Medel v. Pennymac Fin. Servs., Pennymac Loan Servs., LLC

• Decision Date: 03 November 2015
• Docket Number: Civil Action No. 15-cv-01497-MSK-CBS
• Parties: ALAIN MEDEL, Plaintiff, v. PENNYMAC FINANCIAL SERVICES, PENNYMAC LOAN SERVICES, LLC, (and JOHN DOES 1 through 20, to be determined at a later date), Defendants.
• Court: U.S. District Court — District of Colorado

ALAIN MEDEL, Plaintiff, v. PENNYMAC FINANCIAL SERVICES, PENNYMAC LOAN SERVICES, LLC,(and JOHN DOES 1 through 20, to be determined at a later date), Defendants.

Civil Action No. 15-cv-01497-MSK-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 3, 2015

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on: (1) Plaintiff's Motion to Remand, and (2) Defendants' Motion to Dismiss Plaintiff's Verified Complaint. Pursuant to the Order of Reference dated July 17, 2015 (Doc. # 10) and the memoranda dated July 30, 2015 (Doc. # 13) and August 19, 2015 (Doc. # 20), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Defendants' Response (filed August 20, 2015) (Doc. # 21), Plaintiff's Response (filed August 24, 2015) (Doc. # 22), Defendants' Reply (filed August 28, 2015) (Doc. # 24), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Motion to Remand

A. Standard of Review

Proceeding in his pro se capacity, Mr. Medel filed his "Verified Complaint for Damages" ("Complaint") in the District Court of Douglas County, Colorado on June 16, 2015. (See Doc. # 1-1)). Defendants removed the case to this court on July 15, 2015. Mr. Medel seeks remand "back to the jurisdiction of the District Court, Douglas County, Colorado." (See Doc. # 17 at 10 of 17).

Remand is authorized only when there is a defect in the removal procedure or if the district court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006) (("[t]he two categories of remand within § 1447(c). . . are remands for lack of subject matter jurisdiction and for defects in removal procedure."). Federal courts have removal jurisdiction over state court actions "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). A defendant may remove to federal court only state court actions that originally could have been filed in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). See also Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (under 28 U.S.C. § 1441(a) any state court action over which federal courts would have original jurisdiction may be removed from state to federal court). A district court has original federal question jurisdiction over "all civil actions arising under the Constitution, laws or treaties of the United States," 28 U.S.C. § 1331, and over civil actions where the amount in controversy exceeds $75,000, exclusive of interests and costs, and there is complete diversity of citizenship, 28 U.S.C. § 1332(a). Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 2d 452, 459 (D. Md. 2013) (citation omitted). "A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).

A defendant seeking removal bears the burden of proving the court's jurisdiction. Rogers v. Wall-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000). See also Marchese, 917 F. Supp. 2d at 459 ("When the plaintiff challenges the propriety of removal, the defendant bears the burdenof proving that removal was proper.") (citations omitted). Nevertheless, a defendant need only include in the notice of removal "a short and plain statement of the grounds for removal . . . ." 28 U.S.C. § 1446(a).

Mr. Medel sued Defendants in the District Court for Douglas County, Colorado. In his Complaint, he alleges that Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq. (See Complaint (Doc. # 1-1) at 4 of 70, ¶ 12, 6-7 of 70). Mr. Medel's FDCPA claim "indisputably arises under the laws of the United States, making this action removable . . . ." Thomas v. Bank of America Corp., No. 12-cv-797-PAB-KMT, 2012 WL 1431224, at *2 (D. Colo. Apr. 25, 2012) (citation omitted). Remand is properly denied on this basis alone.

Mr. Medel alleges $3.1 million in damages, which amount in controversy exceeds $75,000, exclusive of interests and costs. Mr. Medel argues that there is not complete diversity between him and all Defendants because Defendants conduct business, pay taxes and maintain offices and representatives in Colorado. (See Motion (Doc. # 17) at 4 of 17, ¶ 3, 6-9 of 17). These are not indicia that Defendants are citizens of Colorado. Pennymac Financial Services, Inc. ("PFSI") is a citizen of Delaware and California, where it is incorporated and has its principal place of business. See 28 U.S.C. § 1332(c)(1). Pennymac Loan Services, LLC ('PLS") takes the citizenship of all of its members, none of whom are Colorado citizens. Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1234 (10th Cir. 2015). Defendants have met their burden of demonstrating complete diversity of citizenship. (See Doc. # 1 at 2-3, Doc. # 1-1 at 15 of 70). The court has original federal question jurisdiction over this civil action pursuant to 28 U.S.C. § 1332(a). For this reason also, remand is properly denied.

Mr. Medel asserts that "if and when" this case is remanded, he will amend his pleading toremove all references to federal law. (See Doc. # 17 at 3 of 17). However, elimination of the FDCPA claim will not defeat diversity jurisdiction. Mr. Medel also argues that venue is improper in "the Federal Central District of Colorado-Southern Division." (See Doc. # 17 at 6 of 17) Such a division does not exist. Plaintiff filed this case in the District Court of Douglas County, Colorado, making venue proper in this court under 28 U.S.C. § 1441(a).

II. Motion to Dismiss

A. Standard of Review

Defendants move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.

A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The Iqbal evaluation requires two prongs of analysis. First, the court identifies the allegations in the complaint that are not entitled to the assumption of truth, that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Second, the Court considers the factual allegations to determine if they plausibly suggest an entitlement to relief. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss.

Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. [T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Moreover, [a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Laratta v. Burbank, No. 12-cv-02079-MSK-KMT, 2014 WL 6853954, at * 4 (D. Colo. Dec. 5, 2014) (internal quotation marks and citations omitted).

B. Analysis

Mr. Medel alleges that his mortgage loan on the real property located at 12601 Country Meadows Drive, Parker, Colorado is in foreclosure. (See Doc. # 1-1 at 2 of 70, 4 of 70, ¶ 12, Doc. # 17 at 1-2 of 17). He obtained a loan from iFreedom Direct Corporation ("iFreedom") on or about January 20, 2014. (See Complaint at 3 of 70, ¶ 5, Doc. # 17 at 5 of 17, ¶ 7). The loan is evidenced by a $235,758.00 promissory note ("Note") and secured by a deed of trust on the property. (See Exhibit A to Motion (Doc. # 12-3)).¹ The deed of trust names iFreedom as the lender and Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for iFreedom and its successors and assigns, as the beneficiary. (See id.) MERS assigned the deed of trust to PLS on April 30, 2015. (See Exhibit B to Motion (Doc. # 12-4)). PLS delivered a notice of election and demand for sale to the public trustee on or about May 8, 2015. (See Doc. # 12-5).

The Note requires Mr. Medel to make payments at 2363 S. Foothill Drive, Salt Lake City, Utah 84109 or "at such other place as Lender may designate in writing by notice to Borrower." (See Doc.# 12-3 at 5 of 18, ¶ 1). The deed of trust requires him to make all loan payments in U.S. currency. (See Doc. # 12-3 at 4 of 18, ¶ 1) The deed of trust also requires him to make all payments to the address designated in the Note unless the lender designates another addressand provides him with proper notice of the new address. (See id.).

Mr. Medel alleges that he paid his mortgage loan in full by mailing to PFSI's chief financial officer a "Certified Registered Security, Non-Negotiable Payment Bond" ("Payment Bond") in the amount of $750,000 backed by his "offset account" at the United States Treasury. (See Doc. # 1-1 at 2-3, 5-6, 21-22, 24, 26-31, 33-40 of 70, Doc. # 1-1 at 42 of 70). The Payment Bond purports to be "made for over 3...