Gatter v. Cleland

87 F.R.D. 66, 30 Fed. R. Serv. 2d 939, 1980 U.S. Dist. LEXIS 14708
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 16, 1980
DocketCiv. A. No. 79-2296
StatusPublished
Cited by6 cases

This text of 87 F.R.D. 66 (Gatter v. Cleland) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gatter v. Cleland, 87 F.R.D. 66, 30 Fed. R. Serv. 2d 939, 1980 U.S. Dist. LEXIS 14708 (E.D. Pa. 1980).

Opinion

MEMORANDUM

CLIFFORD SCOTT GREEN, District Judge.

Plaintiffs in this action are homeowners with mortgages guaranteed or insured by the Veterans Administration. The loan guarantee or insurance is provided pursuant to the Veterans’ Home Loan Guaranty and Insurance Program, see 38 U.S.C. § 1801 et seq., and its avowed purpose is to encourage homeownership among veterans by reducing the risk of loss to private lenders. Under the Program, before suit on or foreclosure of a delinquent loan may occur, the lender must notify the Veterans Administration of the default. 38 U.S.C. § 1816(a). Within thirty days after the notice the VA [68]*68may, at its option, take an assignment of the mortgage and relieve the private lender of his risk of loss. 38 U.S.C. § 1816(a).

Plaintiffs allege that they defaulted on their loans, but were never notified of the availability of a mortgage assignment program. Indeed, they allege that the program created by 38 U.S.C § 1816(a) has either been abandoned or unimplemented in the Philadelphia area. According to ¶ 48 of the complaint, no assignments of mortgages have been granted by the VA Center of Philadelphia for the years 1976, 1977, 1978 and 1979.

Plaintiffs charge violations of 38 U.S.C § 1816(a), the fifth amendment and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). On behalf of a proposed class, they seek declaratory relief and an injunction requiring the VA to implement the mortgage assignment program by giving notice to veterans of the possibility of assignment, developing written standards for reviewing each defaulting borrower’s situation and giving the borrower a written statement of the reasons why an assignment was rejected. Individually, they seek an order enjoining the private lenders on their mortgages from continuing foreclosure proceedings already commenced. They also ask the Court to order the VA to accept an assignment of their mortgage loans. Defendants named in the complaint include not only the VA and its officers nominally in charge of the program, but also the mortgagees on the named plaintiffs’ loans — The Fidelity Bond and Mortgage Company, the Kennedy Mortgage Company and the Lomas and Nettleton Company.

Pending before the Court are three motions: (1) motion to dismiss for lack of subject matter jurisdiction filed by two of the private lenders, Fidelity and Lomas; (2) plaintiffs’ motion for class certification pursuant to Rule 23(b)(2); and (3) motion to intervene filed by prospective plaintiffs Carl and Marie Nardi. For the reasons set forth below, we will deny the non-federal defendants’ motion to dismiss. We will grant plaintiffs’ motion for class certification and the Nardis’ motion to intervene.

I. JURISDICTION

With regard to the private lenders, plaintiffs allege that subject matter jurisdiction exists by virtue of either 28 U.S.C. § 1331(a) (the federal question statute) or 28 U.S.C. § 1337. Because we find our jurisdiction properly invoked under § 1331(a), we need not decide whether the Veterans Benefit Act of 1958 pursuant to which the disputed program was enacted is an “Act regulating commerce” within the purview of 28 U.S.C. § 1337.

In order for jurisdiction to attach under § 1331(a), the matter in controversy, exclusive of interest and costs, must exceed the value of 110,00o.1 Defendants Fidelity and Lomas contend that the amount in controversy here is the equity owned by each plaintiff in his home, for that amount represents the maximum each plaintiff could be damaged in the mortgage foreclosure proceedings. Plaintiffs contend, on the other hand, that the amount in controversy is the value of the home itself, measured either by the initial purchase price or by the amount sought by the non-federal defendants in mortgage foreclosure.

The initial purchase price of the Gatters’ home was $16,000, and Fidelity requests a judgment against the Gatters in mortgage foreclosure in the amount of $17,021.10. However, the Gatters have paid only $512.13 toward the reduction of principal on their loan. Similarly, the initial purchase price of the Bernsteins’ home was $29,100, and defendant Lomas requests a judgment of $32,788.89 in mortgage foreclosure. However, the Bernsteins have paid only $163.48 toward the reduction of principal on their loan.

Traditionally, the rule of valuation in injunctive relief cases is that the jurisdictional amount is measured by the value of [69]*69the property right which the plaintiff seeks to have protected. See generally, 1 Moore, Federal Practice, ¶ 0.95 at 912-14. In this action, plaintiffs seek to enjoin the private lenders from foreclosing their mortgages. Thus, the property right sought to be protected is the right to peaceful possession and enjoyment of the homes, not merely the right to the equity owned therein. While it can be argued and, indeed, plaintiffs have argued, that this right is invaluable, we believe that fair market value is as accurate a measure as any of its worth. See Garfin-kle v. Wells Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973); see also Rank v. Cle-land, 460 F.Supp. 920 (C.D.Cal.1978). Since the parties apparently agree that the fair market value of each plaintiff’s home exceeds $10,000, the minimum jurisdictional amount is met.

II. CLASS CERTIFICATION

Pursuant to Fed.R.Civ.P. 23(b)(2), plaintiffs move for certification of a class comprised of “all homeowners with VA-insured or guaranteed mortgages residing in the area served by the Veterans’ Administration Center of Philadelphia who default in their mortgage payments.” This motion is opposed not only by the VA and its officers, but also by the private defendants who extended mortgage loans to the named plaintiffs.

As we read the complaint, all claims for classwide relief are asserted against the federal defendants exclusively. (¶¶ 51-56 of the Complaint). The private lenders have been joined only so that plaintiffs can obtain individual injunctive relief halting the foreclosure proceedings on their own homes. (¶¶ 57-73). Because the causes of action against the mortgage companies are individual claims, we will certify the proposed class only as against the federal defendants.

Before an action may be allowed to proceed on behalf of a class under Rule 23(b), all four requirements of Rule 23(a) must be satisfied.

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Bluebook (online)
87 F.R.D. 66, 30 Fed. R. Serv. 2d 939, 1980 U.S. Dist. LEXIS 14708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatter-v-cleland-paed-1980.