-TEM Ellis v. Wells Fargo Home Mortgage, Inc. et al, No. 2:2011cv00151 - Document 11 (E.D. Va. 2011)
Court Description: OPINION AND ORDER that the Court sua sponte DISMISSES thismatter for lack of subject-matter jurisdiction, GRANTSPlaintiff's Motion to Remand, and REMANDS this matter to theCircuit Court for the City of Portsmouth, Virginia. However,the Court DENIES Plaintiff's request for attorney's fees.. Signed by District Judge Mark S. Davis on 8/4/11 and filed on 8/5/11. (jcow, )
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division JAMES E. ELLIS, Plaintiff, v* Civil Action No. 2:llcvl51 WELLS PARGO BANK, N.A., and SAMUEL I. WHITE, P.C., Defendants. OPINION AND ORDER This matter is before the Court on a Notice of Removal from the Circuit Court for the City of Portsmouth, the Defendants, Wells Samuel I. Fargo, "Defendants"), and Motion a White, ("Plaintiff"). Court has 1331, P.C. to a Motion Remand substantial Affordable Modification program created that by by of Removal claims of federal law. claims arise ("HAMP"), Emergency Economic E. Wells Ellis that to 28 Plaintiff's which and Defendants, James in Program by with Plaintiff issue Plaintiff's the filed filed by Fargo") collectively this matter pursuant questions allege {"Wells Dismiss Notice central Defendants N.A. and, to filed Defendants' the Bank, ("Trustee" jurisdiction over because involves Fargo Virginia, this U.S.C. § Complaint Specifically, under is the Home a federal Stabilization Act ("EESA") to system of "restore liquidity and stability to the United States," promote home ownership. to Dismiss, claim upon 12 u.S.C. Defendants which to protect argue relief be Plaintiff granted Plaintiff challenges savings, and the to In the Motion failed to state a because private cause of action to enforce HAMP. Remand, financial § 5201 et seq. that can life the there is no By filing a Motion to jurisdiction of this arguing that no claims are made pursuant to HAMP, Court, but instead, state-law claims of contract, tort, and statutory violations are alleged. seeks a preliminary prevent The Complaint foreclosure. attorney's fees allegedly improper the reasons matter Circuit Plaintiff's the for Motion associated removal stated herein, for Plaintiff's also lack Motion Court for of to the costs of this case the Court to sua subject-matter Remand, and City Portsmouth, of to injunction Remand also with federal to seeks Defendants' court. For sponte DISMISSES this jurisdiction, REMANDS this matter Virginia. the Court DENIES Plaintiff's request for attorney's fees. GRANTS to the However, I. Plaintiff Virginia. FACTUAL AND PROCEDURAL HISTORY1 owns Compl. a tract 31. of real on April 23, estate 2009, in Portsmouth, Plaintiff secured a home loan from Wells Fargo in the amount of $155,587.00. 2. Id. 3 Plaintiff experienced a severe reduction in income and "fell behind on his mortgage when his wife was committed." In a letter dated June 24, Wells Fargo had referred his foreclosure proceedings." hired 2010, the law represent him with Wells firm in order Fargo. Plaintiff was made aware that loan "to their attorneys lcL_ 1 6. of Heath to lcL_ 1 On July 16, J. avoid 7. Id. 3 3. Thompson, P.C. foreclosure Also on July 2010, Plaintiff ("HJT") and 16, to begin to to negotiate 2010, Plaintiff submitted his completed loan modification packet and Wells Fargo issued a Plan." Id^ Plaintiff letter 33 was to 10, Plaintiff 11. required $1,101.09 in August, Under to pay September, offering the a "Special "Special $2,575.00 on and October. Forbearance Forbearance July Id. 23, Plan" 2010 and 3 11. 1 The facts recited here are drawn from Plaintiff's Complaint and are assumed true for the purpose dismiss currently before the considered factual findings of deciding Court. for any the They are purpose motion to not to be other than consideration of the pending motion. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) ("[l]n evaluating a Rule 12{b){6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint."). When HJT Plaintiff's called Wells application on Fargo July to 22, check 2010, the was he status told Plaintiff's modification request was still under review. 12. On August 19, 2010, of that Id. l a Wells Fargo representative told HJT that Plaintiff needed to make the first payment in the "Special Forbearance Plan" or he would be dropped from the modification program and would need to reapply for a SI Id^ 13. In September statements to determined that modification, 15, 2010, Wells Plaintiff Fargo. Plaintiff submitted Id^ did g[ 15. not updated While qualify for financial Wells a Fargo HAMP loan it offered another "Special Forbearance Plan" with higher payments, which Plaintiff could not afford. id. 33 14, 16. The Trustee reflecting that 15, Id. 2011. that the several a SI issued to Plaintiff 4. On October 20, sale was conversations with Wells and on achieving a Fargo Plaintiff's notice submitting of foreclosure the Trustee Fargo id. Plaintiff ^d^ 33 "Sparkle," SI told HJT 21. representative, requested documents loan modification, Representative, 2010, cancelled. foreclosure notice from Trustee, Wells a foreclosure sale would take place on February foreclosure Stevenson," a loan modification. with no "Megan progress once again received 22-28. who After HJT spoke with informed foreclosure had been postponed and that HJT that foreclosure would not be considered again until March 11, After inconsistent representatives statements regarding were the Wells Fargo Representative, made status by of 2011. other Id. f 31. Fargo foreclosure the Wells sale, "Megan Stevenson," confirmed for HJT that the foreclosure sale had been cancelled. Id. flfl 32-35. After multiple representatives and submitted by HJT, conversations another Wells completed Fargo with loan a new foreclosure notice with a Id^ H 91 Virginia, 1. on Plaintiff contract and Consumer Protection Plaintiff that mortgage and the Trustee issued sale date set for February 15, filed this case in the Circuit Court for the City Portsmouth, Removal package 36-52. Plaintiff of Fargo application informed Plaintiff payment assistance had not been approved, 2011. Wells tort also asserted claims Act requested February and a ("VCPA"), a 11, 2011. several claims, violation Va. Code preliminary Notice of the Ann. § injunction of including Virginia 59.1-200. to halt foreclosure proceedings. In Notice response of alleging Removal to Plaintiff's and a federal-question before this Court. Motion Complaint, to Dismiss jurisdiction On May 6, 2011, Remand this case to state court. and Defendants on March bringing filed 9, the a 2011, case Plaintiff filed a Motion to II. The Court question must STANDARD OF REVIEW first jurisdiction determine over the question jurisdiction exists § 1331 if Plaintiff's Constitution, § 1331. over a laws, Such from are action [complaint] Sons (2005) 180, Metal Prods, v. (quoting Smith v. 199 jurisdiction (1921)). over so related Darue the implicating the Eng'g the claims under & can right exercised law if depends [federal law].'" Grable Court at "it relief Mfg., to 28 U.S.C. be federal the 545 U.S. 308, has issue, 313 255 U.S. federal-question the Court may also jurisdiction over the state-law aspects of claims pursuant to to 28 U.S.C. Kansas City Title & Trust Co., if exercise supplemental Plaintiff's Federal- "arising jurisdiction that federal- issue.2 ones upon the construction or application of & at has or treaties of the United States." federal-question the claims it in this case pursuant claims state-law cause of 'appears whether claims in to 28 the U.S.C. action § 1367 when within they such "are original jurisdiction that they form part of the same case or controversy under Article III of § the United States Constitution." 28 U.S.C. 1367. Defendants do not jurisdiction as a ground of allege federal diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332, and thus, the Court will federal-question jurisdiction exists. only consider whether M[W]hen a federal matter jurisdiction, entirety." court concludes that Arbaugh v. Civil Y & Procedure, determines at jurisdiction, P. H Corp., 546 which U.S. matter such is proper jurisdiction jurisdiction on of the Compagnie des Bauxites Plyler ("questions at any (citing Cir. time by North 689 appears Moore, either Carolina UTrue, (E.D. Inc. Va. the (quoting Lovern v. This 1447, and, if exists, its own parties. confront and address it 514 principle is (2006). of the Federal Rules that it "[i]f lacks must the court subject-matter Fed. 129 F.3d 456 728, party v. v. 2006) a R. question lack without Corp. Guinee, is "raise motion," Ins. de there concerning subject-matter 1990)); 688, v. subject- Civ. a court has an independent duty to ensure positions accord that 500, the court must dismiss the action." jurisdiction whether provides time any 12(h)(3). Moreover, that lacks the court must dismiss the complaint in its This principle is embodied in Rule 12(h)(3) of it of 694, n.6 Edwards, sua sponte Ivory, 906 F.2d Page One Sci., ("federal by reiterated F.3d in which further provides that (1982); Cir. [the] 999, Inc., courts subject 190 v. 1997) jurisdiction may be raised or lacks the Ltd. 1000 457 F. are matter 648, paragraph 654 (c) court") n.l (4th Supp. 2d obligated to jurisdictional defects sua sponte court to 702 (4th to subject- regard Ireland, U.S. 731 of as 'whenever jurisdiction'") (4th Cir. of 28 1999)). U.S.C. § "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). III. As noted above, federal court Defendants solely jurisdiction pursuant 1 2. Plaintiff jurisdiction state law theories the of on to liability." hand, case the ground Notice in response that "federal because not Plaintiff's potential PL's Mem. to PI.'s Mot. recast a whether it Although Complaint, procedures and threshold has the the mere create matter. 28 the Mot. the Removal question rely on federal law Remand 4. On Plaintiff his allegations claims." Defs.' with its reference of Court in the of prior contract for HAMP and § 1331. 8 Court tort is matter. in to following and claims this refers the Opp'n considers claims procedures federal-question subject-matter U.S.C. the decisions, HAMP over frequently However, Br. sponte state-law also to sua jurisdiction alleges guidelines. state-law breach to only Complaint consistent that matter, law subject-matter Plaintiff and state to Remand 7. As as "that of claims alternative Law Supp. attempting violations case federal-question 1331. allege guideline of this § Defendants is removed U.S.C. improper and have 28 argues theories other instant is DISCUSSION the HAMP reasons, concludes guidelines not in sufficient jurisdiction over this To the fully understand manner of how a addressing complaint's cases that allegations involve affect HAMP, it is important to start with a discussion of whether HAMP creates a private right of action. Federal courts have uniformly held that relief cannot be granted to private plaintiffs because HAMP against created no private cause lenders, Freddie Mac. but 2011 U.S. 1, ("Courts 2011) action v. Dist. J.P. Morgan LEXIS 35507, universally at rejected Chase *9-10 these ground that HAMP does not create a private right borrowers Mortg., (E.D. No. Va. 5229, against does against lenders 2:10cv361, Aug. 11, not for borrowers instead delegated compliance authority to Bourdelais 3:10cv670, of for HAMP claims 2010 2010) expressly participating and servicers."); U.S. Dist. create mortgage a (E.D. claims on 143157, private No. Apr. the of action for statute, servicers. Va. Pennington LEXIS ("The applicable Bank, v. at 12 PNC *10-ll U.S.C. § right of action Instead, it allows those aggrieved by the actions of the Treasury Department to sue the Secretary of private right of the Treasury. action against . . . The creation the Secretary of of this the Treasury, coupled with the delegation of enforcement authority to Freddie Mac, strongly separate implies cause servicers. ") . of that Congress action did not against intend to participating create a mortgage The absence of such a private right of action impacts the Court's analysis of allegedly deficient claims in different ways depending on how HAMP is For example, in cases included in a complaint's allegations. that directly allege causes violations of HAMP itself, of federal-question Home upon which subject-matter Loans, (E.D. Va. cases that No. Mar. relief can 2:10cv623, 31, allege action jurisdiction be 2011) . U.S. However, consistently See Dist. Fowler LEXIS matter jurisdiction Servicing 2011) Co., (finding HAMP, No. that over it of contract 2:llcv99, that "no and congressional lacks such private and op. Asbury at cause intent would be 8 No. (finding claims 2:llcv89, "that does substantial law does Sherman v. slip Plaintiffs' not create of right to relief a law, private Litton Loan Servicing, 10 subjectAmerica's July exists Paine v. (E.D. depend F. 13, under Va. for on Wells Fargo July 12, the of 2011) state-law resolution particularly where right claims frustrated by this Court 11 federal *4 this Court Va. action at necessarily question not op. at tort v. (E.D. of exercising federal question jurisdiction"); Bank, Aurora 73344, federal-question claims. slip v. when presented with removed state-law breach held dismissed for failure to state a granted. 2011 and that merely reference HAMP guidelines and procedures, has for this Court has inferred the existence the claims on the basis of Rule 12 (b) (6) claim of action"); Supp. 2d of federal see , a also 2011 U.S. Dist. LEXIS 71756, at *7 (E.D. the matter would have been jurisdiction had Va. July dismissed diversity of 1, for 2011) lack of citizenship (noting that subject-matter not provided an alternate jurisdictional basis). Plaintiff's state-law not a contract federal because and HAMP procedures, state-court tort claims violation Complaint and does Complaint and a cause merely not is other words, claims no federal-question Plaintiff's to does substantial law does Pharm. necessarily question not Inc. In not create v. light not 12(b)(6) the pursuant to to Court 28 subject-matter Court's over reach Motion Instead, 478 U.S. of 804, a will § for to HAMP guidelines state-law of a federal See Merrell that claims failure it in 1447(c), because lacks this Dow subject- matter, Defendants' to Plaintiff's 11 the (1986) . grant and procedures. In resolution regarding jurisdiction based on a that action. conclusion decision directly concludes for on 808 VCPA, guidelines particularly where right Plaintiff's Dismiss U.S.C. law, the jurisdiction. relief depend federal a private the jurisdiction does of Thomas, of to HAMP the Court alleges Therefore, allege subject-matter right of action. references attempt only violation of HAMP violation cause of action, there matter and Plaintiff's federal Court removed state Motion there Plaintiff's is mere the Rule a claim. to Remand no federal references IV. The fees Court in his now § fees, 1447(c). "should turn unusual to of just test on the Capital only where reasonable Circuit may for district dismissed not properly be guidelines invoke in Defendants' cannot be said Pharm., to Court the be Inc., of issue federal Fourth absence removal of of be of HAMP controlling instant the 12 the the J. Fourth such cases procedures and jurisdiction. precedent case to (E.D. 540 to that 886 535, have theory See Supp. an Heath whether on § denied."). for objectively unreasonable. F. when identical subject-matter the under Circuit Appeals v. objectively counsel, court referencing federal-question contrary, to States fees an should fees ("Absent Conversely, Plaintiff's U.S.C. Martin (2005) lacked substantially by 28 attorney's 141 fees the case may including removal." removal. addressed the of attorney's party within merely the award the removal." 132, exists, cases removed claims Muro basis filed yet state-law Therefore, seeking P.C. the United has U.S. may the attorney's expenses, payment of removing courts one many Thompson, 546 the of requiring courts objectively instant result for remanding and any actual a Corp., basis repeatedly as FEES request "An order reasonableness reasonable Although Plaintiff's costs for circumstances, 1447(c) to Remand. incurred The Franklin turns Motion require payment attorney REQUEST FOR ATTORNEY'S to this the Court Kluksdahl Va. v. 1995) (denying plaintiff's of a case issue the to but request federal the issue). Fourth for costs and fees court when district Circuit Consequently, had not courts yet Plaintiff's for the removal had decided an issued a request decision for on attorney's fees will be denied. V. CONCLUSION For the this DISMISSES GRANTS reasons matter Plaintiff's matter to the Virginia. Clerk Order to all IT for Circuit IS above, lack Motion Additionally, for attorney's The stated of Court Remand, Court for Court and City DENIES 4, REMANDS of this Portsmouth, Plaintiff's request fees. is DIRECTED to send a copy of this Opinion and counsel of record. SO ORDERED. Mark S. August sponte jurisdiction, hereby the UNITED Norfolk, sua subject-matter to the the Virginia 2011 13 STATES Davis DISTRICT JUDGE
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