United States District Court, E.D. Virginia
DARLENE J. DAVIS, Plaintiff,
SPECIALIZED LOAN SERVICING LLC, et al., Defendants.
E. Payne, Senior United States District Judge.
matter is before the Court on Darlene Davis'
("Davis") letter requesting remand to Spotsylvania
Circuit Court ("the Remand Request") (ECF No. 22);
the MOTION TO DISMISS AMENDED COMPLAINT filed by Specialized
Loan Servicing, LLC ("SLS") and The Bank of New
York Mellon, f/k/a The Bank of New York PBNY Mellon")
(ECF No. 3); the MOTION TO DISMISS filed by America's
Servicing Company ("ASC") and Wells Fargo Bank,
N.A. ("Wells Fargo") (ECF No. 13); and DEFENDANT
EMC MORTGAGE LLC F/K/A EMC MORTGAGE CORPORATION'S MOTION
TO DISMISS TO PLAINTIFF'S AMENDED COMPLAINT (ECF No. 20)
. For the reasons set forth below, the Remand Request will be
denied, and all three motions to dismiss will be granted, but
with leave for Davis to file a Second Amended Complaint.
case is essentially a title dispute between Davis and several
entities regarding real property owned by Davis at 5910
Chadwick Court in Fredericksburg, Virginia ("the
Property"). See Am. Compl. (ECF No. 1-2) at 1.
On or around December 2, 2004, Davis obtained a purchase
money mortgage loan from Union Federal Bank of Indianapolis.
See id. at 2; Note (ECF No. 14-1) at 1. Her Note was
secured by a deed of trust on the Property ("the Deed of
Trust"). See Deed of Trust (ECF No.
14-2). Then, on December 9, 2004, Union Federal
assigned the Deed of Trust to EMC Mortgage, LLC
("EMC") and JPMorgan Chase Bank. ECF No. 4-2 at 1;
ECF No. 14-3 at 1; see also ECF No. 4-3 at 2. At
some point, Davis' loan was "assigned" to
Waterfield Mortgage Company, to which Davis made monthly
payments until April 2006.Around that time, ASC notified Davis
that it would become her loan servicer. Davis subsequently
paid ASC on a monthly basis. Am. Compl. at 2.
chain of events after ASC began servicing the mortgage is
murky. In December 2010, Davis filed a Chapter 13 bankruptcy
petition. Id.; see generally In re Darlene
Jarvis Davis, Docket No. 3:10-bk-38727. SLS and BNY
Mellon assert that the Property was at that time encumbered
by two deeds of trust. The second mortgage was later stripped
off in an adversary proceeding because it was wholly
unsecured, but the Deed of Trust was not implicated in that
proceeding. SLS & BNY Mellon Mem. (ECF No. 4) at 3;
see generally Davis v. U.S. Bank, N.A., et al.,
Docket No. 3:12-ap-3083. While the Chapter 13 proceedings
were pending, ASC allegedly refused Davis' repeated
requests to modify the loan and engaged in dual tracking, and
both ASC and Wells Fargo committed some unidentified mortgage
fraud against her. In January 2012, Wells Fargo-which appears
to control ASC-filed some document in the Chapter 13 action
that "created a cloud on the title and cause[d] a fraud
on the court." Am. Compl. at 2-3. Around that same time,
EMC assigned the Deed of Trust to BNY Mellon. See ECF Nos.
2016, BNY Mellon unsuccessfully sought to be added as a
creditor in the Chapter 13 proceeding. See Am.
Compl. at 4. Davis then obtained a Chapter 13 discharge.
See id. at 2-3. Following that result, on or around
September 19, 2016, ASC notified Davis that her loan
servicing was being transferred to SLS. Id. at 3;
see also ECF No. 14-5. Although SLS was initially
unresponsive to Davis' communications, she soon began
paying it. However, Davis continued to receive SLS' bills
and, eventually, foreclosure letters. She has now run out of
money and has ceased her payments. Am. Compl. at 4.
Consequently, SLS is attempting to foreclose on the Property.
See id. at 1-2.
filed a Complaint in Spotsylvania Circuit Court on September
29, 2017, see ECF No. 1-1, and filed an Amended
Complaint on October 10. See Am. Compl. Neither
spells out any particular claims, but the gravamen of the
dispute appears to be the fraud committed by ASC, Wells
Fargo, and SLS, which Davis alleges invalidates both the 2012
assignment of the Deed of Trust to BNY Mellon and the 2016
servicing transfer to SLS. See, e.g., id.
at 4 ("The transfer is invalid as it was p[ro] cured
under fraud by fraud."); id. ("[S]ince ASC
and [W]ells were illegal, how where [sic] they transferring
anything. This is fraudulent misrepresentation, unfair . . .
practices, violations of FDCP[A] and bankruptcy laws, UCC
code . . . ."); id. at 5 ("The assignment
is improper . . . and creates a cloud on title and is
invalid."); id. at 6 ("[T]here is no
contract with SLS as it was a fraudulent transfer."). To
address these harms, Davis requests that the Court do several
things: (1) "remove [SLS'] invalid/fraudulent lien
on title and any other liens if they are there"; (2)
grant a declaratory judgment that Davis is the sole owner of
the Property; (3) order that the Note be returned to Davis
"or deemed void if necessary to clear title"; (4)
enjoin Defendants from foreclosing or attempting to foreclose
on the Property; (5) enjoin Defendants from inspecting the
Property or "coming up onto [it] on a regular
basis''; and (6) enjoin Defendants from violating the
FDCPA or "billing for an invalid debt."
Id. at 5, 7. She also seeks an undefined amount of
damages for her payments to ASC. See id. at 7.
did not serve Defendants with a copy of the Complaint or
Amended Complaint until November 1, 2017 at the earliest.
See ECF No. 1-5. On November 28, SLS and BNY Mellon
timely removed the case to this Court on diversity
jurisdiction grounds. Notice of Removal (ECF No. 1) ¶ 5;
see also 28 U.S.C. § 1446(b)(1). Davis then
filed multiple letters on December 20 and 21, stating that
the case had been improperly removed and objecting to the
Court's exercise of diversity jurisdiction. See
ECF Nos. 8, 10. However, she did not formalize her Remand
Request until February 13, 2018. See ECF No. 22.
Before that date or shortly thereafter, all defendants moved
under Rule 12(b)(6) to dismiss the Amended Complaint with
may remove "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction ... to the district court of the United States
for the district and division embracing the place where such
action is pending." 28 U.S.C. § 1441(a). If such
jurisdiction exists, the defendant or defendants seeking
removal must file a notice of removal in federal court within
30 days of being served with the complaint. Id.
§ 1446 (a) - (b) (1) . However, consistent with the
so-called "rule of unanimity," "all defendants
who have been properly joined and served must join in or
consent to the removal of the action." Id.
§ 1446(b) (2) (A); see also Hartford Fire Ins. Co.
v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th
Cir. 2013); Mayo v. Bd. of Educ. of Prince George's
Cty., 713 F.3d 735, 741 (4th Cir. 2013). Once the action
has been removed, any motion for remand to state court must
be made within 30 days of the filing of the notice of removal
if the basis of the motion is "any defect other than
lack of subject matter jurisdiction," including failure
to comply with the unanimity requirement. 28 U.S.C. §
1447(c); see also Payne ex rel. Estate of Calzada v.
Brake, 439 F.3d 198, 203-04 (4th Cir. 2006).
Court clearly has subject matter jurisdiction over this
dispute. Section 1332 gives this Court jurisdiction if the
matter in controversy is greater than $75, 000 and the
parties are completely diverse-"meaning a plaintiff
cannot be a citizen of the same state as any defendant."
Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th
Cir. 2015); see also 28 U.S.C. § 1332(a). Davis
is a resident of Virginia, and Defendants are corporations
which reside in states other than Virginia. See Am.
Compl. at 1; Notice of Removal ¶ 6. Davis claims that
"this is not a complete diversity case," but she
points to no evidence contradicting the allegations in her
own Amended Complaint that establish complete diversity. ECF
addition, the amount in controversy exceeds $75, 000. Davis
does not seek any specific amount of damages. However,
"[i]n actions seeking declaratory or injunctive relief,
. . . the amount in controversy is measured by the value of
the object of the litigation." Hunt v. Wash. State
Apple Advert. Comm'n, 432 U.S. 333, 347 (1977);
see also Dixon v. Edwards, 290 F.3d 699, 710 (4th
Cir. 2002). Here, among other equitable remedies, Davis seeks
to extinguish SLS and BNY Mellon's mortgage lien on the
Property. The Deed of Trust originally secured a loan value
of $196, 000, Deed of Trust at 1-2, and Davis still owes SLS
and BNY Mellon a balance of $144, 219.53 on the Note,
see ECF No. 11-2 at 2. Those entities would not be
entitled to those funds if Davis obtained her requested
relief. Thus, the amount in controversy is well above $75,
000, and both requirements for diversity jurisdiction are met
SLS and BNY Mellon's removal may have been procedurally
improper. As noted, in cases with multiple defendants, the
rule of unanimity requires all defendants to join in or
consent to removal. See Hartford Fire Ins., 736 F.3d
at 259. The rule obligates each defendant to "register
to the Court its official and unambiguous consent to a
removal petition filed by a co-defendant." Creed v.
Virginia, 596 F.Supp.2d 930, 934 (E.D. Va. 2009)
(internal quotations omitted). Defendants typically satisfy
this demand by filing a single notice of removal, signed by
the attorney for one defendant, which states that the other
defendants consent to removal. See Mayo, 713 F.3d at
742. SLS and BNY Mellon's Notice of Removal does not