Wilson et al v. Bank of America, N.A.
Filing
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MEMORANDUM OPINION and ORDER... that this action be, and is hereby, remanded to the state court from which it was removed. See order for further specifics. (Ordered by Judge John McBryde on 12/17/2012) (krg)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT COU T
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DECt7~
CLERK, U.S. DISTRICT COURT
. By
_______
----~D-~-u~ty
TOMMY WILSON, ET AL.
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Plaintiffs,
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vs.
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NO. 4:12-CV-857-A
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BANK OF AMERICA, N.A.,
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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 November 2, 2012, the above-captioned action was
initiated by plaintiffs, Tommy Wilson and Stacy Wilson-Freeman,
against defendant, Bank of America, N.A., in the District Court
of Tarrant County, Texas, 48th Judicial District.
By notice of
removal filed December 3, 2012, defendant 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 exceeded the sum or value of $75,000, exclusive of
interest and costs, as contemplated by§ 1332(a).
Defendant contended in the notice of removal that where, as
here, a plaintiff seeks injunctive relief, the value of the
object of the litigation constitutes the amount in controversy,
and further maintained that where a mortgagor seeks to protect
his entire property, the fair market value of the property is the
measure of the amount in controversy.
On that basis, defendant
argued that because plaintiffs' property was appraised at
$136,315, it established that the amount in controversy exceeded
the jurisdictional minimum.
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
ordered defendant to file an amended notice of removal, together
with supporting documentation, showing that the amount in
controversy exceeds the jurisdictional amount.
complied with the court's order.
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Defendant timely
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." 1
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).
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The removal statute, 28 U.S.C. § 144l(a) provides, in pertinent part, that:
[A]ny civil action brought in a State court of which the district courts ofthe 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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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
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 plaintiff makes vague,
general, and obviously legally baseless allegations in an attempt
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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
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.
In the case at bar, plaintiffs alleged that they executed a
note and deed of trust to secure the purchase of certain property
in Arlington, Texas.
The note purportedly identified Countrywide
Home Loans, Inc. as the original mortgagee and named Mortgage
Electronic Registration Systems, Inc. as a beneficiary of the
deed of trust.
Plaintiffs claim there is no record of any
assignment of the note and deed of trust to defendant, and
plaintiffs now believe the note and deed of trust have become
bifurcated.
Although defendant has now moved to foreclose on
plaintiffs' property, plaintiffs believe defendant may lack the
right or authority to proceed with the foreclosure.
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Defendant in the amended notice of removal relies on the
same argument set forth in the notice of removal, adding
citations to opinions from other district courts, many from other
states, in support thereof.
authorities cited.
The court is not persuaded by the
The court finds nothing in the amended notice
of removal as would establish by a preponderance of the evidence
that the amount in controversy in this action exceeds $75,000,
exclusive of interest and costs.
Therefore, 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 it was removed.
SIGNED December 17, 2012.
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