United States District Court, D. Massachusetts
ROBERT F. JEPSON, Plaintiff,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. et al., Defendants.
MEMORANDUM AND ORDER ON MOTION TO REMAND
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
the Court is Plaintiff Robert F. Jepson's
(“Plaintiff”) motion to remand. [ECF No. 8]. For
the reasons set forth below, Plaintiff's motion is
purchased a residential property located at 34 Hinsdale Road,
Nantucket, Massachusetts on December 13, 1977. [ECF No. 1-1
at 3, 5]. On May 17, 2005, Plaintiff borrowed $999, 999.00
from American Home Mortgage Acceptance, Inc.
(“AHMA”) to refinance the mortgage on the
property and executed a note and granted a mortgage to AHMA.
[Id. at 5, 30-31]. On September 9, 2009, Mortgage
Electronic Registration Systems, Inc. (“MERS”),
as nominee for AHMA, assigned the mortgage to Deutsche Bank
National Trust Company (“Deutsche Bank”).
[Id. at 7]. On April 17, 2018, Deutsche Bank
recorded an affidavit at the Registry of Deeds concerning the
pending foreclosure on the property pursuant to Mass. Gen.
Laws ch. 244, § 35C. [Id. at 67]. Ocwen Loan
Servicing, LLC (“Ocwen”) services the mortgage.
[Id. at 9].
October 24, 2018, Plaintiff filed an action against Ocwen,
MERS, Deutsche Bank, and related entities (collectively
“Defendants”) in Nantucket Superior Court alleging
unfair debt collection practices in violation of Mass. Gen.
Laws ch. 93, § 49, unfair and deceptive practices in
violation of Mass. Gen. Laws ch. 93A, § 9, and
requesting equitable relief in the form of quieting or
establishing title and a declaratory judgment. [Id.
at 13-15]. Plaintiff's complaint does not specify an
amount of damages sought. [Id. at 15]. On November
28, 2018, Defendants removed the action to this Court. [ECF
No. 1]. Following removal, Plaintiff filed a motion to remand
the case back to Nantucket Superior Court on the ground that
this Court does not have jurisdiction to hear the matter
under 28 U.S.C. § 1332 or 28 U.S.C. § 1441(b)(2)
because the amount in controversy is not met. See
[ECF No. 8 at 1-2]. Defendants oppose remand and assert that
they have met their burden of establishing that the amount in
controversy exceeds $75, 000. See [ECF No. 11 at
diversity jurisdiction is available in cases arising between
citizens of different states where the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). A defendant
seeking removal bears the burden of showing that the federal
court has jurisdiction. See Danca v. Private Health Care
Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). Removal of an
action is proper if the court determines, “by the
preponderance of the evidence, that the amount in controversy
exceeds [$75, 000].” 28 U.S.C. § 1446(c)(2)(B).
plaintiff seeks equitable 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). Consistent with
this rule, the First Circuit has observed that “where a
complaint seeks to invalidate a loan secured by a deed of
trust, ” many courts consider “the amount in
controversy [to be] the loan amount.” McKenna v.
Wells Fargo Bank, N.A., 693 F.3d 207, 212 (1st Cir.
2012). Similarly, courts in this district have
found that when “the allegations in [a] complaint go to
the essence of the validity of [a] mortgage and [the
mortgagee's] right to foreclose, the face value of loan
is the appropriate measure for the amount in
controversy.”Andrews v. HSBC Bank USA, N.A.,
264 F.Supp.3d 346, 349 (D. Mass. 2017) (citing Larace v.
Wells Fargo Bank, N.A., 972 F.Supp.2d 147, 151 (D. Mass.
parties agree that they are diverse as required under 28
U.S.C. § 1332(a). See [ECF No. 8 at 4; ECF No. 11 at 2].
The parties disagree as to whether the amount in controversy
requirement under 28 U.S.C. § 1332 has been met.
See [ECF No. 8 at 4; ECF No. 11 at 3]. Defendants
contend that the amount in controversy exceeds $75, 000
because Plaintiff is challenging foreclosure on a $999,
999.00 mortgage. [ECF No. 11 at 6]. Plaintiff disputes
Defendants' contention that the amount in controversy is
determined by the value of the mortgage. [ECF No. 14 at 3].
Plaintiff does not suggest an alternative amount in
controversy, instead arguing that he is seeking
“statutory ‘costs' which will be measured in
the hundreds of dollars, ” a declaratory judgment, and
“an unidentified amount for ‘interest, costs and
attorney's fees,' and ‘multiple damages and
costs.'” [ECF No. 8 at 4].
Plaintiff's complaint is styled as a claim for unfair
debt collection practices and unfair and deceptive practices,
[ECF No. 1-1 at 14-15], the allegations go to the essence of
the validity of the mortgage and Defendants' right to
foreclose. For example, Plaintiff seeks damages on the theory
that Defendants did not have an interest in his property or a
right to move forward with a foreclosure auction.
See [id. at 10-13]. The complaint also
asserts that Deutsche Bank filed several Servicemember's
Civil Relief Act complaints in the Land Court seeking to
foreclose the AHMA mortgage, but did not comply with Mass.
Gen. Laws ch. 244, § 14. [Id.]. Therefore,
given the nature of the dispute, the face value of loan
($999, 999.00) is the appropriate measure for the amount in
controversy, and removal was proper. See Hunt, 432
U.S. at 347; McKenna, 693 F.3d at 212;
Andrews, 264 F.Supp.3d at 349.
Defendants' removal is proper under 28 U.S.C. §
1332, and Plaintiff's motion to remand [ECF No. 8] is