Hagar v. Citimortgage, Inc.

Filing 8

Memorandum Opinion and Order....The court lacks subject matter jurisidiction; remanded to state court from which it was removed. (Ordered by Judge John McBryde on 5/12/2011) (wrb)

u.s. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FII.JED
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
1 - 122011 .
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L________.______ .--.J

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ORAN L. HAGAR, III,

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ltv _ _ _
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Plaintiff,

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VS.

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NO. 4:11-CV-191-A

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CITIMORTGAGE, INC. ,

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Defendant.

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MEMORANDUM OPINION
and
ORDER
The court has not been persuaded that it has subject matter
jurisdiction over the above-captioned action.

Therefore, the

court is ordering the action remanded to the state court from
which it was removed.
I.

Background
On February 22, 2011, the above-captioned action was
initiated by Oran L. Hagar, III, against defendant, CitiMortgage,
Inc., in the District Court of Tarrant County, Texas, 141st
Judicial District.

By notice of removal filed March 23, 2011,

defendant removed the action to this court, alleging that this

court had subject matter jurisdiction by reason of diversity of
citizenship, and that the amount in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs.

Defendant

acknowledged in the notice of removal that plaintiff in the state
court petition did not allege a specific amount in controversy.
However, defendant asserted that the substitute trustee's deed
from the foreclosure sale of plaintiff's property, showing the
sale of the property for the amount of $373,677.32, established
the amount in controversy.
Because of a concern that defendant had not provided the
court with information that would enable the court to find the
existence of the requisite jurisdictional amount, the court on
March 25, 2011, ordered defendant to file an amended notice of
removal, together with supporting documentation, showing that the
amount in controversy exceeds the jurisdictional amount.
Defendant filed its second amended notice of removal on
April 6, 2011.

The allegations in the amended notice of removal

relative to the amount in controversy were substantially similar
to those in the original notice of removal, with the additional

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contention that because plaintiff seeks to set aside a
foreclosure sale, the value of the land is the amount in
controversy.

Defendant further argues that under Texas law, the

price at which the property is sold establishes both its fair
market value and its actual value, and that the substitute
trustee's deed from the foreclosure sale is at least one
indicator of the value of plaintiff's property.
Also attached to the amended notice of removal is a
substitute trustee's deed showing the property sold for the
amount of $373,677.32.

This document, in defendant's view,

establishes the value of the property, and thus the amount in
controversy, as in excess of $75,000.
II.
Basic Principles
The court starts with a statement of basic principles
announced by the Fifth Circuit:
"The removing party bears the burden of showing that federal
subject matter jurisdiction exists and that removal was proper."
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723

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(5th Cir. 2002).

"Moreover, because the effect of removal is to

deprive the state court of an action properly before it, removal
raises significant federalism concerns, which mandate strict
construction of the removal statute."l

Carpenter v. Wichita

Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995).
Any doubts about whether removal jurisdiction is proper must
therefore be resolved against the exercise of federal
jurisdiction.

Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th

Cir. 2000).
To determine the amount in controversy, the court ordinarily
looks to the plaintiff's state court petition.
at 723.

Manguno, 276 F.3d

If it is not facially apparent from the petition that

the amount in controversy exceeds the required amount, the
removing party must set forth summary jUdgment-type evidence,
either in the notice of removal or in an affidavit, showing that

IThe removal statute, 28 U.S.c. § 1441(a) provides, in pertinent part, that:
[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing the place
where such action is pending.
(emphasis added).

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the amount in controversy is, more likely than not, greater than
$75,000.

Id.; Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335

(5th Cir. 1995).

The amount in controversy is measured from the

perspective of the plaintiff.

See,~,

of Texas Inc., 351 F.3d 636, 640 n.4

Garcia v. Koch Oil Co.

(5th Cir. 2003).

III.
The True Nature of Plaintiff's Claims
The petition by which plaintiff initiated this action in the
state court does not specify a dollar amount of recovery sought,
nor does it define in any way the value of the right sought to be
protected or the extent of the injury sought to be prevented.
Rather, the allegations of the petition are similar to those in
many state court petitions that are brought before this court by
notices of removal in which the plaintiff makes generalized and
legally baseless allegations in an attempt to frustrate the
procedures a lender is pursuing, or has pursued, to regain
possession of residential property the plaintiff used as security
for the making of a loan.
As the court has been required to do in other cases of this

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kind, the court has undertaken an evaluation of the true nature
of plaintiff's claims.

Having done so, and having considered the

authorities and arguments cited by defendant in the amended
notice of removal, the court remains unpersuaded that the amount
in controversy exceeds the required jurisdictional minimum.
Defendant relies on Frontera Transportation Co. v. Abaunza,
271 F. 199, 201 (5th Cir. 1921), for the proposition that in a
suit to set aside a foreclosure, the value of the land is the
amount in controversy, citing the pertinent portion of the
opinion:
Where a suit was brought to clear a title and set aside
a deed of trust and vacate a deed executed to a
purchaser, under a foreclosure, and, if this was not
done, then to allow complainant to redeem on payment of
the mortgage debt, interest, and costs (less than the
jurisdictional amount), the value of the lands, not the
amount required to redeem, is the amount in
controversy.
Id.

The court finds Abaunza distinguishable from the instant

action.

Unlike the relevant facts in the quoted portion of the

Fifth Circuit's opinion, plaintiff in the instant action does not
seek to quiet title to the property, nor does he alternatively
seek to tender the outstanding mortgage debt still owed by him on
the property.
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Instead, plaintiff in his state court petition acknowledges
that he was "behind on the account at issue," and contends that
he and defendant had reached an agreement whereby defendant would
suspend foreclosure proceedings upon payment by plaintiff of
$10,000, payable in four equal installments.
of Removal, Ex. B-2 at 2.

Second Am. Notice

However, following payment by

plaintiff of the first installment, defendant allegedly refused
to accept further payments and proceeded with the foreclosure.
Plaintiff through the litigation seeks to set aside the
foreclosure sale and any possible eviction action, and "requir[e]
Defendant to reinstate the loan according to the terms of the
agreement between Plaintiff and Defendant."

Id., Ex. B-2 at 6,2

In other words, plaintiff by way of relief seeks to return the
parties to the position they allegedly were in prior to the
foreclosure.

Plaintiff is thus not litigating over ownership of

the property--only over his right to remain in the property in
the hope that he and defendant can reach some agreement regarding
plaintiff's payment obligations.

No information has been

provided to the court that would enable the court to place a
value on whatever interest plaintiff seeks to protect by this

Although the state court petition purports to seek injunctive relief, the petition is silent as to
what plaintiff seeks to enjoin and whether such relief is temporary or permanent.
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action.
Thus, defendant has not shown by a preponderance of the
evidence that the amount in controversy in this action exceeds
$75,000, exclusive of interest and costs.

Consequently, the

court lacks subject matter jurisdiction over the action, and it
should be remanded to the state court from which it was removed.
IV.
Order
For the reasons given above,
The court ORDERS that this action be, and is hereby,
remanded to the state court from which
SIGNED May

~2011.

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