
F.3d at 151.
Further, the court is limited to a consideration of facts on
the record at the time of removal.

See Lowrey v. Alabama Power

Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether
removal was proper . . . the district court has before it only the
limited universe of evidence available when the motion to remand is
filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL
2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, No.
5:10CV127, 2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The
defendant’s removal cannot be based on speculation; rather, it must
be based on facts as they exist at the time of removal.”);
Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.
Va. May 12, 2011) (“The amount in controversy is determined by

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considering the judgment that would be entered if the plaintiff
prevailed on the merits of his case as it stands at the time of
removal.”) (internal citations omitted).
III.

Discussion

There is no dispute that complete diversity exists.

The only

issue is whether the amount in controversy was ascertainable before
the plaintiff’s settlement demand of $175,000.00.

The plaintiff

argues that the defendants’ notice of removal is untimely because
it was ascertainable that the case was removable before the
plaintiff’s settlement demand of $175,000.00. The defendants argue
that the plaintiff’s settlement demand was their first notice that
the amount in controversy exceeded $75,000.00, and, thus, that
their notice of removal, filed within 30 days of the settlement
demand, was timely.
The notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based, or within 30
days after the service of summons upon the defendant if
such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever
period is shorter.
28 U.S.C. § 1446(b)(1).
[I]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30
days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.

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28 U.S.C. § 1446(b)(3). The only exception to § 1446(b)(3) is that
a case may not be removed on the basis of diversity jurisdiction
under 28 U.S.C. § 1332 “more than one year after commencement of
the action, unless the district court finds that the plaintiff has
acted in bad faith in order to prevent a defendant from removing
the action.”

28 U.S.C. § 1446(c).

The United States Court of Appeals for the Fourth Circuit has
adopted the following test for determining when a defendant could
first ascertain that a case is removable:
[W]e will not require courts to inquire into the
subjective knowledge of the defendant, an inquiry that
could degenerate into a mini-trial regarding who knew
what and when. Rather, we will allow the court to rely
on the face of the initial pleading and on the documents
exchanged in the case by the parties to determine when
the defendant had notice of the grounds for removal,
requiring that those grounds be apparent within the four
corners of the initial pleading or subsequent paper.
Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997).
Based on the record before this Court, the plaintiff’s motion
to remand must be denied.

The plaintiff fails to demonstrate that

the defendants’ notice of removal was untimely.

The plaintiff

argues that the defendants had knowledge from the filing date that
the

amount

in

controversy

exceeded

$75,000.00

exclusive

of

interests and costs because 56 of the alleged violations of the
West

Virginia

Consumer

Credit

and

Protection

Act

occurred within the applicable statute of limitations.

(“WVCCPA”)
Thus, the

plaintiff concludes that the defendants could have calculated on

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the

filing

$170,000.00

date
for

that
those

the

total

violations

amount
alone.

in
The

controversy
plaintiff

was
also

contends that the defendants were in possession of the material
that would demonstrate the number of violations, and from which
they could determine the amount of recoverable damages for those
violations.
However, this Court finds that the amount in controversy was
not readily ascertainable before the plaintiff’s settlement demand.
The plaintiff’s complaint failed to identify the number or nature
of the alleged WVCCPA violations and, thus, the sum demanded by the
plaintiff was not apparent from the four corners of the complaint.
The plaintiff argues in her motion to remand that this case is
analogous to Byers v. Embrace Home Loans, No. 5:16CV63 (N.D. W. Va.
June 9, 2016), in which a similar motion to remand was granted.
However, this case is distinguishable from Byers because the Byers
defendants were put on notice by the complaint of the specific
conduct claimed to have violated the WVCCPA.

Because the specific

number of WVCCPA violations was apparent from the four corners of
the Byers complaint, the defendants could then multiply by the
maximum penalty for each violation to determine the amount in
controversy.

In this case, the plaintiff did not identify in her

complaint either the specific context of the alleged violations or
the number of alleged violations.

Rather, the plaintiff refers

only very generally to the types of violations alleged in two short

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paragraphs of the complaint.

ECF No. 1-1 at ¶¶ 9 and 10.

Accordingly,

with

the

Court

agrees

the

defendants

that

the

plaintiff in this case “expects Defendants to guess at which of
their interactions with Plaintiff over the course of more than 15
years

in

servicing

a

loan

may

have

violations complained of by Plaintiff.”

constituted

the

alleged

ECF No. 10 at 9.

Additionally, the Byers parties had engaged in discovery
through which the defendants provided the plaintiff with phone logs
and records of correspondence evidencing the defendants’ debt
collection attempts.

The Byers motion to remand was granted in

part because the defendants in that case should have been able to
ascertain the amount in controversy from the date they produced the
phone logs, and, thus, their notice of removal, filed more than 30
days after receiving the logs, was untimely.

In this case,

however, the parties did not engage in any similar discovery prior
to the defendants’ filing of the notice of removal.
This Court finds that this case is more analogous to Briggs v.
Nationstar Mortgage LLC, No. 3:15CV24, 2015 WL 2354605 (N.D. W. Va.
May 15, 2015), another similar case in which the plaintiff’s motion
to remand was denied.

Like in the present case, the Briggs

complaint did not specify the number of WVCCPA violations alleged
or contain a monetary demand.

Using the Lovern test outlined

above, the Briggs court found that the amount in controversy was
not ascertainable until the plaintiff’s settlement demand of over

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$75,000.00 during a court-ordered mediation.
2354605, at *6.

Briggs, 2015 WL

Thus, the Briggs defendants’ notice of removal,

filed within 30 days of the settlement demand made at mediation,
was timely.

For the same reason, this Court finds in the present

case that the defendants’ notice of removal, filed within 30 days
of the plaintiff’s settlement demand of $175,000.00, was timely.
Under Lovern, the face of the complaint controls. Here, the amount
in controversy was not apparent from the four corners of the
complaint

and

did

not

become

apparent

until

the

plaintiff’s

settlement demand.
As stated earlier, the amount in controversy requirement
cannot be based on speculation or “what ifs” that may occur.
Rather, the court is limited to a consideration of facts on the
record at the time of removal.

See Lowrey, 483 F.3d at 1213–15.

Before the plaintiff’s settlement demand, the amount of recoverable
damages was unknown and speculative at best. Speculation regarding
the amount in controversy requirement fails to satisfy the burden
See In re Blackwater Security

that the removing party bears.
Consulting, LLC, 460 F.3d at 583.

Because the defendants would

have only been able to speculate as to what the amount of damages
might have been based on the complaint alone, removal would have
been improper before the settlement demand of $175,000.00.
the

defendant’s

removal

within

settlement demand was proper.

9

30

days

of

the

Thus,

plaintiff’s

IV.

Conclusion

For the above reasons, this Court finds that it has subject
matter jurisdiction in this civil action under 28 U.S.C. § 1332(a).
Accordingly, the plaintiff’s motion to remand (ECF No. 6) is
DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

November 13, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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