-DEM Mosley v. Wells Fargo Bank, N. A. et al, No. 2:2011cv00268 - Document 10 (E.D. Va. 2011)
Court Description: OPINION AND ORDER that the Court sua sponte DISMISSES this matter for lack of subject-matter jurisdiction,GRANTS Plaintiff's Motion to Remand, and hereby REMANDS this matter to the Circuit Court for the City of Virginia Beach, Virginia. Additionally, the Court DENIES Plaintiff's request for attorney's fees. Signed by District Judge Mark S. Davis on 8/4/2011and filed on 8/5/2011. (rsim)
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FILED UNITED STATES DISTRICT COURT AUG -5 2011 EASTERN DISTRICT OF VIRGINIA Norfolk Division CLERK U.S. DISTRICT COURT NOM"O!.K. VA MICHELE MOSLEY, Plaintiff, v> Civil Action No.2:llcv268 WELLS FARGO 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 Virginia Beach, a Motion ("Wells to Dismiss Fargo") collectively Motion has pursuant Samuel Wells Remand ("Plaintiff"). Court and with to filed by Defendants Fargo, filed Defendants' I. by Notice White, Wells jurisdiction 28 because U.S.C. § 1331 that provides guidelines pursuant 12 U.S.C. § 5201 federal N.A. and, well Michele claims (HAMP), loan modification that this Plaintiff's as a Mosley alleges over under the Home Affordable Modification Program program Bank, as Plaintiff Removal and ("Trustee" P.C. federal-question to Fargo "Defendants"), of Virginia, the matter arise a federal regulations and to the Emergency Economic Stabilization Act. et seq. Defendants' Motion to Dismiss argues that Plaintiff has because there violations of is § right Plaintiff's jurisdiction 59.1-200. of Motion asserted Consumer for relief action by for Remand to disputes Defendants alleged and the seeks arguing that her Complaint state-law contract and tort the Virginia prevent private the matter to state court, only alleges of no HAMP. federal-question remand of failed to allege plausible claims claims Protection Act and a violation ("VCPA"), Va. Code Ann. The Complaint also seeks a preliminary injunction to foreclosure. attorney's fees allegedly Plaintiff's for improper the Motion costs removal of to Remand associated this case with to also seeks Defendants' federal court. Although Defendants have requested a hearing on their Motion to Dismiss, after examining associated memoranda, the the Complaint, Court finds the that the contentions are adequately presented and oral aid decisional Loc. sua in the Civ. R. sponte 7 (J) . For DISMISSES jurisdiction, GRANTS process. the this Fed. reasons matter Plaintiff's this matter to the Circuit Court Virginia. R. set for Motion motions, Civ. P. lack and the legal argument would not forth to facts and 78{b); below, of E.D. the Va. Court subject-matter Remand, and REMANDS for the City of Virginia Beach, Plaintiff's request for attorney's fees is DENIED. I. FACTUAL AND PROCEDURAL HISTORY1 Plaintiff Michele Mosley owns Beach, Virginia. secured a $100,300 mortgage on losing her 5 15. I loan 13. job in 2008, On September from the property. Wells Id^ 1 her of 14. 10, Fargo As a land in Virginia 2007, in the result Plaintiff amount of of Plaintiff income significantly decreased. Id. Because Plaintiff was unable to make her mortgage payments from her Wells Compl. a tract decreased Fargo. ^d^ representatives income, 5 15. for she sought Plaintiff the next two a loan modification communicated with Wells years, receiving from Fargo inconsistent statements made by several different Wells Fargo representatives and achieving no progress 5 in obtaining a loan modification. Id. 16. In March Thompson, P.C. modification reviewing financial 2011, ("HJT") in the Plaintiff order terms situation, to to of hired the represent avoid law her in foreclosure. Plaintiff's firm Heath obtaining Id. mortgage HJT determined that of and SI a 21. J. loan After Plaintiff's Plaintiff qualified for 1 The facts recited here are drawn from the Plaintiff's Complaint and are assumed true for the purpose of deciding the motions currently before the Court. They are not to be considered factual findings for any purpose other than consideration of the pending motions. See Nemet y. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (MI]n evaluating a Rule 12(b)(6) motion to Chevrolet, Ltd. (4th Cir. 2009) 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."). a HAMP modification. Id^ 31 22. On March 11, 2011, HJT complete loan modification application to Wells Fargo, denied six days later. Fargo representative loan modification Id^ OT "Justin" to be Fargo representative would have to removed April from 20, loss 2011, application. Id. Plaintiff's loan but a 27, 2011. mitigation SI sent 27. date filed her 2011, Wells in On April 14, Plaintiff 2011, that she was since her file 2011. 9, Id. f another the was effect 26. On loan modification Complaint application Complaint of Virginia. Virginia Beach, Wells estoppel, Fargo, negligence, modify Plaintiff's May 16, 2011, for was being filed, reviewed, Wednesday, the because Plaintiff that breach Court Id. Defendants has to a April preliminary of for the City several contract, the VCPA. this Id. filed Court. claims Slfl 30-84. contract to SI5 85-86. a Notice Docket No. subject-matter Plaintiff's claims promissory the Trustee breached its first mortgage. 2011, sought asserted and a violation of which removed the matter that and in the Circuit Court including Plaintiff also alleges matter April time remained 21, claim 25. informed Fargo the injunction on April On 17, which was Id^ 1 29. Plaintiff against on Wells At 51 application modification foreclosure Id. wToni" another HJT On March a informed HJT that he requested the reopened. Wells send 23-24. sent of 1. Defendants jurisdiction implicate Removal, over this substantial questions of federal Constitution, laws, to § 28 U.S.C. filed on No. 4. on the June In case Notice day a 2011. to Remand 28 U.S.C. federal § court 1447. Court Removal a to 6. On to Law action. the Motion 16, state in to 2011, also Docket Dismiss Plaintiff court. Support the pursuant Defendants this June action of on under States" 2. Dismiss requests Docket No. must United that Defendants and II. The this "aris[e] the hearing No. Memorandum Plaintiff argues to Motion Docket thus of of requested a Plaintiff's Remand, and treaties 1331. same filed a Motion 7. or Defendants 15, law, Docket No. of Motion to improperly removed this attorney's fees pursuant to 8. STANDARD OF first REVIEW determine whether it has federal- question jurisdiction over the claims at issue.2 Federal-question jurisdiction exists in this case pursuant to 28 U.S.C. Plaintiff's laws, or claims treaties federal-question cause of are of ones "arising the United jurisdiction action implicating [complaint] that construction or the application States." can be federal right of under 28 relief [federal 2 Defendants do not allege jurisdiction as a ground of federal U.S.C. § 1332, and thus, the Court federal-question jurisdiction exists. "it § over 1331. a depends Such state-law * appears law].'" 1331 if Constitution, U.S.C. exercised law if to the § from the upon Grable & the Sons diversity of citizenship jurisdiction pursuant to 28 will only consider whether Metal Prods, v. Darue (quoting Smith v. 199 (1921)). the claims Eng'g Kansas & jurisdiction issue, over the the 545 U.S. City Title & Trust If the Court has at Mfg., 308, Co., 313 (2005) 255 U.S. 180, federal-question jurisdiction over Court may state-law also aspects exercise of supplemental Plaintiff's claims pursuant to 28 U.S.C. § 1367 when they "are so related to claims in such the part of action the within same case or original controversy United States Constitution." n[W]hen a federal matter jurisdiction, entirety." Arbaugh This principle is of Civil at jurisdiction, P. 12(h)(3). that matter Y court Moreover, is must jurisdiction proper on of the Compagnie des ("questions Corp. , 546 that parties. de Moore, concerning 129 III form of the and, own 500, of 514 (2006). the Federal Rules *[i]f lacks the subject- the court subject-matter action." Fed. R. an independent duty to if there must Ins. Corp. Guinee, 456 728, subject-matter is a "raise motion," F.3d lacks the complaint in its that it dismiss it U.S. provides exists, its Bauxites v. that a court has jurisdiction Plyler H time positions accord & which any the such concludes they 1367. the court must dismiss v. that Article § embodied in Rule 12 (h) (3) jurisdiction whether under 28 U.S.C. court Procedure, determines jurisdiction lack without of of n.6 694, (4th ensure as to subject- regard to the Ltd. Ireland, U.S. 731 question Civ. v. 702 Cir. (1982); 1997) jurisdiction may be raised at any time by (citing North Cir. either Carolina 1990)); UTrue, 688, 689 (E.D. appears Va. the sua sponte Ivory, v. or 906 F.2d Inc. v. Page One Sci., 2006) confront and address it party ("federal lacks (quoting Lovern v. Edwards, This reiterated principle 1447, is in jurisdiction, Supp. 2d obligated sua sponte 654 paragraph (4th to 'whenever jurisdiction'") (4th Cir. (c) of 28 1999)). U.S.C. § that the district court lacks subject matter the case shall be remanded." 28 U.S.C. III. As noted federal court jurisdiction 2. state law Mot. is allegations Remand 4. Defs.' Br. in the HAMP On the removed ground of this case § 1331. Notice in response that "federal because Plaintiff's contracts theories and of instant guideline Opp'n PL's Mot. case is tort, Remand 8. as state rely Mem. allege to on potential PL's Defendants Removal question not attempting violations of claims liability." the other hand, to federal-question U.S.C. of law have 28 improper federal of to argues theories Plaintiff on § 1447(c). DISCUSSION Defendants solely Plaintiff alternative Supp. above, pursuant jurisdiction the n.l 457 F. are matter 190 F.3d 648, 1000 court") which further provides that "[i]f at any time before final judgment it appears 5 courts subject [the] 999, Inc., jurisdictional defects court by Law "that recast law her claims." As a whether threshold it Although has the procedures and the only mere its state-law breach to federal-question create matter. 28 U.S.C. To the of to fully manner important private right of relief be cannot because HAMP against Freddie 1, ("Courts that borrowers Mortg., (E.D. HAMP Federal to 11, in is the to Court and claims HAMP reasons, concludes guidelines not in sufficient jurisdiction private over J.P. LEXIS lenders 2010 2010) have this of at ("The these right LEXIS applicable 8 it is creates HAMP for claims borrowers Bank, (E.D. on action Pennington 143157, statute, 12 at to No. Va. claims of a that authority Chase *9-10 private Dist. for action servicers."); U.S. HAMP compliance rejected a HAMP, affect uniformly held Morgan 35507, create and whether plaintiffs delegated v. allegations involve of cause universally not that courts private Dist. 2:10cv361, Aug. claims the complaint's discussion instead does against No. Va. U.S. a cases Bourdelais 2011 ground a no but 3:10cv670, tort matter. following procedures and how granted created Mac. 2011) with action. lenders, decisions, this refers the subject-matter addressing start for considers 1331. understand of to § over frequently HAMP contract sponte state-law However, prior reference sua jurisdiction also guidelines. with Court alleges Complaint consistent that the subject-matter Plaintiff Complaint, and matter, v. Apr. the for PNC *10-ll U.S.C. § 5229, does against those the not expressly participating aggrieved by Secretary private right coupled with Mac, separate actions the of cause of of of that private of action it allows the Treasury Department . . the . The Congress creation Secretary enforcement action right Instead, servicers. against delegation implies a Treasury. action the strongly mortgage the of create did of the authority not against of intend to sue this Treasury, to to Freddie create participating a mortgage servicers." ) . The Court's absence of analysis of such a private is For that violations in cases of federal-question the claims claim upon which No. (E.D. Va. cases that Mar. can 2:10cv623, 31, Rule 2011) . be 2011 12 (b) (6) granted. However, state-law breach of that merely reference HAMP guidelines has consistently matter held jurisdiction Servicing Co., No. that over it lacks such 2:llcv99, slip for of action for and failure See dismissed to Fowler LEXIS v. 8 {E.D. v. Va. *4 removed this federal-question at at tort and procedures, a Aurora with and Asbury state 73344, presented contract claims. op. allegations. inferred the existence Dist. when the in different ways jurisdiction U.S. impacts complaint's this Court has of relief allege action directly allege causes subject-matter the basis Loans, Home included in a of HAMP itself, on of allegedly deficient claims depending on how HAMP example, right claims Court subject- America's July 13, 2011) (finding HAMP, that and congressional exercising federal Bank, No. (finding claims "that does law does Dist. slip not op. of create would jurisdiction to relief depend private *7 Paine v. right law, (E.D. been July for state-law action"); Supp. 2d July 1, 2011) for 2011) resolution of lack citizenship of a federal see , of Fargo 12, the F. of under Wells particularly where dismissed diversity Va. on right Va. exists frustrated by this Court (E.D. federal a at have had action 11 Litton Loan Servicing, 71756, of at necessarily question LEXIS matter cause intent would be Plaintiffs' not Sherman v. private question jurisdiction"); 2:llcv89, substantial the "no also 2011 U.S. (noting that subject-matter not provided an alternate jurisdictional basis). Plaintiff's removed state-law contract not a federal Plaintiff's procedures, HAMP is words, not of and tort Complaint and does cause Plaintiff's necessarily law, cause merely not of federal-question federal claims HAMP violation violation no state-court right depend Complaint and a violation of of action. references attempt action, to the Court on relief for resolution particularly where 10 the VCPA, of a federal because guidelines directly concludes a federal there In other state-law claims substantial law does and that jurisdiction. the alleges Therefore, HAMP allege subject-matter to only not does question create a private of U.S. 804, 808 In 478 right action. light of the jurisdiction Court does not Court's over reach 12(b)(6) Motion Instead, the pursuant to to in her fees, 1447(c). The "should turn Franklin unusual 1447(c) of turns for the Thomas, subject- matter, Defendants' to state there the Rule a is claim. to Motion Plaintiff's a "An Remand no federal mere references for attorney's result the for objectively reasonable 546 courts of dismissed may seeking courts cases of U.S. the award removal. within 11 fees an should Fourth be § fees v. ("Absent under § objectively Conversely, substantially U.S.C. Martin (2005) lacked fees the 28 removal." 141 may including attorney's attorney's party case expenses, of 132, exists, the the removal." payment removing basis remanding and any actual requiring Corp., FEES request order reasonableness where district on Plaintiff's costs basis repeatedly to just reasonable Although failure FOR ATTORNEY'S Remand. circumstances, only v. lacks this regarding because to test Capital in 1447(c), § it Plaintiff's incurred as on that grant REQUEST now require payment Inc. and procedures. Motion attorney for jurisdiction based Court Pharm. claims decision will IV. fees Plaintiff's a U.S.C. to HAMP guidelines The Dow conclusion Dismiss Court 28 Merrell (1986) . matter subject-matter See when an denied."). Circuit identical to have the instant one-many Thompson, Circuit may filed by Plaintiff's P.C.-the United States has not properly yet be removed state-law claims guidelines invoke Therefore, in addressed to Court the absence of removal cannot said objectively Muro Pharm., be Inc., 886 (denying plaintiff's of a case issue the but to the issue). F. court Fourth court Consequently, 535, and not Plaintiff's the Fourth such cases theory that and jurisdiction. precedent case to See for courts this the Court Va. the v. 1995) removal had decided an issued request to Kluksdahl (E.D. fees yet J. procedures 540 district had the HAMP instant costs when Circuit on unreasonable. for for subject-matter the Supp. request federal of Heath whether controlling Defendants' to of referencing contrary, be issue federal-question the of Appeals federal merely counsel, a decision for on attorney's fees will be denied. V. For DISMISSES the reasons this matter GRANTS Plaintiff's matter to Virginia. attorney's the stated for Motion Circuit Additionally, CONCLUSION above, lack to Court of the subject-matter Remand, and for City the Court fees. 12 Court the DENIES hereby of sua sponte jurisdiction, REMANDS Virginia Plaintiff's this Beach, request for The Clerk is DIRECTED to send a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED. Mark S. Davis United States District Judge Norfolk, August 4, Virginia 2011 13
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