Ramos et al v. Bank of America, N.A. et al
Filing
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Memorandum Opinion and Order: defendants have 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 jurisdict ion over the action, and it should be remanded to the state court from which it was removed...........ORDERS that this action be, and is hereby, remanded to the state court from which it was removed. (Ordered by Judge John McBryde on 8/17/2012) (cxb)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT C
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MIl 172012
CLERK, U.S. DISTRICT COURT
By_ _-;:::----:-
MARIA RAMOS, ET AL.,
§
Deputy
§
§
VS.
§
§
BANK OF AMERICA N.A., AS
SUCCESSOR BY MERGER TO BAC
HOME LOAN SERVICING, LP F/K/A
COUNTRYWIDE HOME LOANS
SERVICING, LP AND MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.,
§
NO. 4:12-CV-525-A
§
§
§
§
§
§
§
Defendants.
§
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.
1.
Background
Plaintiffs, Maria Ramos and Gonzalo Pluas, initiated this
action by the filing of their original petition in the District
Court of Tarrant County, Texas, 67th Judicial District, naming as
defendants Bank of America N.A.
I
' " - - - - - - - - - - - - - .-!
§
Plaintiffs,
_
("Bank of America"), as successor
by merger to BAC Home Loan Servicing, LP f/k/a Countrywide Home
Loans Servicing, LP, and Mortgage Electronic Registration
Systems, Inc.
("MERS").
By notice of removal filed July 27,
2012, defendants removed the action to this court, alleging that
this court had subject matter jurisdiction by reason of diversity
of citizenship, as contemplated by 28 U.S.C.
§
1332, and that the
amount in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, as contemplated by
§
1332{a).
In the notice of removal, defendants alleged that '"
declaratory or injunctive relief is sought,
[w]hen
'the amount in
controversy is measured by the value of the object of the
litigation."
Notice of Removal at 3 (citations omitted).
Defendants further argued that because plaintiffs in this case
seek to protect their "entire property," id., the fair market
value of the property constitutes the amount in controversy.
Because the Tarrant County Appraisal District showed the value of
plaintiff's property at $170,000.00, defendants claimed they had
established the amount in controversy.
Because of a concern that defendants had not provided the
court with information that would enable the court to find the
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existence of the requisite jurisdictional amount, the court on
July 31, 2012, ordered defendants to file an amended notice of
removal, together with supporting documentation, showing that the
amount in controversy exceeds the jurisdictional amount.
Defendants timely complied with the court's order.
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
(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).
lThe 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 oric>,inal 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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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
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 Garcia v. Koch oil Co. of
Texas Inc., 351 F.3d 636, 640 n.4
(5th Cir. 2003).
III.
The True Nature of Plaintiffs' Claims
The petition by which plaintiffs 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
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prevented.
Rather, the allegations of the petition are typical
of many state court petitions that are brought before this court
by notices of removal in which the plaintiffs make vague,
general, and obviously legally baseless allegations in an attempt
to frustrate the procedures a lender is pursuing, or has pursued,
to regain possession of residential property the plaintiffs used
as security for the making of a loan.
As the court has been required to do in other cases of this
kind, the court has undertaken an evaluation of the true nature
of plaintiffs' claims.
Having done so, and having considered the
authorities and arguments cited by defendants in the amended
notice of removal, the court remains unpersuaded that the amount
in controversy exceeds the required jurisdictional minimum.
In the case at bar, plaintiffs contended that in conjunction
with their purchase of the property at issue they executed a
promissory note, secured by a deed of trust, in favor of Capital
One Home Loans, LLC.
However, the notice of substitute trustee
sale, informing plaintiffs that their property was scheduled to
be sold at a foreclosure sale, showed Bank of America as current
mortgagee and MERS as "nominee, mortgagee."
PIs.
I
Original Pet., at 2.
Notice of Removal,
Plaintiffs in the petition maintained
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they had no record of any assignment or transfer of their note
and deed of trust to defendants.
Plaintiffs speculated,
"on
information and belief," id. at 3, that their note was pooled
with other such instruments and "securitized."
Id.
As a
consequence of the foregoing, plaintiffs alleged defendants are
not the present owners of the note and have no right to foreclose
on their property.
In the amended notice of removal defendants cited the
following language from this court's opinion in Gluth v. BAC Home
Loans Servicing, LP, No 4:11-CV-251-A, 2011 WL 2559714
(N.D. Tex.
June 27, 2011), where the court found the defendant had failed
properly to establish the amount in controversy under similar
factual circumstances:
Contrary to defendant's assertions, plaintiff here does
not appear to challenge the validity of the note or
deed of trust, only the validity of their alleged
transfer to other parties and the validity of
defendant's claim as holder.
The court is convinced
that in this case, as in others before it, there is no
legitimate dispute over ownership to the property, only
plaintiff's attempt to extend the time she can stay on
the property at no cost to her. Although plaintiff
contends defendant is not the holder of the original
note and disputes defendant's right to foreclose,
nothing in the petition could lead to the conclusion
that plaintiff is the holder of the original note, or
that plaintiff would be entitled to enjoin foreclosure
and eviction by whoever is the holder.
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Gluth, No 4:11-CV-251-A, 2011 WL 2559714, at *3.
Defendants
attempt to contrast the instant action with Gluth by claiming
that here, plaintiffs "directly challenge the validity of the
Note and Deed of Trust, and attempt to permanently prevent anyone
from ever exercising the right to foreclose under those
documents."
Am. Notice of Removal at 4.
A review of the state
court petition in Gluth, however, shows that the plaintiff there
made similar allegations to those in the instant action:
essentially that no lawful assignment of the note and deed of
trust ever took place, with the result that the defendant was not
the holder of the note and had no right to foreclose.
Thus, the
court's analysis in Gluth is applicable to plaintiffs' claims in
the instant action.
In the amended notice of removal defendants also rely on
various allegations in plaintiffs' petition, including the prayer
for relief, showing that plaintiffs are seeking to permanently
prevent defendants or anyone from ever foreclosing on the
property.
Nothing alleged in the petition, however, could lead
to the conclusion that plaintiffs are the holders of the original
note, or that they would be entitled to enjoin foreclosure and
eviction by whoever holds the original note.
Although defendants have provided the court with documents
showing that the value of the property exceeds $75,000,
they
have failed to persuade the court that such constitutes the
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amount in controversy.
No other information has been provided to
the court that would enable the court to place a value on the
interest plaintiffs seeks to protect by this action.
Thus,
defendants have 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
Therefore,
The court ORDERS that this action be, and is hereby,
remanded to the state court from which
SIGNED August 17, 2012.
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