United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Thomas and Mary Lou Bobola brought this action in the Essex
County Superior Court of the Commonwealth of Massachusetts.
The Bobolas allege that defendant Wells Fargo Bank, N.A.
("Wells Fargo"), unfairly denied them consideration
for a mortgage loan modification. They seek to enjoin Wells
Fargo Bank from conducting a foreclosure sale until they have
been given an opportunity to negotiate a loan modification.
Wells Fargo timely removed the case to federal court. The
Bobolas have moved to remand. For the reasons explained
below, the court is allowing the motion and remanding the
case to state court because Wells Fargo has not proven that
the amount in controversy in this case exceeds $75, 000,
which is necessary to establish diversity jurisdiction
pursuant to 28 U.S.C. §1332(a).
following facts are drawn from the Complaint, except where
2003, Thomas and Mary Lou Bobola took out a mortgage on their
residence in Methuen, Massachusetts, in the amount of $302,
000. See Mortgage (Docket No. 1, Ex. B). Wells Fargo
is the current holder of that mortgage. In 2010, Thomas
suffered a severe injury that prevented him from working. At
that time, the Bobolas owed $189, 000 on their mortgage.
Bobolas contacted Wells Fargo in order to seek a loan
modification. A Wells Fargo representative allegedly informed
Thomas that they would not be eligible for a loan
modification until their loan was in default. The
representative assured Thomas that, if the Bobolas defaulted
on their loan, there would be substantial opportunities for
modification. Acting on this advice, the Bobolas allowed
their loan to enter default. In February 2012, they filed a
request for a loan modification.
Fargo acknowledged the request for modification, but
ultimately did not modify the Bobolas' loan. In July
2014, Wells Fargo told the Bobolas that there were other
options to avoid foreclosure. At the same time, it resumed
the collections process. The Bobolas informed Wells Fargo
that they were represented by counsel. Wells Fargo
nevertheless continued to contact the Bobolas directly.
According to the Bobolas, Wells Fargo engaged in dilatory
tactics and made intentionally confusing requests to
undermine the loan modification process. Wells Fargo
foreclosed on the Bobolas' home and scheduled a
foreclosure sale for December 17, 2015.
to the foreclosure sale, the Bobolas filed the instant action
in the Essex County Superior Court of the Commonwealth of
Massachusetts. See Complaint (Docket No. 1, Ex. A).
They allege that Wells Fargo breached its duty of good faith
and fair dealing in conducting the foreclosure proceedings.
See id. ¶¶24-28. They further allege that
Wells Fargo misrepresented the availability of a loan
modification and the modification process. See id.
¶¶29-33. They ask the court to order Wells Fargo
"to provide a fair and reasonable opportunity to
negotiate a loan modification" and to enjoin the
foreclosure sale until that obligation is complete.
December 30, 2014, Wells Fargo removed this case to federal
court. See Notice of Removal (Docket No. 1). Wells
Fargo filed an answer to the complaint and, on January 13,
2015, a Motion for Judgment on the Pleadings. On October 28,
2015, the Bobolas filed a Motion for Remand. In their
supporting memorandum, the Bobolas argue that because they
seek primarily equitable relief the amount in controversy is
less than $75, 000. See Mem. in Supp. of Mot. to
Remand (Docket No. 14) at 1-2. In the alternative, they argue
that Wells Fargo is a corporate citizen of Massachusetts and,
therefore, the parties are not diverse. Id. at 3.
Wells Fargo has opposed the motion. See Mem. in Opp.
to Mot. to Remand (Docket No. 16).
States district courts have jurisdiction over civil actions
arising under state law "where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and is between . . . citizens of different
States." 28 U.S.C. §1332 (a)(1). If such a civil
action is brought in state court, the defendant is entitled
to remove the case to a United States district court having
jurisdiction. See 28 U.S.C. §1446. After the
defendant has removed a case to federal court, the plaintiff
may at any time file a motion to remand to state court for
lack of subject matter jurisdiction. Id.
§1447(c). The removing defendant bears the burden of
establishing federal jurisdiction. See Amoche v.
Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir.
of citizenship must be proven by a preponderance of evidence.
See Francis v. Goodman, 81 F.3d 5, 6 (1st Cir.
1996). An individual is a citizen of his state of domicile,
that is, "'the place where he has his true, fixed
home and principal establishment, and to which, whenever he
is absent, he has the intention of returning.'"
Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st
Cir. 2008) (quoting Rodriguez-Diaz v.
Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir. 1988)). A
national banking association is a citizen of the state in
which it is located. See 28 U.S.C. §1348. This
is "the State designated in its articles of association
as its main office." Wachovia Bank v. Schmidt,
546 U.S. 303, 318 (2006).
purposes of jurisdiction under 28 U.S.C. §1332(a), the
"the sum demanded in good faith in the initial pleading
shall be deemed to be the amount in controversy." 28
U.S.C. §1446(c)(2). However, if the plaintiff seeks
"nonmonetary relief" or seeks "a money
judgment, but the State practice either does not permit
demand for a specific sum or permits recovery of damages in
excess of the amount demanded, " the defendant may
assert an amount in controversy in its notice of removal.
Id. §1446(c) (2) (A) . If the amount in
controversy asserted in the notice of removal is challenged,
"removal of the action is proper ... if the district
court finds, by the preponderance of the evidence, that the