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Gould v. Wells Fargo Bank, National Association

United States District Court, E.D. Virginia, Richmond Division

July 20, 2018

GEORGE A. GOULD, Plaintiff,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, et al, Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the plaintiffs motion to remand this case to state court. (Dk. No. 13.) The plaintiff, George Gould, sued the defendants, Wells Fargo Bank, National Association ("Wells Fargo") and the Professional Foreclosure Corporation of Virginia ("PFC"), in Richmond City Circuit Court. Gould alleges two counts: (1) breach of the deed of trust against Wells Fargo and (2) breach of fiduciary duty against PFC. Wells Fargo, with PFC's consent, removed the case to this Court based on federal question jurisdiction, and Gould moved to remand. Because the Court lacks jurisdiction, the Court GRANTS Gould's motion and REMANDS the case to the Richmond City Circuit Court.

         I. BACKGROUND

         Gould purchased a home in 2003 and financed the transaction through a loan and deed of trust with Wells Fargo. Paragraph 19 of the deed of trust allowed Wells Fargo to accelerate the loan and initiate foreclosure proceedings under certain conditions. This provision also stipulated that Gould could stop foreclosure and reinstate his loan if he paid "reinstatement sums and expenses" five days prior to the foreclosure sale. (Dk. No. 1, Ex. 1 at ¶ 12.)

         In 2015, Gould received notice from Wells Fargo's counsel, Shapiro & Brown, LLP ("Shapiro & Brown"), that his home would be sold at a foreclosure sale on July 28, 2015. Gould requested a reinstatement quote from both Wells Fargo and Shapiro & Brown, but neither provided one. On July 28, 2015, PFC, the substitute trustee, conducted the foreclosure sale. Gould alleges that he could have stopped the sale if Wells Fargo or Shapiro & Brown had provided him with the reinstatement quote.

         Wells Fargo later reported the foreclosure to credit bureaus. In addition to other economic damages, Gould alleges he sustained damage to his credit score as a result of Wells Fargo's negative reports.

         II. DISCUSSION

         A defendant in a state civil case may remove the case to federal court if the federal court would have original jurisdiction over the case. 28 U.S.C. § 1441. Wells Fargo argues that this Court has jurisdiction over this case because the plaintiffs first claim, breach of the deed of trust, falls under the Fair Credit Reporting Act ("FCRA") and, therefore, involves a federal question. Wells Fargo alternatively argues in its opposition to Gould's motion to remand that Gould fraudulently joined defendant PFC.

         A. Gould Does Not Make an FCRA Claim

         A plaintiffs allegations of negative credit reports and subsequent economic injury in a complaint do not by themselves constitute an FCRA claim. For instance, a plaintiff does not state an FCRA claim when she alleges that the bank unfairly issued a negative credit report, which, in turn, lowered her credit rating and resulted in other economic injuries. Turner v. JPMorgan Chase, N.A., No. TDC-14-0576, 2014 WL 4843689, at *6 (D. Md. Sept. 25, 2014). Likewise, a plaintiffs request for his lender to correct his credit reports does not amount to an FCRA claim since the FCRA provides no "private right of action for a credit furnisher's alleged failure to report accurate information." Harrell v. Caliber Home Loans, Inc., 995 F.Supp.2d 548, 554 n.4 (E.D. Va. 2014). Instead, a furnisher faces liability only if it "failed to conduct a reasonable investigation of a consumer's dispute after being notified of a dispute directly by a credit reporting agency." Id.

         Here, as evidence of an attempt to state an FCRA claim, Wells Fargo cites paragraphs 30-32 of Gould's complaint, which allege that Wells Fargo made negative credit reports and that these reports resulted in economic damage to Gould. Gould's claims plainly relate to a wrongful foreclosure; he merely lists negative credit reporting among his damages. See Turner, 2014 WL 4843689, at *6.

         Further, Wells Fargo argues that the FCRA preempts Gould's state law claims. The FCRA includes two preemption provisions: 15 U.S.C. § 1681t(b)(1)(F) and 15 U.S.C. § 1681h(e). Neither preempts Gould's claims. First, § 1681t(b)(1)(F) only preempts state statutory law, [1] and Gould brings common law claims. Second, § 1681h(e) preempts common law claims relating to defamation, invasion of privacy, and negligence; Gould's common law claims do not fall into any of those categories. 15 U.S.C. § 1681h(e).

         Accordingly, Gould does not attempt to assert an FCRA claim, and the FCRA does not preempt his claims. Because Gould does not raise a federal question, this Court lacks jurisdiction.

         B. PFC Is Not ...


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