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Army v. CitiMortgage, Inc.

United States District Court, D. Massachusetts

July 7, 2015

LAWRENCE F. ARMY, JR., Plaintiff,
v.
CITIMORTGAGE, INC., Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REMAND (Docket No. 10) AND DEFENDANT'S MOTION TO DISMISS (Docket No. 8)

TIMOTHY S. HILLMAN, District Judge.

Lawrence F. Army, Jr. ("Plaintiff") asserts claims against Citimortgage, Inc. ("Defendant" or "Citimortgage") arising out of Citimortgage's attempted foreclosure sale of residential property located at 83 Adams Road, North Grafton, Massachusetts. Plaintiff seeks injunctive and declaratory relief, as well as damages for breach of the covenant of quiet enjoyment. Defendant has filed a motion to dismiss. (Docket No. 8). Plaintiff has filed a motion to remand to state court. (Docket No. 10). For the following reasons, Plaintiff's motion to remand is denied. Defendant's motion to dismiss is granted in part and denied in part.

Background

The complaint alleges the following facts, taken as true for purposes of this motion to dismiss. Plaintiff is an individual residing at 83 Adams Road, North Grafton, Massachusetts. Defendant is a corporation organized under the laws of New York, with a principal place of business in Missouri.

On May 28, 2004, Plaintiff executed a promissory note (the "Note") in the amount of $325, 000, payable to Principal Residential Mortgage, Inc., ("Principal"). The Note was secured by a mortgage (the "Mortgage") on the property at 83 Adams Road in North Grafton, Massachusetts (the "Property"). Mortgage Electronic Registration Systems, Inc. ("MERS") was named the mortgagee, and held the Mortgage as nominee for Principal's successors and assigns. The Mortgage was recorded with the Worcester County Registry of Deeds on May 28, 2004 in Book 33784, Page 336.

On February 19, 2010, Plaintiff filed a petition pursuant to Chapter 7 of the U.S. Bankruptcy Code in U.S. Bankruptcy Court, District of Massachusetts. On July 22, 2010, Citimortgage filed a Motion for Relief from Stay in the Bankruptcy proceeding, alleging that it was the holder of the Mortgage as the assignee of MERS. On August 3, 2010, without having ruled on Citimortgage's motion for relief from stay, the Bankruptcy Court entered an order of Discharge of Debtor under 11 U.S.C. § 727. At no point during the bankruptcy did Plaintiff execute or file a Reaffirmation of Debt agreement. On December 13, 2010, the Bankruptcy Court granted Defendant's motion for relief from stay.

On April 16, 2012, MERS assigned the Mortgage to Defendant. On December 11, 2014, four years after Defendant was discharged from bankruptcy, Defendant notified Plaintiff that it intended to sell the Property under the Massachusetts statutory power of sale. Defendant represented to Plaintiff that it was the holder of both the Note and the Mortgage.

The foreclosure sale was originally scheduled for January 12, 2015. On January 8, 2015 Plaintiff filed this action in Massachusetts Superior Court and received temporary injunctive relief prohibiting the foreclosure sale. Defendant removed the case to this Court on January 30, 2015. The complaint asserts claims for injunctive relief prohibiting the foreclosure sale, pursuant to the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362 (Count I); declaratory judgment that Defendant does not have the authority to foreclose by statutory power of sale under M.G.L. c. 244 § 14 (Count II); and breach of covenant of quiet enjoyment (Count III).

Discussion

Plaintiff's Motion to Remand (Docket No. 10)

Plaintiff has moved for a remand to state court, asserting that the amount in controversy required for this Court to exercise diversity jurisdiction has not been met. The Court disagrees, finding that Defendant has established a reasonable probability that the amount in controversy exceeds $75, 000. See Arrigo v. Scholarship Storage, Inc., No. 10-CV-11650-MLW, 2011 WL 3584715 (D. Mass. Aug. 10, 2011); cf. Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48-49 (1st Cir. 2009). Although Plaintiff does not seek money damages, this dispute involves obligations and rights under the Note and Mortgage originally executed in the amount of $325, 000. This is sufficient to meet the amount in controversy requirement. See Larace v. Wells Fargo Bank, N.A., 972 F.Supp.2d 147, 149 (D. Mass. 2013) ("It is reasonable to designate the amount in controversy as the value of the mortgage, since Plaintiff's petition does not specify a damage amount and Defendants' mortgage interest would be extinguished if Plaintiffs were ultimately successful.").

Contrary to Plaintiff's assertion, PHH Mortgage Corp. v. Lanou is inapposite. See No. 14-CV-10495-MGM, 2015 WL 162911 (D. Mass. January 13, 2015). In PHH Mortgage, the object of the litigation was not the value of the property, but merely the value of Plaintiff's purported right to possession. Id. at *3. In the instant case, Plaintiff asserts that he owns the premises at 83 Adams Road. See Pl.'s Compl. ¶ 48(d). Therefore, the Court finds that the amount in controversy has been met, and Plaintiff's motion to remand will be denied.

Defendant's Motion to Dismiss (Docket No. 8)

Defendant has moved to dismiss Count I for lack of subject matter jurisdiction and Counts II and III ...


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