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Davis v. Bank of America, N.A.

United States District Court, N.D. Mississippi, Greenville Division

August 19, 2014

MARTHA DAVIS, Plaintiff,
v.
BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS, SERVICING, LP, Defendant.

MEMORANDUM OPINION AND ORDER REGARDING MOTION TO REMAND AND MOTION TO DISMISS

DEBRA M. BROWN, District Judge.

This removal action is brought by Plaintiff Martha Davis against Defendant Bank of America, N.A., successor by merger to BAC Home Loans Servicing, L.P, f/k/a Countrywide Home Loans Servicing L.P. In her complaint, Plaintiff asserts claims for breach of contract, intentional infliction of emotional distress, and "bad faith, " arising from Defendant's alleged refusal to modify the terms of a deed of trust secured by property on which she currently resides. Doc. #2 Before the Court are Plaintiff's motion to remand, Doc. #13; Defendant's motion to dismiss, Doc. #3; and Defendant's motion for a ruling on amount in controversy, Doc. #19.

I

Relevant Allegations and State Court Procedural History

A. Allegations

On May 24, 2013, Plaintiff filed a complaint in the Chancery Court of Washington County. Doc. #1. Of relevance here, Plaintiff's complaint alleges:

On May 29, 2008, Plaintiff Martha Davis and her husband Robert C. Davis signed a deed of trust for property located at 2552 Gillis Street, Greenville, MS 38703 ("Property"). Doc. #2 at ¶ 3. The deed of trust recited that the Davises borrowed $59, 529 from Liberty Bank & Trust Company and secured such loan with title to the Property. Id. at Ex. 1. Contemporaneously, on May 29, 2008, Robert signed a promissory note in favor of Liberty. Id. at Ex. 2. On May 30, 2008, the Davises received a warranty deed for the Property. Id. at Ex. 3. The deed named the Davises "as joint tenants with full rights of survivorship." Id.

Robert died intestate on January 18, 2011. Doc. #2 at ¶ 7. On November 10, 2011, Defendant Bank of America received an assignment of the mortgage. Id. at ¶ 9. After Robert's death, Plaintiff learned that the mortgage was delinquent. Id. at ¶ 8.

Plaintiff contacted Defendant and was informed that she would be required to form an estate for Robert in order to engage in negotiations regarding the delinquent payments. Doc. #2 at ¶ 11. In response to this request, Plaintiff submitted to Defendant an affidavit claiming to be the administrator of Robert's estate. Id. at ¶ 12. Defendant's representative rejected the affidavit as insufficient. Id.

In early December 2012, Defendant demanded a $2, 800 payment on the account. Doc. #2 at ¶ 13. About the same time, Plaintiff was placed on a repayment plan under which she would be required to make six monthly payments of $694.38. Id. at ¶ 37. Plaintiff contacted Defendant and objected to the payment plan. Id. Instead, she offered "to send in an extra $100 on the then payment of $570.72 to take care of delinquency, outside of a formal plan." Id. Defendant informed Plaintiff that, without a modification, it would return surplus in payments. Id.

On December 19, 2012, Plaintiff spoke with Annette Manly, a representative of Defendant, who informed Plaintiff "not to worry about sending payments." Id. at ¶ 15. The same month, Defendant returned Plaintiff's August 2012 payment. Id. at ¶ 18.

On January 17, 2013, Plaintiff filed a loan modification application. Doc. #2 at ¶ 19. Defendant assigned Japrina Williams to Plaintiff's application. Id. at ¶ 20. Defendant required that loan modification documents be submitted through its Hope LoanPort computer program. Id. at ¶ 23. During Plaintiff's modification request process, Hope LoanPort "discombobulated" a series of emails sent between Williams and Plaintiff. Id. Based on the formatting errors created by the computer program, Williams refused to accept Plaintiff's documents. Id. at ¶ 24.

On February 5, 2013, Williams stated that she required a series of documents, many of which had been submitted already, within three days. Doc. #2 at ¶ 25. Plaintiff's attorney provided the requested documents. Id. Also during the month of February, Defendant canceled a previously scheduled foreclosure sale of Plaintiff's property. Id. at ¶ 26.

At an unspecified time during the loan modification review process, Williams requested that Plaintiff "take care of some liens appearing on the subject property." Doc. #2 at ¶ 27. Plaintiff's attorney complied with this request on March 8, 2013. Id.

On March 11, 2013, Williams requested the death certificate for Robert. Doc. #2 at ¶ 28. The same day, Plaintiff's attorney sent the death certificate to Williams. Id.

On or about March 20, 2013, Defendant referred Plaintiff's loan to its foreclosure department. Doc. #2 at ¶ 29. The following day, Defendant scheduled a foreclosure sale of Plaintiff's property for April 26, 2013. Id. at ¶ 31. As part of the foreclosure process, Defendant: (1) took pictures of Plaintiff's property; (2) hung "door hangers" on Plaintiff's property; and (3) published a notice of foreclosure in a local newspaper. Id. at ¶¶ 47, 50.

On March 29, 2013, Plaintiff received a letter from Defendant stating that the loan modification application was denied "due to Plaintiff... not providing the required documents." Id. at ¶ 33. Plaintiff received a second copy of the denial letter on April 2, 2013. Id.

On April 18, 2013, following a request for specifics submitted by Plaintiff's attorney, Williams sent Plaintiff a letter stating:

The above referenced loan has been declined for modification review per the investor guidelines. We are unable to modify this loan because the title is vested in an estate. Martha Davis will have to assume the loan into her name via the Assumptions department.... Please check with that department to find out what information Mrs. Davis will need to proceed with an assumption. Once the loan has been placed in her name you may submit a new package via the ...

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