IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

FRED C. PROCTOR, JR.,

Plaintiff,

vs. CASE NO. 3:10cv149/RS-MD 

COUNTRYWIDE FINANCIAL 

CORPORATION, a Delaware

corporation; COUNTRYWIDE HOME

LOANS, INC., a New York corporation;

BAC HOME LOANS SERVICING, LP, a

Texas Limited Partnership; LARRY WRIGHT,

Individually; WRIGHT & ASSOCIATES OF

NORTHWEST FLORIDA, INC., a Florida

corporation; CHRISTOPHER LEE PEAVY,

Individually; JAMES A. PEAVY, JR., 

Individually; ANDREW PICKEL, Individually;

and PEAVY AND ASSOCIATES, INC.,

a Florida corporation,

Defendants.

_______________________________________

COUNTRYWIDE HOME LOANS, INC., a

New York corporation,

Counter-Plaintiff,

vs.

FRED C. PROCTOR, JR.,

Counter-Defendant.

_______________________________________/

ORDER

Before me is the Plaintiff’s Motion To Remand For Lack Of Subject Matter

Jurisdiction (Doc. 84). Defendants’ Response (Doc. 91) contends that remand is

improper because the allegations of Paragraph 64 of the Complaint (Doc. 1-3) (Count

Case 3:10-cv-00149-RS-MD Document 96 Filed 06/13/11 Page 1 of 3
II) “implicate violations of the federal Fair Credit Reporting Act (FCRA)”. 

The three counts remaining against the present Defendants allege claims arising

under Florida law. Count I is entitled “DECEPTIVE AND UNFAIR TRADE PRACTICES,

CHAPTER 501, Part II Florida Statutes.” Count II is entitled “FRAUD”. Count III is

entitled “CIVIL CONSPIRACY TO DEFRAUD”. Paragraph 64, on which Defendants

rely, is one of the allegations in Count II for common law fraud:

“64. Plaintiff has sustained substantial damages, including impairment of

his credit, purported income based on forgiveness of debt, loss of ability to

refinance his home mortgages at reduced rates, as a consequence of the

false statements, material misrepresentations and fraud perpetrated by

Defendants Wright, Countrywide, Pickel, and Peavy.”

However, the very next numbered paragraph removes any doubt that Count II of

Plaintiffs’ Complaint does not allege violations of the Fair Credit Reporting Act, 15

U.S.C. §1681, et seq;:

“65. Pursuant to Section 627.792, Florida Statutes and Florida law,

Defendants Wright, Countrywide, Pickel, and Peavy are liable for the

fraud, defalcation, and misappropriation by Defendants Wright,

Countrywide, Pickel, and Peavy.”

If that were not enough, Count V entitled “VIOLATIONS OF THE FAIR CREDIT

REPORTING ACT, 15 U.S.C. §1681, ET SEQ”, asserted claims against only the nowdismissed Defendants, Countrywide Financial Corporation, Countrywide Home Loans,

Inc., and BAC Home Loan Servicing, LP. The present Defendants are not named in

Count V. Defendants’ argument that “Plaintiffs’ allegations implicate violations of the

federal Fair Credit Reporting Act (FCRA)” attempts to be too clever by far. It is very

clear that the remaining Counts, I, II, and III, allege only state law claims. Remand is

required.

Case 3:10-cv-00149-RS-MD Document 96 Filed 06/13/11 Page 2 of 3
IT IS ORDERED:

1. This case is remanded to the Circuit Court of the First Judicial Circuit for

Walton County, Florida. 

2. The clerk is directed to close the file. 

ORDERED on June 13, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case 3:10-cv-00149-RS-MD Document 96 Filed 06/13/11 Page 3 of 3