United States District Court, D. Massachusetts
HARRY M. ANDREWS, Plaintiff,
HSBC BANK USA, N.A., AS TRUSTEE FOR FREMONT HOME LOAN TRUST 2006-C, MORTGAGE BACKED CERTIFICATES, SERIES 2006-C Defendant.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case arises from an attempted foreclosure of a residential
mortgage in Beverly, Massachusetts. Harry Andrews
(“Andrews” or “plaintiff”) brought
this action in Massachusetts Superior Court against HSBC Bank
USA, N.A., as Trustee for Fremont Home Loan Trust 206-C,
Mortgage Backed Certificates, Series 2006-C
(“HSBC”). Plaintiff challenges HSBC's
standing to foreclose, contesting its ownership of the note
and mortgage, whether the property is subject to a properly
recorded lien and the adequacy of the notice given by HSBC.
Defendant removed the case to this Court.
before this Court is plaintiff's motion to remand the
action to Massachusetts Superior Court and HSBC's motion
to dismiss. For the reasons that follow, the motion to remand
will be denied and the motion to dismiss will be allowed.
purchased the residential property located at 3 Hemlock
Street, Beverly, Massachusetts (“the property”)
in October, 1974. On June 27, 2006, plaintiff borrowed $506,
000 secured by a promissory note (“the note”)
from Fremont Investment & Loan (“Fremont”).
On the same day, to secure the note, plaintiff granted a
mortgage lien (“the mortgage”) to Mortgage
Electronic Registration Systems, Inc. (“MERS”),
acting as nominee for Fremont. In May, 2012, MERS assigned
the mortgage to HSBC as Trustee. The mortgage is serviced by
Ocwen Loan Servicing, LLC (“Ocwen”).
the economic downturn of the past decade, plaintiff fell
behind on his mortgage payments and HSBC initiated
foreclosure proceedings on the property. On June 24, 2014,
HSBC, through its servicer Ocwen, sent a right to cure notice
to plaintiff, pursuant to M.G.L. c. 244 § 35A.
October 27, 2016, Andrews commenced this action by filing a
complaint in the Massachusetts Superior Court for Essex
County. HSBC removed the action to federal court on December
27, 2016. Plaintiff filed the pending motion to remand one
month later and the following week, HSBC filed the pending
motion to dismiss.
Motion to Remand
diversity jurisdiction is available in cases arising between
citizens of different states in which the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a). The
party seeking to invoke federal jurisdiction bears the burden
of establishing subject-matter jurisdiction. Danca v.
Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir.
1999). Removal of the action is proper if the court
determines, “by a preponderance of the evidence, that
the amount in controversy exceeds [$75, 000].” 28
U.S.C. § 1446(c)(2)(B).
parties are citizens of different states because the
plaintiff is a Massachusetts resident while HSBC is a citizen
of Delaware, the state where it is “located”
under 28 U.S.C. § 1348. See Wachovia Bank, N.A. v.
Schmidt, 546 U.S. 303, 318 (holding that a national
bank, for § 1348 purposes, is a citizen of “the
State in which its main office, as set forth in its articles
of association, is located”).
parties disagree as to whether the amount in controversy
requirement under 28 U.S.C. § 1332 has been met. HSBC
contends in its notice of removal that the amount in
controversy exceeds $75, 000 because plaintiff seeks to
prevent foreclosure on a $506, 000 mortgage. Andrews's
complaint does not specify an amount of damages sought but he
disputes HSBC's contention that the amount in controversy
is determined by the value of the loan. Plaintiff does not
suggest an alternative amount in controversy, arguing that he
is merely seeking to enjoin foreclosure until HSBC complies
with its obligations under Massachusetts law.
the plaintiff seeks equitable relief, the amount in
controversy is “measured by the value of the object of
the litigation”. Hunt v. Wash State Apple Adver.
Comm'n, 432 U.S. 333, 347 (1977). The First Circuit
has noted that many district courts have held that the amount
in controversy in a foreclosure action is the value of the
loan amount. McKenna v. Wells Fargo Bank, N.A., 693
F.3d 207, 212 (1st Cir. 2012). Although the court in
McKenna did not need to reach the question, it
expressed a preference for the
“face-value-of-the-loan” rule, noting ...