Smith v. JPMorgan Chase Bank, NA et al
| Scott Smith |
| Harmon Law Office, PC and JPMorgan Chase Bank, NA |
| 1:2018cv11664 |
| August 7, 2018 |
| US District Court for the District of Massachusetts |
| Boston Office |
| Barnstable |
| Denise J Casper |
| Real Property: Foreclosure |
| 28 U.S.C. § 1441 |
| Plaintiff |
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| Filing 20 Judge Denise J. Casper: ORDER entered. ORDER OF REMAND to the State Court. (McKillop, Matthew) |
| Filing 19 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #5 Motion for TRO, #6 Motion to Remand to State Court and #7 Motion for TRO. On July 30, 2018, Plaintiff Scott Smith ("Smith") filed this lawsuit in Barnstable Superior Court against Defendants JPMorgan Chase Bank, N.A. ("Chase") and Harmon Law Offices, P.C. ("Harmon") (collectively, "Defendants"), alleging various claims against Defendants in connection with the upcoming foreclosure sale of Smith's residence. On August 7, 2018, Defendants removed the case to this Court. D. 1. Defendants asserted diversity jurisdiction as grounds for removal despite the fact that Defendant Harmon is alleged to have a principal place of business in Massachusetts. D. 1 ¶¶ 6-11. On August 15, 2018, Smith filed a motion for remand and moved for imposition of sanctions against Defendants. D. 6. Smith also filed motions for temporary restraining order or preliminary injunction to enjoin Defendant Chase from proceeding with the foreclosure sale until after this Court rules on Smith's motion for remand. D. 5; D. 7. Smith also requested the imposition of sanctions against Defendants. D. 6. Having heard counsel on the pending motions on September 12, 2018, and, for the reasons stated below, the Court ALLOWS Smith's motion for remand, DENIES Smith's request for sanctions, D. 6, and REMANDS this matter to state court. In light of the remand, Smith's motions for temporary restraining order or preliminary injunction, D. 5; D. 7, are DENIED without prejudice as moot."Federal courts are courts of limited jurisdiction" and absent jurisdiction, "a court is powerless to act." Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 138 (1st Cir. 2004). To maintain an action in federal court based on diversity jurisdiction, there must be "complete diversity, meaning that no plaintiff can be a citizen of the same state as any of the defendants." Erickson v. Johnson Controls, Inc., 912 F. Supp. 2d 1, 2-3 (D. Mass. 2012) (citing 28 U.S.C. 1332). A district court must remand a case if "at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. 1447(c). "Generally, [d]oubts about the propriety of removing an action should be resolved in favor of remand." Miara v. First Allmerica Fin. Life Ins. Co., 379 F. Supp. 2d 20, 26 (D. Mass. 2005) (alteration in original) (citation and internal quotation marks omitted).The parties agree that Smith and Defendant Harmon are citizens of Massachusetts. D. 1; D. 16. Defendants nonetheless contend that Smith's motion for remand should be denied because Smith fraudulently joined Harmon, which represents Chase in the foreclosure process at issue here, "in an attempt to defeat diversity jurisdiction." D. 10 at 2. Under the doctrine of fraudulent joinder, "removal is not defeated by the joinder of a non-diverse defendant where there is no reasonable possibility that the state's highest court would find that the complaint states a cause of action upon which relief may be granted against the non-diverse defendant." Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir. 2014). Courts in this district have explained that the "linchpin of the fraudulent joinder analysis is whether the joinder of the non-diverse party has a reasonable basis in law and fact." Mills v. Allegiance Healthcare Corp., 178 F. Supp. 2d 1, 4 (D. Mass. 2001).As the removing party, Defendants have the burden to show that "federal subject matter jurisdiction exists, that removal was timely, and that removal [wa]s proper." Therrien v. Hamilton, 881 F. Supp. 76, 78 (D. Mass. 1995). Defendants' primary argument is that foreclosure counsel are not proper defendants in suits brought by borrowers against lenders in connection with foreclosure under Massachusetts law. D. 10. Defendants rely upon Moore v. NovaStar Mortg., Inc., C.A. No. 11-CV-10468-MAP, 2011 WL 2899418 (D. Mass. July 15, 2011), Manson v. GMAC Mortg., LLC, 283 F.R.D. 30 (D. Mass. 2012) and Fairhaven Sav. Bank v. Callahan, 391 Mass. 1011 (1984). These cases are inapposite. In Moore, the court held that homeowners failed to state a claim for breach of the covenant of good faith and fair dealing under Massachusetts law with respect to the mortgagee's foreclosure counsel because there was no contract between the homeowners and the foreclosure law firm at issue. Moore, C.A. No. 11-CV-10468-MAP, 2011 WL 2899418, at *2 (passing on the issue of fraudulent joinder and dismissing plaintiffs' claim because "there [wa]s no contract,... no derivative implied covenant of good faith and fair dealing, and, accordingly, no breach") (citation and internal quotation marks omitted). Smith, by contrast, alleges claims against Harmon that do not require a contractual relationship between the parties, including violations of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A ("Chapter 93A"). D. 16.In addition, neither Manson nor Fairhaven require the Court to conclude that Harmon is not a proper defendant in this dispute. See Manson, 283 F.R.D. at 42-43 (denying plaintiffs' motion for class certification in lawsuit where claims required a fiduciary duty and plaintiffs failed to establish that foreclosure counsel owed them a duty of care); Fairhaven, 391 Mass. at 1011 (concerning a lender's claims against a borrower). Courts in this district have held that recovery against foreclosure counsel is conceivable where the plaintiff plausibly alleges a violation of Chapter 93A. Larace v. Wells Fargo Bank, N.A., No. 14-CV-30043-MAP, 2016 WL 6609206, at *2 (D. Mass. Jan. 21, 2016) (remanding litigation against foreclosure counsel for alleged violation of Chapter 93A and explaining that "a law firm can be held liable to a nonclient for actions taken on behalf of a client... when [the] firm violates the laws surrounding the enforcement of security interests") (citation omitted). Here, Smith alleges that Harmon engaged in unlawful debt collection practices in violation of Chapter 93A, including by attempting to collect payments on an allegedly time-barred promissory note and by misrepresenting the amount owed on the mortgage loan at issue. See, e.g., D. 16 ¶¶ 22-33; 92-111. Where, as here, plaintiffs plausibly allege improprieties on the part of foreclosure counsel in violation of Chapter 93A "recovery... cannot be said to be outside the scope of reasonable possibility." Larace, C.A. No. 14-CV-30043-MAP, 2016 WL 6609206, at *2.Finally, given the fact that Harmon is a named defendant in several foreclosure-related lawsuits in Massachusetts courts, this Court cannot conclude there was no reasonable basis in fact and law to join Harmon in this litigation. See, e.g., Finkel v. Harmon Law Offices, P.C., 91 Mass. App. Ct. 1120 (2017) (denying Harmon's motion to dismiss where plaintiff asserted "unfair debt collection-based claims" in a foreclosure-related action against Harmon and its client mortgagee); see also Valdez v. Fed. Nat. Mortg. Ass'n, C.A. No. 13-CV-11478-NMG, 2013 WL 4094782, at *2 (D. Mass. Aug. 9, 2013) (concluding there was no fraudulent joinder and remanding case to state court where plaintiffs' claims "arise out of Harmon's foreclosure practices," which were "the subject of so many other [foreclosure] lawsuits" in Massachusetts courts). Accordingly, Defendants have not established that removal to federal district court is appropriate where, as here, complete diversity does not exist.Accordingly, the Court ALLOWS Smith's motion for remand, D. 6, and REMANDS this matter to state court. To the extent the motion for remand, D. 6, sought further relief, including sanctions, such relief is DENIED. The Court also DENIES Smith's remaining motions, D. 5; D.7, as moot. (Hourihan, Lisa) |
| Filing 18 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 9/12/2018 re #5 MOTION for Temporary Restraining Order and to Extend TRO filed by Scott Smith, #6 MOTION to Remand to State Court filed by Scott Smith, #7 Emergency MOTION for Temporary Restraining Order EXTEND TRO and Correct Prior Filing filed by Scott Smith. Arguments. Court takes under advisement #5 MOTION for Temporary Restraining Order, #6 MOTION to Remand to State Court, #7 Emergency MOTION for Temporary Restraining Order. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Brian J. Wasser for the Plaintiff, Patrick S. Tracey for the Defendant) (McKillop, Matthew) |
| Filing 17 REPLY to Response to #5 MOTION for Temporary Restraining Order and to Extend TRO filed by Scott Smith. (Attachments: #1 Affidavit 2nd Affidavit of Smith, #2 Exhibit EX 1 - Ex 1 - 2012 Foreclosure Notice)(Wasser, Brian) |
| Filing 16 AMENDED COMPLAINT FIRST against All Defendants, filed by Scott Smith. (Attachments: #1 Exhibit Exhibits A - J)(Wasser, Brian) |
| Filing 15 Opposition re #7 Emergency MOTION for Temporary Restraining Order EXTEND TRO and Correct Prior Filing, #5 MOTION for Temporary Restraining Order and to Extend TRO filed by JPMorgan Chase Bank, NA. (Attachments: #1 Exhibit 1- Right to Cure Notice, #2 Exhibit 2- Mortgage, #3 Exhibit 3- Loan Modification, #4 Exhibit 4- Acceleration Notice, #5 Exhibit 5- Notice of Sale, #6 Exhibit 6- Bankruptcy Petition)(Tracey, Patrick) |
| Filing 14 ELECTRONIC NOTICE Resetting Hearing on Motion #7 Emergency MOTION for Temporary Restraining Order EXTEND TRO and Correct Prior Filing, #6 MOTION to Remand to State Court , #5 MOTION for Temporary Restraining Order and to Extend TRO : Motion Hearing set for 9/12/2018 04:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 13 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #12 Motion to Continue Motion Hearing (Hourihan, Lisa) |
| Filing 12 Assented to MOTION to Continue Motion for Temporary Restraining Order and Motion to Remand State Court to 9/12/18 by JPMorgan Chase Bank, NA.(Tracey, Patrick) |
| Filing 11 REPLY to Response to #6 MOTION to Remand to State Court filed by Scott Smith. (Wasser, Brian) |
| Filing 10 Opposition re #6 MOTION to Remand to State Court filed by JPMorgan Chase Bank, NA. (Tracey, Patrick) |
| Filing 9 STATE COURT Record. (Attachments: #1 State Court Record Part 2)(Tracey, Patrick) |
| Filing 8 ELECTRONIC NOTICE Setting Hearing on Motion #7 Emergency MOTION for Temporary Restraining Order EXTEND TRO and Correct Prior Filing, #6 MOTION to Remand to State Court , #5 MOTION for Temporary Restraining Order and to Extend TRO : Motion Hearing set for 9/6/2018 03:30 PM in Courtroom 11 before Judge Denise J. Casper. (McKillop, Matthew) |
| Filing 7 Emergency MOTION for Temporary Restraining Order EXTEND TRO and Correct Prior Filing by Scott Smith.(Wasser, Brian) |
| Filing 6 MOTION to Remand to State Court by Scott Smith. (Attachments: #1 Affidavit Affidavit Counsel, #2 Affidavit Affidavit of Plaintiff, #3 Exhibit EX 1 - HarmonPC SOC filings, #4 Exhibit EX 2 - Collection Letter Jan 12 2017, #5 Exhibit EX 3 - Collection Letter 05-29-18, #6 Exhibit EX 4 - Sale Date 8-30-18, #7 Exhibit EX 5 - Lozzi Ruling Law Firm as Defendant)(Wasser, Brian) |
| Filing 5 MOTION for Temporary Restraining Order and to Extend TRO by Scott Smith. (Attachments: #1 Exhibit Exhibits 1-3 (Published sale date; Loan Application; Notice of Sale Date))(Wasser, Brian) |
| Filing 4 Certified Copy of Notice of Removal Provided to Defense Counsel by mail (Vieira, Leonardo) |
| Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (DaSilva, Carolina) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by JPMorgan Chase Bank, NA. (Tracey, Patrick) |
| Filing 1 NOTICE OF REMOVAL by JPMorgan Chase Bank, NA ( Filing fee: $ 400, receipt number 0101-7264264 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit A- Complaint, #2 Civil Cover Sheet, #3 Category Form)(Tracey, Patrick) |
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