Puckett v. Ocwen Loan Servicing, LLC

Filing 53

MEMORANDUM OPINION AND ORDER: The Court ORDERS that the Defendant's 32 MOTION to Transfer Venue be DENIED, and that Defendant Ocwen Loan Servicing, LLC's 15 Motion to Dismiss Amended Complaint be DENIED. Signed by Judge Irene C. Berger on 12/20/2016. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

BILLY PUCKETT,
Plaintiff,
v.

CIVIL ACTION NO. 5:16-cv-05909

OCWEN LOAN SERVICING, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant’s Motion to Transfer Venue (Document 32),
Defendant Ocwen Loan Servicing LLC’s Memorandum in Support of Its Motion to Transfer Venue
(Document 33), Plaintiff, Billy Puckett’s Opposition to Defendant’s Motion to Transfer Venue
(Document 47), and Defendant Ocwen Loan Servicing, LLC’s Reply in Support of Its Motion to
Transfer Venue (Document 49), as well as all attached exhibits.
In addition, the Court has reviewed Defendant Ocwen Loan Servicing, LLC’s Motion to
Dismiss Amended Complaint (Document 15), Defendant Ocwen Loan Servicing, LLC’s
Memorandum in Support of Its Motion to Dismiss Plaintiff’s Amended Complaint (Document 16),
the Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint (Document 18), and the Defendant’s Reply in Support of Its Motion to Dismiss
Plaintiff’s Amended Complaint (Document 19).

The Court has also reviewed all attached

exhibits, as well as the Plaintiff’s First Amended Complaint (Document 12). After careful

consideration, for the reasons stated herein, the Court finds that the motion to transfer and the
motion to dismiss should both be denied.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff, Billy Puckett, initiated this suit in the Circuit Court of Raleigh County on
June 1, 2016. He named Ocwen Loan Servicing as the Defendant. Ocwen removed the matter
to this Court, citing diversity jurisdiction, on June 30, 2016. Mr. Puckett subsequently filed an
amended complaint on July 21, 2016. He currently resides in Rock, Mercer County, West
Virginia. Ocwen is a Delaware corporation with its principal place of business in Florida.
This litigation involves a parcel of real property consisting of approximately 0.87 acres,
with a residence, located in Princeton, Mercer County, West Virginia. Mr. Puckett and his wife,
April Puckett, entered into an agreement to purchase the property from Ms. Puckett’s parents on
August 1, 2008. The purchase price was $37,000, to be paid in monthly installments of $250,
without interest. The seller had the right to terminate the agreement if the Pucketts failed to make
a payment for more than ten days beyond its due date, and prior payments would be considered
“liquidated damages and rent for the breach of this agreement.” (Lease Purchase Agreement at
3, att’d as Ex. A to Def.’s Mot. to Dismiss.)

Under the terms of the agreement, the buyers were

responsible for property taxes, insurance, maintenance, and repairs. The agreement was recorded
in the office of the clerk of the Mercer County Commission.
Mr. and Ms. Puckett, together with their four children, resided in a home on the property
after entering into the purchase agreement. In February, 2011, an Ocwen employee called Mr.
Puckett and asserted that Ocwen had a lien against the property with a first mortgage or deed of
trust, requiring payments of $500 per month with 22 years remaining. Mr. Puckett denied the
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existence of such a loan. The Ocwen employee said that if the payments were not made, Mr.
Puckett and his family would be evicted in ninety (90) days, the locks would be changed, and any
personal belongings in the house would be auctioned off.
As a result of the conversation, Mr. Puckett and his family made repairs to a mobile home
in Spanishburg, West Virginia, and moved into it in May, 2011. Sometime between May and
October, 2011, Ocwen agents entered the Princeton property, placed padlocks on the doors, and
placed placards on the home “identifying themselves as agents of Ocwen who secured Mr.
Puckett’s home on behalf of Ocwen.” (Am. Compl. at ¶ 11.) Ocwen maintained, controlled, and
insured the home thereafter, and the padlocks and placards remained until January 5, 2016, when
Ocwen’s attorney provided the keys to the padlocks to Mr. Puckett’s attorney. During Ocwen’s
period of possession, the property was damaged, and Ocwen made an insurance claim but did not
repair the damage.
After the Pucketts left their home, Ms. Puckett retained counsel and learned that Ocwen
did not have an enforceable lien, mortgage, or deed of trust against the property. Ocwen instead
held a deed of trust against an adjacent parcel of property with a mobile home. Ocwen “threatened
to file an action to ‘reform’ Ocwen’s deed of trust on the adjoining property to establish a lien
against Mr. Puckett’s property” although “Ocwen had no lien of record against Mr. Puckett’s
property.” (Id. at ¶ 15.) The Pucketts incurred economic expenses, as well as stress and anxiety,
as a result of the move, which caused three children to transfer to new schools while the fourth
lived with his grandmother temporarily to finish the school year. Mr. Puckett asserts causes of
action for invasion of privacy, trespass, slander of title, intentional or reckless infliction of
emotional distress, and conversion. He seeks compensatory and punitive damages.

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Ocwen filed a motion to dismiss on July 7, 2016, shortly after removing this action to
federal court. Mr. Puckett filed his first amended complaint on July 21, 2016, and Ocwen filed
its motion to dismiss the amended complaint on August 4, 2016. On November 3, 2016, Ocwen
filed its motion to transfer venue from the Beckley division to the Bluefield division of the District
Court for the Southern District of West Virginia. Both motions are now fully briefed. The Court
will first address the motion to transfer.
MOTION TO TRANSFER
Ocwen requests that this matter be transferred to the Bluefield division under 28 U.S.C. §
1404(a), because the property in question is located within that division and the Plaintiff and his
family live within that division. Ocwen argues that West Virginia law favors resolution of claims
involving real property and/or property insurance within the county where the property is located.
It further suggests that a jury view of the property may be appropriate in this case, and that it may
be necessary for the parties to visit the property during discovery. Mr. Puckett opposes transfer,
noting that venue is proper in the Beckley division, and that Ocwen admits that, as it is
headquartered out of state, a transfer will not increase its convenience. He states that the Bluefield
courthouse is about thirty-five miles closer for him and his witnesses than the Beckley courthouse,
and contends that there is no appreciable difference in convenience for his witnesses or sources of
proof. Both parties accuse one another of forum shopping.
Courts may transfer venue “for the convenience of parties and witnesses, in the interest of
justice” when venue is proper in both the transferring district and in another district. 28 U.S.C. §
1404(a). The Fourth Circuit has established four factors for consideration in deciding motions to
transfer under § 1404(a): “(1) the weight accorded to plaintiff's choice of venue; (2) witness
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convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Trustees
of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th
Cir. 2015).1 “As a general rule, a plaintiff’s choice of venue is entitled to substantial weight in
determining whether transfer is appropriate.” Id.; see also Ashcraft v. Core Labs. LP, No. 2:15CV-03192, 2016 WL 1222154, at *3 (S.D.W. Va. Mar. 28, 2016) (Johnston, J.) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508 (1947) statement that “unless the balance is strongly in favor
of the defendant, the plaintiff's choice of forum should rarely be disturbed.”).
The Court finds no reason to disturb the Plaintiff’s choice of venue in this case. The
distance between the two divisions is minimal, limiting concerns regarding the convenience of
either Mr. Puckett or any local witnesses. The Defendant does not suggest it has offices or
witnesses for whom Bluefield is more convenient. A jury view of the property seems unlikely to
be necessary, based on the allegations. A transfer of venue would have no impact on any visit to
the property made by the parties and their attorneys and/or witnesses during discovery, as there is
no reason such a visit would include a stop at the relevant courthouse. There is no dispute between
the parties that venue is proper in either division, and state law venue preferences, to whatever
extent they would counsel for the action to be located in a particular county in state court, have
little bearing on appropriate venue in federal court. Cf. Polizzi v. Cowles Magazines, Inc., 345
U.S. 663, 665–66 (1953) (noting that 28 U.S.C. § 1441 provides that the proper venue for cases

1 Courts within the Southern District of West Virginia have often applied a seven-factor test, which largely overlaps
the four-factor test adopted in Plumbers & Pipefitters: (1) ease of access to sources of proof; (2) the convenience of
parties and witnesses; (3) the cost of obtaining the attendance of witnesses; (4) the availability of compulsory process;
(5) the possibility of a view; (6) the interest in having local controversies decided at home; and (7) the interests of
justice. See, e.g., AFA Enterprises, Inc. v. Am. States Ins. Co., 842 F. Supp. 902, 909 (S.D.W. Va. 1994) (Haden,
C.J.); Conklin v. Nationwide Prop. & Cas. Ins. Co., No. 2:16-CV-08604, 2016 WL 5843618, at *2 (S.D.W. Va. Oct.
4, 2016) (Goodwin, J.)

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removed from state court is the district court embracing the place where the action is pending, and
§ 1391, which otherwise governs proper federal venue, is not applicable to removed cases); Smith
v. JP Morgan Chase Bank, N.A., 727 F. Supp. 2d 476, 479 (S.D.W. Va. 2010) (Goodwin, J.).
Thus, the Court finds that the Defendant’s motion to transfer venue should be denied and will
proceed to address the motion to dismiss.

STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid
of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
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inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate
facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
DISCUSSION
Ocwen asserts that none of Mr. Puckett’s claims are legally viable. It argues that placing
padlocks and placards on the Plaintiff’s home is not highly offensive to a reasonable person,
particularly as the Plaintiff and his family had already vacated the premises. Ocwen argues that
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the trespass claim must fail because the Plaintiff did not have legal title to the property under the
Lease Purchase Agreement, and had vacated the property and therefore did not have physical
possession. Likewise, Ocwen asserts that the Plaintiff’s lack of legal title to the property defeats
the claim for slander of title. Finally, Ocwen argues that the facts asserted do not support claims
for either intentional infliction of emotional distress or conversion.
Mr. Puckett alleges that he and his family were forced to move by Ocwen’s threats, and
their home was then seized by Ocwen, which he asserts constitutes an unreasonable intrusion upon
seclusion. In addition, he asserts that padlocking the home and placing placards indicating that
Mr. Puckett had lost the home to the bank constitutes publicity that unreasonably placed him in a
false light before the public, falling within the parameters of West Virginia law on invasion of
privacy. Mr. Puckett further argues that he was the equitable owner of the property due to his
contract to purchase it, and that he had physical possession at the time Ocwen threatened
foreclosure and vacated only out of fear that Ocwen would change the locks and auction his
family’s belongings. For the same reasons, Mr. Puckett argues that his claim for slander of title
should be permitted to proceed. He argues that Ocwen’s threat to evict him and his family and
auction his property, despite its lack of any legal interest in the property, followed by its conduct
in padlocking the home, is sufficient to support a claim for intentional or reckless infliction of
emotional distress. Finally, Mr. Puckett argues that he is entitled to any insurance proceeds
Ocwen received for unrepaired damage to the home that occurred during the time Ocwen had taken
possession and obtained insurance.
A. Invasion of Privacy

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The West Virginia Supreme Court has established the following categories of invasion of
privacy: “(1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of
another's name or likeness; (3) unreasonable publicity given to another's private life; and (4)
publicity that unreasonably places another in a false light before the public.” Syl. Pt. 8, Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70, 74 (W. Va. 1983); Syl. Pt. 6, Tabata v. Charleston Area
Med. Ctr., Inc., 759 S.E.2d 459, 461 (W. Va. 2014). The allegations here involve both an
unreasonable intrusion upon seclusion and publicity that unreasonably places another in a false
light before the public.
Courts in West Virginia have generally adopted the Restatement (Second) of Torts § 652B
for claims of intrusion upon seclusion. See, e.g., Ghafourifar v. Cmty. Trust Bank, Inc., No. 3:14CV-01501, 2014 WL 4809782, at *14 (S.D.W. Va. Aug. 27, 2014) (Eifert, M.J.) report and
recommendation adopted, No. 3:14-CV-01501, 2014 WL 4809794 (S.D.W. Va. Sept. 26, 2014);
Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d 495, 508 (S.D.W. Va. 2014) (Faber, J.);
Harbolt v. Steel of W. Virginia, Inc., 640 F. Supp. 2d 803, 817 (S.D.W. Va. 2009) (Chambers, J.).
The Restatement provides: “One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”
Restatement (Second) of Torts § 652B (1977).
A false light invasion of privacy claim is defined as “publicity which unreasonably places
another in a false light before the public.” Syl. Pt. 12, Crump, 320 S.E.2d at 74. “A plaintiff in
a false light invasion of privacy action may not recover unless the false light in which he was
placed would be highly offensive to a reasonable person.” Id. at 74, Syl. Pt. 14. Further,

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“widespread publicity…is an essential ingredient to any false light invasion of privacy claim.” Id.
at 87-88; see also Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 873, 887–88
(S.D.W. Va. 2014).
The Court finds that the facts alleged support a claim for either type of invasion of privacy.
Mr. Puckett and his family were enjoying the seclusion of their home when Ocwen threatened to
evict them and auction off their belongings. They left, and were unable to return for a period of
over four years, because Ocwen agents had placed padlocks on the Pucketts’ home. Throughout
that period, Ocwen agents continued to intrude into the Pucketts’ private affairs and concerns by
wrongfully asserting an interest in their property.

Under the relatively broad definition

established by the Restatement, the Court finds that the facts alleged could support a claim for
intrusion upon seclusion.
In addition, the posting of placards indicating that Ocwen had taken over the property,
despite Ocwen’s lack of legal interest in the property and Mr. Puckett having met all of his
obligations as the purchaser of the property, placed the Pucketts in a false light before the public.
The false implication that the family lost their property through financial difficulty or
irresponsibility could be highly offensive to a reasonable person. Though it may ultimately be
difficult for the Plaintiff to establish that the placards constitute sufficiently widespread publicity,
at this stage, the Court finds that the factual allegations are sufficient.
Ocwen, however, argues that the claim for false light invasion of privacy is not properly
pled because the first amended complaint specifically mentions intrusion upon seclusion, but not
false light. The Court finds the first amended complaint meets the applicable pleading standard.
The factual allegations, as noted, are sufficient. Count One is entitled “invasion of privacy;” one

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paragraph within that count states that “Mr. Puckett had the right at common law to enjoy and
prosper peaceably in his home and otherwise be free from intrusion upon his seclusion.” (Am.
Compl. at ¶ 20.) The next paragraph reads: “The Defendant Ocwen, by its acts aforesaid, invaded,
abridged, and otherwise interfered with and violated Mr. Puckett’s right of privacy.” (Id. at ¶ 21.)
Plaintiffs are not required to enumerate their legal theories in detail within their complaint. Thus,
the Defendant’s motion to dismiss Count One should be denied.
B. Trespass
The West Virginia Supreme Court of Appeals has defined trespass as “an entry on another
man’s land without lawful authority, and doing some damage, however inconsiderable, to his real
property.” Hark v. Mountain Fork Lumber Co., 34 S.E.2d 348, 352 (W. Va. 1945); Whiteman v.
Chesapeake Appalachia, L.L.C., 729 F.3d 381, 386 (4th Cir. 2013). Leaving “a structure, chattel,
or other thing” on land belonging to another constitutes a continuing trespass. Whiteman, 729
F.3d at 386 (internal quotation marks omitted).
Mr. Puckett has alleged that he and his wife were purchasing the property from his wife’s
parents, pursuant to a document entitled “Lease Purchase Agreement.”

The terms of the

agreement provided for payments of $250 per month until the purchase price of $37,000 was met,
although early payment was permitted.

The Pucketts were responsible for property taxes,

insurance, and maintenance of the property, and the sellers did not have the right to cancel the
contract or choose not to sell, provided the Pucketts met their obligations under the contract.
Upon payment of the purchase price, either early or through the $250 monthly installments, the
seller was to convey the property by deed of general warranty. According to the complaint, the
Puckett family occupied the home until Ocwen threatened to evict them, and moved only because

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of Ocwen’s actions. Mr. Puckett has also asserted that Ocwen had no legal interest in the
property, and apparently mistook his property for an adjoining parcel of land with a mobile home,
on which Ocwen held a deed of trust. Mr. Puckett has sufficiently alleged both a legal and
possessory interest in the property. The allegations are also sufficient as to Ocwen’s lack of legal
authority to enter the property and place locks and placards on the home. Accordingly, Ocwen’s
motion to dismiss Count Two should be denied.
C. Slander of Title
West Virginia courts recognize a cause of action for slander of title. The elements are as
follows: “1. publication of; 2. a false statement; 3. derogatory to plaintiff's title; 4. with malice; 5.
causing special damages; 6. as a result of diminished value in the eyes of third parties.” TXO
Prod. Corp. v. All. Res. Corp., 419 S.E.2d 870, 873 (W.Va. 1992). Ocwen’s motion to dismiss
rests on its assertion that the Plaintiff did not have title to the property, based on its reading of First
Huntington Nat. Bank v. Gideon-Broh Realty Co., 79 S.E.2d 675 (W. Va. 1953).
The Court has previously outlined the terms of the Pucketts’ Lease Purchase Agreement.
In Gideon-Broh, the West Virginia Supreme Court noted that “[t]he line of discrimination between
a lease and a sale is sometimes indistinct, and each case must, in a great measure, depend upon its
own peculiar circumstances.” Id. at 679. Though the court found that the contract in that case
was a lease with an option to purchase, its finding was based on the specific language of the
contract, wherein the payments were described as “rent,” the property owners were referred to as
“lessors,” and there was a set term of twenty-eight years, at the end of which the lessees were
entitled to purchase the property for one dollar. Id. at 680–81. Here, the language used in the
agreement is more akin to an owner financed sale, with the parties referred to as “buyers” and

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“sellers,” and a specific sale price that the buyers could pay in full at any point. Thus, the Court
finds that the Plaintiff has adequately alleged that he held equitable title to the property. Ocwen
additionally challenges the Plaintiff’s allegations regarding special damages or a diminution in the
value of the property. The Court finds that the Plaintiff’s complaint is sufficient, given the
allegations regarding physical damage to the property while Ocwen held possession and insurance,
as well as the Plaintiff’s other asserted damages. In addition, the Plaintiff alleged that placards
were placed on the property stating that Ocwen agents had secured the property. It may therefore
be inferred that third parties were given the impression that the property was in foreclosure, which
could tend to reduce the value of a property. Therefore, Ocwen’s motion to dismiss must be
denied as to Count Three.
D. Intentional or Reckless Infliction of Emotional Distress
The West Virginia Supreme Court has established the following elements for IIED claims:
(1) that the defendant's conduct was atrocious, intolerable, and so
extreme and outrageous as to exceed the bounds of decency; (2) that
the defendant acted with the intent to inflict emotional distress, or
acted recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3) that the actions
of the defendant caused the plaintiff to suffer emotional distress;
and, (4) that the emotional distress suffered by the plaintiff was so
severe that no reasonable person could be expected to endure it.
Syl. pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998) (reaffirmed in Hatfield
v. Health Mgmt. Associates of W. Virginia, 672 S.E.2d 395, 404 (W. Va. 2008).
Mr. Puckett has pled that, despite having no legal interest in his property, Ocwen threatened
to evict his family and auction their belongings, and proceeded to maintain control and possession
over the property in excess of four years. The Pucketts repaired another property and moved,
causing their children to change schools or live with relatives to finish the school year. Ocwen
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actually held a lien, in the form of a deed of trust, against an adjoining parcel of property.
Nonetheless, Ocwen threatened to take legal action to reform the deed of trust on the adjoining
property to include Mr. Puckett’s property—which suggests that Ocwen was aware that it did not,
at that time, have any legal interest in Mr. Puckett’s property. Mr. Puckett has asserted that his
family was uprooted and his marriage was strained by the Defendant’s actions, which suggests
severe emotional distress. Further, the ordeal began in February, 2011, and Ocwen handed the
keys to its padlocks over to Mr. Puckett’s attorney only in January, 2016. Whether or not the
initial error in foreclosing on the wrong home could support an intentional infliction of emotional
distress claim, taking nearly five years to correct the error drastically increases both the
atrociousness of the Defendant’s conduct and the distress inflicted on the Plaintiff. The Court
finds that the facts alleged, if proven, could support a jury finding that Ocwen’s conduct was
sufficiently atrocious and outrageous, that Ocwen either intended to cause emotional distress or
acted recklessly in doing so, that Mr. Puckett did suffer emotional distress, and that that distress
was so severe no reasonable person could be expected to endure it.
E. Conversion
Conversion has been defined by the West Virginia Supreme Court of Appeals as follows:
Any distinct act of dominion wrongfully exerted over the property
of another, and in denial of his rights, or inconsistent therewith, may
be treated as a conversion and it is not necessary that the wrongdoer
apply the property to his own use. And when such conversion is
proved the plaintiff is entitled to recover irrespective of good or bad
faith, care or negligence, knowledge or ignorance.
Syl. Pt. 17, Rodgers v. Rodgers, 399 S.E.2d 664, 668 (W. Va. 1990) (quoting Syl. Pt. 3, Pine &
Cypress Mfg. Co. v. American Eng'g & Constr. Co., 125 S.E. 375 (W. Va. 1924)). Mr. Puckett
alleges that Ocwen collected insurance proceeds for damage to his home during its period of
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possession, did not use the same to repair the damage and retained the insurance proceeds for
Ocwen’s own purposes. That assertion is sufficient to state a claim for conversion at this stage of
the litigation.2
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Defendant’s Motion to Transfer Venue (Document 32) be DENIED, and that Defendant Ocwen
Loan Servicing, LLC’s Motion to Dismiss Amended Complaint (Document 15) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

December 20, 2016

2 The Court notes that subsequent briefing on the motion to transfer suggests that Ocwen may not have received any
insurance proceeds. The Court presumes that the Plaintiff will dismiss any cause of action he finds to be unsupported
by the facts.

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