-TEM Brown et al v. Wells Fargo Bank, N.A. et al, No. 2:2011cv00309 - 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 Plaintiffs' Motion to Remand, and hereby REMANDS this matter to the Circuit Court for the City of Chesapeake,Virginia. The Court DENIES Plaintiffs' request for attorney's fees. Entered and filed 11/15/11. (Signed by District Judge Mark S. Davis on 11/15/11). Certified copy mailed to Clerk, Chesapeake Circuit Court, on 11/16/11.(ecav, )
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGIN! «^= Norfolk Division NATHAN BROWN, and TRACIE BROWN, Plaintiffs, Civil Action No.2:llcv309 V. 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 the Circuit Court to Dismiss ("Wells filed Fargo") (collectively, the "Plaintiffs"). this that that matter by the and Defendants, Samuel "Defendants"), Plaintiffs, alleges for the City of Chesapeake, Nathan The this Notice Court pursuant Plaintiffs' Brown to claims of has 28 and a Wells Fargo P.C. ("SIWPC") Remand filed Motion Tracie Removal, to Brown filed federal-question U.S.C. arise a Motion White, I and Virginia, from § 1331. under the Bank, N.A. by (collectively, by Defendants, jurisdiction Defendants Home over allege Affordable Modification federal the plausible claims for only and moved "negligence" Court REMANDS request in since the sponte DISMISSES this GRANTS matter Virginia. to this for attorney's to no private Plaintiffs on the matter the as for Court a allege right of basis for they contract" and forth lack to Court et that set Motion 5201 to challenged ground of reasons Circuit However, failed is Plaintiffs' the § "breach the pursuant U.S.C. Defendants of provides 12 HAMP. For which have there matter claims matter. jurisdiction, Act. asserted by remand this of program and guidelines Plaintiffs violations state-law sua Chesapeake, that relief to federal regulations jurisdiction alleged matter for a Stabilization argue alleged federal removal the Economic Defendants action ("HAMP"), loan modification Emergency seq. the Program of below, subject- Remand, for DENIES the and City Plaintiffs' fees. I. FACTUAL AND PROCEDURAL HISTORY1 Plaintiffs Compl. I 13. own a tract of On February 11, land 2009, in Chesapeake, Plaintiffs Virginia. received a first 'The facts recited here are drawn from Plaintiffs' 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. Consumeraf fairs. com, (w[I]n evaluating a See Inc., 591 Rule Ltd. v. Cir. 2009) 12{b)(6) motion to dismiss, a court as true and construes these facts in favorable to the plaintiff in weighing the legal accepts all well-pled facts the light most Nemet Chevrolet, F.3d 250, 255 (4th sufficiency of the complaint."). mortgage loan Compl. 14. I Thompson, from On P.C. modification order and 24, to to in the 2010, represent avoid asked "Pam", HJT to them appropriate September 27, fax that Wells Plaintiffs Fargo were the not financial Compl. informed HJT that of 51 same received in the day. were Plaintiffs affordability, denied but she Compl. 1 "Kathy" for 29, On to the 18. On confirmed but stated active 2010, loss "Sherry" the HAMP program encouraged f 21. 16. HJT faxed Compl. for loan for the HAMP S[ 17. system September St a J. data with Wells documents, On Heath documents Compl. the computer 19. resubmit an application. hired Compl. appropriate the $262,515. obtaining Fargo representative had mitigation. because on Wells of who approved Plaintiffs documents 2010, in foreclosure. Wells Fargo Loss Mitigation Department. the amount Plaintiffs HJT reviewed Plaintiffs' Fargo representative program Fargo September ("HJT") in the same day, Wells Plaintiffs to HJT reviewed Plaintiffs' financial data with "Justin" and re-faxed the loan modification application. On September 30, Compl. representative "Mike" f 22. informed October HJT 20, that 2010, the Compl. Wells loan on October 27, f 23. Fargo representative modification denied and to submit another one. "Justin" Wells Fargo informed HJT that the foreclosure sale had been postponed indefinitely. On 2010, 2010, Compl. regarding application g[ 24. the "Evelia" had been HJT spoke with loan modification denial; "Justin" said affordability. using old another Compl. financial loan Compl. ff day. On HJT 29, that 2010, Plaintiffs any notification. Compl. foreclosure date i sale 34. HJT "Jacob", who Special ij of the Fargo informed 35-37. 5 33. had HJT Plan, On had 2010. Wells Fargo sale and file. on December had informed Compl. the g[g[ "Alan" following 29, 2010, denied set for for December a loan he 7, would would 2010, 14, financial Plaintiffs Wells "Jacob" informed HJT that a new Plaintiffs' which December been "Jacob" been that representative qualify process HJT 2010. data with for that learned a day. that the Compl. 5 39. Fargo representative informed HJT that a foreclosure sale date of January 19, had been set, sent 27, representative faxed was but Plaintiffs never received foreclosure date had been postponed. On October from HJT, Fargo 2010, reviewed Forbearance Compl. they foreclosure HJT Wells modification on November 15, Compl. and 2010, charge which Fargo the that Wells paystubs, Wells of 311 31-32. November informed 2010, because 1, documents in that on November HJT denied calculations, application was 8, were learned their told Hudson" updated Compl. for requested more On November requested HJT On "Taylor" "James 28-29. 25. data 25-27. been postponed, that 5 Plaintiffs modification representative HJT that and Wells Fargo was reviewing Plaintiffs' "Lena" 2011, loan for possible "Alan" modification. told HJT modification Compl. I that payments On February 41. were Plaintiffs would loan. denied be its filed to 7, a caused January approved on for months 2011, a 13, informed modification twelve 20, February "Alan" HAMP complaint 2011, 2011. HJT because behind loan on that the their Plaintiffs modify severe and sought a preliminary in the Circuit Court for the City of allege Wells Plaintiffs' negligently processed Plaintiffs' which been 2011, than a Virginia. contract had On $ 43. injunction on May 11, Chesapeake, 40. beginning for more Compl. Plaintiffs 1 Plaintiffs with Plaintiffs original Compl. harm to first Fargo breached mortgage and HAMP modification application, Plaintiffs. Compl. 53 44-64. Plaintiffs also allege that SIWPC acted negligently in following through with an improper established between Plaintiffs' mortgage. On June 1, foreclosure Wells Fargo Compl. 2011, and breached the contract and Plaintiffs to modify flf 65-70. Defendants filed which removed the action to this Court. a Notice of Removal, Defendants claim that this Court has jurisdiction over the matter since the outcome of Plaintiffs' claims questions federal also of allege that Constitution, laws, will require law. Notice this or case treaties is of resolution of Removal one of f substantial 2. Defendants "arising under the United States" the pursuant to 28 U.S.C. filed a 22, 1331. Motion 2011, state § to Id. Dismiss Plaintiffs court. Docket No. Court question this filed must a over the jurisdiction exists § if U.S.C. § laws, 1331. exercised over law if relief «it U.S. Co., 255 question also upon Grable & 308, 313 Sons Remand whether 4. On this are treaties at 180, the has Metal the of United federal- to 28 action Prods, v. the supplemental States." so related to claims in can implicating that the 28 be federal right to [federal Darue Eng'g & Mfg., the at jurisdiction claims pursuant the 545 Kansas City Title & Trust if claims U.S.C. under jurisdiction [complaint] (1921)). over they to Federal- "arising federal-question 199 Plaintiffs' June action issue.2 ones of cause it case pursuant (quoting Smith v. aspects of "are No. also REVIEW this from jurisdiction exercise Defendants the construction or application of (2005) U.S. in state-law 'appears depends law].'" or Such a to claims claims Plaintiffs' Constitution, Motion day, Docket determine question 1331 same action. STANDARD OF first jurisdiction the 6. II. The On Court federal- issue, the Court over the state-law to 28 the has U.S.C. action § may 1367 when within such 2 Defendants do not allege diversity of citizenship jurisdiction as a 1332, ground and of thus, federal the jurisdiction Court will question jurisdiction exists. only pursuant consider to 28 whether U.S.C. § federal- original jurisdiction controversy under Constitution." n[W]hen a they Article 28 U.S.C. federal matter jurisdiction, entirety." that § form part III of of the court Procedure, determines at jurisdiction, P. Y & concludes H Corp., that 546 which time any provides that Moreover, ensure that as whether to a jurisdiction subject-matter such court Accord jurisdiction jurisdiction des (tt[Q]uestions at court.") on U.S. any de Moore, 1990)); 2d 688, it 689 States lacks 500, subject- by party (E.D. Inc. Va. v. 2006) Fed. R. Civ. there question must 731 is a "raise lack without of Ireland, U.S. Ivory, court duty Corp. or the independent if subject-matter (2006). subject-matter own motion," F.3d 728, either UTrue, an 456 514 '[i]f lacks and, Ins. Guinee, 129 concerning time or of the Federal Rules exists, its (citing North Carolina v. (4th Cir. Supp. Bauxites Plyler v. raised it that has is proper to the positions of the parties. Compagnie United the court must dismiss the action." 12 (h) (3). case the court must dismiss the complaint in its Arbaugh v. Civil same 1367. This principle is embodied in Rule 12(h)(3) of the 694, n.6 (1982). Sci., (stating that 1997) may by 906 F.2d 999, Page One Ltd. v. (4th Cir. sponte of regard 702 jurisdiction sua to Inc., be [the] 1000 n.l 457 F. "federal courts are obligated to confront and address jurisdictional defects sua sponte 'whenever it appears the court lacks subject matter jurisdiction'") (4th Cir. of 28 time 1999)). U.S.C. before lacks (quoting § 1447, final § which judgment it above, court 2. Plaintiffs jurisdiction state law is provides any that that the case "[i]f at district shall allege the in their be court remanded." of Defs.' Br. Notice guideline on potential Pis.' case Removal rely not On the other hand, in Opp'n to to question claims liability." HAMP of "federal tort, instant case federal-question that and the of this Plaintiffs' to Remand 5. in of 1331. response contracts allegations state law claims." § because Plaintiffs removed ground U.S.C. law theories of Mot. have the 28 of federal "that to improper Law in Supp. recast 654 DISCUSSION on argue theories alternative to 648, (c) the Defendants solely jurisdiction pursuant f F.3d reiterated in paragraph appears jurisdiction, 190 1447{c). noted federal Edwards, further III. As v. This principle is subject matter 28 U.S.C. Lovern Mem. of Defendants are attempting violations Pl.'s Mot. as to Remand 8. As whether a threshold it Although Complaint, procedures has the subject-matter Plaintiffs the matter, only Complaint and guidelines. Court sua jurisdiction allege also over state-law frequently However, 8 sponte for the considers this claims refers matter. in to the HAMP following reasons, and consistent that the with mere its prior reference state-law breach to federal-question create matter. 28 U.S.C. To the fully manner important claims with of cannot be HAMP authority to 11-11091, 2011 ("We at Chase Mac. . *9-10 these Bank, {E.D. . claims on to of whether 11 § (E.D. 5229, against No. Va. does 1, have not this private instead delegated 22255, nothing at of *4 2011) 11, that 2010) U.S. ("Courts HAMP does Dist. action or mortgage a in HAMP J.P. 35507, rejected a private Pennington v. LEXIS 143157, at *10- 12 U.S.C. right of action Instead, it allows private servicers. for 31, universally ("The applicable statute, create HAMP Oct. LEXIS create held No. Bourdelais v. not a N.A., implied Dist. is compliance America, and servicers."); 2010 U.S. expressly participating 2011 of for {11th Cir. express it creates plaintiffs but Bank affect uniformly cause lenders 2:10cv361, Aug. over HAMP private LEXIS ground right of action against PNC Mortg., in sufficient HAMP, no 3:10cv670, Apr. the not involve courts Nelson v. that No. Va. guidelines allegations gives borrowers a private right of action."); Morgan is concludes jurisdiction that Federal granted App. . Court and claims complaint's discussion created Freddie agree a lenders, U.S. a cases action. against tort subject-matter how start borrowers procedures and addressing because the 1331. to relief 2011) § understand of HAMP contract right private that of to decisions, those the aggrieved by Secretary right of with of the action the the actions Treasury against delegation strongly implies separate cause the of that of of the .... Treasury Department The creation Secretary enforcement Congress action of the not against this to coupled Freddie intend to sue private Treasury, authority did of to Mac, create participating a mortgage servicers."). The Court's absence of analysis of such a private allegedly deficient depending on how HAMP is For that example, violations in cases federal-question the claims claim on upon which No. {E.D. Va. cases Mar. that can be a 2011). breach consistently matter Bank, Va. held jurisdiction N.A., No. August 5, 2:llcv99, 2011 that over U.S. of U.S. LEXIS 10 action and for See dismissed to Fowler LEXIS state a v. Aurora 73344, and tort and procedures, Dist. v. of failure contract at *4 Ellis LEXIS Am.'s 87552, at v. 86587, subject- Wells Fargo at (E.D. Servicing *9-10 claims this Court federal-question claims. Asbury Dist. for Dist. lacks such 2:llcvl51, 2011); it allegations. when presented with removed that merely reference HAMP guidelines has the inferred the existence granted. However, state-law causes jurisdiction U.S. impacts in different ways complaint's 12 (b) (6) 2011 action claims this Court has 2:10cv623, allege of directly allege of Rule relief 31, in subject-matter the basis Loans, Home included of HAMP itself, of right (E.D. *4 Co., No. Va. July 13, 2011) HAMP, (finding that and congressional exercising federal Bank, 2:llcv89, No. Va. July for 12, the particularly where action"); 2:10cv567, of see 2011 Dist. "that federal U.S. law Dist. Paine v. LEXIS 83016, LEXIS Court Wells Fargo at not 71756, a Loan at *7 to jurisdiction had diversity relief depend on law, private right Servicing, {E.D. Va. the matter would have been dismissed subject-matter {E.D. federal create Litton *12 right of under this necessarily question v. exists frustrated by not does Sherman action Plaintiffs' does substantial also (noting that U.S. claims a of jurisdiction"); (finding state-law of 2011) 2011 2011) cause intent would be question resolution of "no private of No. July for 1, lack citizenship not provided an alternate jurisdictional basis). Plaintiffs' removed state-law contract cause of merely references and tort action. attempt to action, the state-court claims, Therefore, HAMP directly Court concludes subject-matter jurisdiction. to the a on relief for resolution of particularly where a and federal that In state-law not HAMP law does does is not question not only and violation no alleges HAMP violation Plaintiffs' other words, claims 11 federal procedures, there substantial federal a because guidelines allege Complaint Complaint does not cause of federal-question Plaintiffs' necessarily of create right depend federal law, a private right of action. 808 See Merrell Dow Pharm. Inc. v. Thomas, 478 U.S. 804, (1986). In matter Court light of the jurisdiction does not Court's over reach 12(b)(6) Motion Instead, the pursuant to to a that claims decision will U.S.C. subject-matter Plaintiffs' Dismiss Court 28 conclusion in regarding for failure because subject- matter, Defendants' Plaintiffs' 1447(c), lacks this to grant § it state jurisdiction based on Plaintiffs' Rule a is claim. to Motion there the Remand no federal mere references to HAMP guidelines and procedures. IV. The fees may Court in their require including 28 attorney's removal." (2005) now turns Motion § fees ("Absent of just fees, v. The unusual lacked objectively when under an should be denied."). Circuit have § costs on order a result the only reasonable dismissed basis 12 of removal." the payment U.S. courts the for reasonable case expenses, 546 where cases the reasonableness Corp., Although district attorney's actual requiring circumstances, 1447(c) for remanding any for Capital objectively repeatedly request and as test turn Franklin fees "An incurred "should attorney's Conversely, Plaintiffs' Remand. 1447(c). Martin an to to payment attorney U.S.C. REQUEST FOR ATTORNEY'S FEES of the 132, 141 may removing seeking basis of award party removal. exists, fees courts within the Fourth substantially identical to the instant Thompson, Circuit may one-many Plaintiffs' counsel, P.C.-the United States Court of Appeals has not properly yet be addressed removed state-law claims guidelines invoke Therefore, in contrary, filed by to merely the federal absence Defendants' of court referencing federal-question the issue of removal of for the Fourth whether on the that and jurisdiction. precedent instant cases theory subject-matter the such procedures HAMP controlling Heath J. case to to this the Court cannot be said to be objectively unreasonable. See Kluksdahl v. Muro (E.D. Pharm., Inc., 886 F. Supp. 535, 540 (denying plaintiff's request for costs and fees Va. 1995) for the removal of a case to a federal court when district courts had decided an issue but the the Fourth Circuit had not yet issue). Consequently, Plaintiffs' issued a decision on request for attorney's fees will be denied. V. For the DISMISSES reasons this matter GRANTS Plaintiffs' matter to Virginia. the stated for Circuit The Clerk above, lack of Motion Additionally, for attorney's CONCLUSION Court subject-matter to Remand, Court for the Court the and the DENIES hereby City of sua sponte jurisdiction, REMANDS this Chesapeake, Plaintiffs' request fees. is DIRECTED to send a copy of Order to all counsel of record. 13 this Opinion and IT IS SO ORDERED. /s/ Mark S. UNITED STATES Norfolk, November Virginia 15 . 2Oil 14 Davis DISTRICT JUDGE
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