Lawsuit against Bank of America sent back to Cabell court

By Nathan Bass | Jan 3, 2013

HUNTINGTON – A federal judge has granted the plaintiff’s motion to remand a breach of contract and illegal debt collection case against Bank of America back to the Circuit Court of Cabell County.

Judge Robert C. Chambers of the United States District Court for the Southern District of West Virginia, Huntington Division, issued the memorandum opinion and order Dec. 20.

Chambers declined to rule on Bank of America’s Motion for Relief from Default Judgment and its Motion to Dismiss, leaving those issues to be decided by the state court.

Plaintiff Cindy L. Young and her roommate, Daniel Bruno, purchased a house together as joint tenants, and in 2007 the house was refinanced with Countrywide Home Loans, Inc. According to the opinion, both Young and Bruno executed a Deed of Trust and they both signed a “Fixed/Adjustable Rate Rider.” However, only Bruno signed the “Fixed/Adjustable Rate Note.”

“Plaintiff asserts,” the opinion states, “she called Countrywide and informed it that Mr. Bruno was no longer living in the house, and she states that Countrywide instructed her to continue making payments on the loan.”

Subsequently, BAC Home Servicing, LP, took over the loan, and Young asserts she was again instructed to continue making payments.

“However, in or around March of 2011, [Bank of America], as successor by merger to BAC, told Plaintiff it would no longer accept payments because Mr. Bruno’s name was the only one who signed the “Fixed/Adjustable Rate Note," the opinion says.

Bank of America then foreclosed on the house in January 2012, and it was purchased by Federal National Mortgage Association.

Young asserted that she did not receive proper notice of the foreclosure as required by the Deed of Trust and filed suit for breach of contract and illegal debt collection.

“As [Bank of America] is a foreign corporation which is not authorized to do business in West Virginia, Plaintiff had the summons and complaint sent by certified mail by the Secretary of State to [Bank of America’s] office in Jacksonville, Fla.,” the opinion states.

The Secretary of State’s Office represented that the summons and complaint were received at the mailroom on Feb. 13, and Bank of America admitted to this.

Alejandra Silva, Vice President for Bank of America stated, however, that “the summons and complaint was not routed properly when it was received and it unfortunately was filed in the electronic loan file without any further action by [Bank of America]," the opinion says.

After Bank of America did not respond to the action, Young filed a Motion for Default Judgment and the court granted the motion on May 1. The judgment order voided the foreclosure sale, ordered Young to resume making payments and awarded Young $4,474.25 for attorneys fees and costs.

Bank of America asserted that in June it first learned of the default judgment against it. On Aug. 21, it removed the matter to federal court.

Young argued that removal was improper because it was outside the 30-day window for removal allowed by statute. Bank of America argued that since service was defective under West Virginia law, the prescribed 30-day time period was never triggered.

“Under West Virginia law,” Chambers wrote, “service of process on a foreign corporation not qualified to do business in the State may be accomplished in two ways.

“First, a plaintiff may make personal service ‘by delivering or mailing... a copy of the summons and complaint to any officer, director, trustee, or agent of such corporation.’

“Second, a plaintiff may effectuate service ‘by delivering or mailing... [a copy of the summons and complaint] to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.’

“Pursuant to West Virginia Code § 31D-15-1510(e), ‘[a]ny foreign corporation doing or transacting business in this state without having been authorized to do so... is conclusively presumed to have appointed the Secretary of State as its attorney-in-fact with authority to accept service of notice and process on behalf of the corporation...‘”

Bank of America argued that Young failed to property serve it through the Secretary of State because the Summons and Complaint were sent to its Florida office instead of its principal office in Charlotte, N.C.

“Under Murphy Brothers, however, the court finds it need not definitely decide all the service of process issues. With respect to removal jurisdiction, Murphy Brothers very clearly states that the thirty-day time period ‘is triggered by simultaneous service of the summons and complaint,’" the opinion says.

“Even if this Court, for the sake of argument, discounts the receipt of the summons and complaint in February because the documents arguably were sent to the wrong location and its legal department was unaware of the action at the time, [Bank of America] concedes that on June 18, 2012, it had actual knowledge it received, and its employee signed for, the formal Summons and Complaint sent by the Secretary of State.

“Nevertheless, it waited until Aug. 21, 2012, before it removed the case to this Court. Given that it is [Bank of America’s] burden to prove this case was timely removed, and this court, at the very least, has serious doubt as to whether federal jurisdiction is proper given the two month delay in removal from June until August, this Court is required to remand the action back to state court.”

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