Bayview Loan Servicing, LLC v. Paselk

Filing 40

ORDER ADOPTING 32 REPORT AND RECOMMENDATIONS. It is ORDERED that the Report and Recommendation filed on November 1, 2017 is ADOPTED and Defendant's objection is OVERRULED. It is further ORDERED Plaintiff's First Amended Motion to Remand (Docket No. 21) is GRANTED and this forcible detainer action is REMANDED to the County Court of Hopkins County (cause number cv-16-08504). Any motion not previously ruled on is DENIED. Signed by District Judge Robert W. Schroeder, III on 12/7/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BAYVIEW LOAN SERVICING,
LLC,
Plaintiff,
v.
CAROL PASELK AND/OR ALL
OCCUPANTS OF 330 CR 1169,
BRASHER, TEXAS 75420

§
§
§
§
§
§
§

CASE NO. 6:17-CV-262

Defendant.
_____________________________________________________________________________

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions and recommendation for the disposition of this matter has been presented for
consideration. Docket No. 32. The Report and Recommendation, filed on November 1, 2017,
recommends that Plaintiff’s First Amended Motion to Remand (Docket No. 21) be granted.
Defendant filed written objections to the Report and Recommendation on November 28, 2017
(Docket No. 36), and Plaintiff filed a response on December 5, 2017 (Docket No. 39).
Plaintiff, Bayview Loan Servicing, LLC (“Bayview”), originally filed this forcible detainer
action in Justice of the Peace Court, Precinct 1, Place 1, Hopkins County, Texas. Docket No. 1 at
1. Judgment was granted in favor of Bayview on December 9, 2016 and again on appeal in the
County Court of Hopkins County on January 8, 2017. Docket No. 32 at 1. Defendant removed

this case to federal court after losing her appeal in the County Court of Hopkins County, Texas.
Id. Finding a lack of subject matter jurisdiction, the Report and Recommendation recommends
that the matter be remanded to the County Court of Hopkins County. Id. at 4.
In her objections, Defendant, proceeding pro se, states that she is asserting a defense or a
counterclaim pursuant to a federal statute. Docket No. 36 at 2. Federal question jurisdiction,
however, is only applicable when “the plaintiff’s statement of his own cause of action shows that
it is based upon [federal law].” Vaden v. Discover Bank, 556 U.S. 56, 60 (2009) (quoting Louisville
& Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). Pursuant to 28 U.S.C. § 1331,
“counterclaims, even if they rely exclusively on federal substantive law, do not qualify a case for
federal-court cognizance.” Vaden, 556 U.S. at 61. Plaintiff’s cause of action—forcible detainer—
is brought exclusively pursuant to Texas law.
Additionally, even if federal question jurisdiction could be based on a counterclaim
pursuant to a federal statute, the claims identified by Defendant in her written objections and in
her recently filed Amended Notice of Removal/Complaint (Docket No. 35) are all claims that
either were or could have been litigated in Defendant’s prior lawsuit in this court. Previously,
Defendant filed Civil Action No. 6:16-cv-1383, styled Paselk v. Bayview Loan Servicing, LLC, et
al., on December 20, 2016, based upon the same facts asserted by Defendant here. In that case,
Defendant fully litigated her claims against Bayview concerning the subject property. The case
was dismissed with prejudice on September 27, 2017. A litigant cannot pursue a second action
that arises from the same operative facts as those raised and adjudicated, or that could have been
adjudicated, in a prior lawsuit. See Ocean Drilling & Exploration Co., Inc. v. Mont Boat Rental
Services, Inc., 799 F.2d 213, 216–17 (5th Cir. 1986); Nilsen v. City of Moss Point, Mississippi, 701

Page 2 of 4

F.2d 556, 560 (5th Cir. 1983) (en banc). Defendant’s claims against Bayview are barred by the
doctrine of res judicata.
Defendant further asserts in her written objections to the Report and Recommendation that
diversity jurisdiction exists in this case. Docket No. 36 at 2. As the removing party, the burden is
on Defendant to plead and prove that the parties are completely diverse. Ray v. Bird and Son and
Asset Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975). The pleadings in this case show that
Defendant resides in Hopkins County, Texas, but does not establish the citizenship of Bayview.
Moreover, removal on the basis of diversity of citizenship is improper if, as here, the defendant
resides in the State in which the action is brought. 28 U.S.C. § 1441(b)(2).
Even if Defendant had established diversity of citizenship sufficient to support removal,
she has not established the requisite amount in controversy. In the context of a forcible detainer
action following a foreclosure proceeding, the amount in controversy is determined by the value
of the right of possession, and not the value of the property. See, e.g., Federal Nat’l Mort. Ass’n
v. Loving, 2011 WL 2517267, at *4 (N.D.Tex. June 23, 2011). Defendant submits a conclusory
statement in her objections that the value of the right of possession here exceeds $75,000 (Docket
No. 36 at 2), but she does not provide any facts to support that conclusion. Defendant has not met
her burden of showing that the value of the right to occupy the property exceeds $75,000.
For these reasons, having made a de novo review of the written objections filed by
Defendant in response to the Report and Recommendation, the Court concludes that the findings
and conclusions of the Magistrate Judge are correct and the objections are without merit.
Defendant has not met her burden of establishing federal question jurisdiction or diversity
jurisdiction. As a result, this Court lacks subject matter jurisdiction. It is therefore

Page 3 of 4

.

ORDERED that the Report and Recommendation filed on November 1, 2017 is ADOPTED
and Defendant’s objection is OVERRULED. It is further ORDERED Plaintiff’s First Amended
Motion to Remand (Docket No. 21) is GRANTED and this forcible detainer action is
REMANDED to the County Court of Hopkins County (cause number cv-16-08504). Any motion
not previously ruled on is DENIED.
SIGNED this 7th day of December, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

Page 4 of 4