F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E S P E R A N Z A C O R

R A L ; D I A N A B A L G A S , Plaintiffs-Appellants
,

v

.

S E L E C T P O R

T F O L I O S E R

V I C I N G , I N C .; U.S. B A N K , Defendants-Appellees. N o. 15-16574

D.C. No. 3:15-CV-01542- EMC

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Edward M. Chen, District J u dg e, Presiding

Arg ued and Submitted May 19, 2017 San F rancisco, California

F iled December 27, 2017

B efore: Kim McL ane W ardlaw and Andrew J . Kleinfeld, Circuit J udg es, and Cathy Ann B enciveng o, District J udg e. *

Opinion by J udg e B enciveng o; D issent by

J udg e Kleinfeld

* T h e H o n orab le Cath y A n n B en civ en g o , District J u d g e f or th e U .S. District co u rt f

o r th e So u th ern Distr i c t o f Calif o rn ia, s ittin g b y d esig n atio n

.C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 2

SUMMARY * *

Diversity Jurisdiction

The panel reversed the district court’s denial o f a motion
to remand, vacated the district court’s o rder g ranting Select Portfolio Servicing
, I n c

. ’ s motion to dismiss, and directed that the case be remanded to state c o u r t, because the district

cour t w as w ithout subject matter jurisdiction where the removing party , Select Portfolio, did not satisfy its burden o f establishing the amount in controversy ex ceeded $75,000 for purposes of diversity

jurisdiction.

Plaintiffs’ complaint sou ght o nly a temporary stay o f foreclosure pending review of a loan modification a pplication pursuant to the California Homeowners B ill o f Ri ghts. The
p anel held that the v a lue of the property or am o u n t o f indebtedness were not the amounts in controver s y i n s uch a circumstance. B ecause Select Portfolio only a sserted these amounts in its notice of removal, the panel concluded that it had not established the requisite amount in controversy

. The panel noted th a t p arties seeking to establish diversity jurisdiction over such cases may s t i l l demonstrate that the
amount in controversy r equirement was satisfied u sing other
measures, such as the transactional cos t s t o the lender o f delay ing foreclosure or a f

a ir r e n tal value of the property during the pendency of the injunction ; a n d possibly a dding such amounts to any other compensatory damag es soug ht b y the plaintiff.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 3

J udg e Kleinfeld dissented, and would affi r m the district

c o u r t

. J udg e Kleinfeld would hold that the district cou r t correctly f

ollowed the rule in Garfinkle v. W ells Fargo Bank
, 483 F .2d 1074, 1076 (9th Cir. 1973), t h a t in a suit to enjoin f o reclosure, the amount in controversy is the value o f t h e property soug ht to be foreclosed.

COUNSEL

Anthony Georg e Graham (arg ued), Graham & Martin L L P, Santa Ana, California, for Plaintiffs-Appellants.

Thomas A. W oods ( arg ued) a nd B ao M. Vu, Stoel Rives L L P, Sacramento, California, for Defendants-Appellees.

OP INION

B ENCI V ENGO, District J udg e:

T h i s case requires us to decide how to measure t h e amount in controve rsy for the purpose of d etermining diversity subject matter jurisdiction when a complaint seeks only a temporary stay of foreclosure pending review of a loan modification application pu rsuant to the California Homeowners B ill of Rig hts (“HB OR”). W e hold that the value o f the property or amoun t of indebtedness are not the amounts in controversy

in such a circumstance.

BACK G ROUND

On March 15, 2 013, Appellants Esperanz a Corral a nd Diana B alg as (tog ether, “Corral”) received a notice of defaultC O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 4

on thei r m o rtg ag e on the residential property where Ms. B alg as lives ( t h e “ P roperty ”). They then applied for a loan modification with the loan servicer, A ppellee Select Portfolio Servicing
, I nc. ( “SPS”). 1 I n April 2014, while the loan modification application wa s pending
, Corral received a Notice of Trustee Sale of the Property

. Thereafter, Corral filed a lawsuit in the California Superior Court for Alameda County ( t he “ F irst Action”) and successfully moved for a temporary restraining order ( “TRO”) o f the trustee sale. I n December 2014, the p arties reached a settlement, pursuant to which SPS ag reed to wait thirty day s following the d ismissal of the First Action to receive Corral’s submission of a

c o mpleted application for a loan modification. T h e settlement ag r eement also provided that if SPS did not receive a completed a

p p lication within thirty day s, SPS

re served the rig ht to pursue non-judicial foreclosure of the Property

.

On or around F ebruary 25, 2015, SPS scheduled a trustee sale for the Property

for March 5, 2015. On March 3, 2015, Corral filed this lawsuit in Californ i a S uperior Court for Alameda County
, a sserting claims for violation of HB OR a nd for violation of California’s unfair c o mpetition law, California B usiness & Professions Code § 17200 e t seq. The Superior Court issued a TRO enjoining the trustee sale, but it

1 U.S. B an k
, N.A
., is also a p arty to th is litig atio n

. T h e o r i g i n a l

co m plain t d o es n o t list U .S. B an k in th e cap tio n , b u t th e co m p lain t b eg in s:

“ A s f or h er cau ses o f actio n ag ain st [SP S], U.S. B a n k
, a n d Do es 1- 1 0 . . . .” T h e am en d ed co m p lain t, f iled af ter th e case w as rem o v ed , lists U.S. B an k in th e cap tio n , an d th e p arties’ brief s i d en tif y it as an A

p pellee. U.S. B an k ’ s ro le i n th e u n d erly in g d isp u te is n o t clear f ro m t h e p lead i n g s, b u t b ased o n d o cu m en ts in th e reco rd , it ap p ears to b e th e tru s tee f o r th e tru s t th at h o ld s th e n o te o n th e P ro p erty

.C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 5

later denied Corr a l’s motion for a p r eliminary injunction o f the foreclosure sale.

On A pril 3
, 2015, SPS removed this lawsuit to the United Sta t e s D istrict Court for the Northern District of California. The notice of removal stated that the district court h ad diversity jurisdiction und e r 28 U.S.C. § 1332 because the parties a re diverse a

nd more than $75,000 i s i n controversy

. As for diversity
, the notice s tated that Corral and B alg as a re citiz ens of California and SPS is a Utah corporation with its principal place of b usiness in U tah. As for th e a mount in controversy , the notice stated that the amount in controversy requirement is satisfied because t h e Deed of Trust o n the Property sec u r e d a $680,000.00 promissory note a nd the unpaid balance and other charg e s on the pro m i s s o r y note at the time of the notice was $806,512.74.

The district court denied Corral’s motion to remand. I n its o pinion, the district court relied e x c l u sively on cases where the plaintiffs soug ht a n indefinite i n

j u nction ag ainst foreclosure, to quiet title to the property i n q u estion, o r to rescind their loans, and conclude d that Corral’s g a ins from the temporary injunction “would surely ex c e e d $75,000” in lig ht of the value of the Property and amount of indebtedness.

Corral also filed an amended complaint in t h e d i strict
court t h a t a d d e d claims for b reach of contract and breach o f the implied covenant o f g ood faith and fair dealing arising out of the settlement of the F irst Action. The amended complaint specified that t h e a m ount in controversy d oes not ex c eed $75,000. O n J uly 9
, 2015, the d istrict court g ranted SPS’s motion to dismiss the amended complaint for f ailure to state a claim. Corral now timely appeals.C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 6

STANDARD OF REVIEW

Althoug h Corral’s brief does not specifically identify the district court’s denial of t h e m o t i on to remand as an issue presented for review, it a rgu e s that the motion to remand should have been g ranted. Our review of a denial of a motion
to remand is de novo. Hunter v

. Philip Morris USA
, 582 F .3d 1039, 1042 (9th Cir. 2 009); see also Reeb v. T homas
, 636 F .3d 1 2 24, 1225 (9th Cir. 2 0 1 1 ) (“The ex istence o f subject matter jurisdiction is a question of law reviewed de novo.”)

. Moreover, “[ t] he requirement that jurisdiction be
esta b l i s hed as a threshold matter is inflex ible and without

ex c e ption; for ju r i s d i c tion is power to declare the law, a nd

w i t h o ut jurisdiction the court cannot proceed at all in a n y cause.” Ruhrgas AG v. Marathon O il Co.
, 526 U.S. 5 7 4, 577 (1999) (citing Steel Co. v. Citizens for Better Env’t
, 523 U.S. 83, 93– 9 5 (1 998)) (internal brackets, ellipses, citations a nd quotation marks omitted). Thus, it is i r r e l e v ant that the Corral did not ex pressly identify subject matter jurisdiction a s

an issue on appeal because the court has a n “ independent oblig ation to d etermine whether subject-matter jurisdiction

ex ists, even in the absence of a c h a l l en ge f rom a ny p arty

. ” Arbaugh v. Y

& H Corp. , 546 U.S. 500, 514 (2006).

D ISCUSSION

“F ederal courts are courts of limited jurisdiction.

. . . I t is
to be p resumed that a cause l ies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am

. , 5 1 1 U .S. 375, 377 (1994) (internal citation s o m itted). This burden is particularly string ent for removing defendants because “[ t] he removal statute is strictly construed, and any doubt about the rig ht of removal requiresC O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 7

resolution in favor o f remand.” Moore-Thomas v. Alaska Airlines, Inc.
, 5 53 F .3d 1 241, 1 244 (9th Cir. 2009); see also Gaus v. Miles, Inc.
, 980 F .2d 564, 566 ( 9th Cir. 1992) (noting the “strong presumption” ag ainst removal jurisdiction).

“The basic statutory g r ants of federal-court subject-matter jurisdiction are contained i n 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for ‘federal-question’ jurisdiction, § 1332 for ‘ diversity of citiz enship’ jurisdiction.” Arbaugh
, 546 U.S. at 513 (internal b ra c kets omitted). SPS removed this case to federal court o n the basis of diversity jurisdiction. “F or a federal court to ex ercise diversity jurisdiction under § 1332(a), the amount in controv ersy must ex ceed $75,000, and the parties must be citiz ens of different states.” R a inero

v. A rchon Corp.
, 844 F .3d 832, 839 (9th Cir. 2016); see also 28 U.S.C. § 1332(a).

C o rral did not d ispute the ex istence of diversity of citiz enship in the motion to remand before the district court, but the citiz enship o f each party is not entirely clear from the record. There is no dispute that Corral and B alg as a r e citiz ens of California, and that SPS is a Utah corporation with its principal place of bus i n e s s in Utah. However, the notice of r emoval did not specify the citiz enship of U.S. B ank, N .A., which was identified as a party in the orig inal complaint a nd as an appellee here. Nevertheless, we have previously ruled that U. S

. Ba nk, N.A., “ is a citiz e n of Ohio because its main office is located in that state.” Lowdermilk v

. U.S. Bank Nat’l Ass’n
, 479 F

. 3d 994, 997 (9th Cir. 2 007) (citing W a c h o via Bank, N.A. v

. Schmidt
, 5 46 U.S. 303 (2006)). Assuming U.S. B ank’s main o ffice w as located in Ohio when Corral filed this lawsuit, there is complete diversity of the parties.C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 8

Assuming diversity ex ists, the only issue i s whether the
amount in controversy ex c e eds $ 7 5
, 000. The orig inal complaint, which was the operative complaint at the time o f

r e m oval, did not seek a specific dollar amount in dama ge s

. Rather, it pray ed f

or “ an order enjoining the sale of the Subject property w hile Plaintiff’s loan modification application is under review,” compens a tory damag es, a nd
costs. Elsewhere, the complaint stated that “Defendants may be l iable for the g reater of treble damag es or $50,000 if the material v i o lation was intentional, reckless or resulted in willful misconduct. Plaintiff may a lso be aw ar d e d her reasonable attorney ’s fees and costs.”

“W here it is not f

acially evident from the complaint that

more than $75,000 is in controversy , the removing party must prove, by a p reponderance of the evidence, that the a mount in controversy meets the jurisdictional threshold.” Matheson v

. Progressive Specialty Ins. Co.
, 319 F .3d 1089, 1090 (9th Cir. 2003); see also Singer v

. State Farm M u t

. A u t o

. Ins. Co.
, 116 F .3d 373, 376 (9th Cir. 1997) (“W here the complaint does n ot d emand a d ollar amount, the removing defend a nt bears the burden of proving by a preponderance of evidence that the amount in controversy ex ce e ds [ the jurisdictional threshold] .”). “Conclusory alleg ations as to the amount in

co n t r oversy are insufficient.” Matheson
, 319 F .3d at 1090–91.

SPS, the removing party , asserted in its notice of removal that the a mount in controversy for jurisdictional purposes was either $ 680,000.00, based on the value of the promissory n ote secured by the Deed of Trust on the Property
, or $806,512.74, b a s e d on the unpaid balance and o ther charg es on t h e promissory note. There is no dispute as to whether either of these d o l l a r a mounts is a ccurate. The only q u estion isC O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 9

whether they are proper measures of the a m o u n t in
contro v e r sy in a complaint seeking only a temporary injunction ag a inst foreclosure while a loan mod i f ication application is pending

.

“I n actions seeking de c l a ratory or injunctive r e lief, it is well established th at the amount in controversy is measured by the value of the object o f the litig ati on.” Cohn v

. Petsmart, Inc.
, 281 F .3d 837, 840 (9th Cir. 2002) (quoting Hunt v. W

a sh. State Apple A dvert. Comm’n
, 4 32 U .S. 3 3 3, 347 (1977))

. T h e “object of the litig a tion” in this case is a temporary injunction of the foreclosure proces s to require SPS to consi d er Corral’s loan modification application. Althoug h cases with similar facts arise freque n tly in district courts, we have y e t to address whether, whe n the p laintiff seeks o nly a temporary injunction pending review of a loan modification a

pplication, the a mo unt of the indebtedness constitutes the amount in controversy r elated to that injunctive relief. 2 W e now hold that it does not.

2 T h is m ay b e b ecau se g en erally district co u rts “ h av e ro u n d ly rej ected th e arg u m en t th at th e am ou n t in co n tro v ersy is th e en t i r e a m o u nt o f th e lo an w h ere a p la i n tif

f seek s in j u n ctiv e relief to en

j o in a f o reclo su re sale
p en d i n g a lo a n mo d ifica tio n .” Verg a r a v. W ells Fa rg o Ba n k, N.A.
, No

. SA CV 1 5

- 0 0 0 5 8- J L S (RNB x ), 20 1 5 W L 1 24 0 42 1
, at * 2 (C.D. Cal. Mar. 1 7
, 2 01 5 ) (em

p h asis in o rig in al) (citin g cases); see a lso Tu rn er v. W ells Fa rg o Ba n k, N.A.
, No

. 2 16 CV0 1 0 9 5 T L NKJ N, 2 0 1 7 W L 2 2 14 9 6 1
, at * 3 (E.D. Cal. May 1 9, 20 1 7 ); Ulsh a fer v. PHH Mo rtg a g e Co

. , No

. 2 :1 6

- cv

0 1 1 4 1

- MCE- CKD, 2 0 1 7 W L 8 9 6 29 0
, at * 4

– 5 (E.D. Cal. Mar, 6 , 2 0 1 7 ); Beltra n v. We lls Fa rg o Ba n k, N.A.
, No

. CV- 1 6

- 0 6 6 24

- RGK(SSx ), 2 0 1 6 W L 6 9 0 2 09 9
, at * 3 (C.D. C a l

. N ov

. 2 3
, 2 0 1 6 ); Perryma n v. JPMo rg a n C

h a se Ba nk, N

.A.
, 1:1 6

- cv

- 00 6 4 3

- L J O- SKO, 2 0 1 6 W L 4 4 4 1 2 1 0
, at * 5

– 6 (E.D. Cal. A u g

. 2 3
, 2 0 1 6 ); Ortiz v. S eteru s, In c. , No

. L A CV1 6

- 0 1 1 1 0 J A K (J EMx ), 20 1 6 W L 2 9 6 8 00 7
, at * 3
, 2 01 6 W L 29 6 8 0 0 7 (C.D. Cal. May 1 8
, 2 0 1 6); Cep h a s-Bo yd v. S h ellp o in t Pa rtn ers, LLC
, No

. EDCV 1 6

- 3 8 6- J GB (KKx ), 2 01 6 W L 16 0 0 8 2 8
, at * 4 (C.D. Cal. A p r. 2 1
,C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 10

“Under the ‘eithe r v iewpoint’ rule, the test for determining the amount in controversy is the pecuniary result
to either party which the judg ment would directly produce.” In re Ford Motor Co./Ci t i b a n k ( S. D akota)

, N.A.
, 264 F .3d 952, 958 ( 9th Cir. 2001)

. Thus, to satisfy its burden o f establishing the amount in controversy rela ted to the temporary delay in foreclosure soug ht by the complaint, SPS

was required to establish, by a p reponderance of the evidence, that the benefit to Corral of the delay would ex ceed $75,000,

or that the cost to SPS from the delay would ex ceed $75,000. Neither of these amounts equals the o rig inal am o u n t of the
note or the unpaid balance o f the debt. The l e n gth of the temporary injunction would almost c ertainly be minimal, a nd in any event w ould be primarily w ithin SPS’s control because it is b ased on the amount of time it would t a k e for SPS to review Corral’s loan modification ap p l i c ation. After SPS completed its r eview of the a pplication, the injunction would end and either (1) SPS and Corral wou l d ag ree to a loan modification, o r (2) SPS w ould deny the application and be able to proceed w ith foreclosure. The o n ly pecuniary harm that would b e suffered by SPS is the cost of having to r eview Corral’s loan modification application and of having to delay foreclosure for the leng th of that r e v i e w

. Meanwhile, the only pecuniary benefit that would b e g ained b y Corral would be derived f

rom t e m p o r arily retaining possession of the

2 0 1 6 ). T h ese rem an d o rd ers b ased o n lack o f su

b j ect m atter j u risd ictio n

w ere n o t ap pealab le. 2 8 U.S.C. § 1 4 4 7 (d ) (“ A n o rd er rem an d in g a case to th e State co u rt f

ro m w h ich it w as rem o v ed is n o t rev iew ab le on ap p eal or

o th erw i se.”); see a lso T

h in g s Rememb ered

, In c. v. Petra rca , 51 6 U.S. 1 2 4
, 1 2 7

– 2 8 (1 9 9 5 ) (“ A s lo n g as a d i strict co u rt’ s rem an d i s b ased o n a t i m ely raised d ef

ect in rem o v al pro ced u re or o n lack o f su b j ect- m atter j u risd ictio n

–th e g ro u n d s f

o r rem an d reco g n ized b y § 1 4 4 7 (c)– a co u rt of
ap p eals lack s j u risd i ctio n to en tertain an ap peal o f th e rem an d o rd er u n der § 1 4 4 7(d ).”).C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 11

Property while SPS reviews the a pplication. Neither o f these
amounts even approaches the full a mount of indebtedness on the property because neither outcome results in Corral being relieved of the oblig ation to repay the debt to SPS.

This circumstance is unlike cases in which p laintiffs seek to enjoin foreclosure indefinitely as part of an effort to quiet title to t h e p roperty o r rescind their loan ag reements. I n a recent c ase, we noted that the plaintiff’s “Quiet Title Action” satisfied the amount in controversy requirement because “the object in litig a tion is the p roperty , which w as a s s e s sed at a value of more than $ 200,000.

. . .” Chapman v. Deutsche Bank Nat’l T

r u s t Co.
, 651 F .3d 1039, 1045 n.2 (9th Cir. 2011). Similarly
, in an earlier case where the plaintiffs
soug h t to permanently e njoin foreclosure of their property on the g rounds that it was unconstitutional, we held that because “[ t] he w hole purpose of this action is to foreclose the Ba nk from selling [ the] property in the manner contemplated,” the
matter in c ontroversy e x ceeded the jur i sdictional minimum

u n der 28 U .S.C. § 1331 based on the market valu e o f t h e property

. Garfinkle v. W ells Fargo Bank
, 483 F

. 2d 1074, 1076 (9th Cir. 1973).

Our holding here is n ot inconsistent with Chap m a n a nd Garfinkle . W hen a plaintiff seeks to q uiet title to a property

or permanently enjoin foreclosure, the object of the litig ation is the ownership of the property

. Therefore, the value of the property or the a mount o f indebtedness on the property is a proper measure of the amount in controversy

. Here, u nlike in Chapman
, Garfinkle
, and the other cases cited by the district
court in d eny ing the motion to remand, the object o f the litig ation is only a temporary injunction while SPS considers Corral’s loan modification application. Thus, unlike in these other c a s e s , even if Appellants were to succeed o n thisC O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 12

lawsuit, they would n o t be able to retain p o s s ession a nd ownership of their Property without pay ing off their debt.

Notwithstanding the foreg oing
, we do not hold that every

case seeking a temporary injunction pending review of a loan modification a

pplication does no t s a tisfy the amount in controversy r equirement for diversity jurisdiction. W e hold only that the amount in controversy in such cases d o e s not equal the value o f the property or amount of inde b tedness. Parties seeking to e stablish diversity jurisdiction over such

cases may still demonstrate that the amount in controversy requirement is satisfied using other measures, such as the transactional costs to the lender of delay ing foreclosure or a fair rental v a lue of the property during the p endency of the injunction. F urther, such a mounts c an b e added to a ny other compensatory damag es soug ht by the plaintiff to determine whether more than $75,000 is in controversy

.

H er e, h owever, it is n ot evident from the face of the complaint that $75,000 is at issue, and SPS, as the party with the burden to demonstrate jurisdicti o n , did not present any evidence to the district court aside from the a mount o f indebtedness in opposition to Corral’s motion to re m an d

. According ly
, SPS did n ot sa t isfy its burden of establishing subject matter jurisdiction. Therefore, the district court’s denial of the motion to remand was erroneous.

CONCLUSION

B e cause SPS did n o t establish that removal was proper, the district c ourt should have g ranted Corral’s mo tion to remand and wa s without subject matter jurisdiction to consider SPS’s motion to d ismiss for f ailure to state a c laim. According ly
, the district court’s denial of the motion toC O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 13

remand is reversed, its o rder g ranting SPS’s motion to dismiss is v acated, and this case should b e remanded to state court. 3

REVERSED.

KL EI N F EL D , Senior Circuit J udg e, dissenting :

I respectfully dissent. W e held in Garfinkle v

. W ells Fargo B ank that in a suit to enjoin f oreclosure, the amount in controversy is the v alue of the property soug ht to be foreclosed. 1 That i s the long -established g eneral rule. 2 The district court correctly followed that rule and s hould be affirmed.

The majority ’s justification f or carving out an ex ce p tion
t o t h e u sual rule is based on the assumption that Sele ct P o r t f olio will soon foreclose on the property after it denies Corral’s request for a loan modification. That is speculation,
not a pleaded f

act. The pleading appears to as sume that the loan modification m a y be g ranted. The lawsuit would prevent the transfer of title from Corral to Select Portfolio, a financial consequence far in ex cess of $75,000.

3 B ecau se n o n e o f th e d o cu m en ts o f w h ich S P S so u g h t j u d icial n otice

are relev an t to th i s d ecisio n , S P S’ s req u est f o r j u d icial n o t ice is d en ied as

m o o t.

1 4 8 3 F.2 d 1 07 4 , 1 0 76 (9 th Cir. 1 97 3 ).

2 S ee, e

. g

. , i d

. ; Ch a

p ma n v. Deu tsch e Ba n k Na t’l Tr. Co

. , 6 5 1 F.3 d 1 0 3 9
, 1 04 5 n .2 (9 th Cir. 2 01 1 ) (p er cu riam ); Fa rka s v. GMAC Mo rtg
., L.L.C. , 7 3 7 F.3 d 3 3 8 , 3 4 1 (5 th Cir. 2 0 1 3) (p er cu riam ).C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 14

This is t he second time Corral has thwarted f oreclosure despite not pay ing her mortg ag e. L ast time, after she sued to stop foreclosure, Select Portfolio a g reed to gi v e her 30 day s to s u b m i t a loan modification request. She did not do that. Her justification is that Select Portfolio should have taken the initiative to send her t h e requisite form, thoug h she did not ask them to send it and she later o btained it any w ay

. She sent her modification request long after the 30 day deadline h ad elapsed.

Select Portfolio then made its second attempt to foreclose, the one at issue now. Yet it i s f o i l e d a g ain. B y artful phrasing o f the complaint c ombined with our new ex c eption
to the jurisdictional rule, S el ect Portfolio is set up for an infinit e reg r ess of failed foreclosures. And e ven if Select Po r tfolio succeeds, it faces a likelihood o f more administrative effort, and more attorney s’ fees, until it g ives Corral whatever she turns o ut to want. O f course, we cannot know what other barriers to foreclosure Select Portfolio may face—whether from its b oard, o r r eg ula t ory authorities, o r

c h a n ges in the real e state market, or its own financ i al ci r c u m s tances. W hat we do know, without speculation o r assumption, is that Select P o r tfolio tried ag ain to foreclose and has been thwarted ag ain.

The majority accepts the e stablished proposition that “[ u] nder the ‘either viewpoint’ rule, the test for d etermining the amount in c o n t r oversy is the pecuniary result to e ither party which the judg ment woul d directly produce.” 3 F rom Corral’s point of view, at best her lo a n modification will be approved and she will avoid foreclosure—a result worth more

3 In re Fo rd Mo to r Co ./Cityb a n k ( S

. Da ko ta )

, N.A.
, 2 6 4 F.3 d 9 5 2
, 9 5 8 (9 th Cir. 2 00 1 ) (em

p h asis ad d ed ).C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 15

than $75,000. At worst, she will g a in a delay worth less than $75,000. B ut from Select Portfo l i o’s viewpoint, the injunction prevents it from foreclosing

. May be another time, after more paperwork back and forth on the loan modification request, it will finally b e al l o w e d to foreclose, or may be it will ag ain be prevented from doing so. Either way , it cannot g et the house now, which is w hat it soug ht, and the house is worth more than $75,000. I f Select Portfolio could foreclose
now, it could sell the house in today ’s market, not some later market.

The statute say s “matter in controversy ,” not “amount in controversy .” 4 T he “matter in controversy , ” f rom Select Portfolio’s v iewpoint, is title, not merely another delay while it considers the late l oan modification r equest. F oreclosure
t r ansfers title. The “value of the object of the litig ation” 5 i s the value of the house, which all ag ree is far i n ex c e s s o f $75,000.

I n Garfinkle v. W

ells F argo Bank
, we held t h a t a suit to prevent f oreclosure places the p roperty itself in controversy

. 6 W e did not limit our holding t o suits for “permanent” injunctions. W e ex plained that the matter in controversy

r e quirement was met because “ [ t] he w hole purpose of th i s action is to f

o re close the B ank from selling this property in

4 S ee 2 8 U.S.C. § 1 3 3 2 (a).

5 Co h n v. Petsma rt, In c. , 2 8 1 F.3 d 8 3 7
, 8 4 0 (9 th C ir. 2 0 0 2 ) (p er

cu riam ) (q u o tin g Hu n t v. W a s h

. S ta t e A

p p l e Ad vert. Co mm’n
, 43 2 U .S. 3 3 3 , 3 4 7 (1 9 7 7 )).

6 4 8 3 F.2 d 1 07 4 , 1 0 76 (9 th Cir. 1 97 3 ).C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 16

the manner c ontemplated.” 7 The reasoni n g in G arfinkle applies e qually in the case before u s

. The “matter in controversy

” in both cases is foreclosure in the manner contemplated, not the value o f a speculative amount of time between that f

o r e closure attempt and some subsequent possible foreclosure.

Garfinkle is c onsistent with the long

- established rule that when an injunction g oes to a question o f property ownership, the value of the property is the amount in c ontrover s y

. F ollowing Garfinkle
, we held in Chapman v. Deutsche Bank National Trust Co. that i n a s u it to quiet title, the amount in controversy is the p roperty ’s value, b e c ause the p roperty is “the object i n litig ation.” 8 Chapman cited our holding in W oodside v. Ciceroni that “ [i] n a suit to quiet title, or to

remove a cloud therefrom, it i s not the value of the defendant’s claim which is the amount in controversy , but it is the w hole o f the re a l es t ate to which the claim ex tends.” 9 L ikewise, the F ifth Circuit wrote in W alle r v. Professional Insurance Corp. that “courts look to the value of the property involved rather than the damag es that mig ht b e suffered, to determine the jurisdictional amo u n t in suits for injunctions

. . . and in suits to remove a cloud from the title of realty

. ” 1 0 And the F ifth Circuit followed Garfinkle in Farkas v

. GMAC Mortgage, L.L.C. when it held that if the purpose of a lawsuit is to stop foreclosure, then even if the plai n t iff c laims

7 Id

.

8 6 5 1 F.3 d 1 03 9 , 1 0 45 n .2 (9 t h Cir. 2 0 11 ) (p er cu riam ).

9 9 3 F. 1 , 4 (9 th

Cir. 1 8 9 9 ).

10 2 96 F.2 d 5 4 5 , 5 4 7 (5 th Cir. 1 9 6 1 ) (citatio n s o m itted ).C O R R A L V

. S E L E C T P O R

T F O L I O S E R

V I C I N G 17

damag es below the ju risdictional amount, the value of the property is the amount in controversy becaus e “ it is the property itself that is the object of the litig ation.” 1 1

There is no g ood reason for t h e majority to disting uish and thereby limit long -established and widely a pplied circuit l a w. All today ’s innovation c an do is add a r o und o f unproductive litig ation u nrelated to the merit s when foreclosure and other a c tions are broug ht in or r e m o ved to federal court. W e have turned a simple and predictable rule into a complicated and unpredictable rule.

11 7 37 F.3 d 3 3 8 , 3 4 1 (5 th Cir. 2 0 1 3 ) (p er cu riam ).