Hymond et al v. HSBC Bank USA, N.A., as Trustee

Filing 7

MEMORANDUM OPINION and ORDER... this action is hereby remanded to the state court from which it was removed. See Order for further specifics. (Ordered by Judge John McBryde on 4/23/2013) (krg)

U.S. DISTRICT COURT
NORTHERNDISTRICT0FTUA8

IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

TERRY HYMOND, ET AL.,

T'""""'---'--FIL_ED
S

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23 2013

CLERK, U.S. DISTRICT COURT
·. ·: B Y - - - : - - . - - - Deputy

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Plaintiffs,

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vs.

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NO. 4:13-CV-277-A

HSBC BANK USA, N.A., AS TRUSTEE§
FOR THE REGISTERED HOLDERS OF
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NOMURA HOME EQUITY LOAN, INC.,
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ASSET-BACKED CERTIFICATES,
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SERIES 2007-3,
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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
Plaintiffs, Terry Hymond and Denise Hymond, initiated this
removed action by filing their original petition in the District
Court of Tarrant County, Texas, 17th Judicial District, against
defendant, HSBC Bank USA, N.A., as Trustee for the Registered
Holders of Nomura Home Equity Loan, Inc., Asset-Backed

Certificates, Series 2007-3.

The notice of removal asserted that

this court had subject matter jurisdiction by reason of diversity
of citizenship, as contemplated by 28 U.S.C.

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1332, because the

amount in controversy exceeded the sum or value of $75,000.
As to the amount in controversy, defendant in the notice of
removal contended that "the amount in controversy, in an action
for declaratory and injunctive relief, is the value of the right
to be protected or the extent of the injury to be prevented."
Notice of Removal at 3 (internal citations omitted) .

According

to defendant, plaintiffs seek to enjoin defendant from evicting
them from the property; if they are successful, defendant will
lose its interest in the property.

Because the Tarrant Central

Appraisal District has appraised plaintiffs' property at
$179,300, this established the amount in controversy.
Additionally, defendant claimed that the amount in controversy
was established by plaintiffs' request for actual and treble
damages, punitive damages, and attorney's fees.
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

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ordered defendant to file an amended notice of removal, together
with supporting documentation, showing that the amount in
controversy exceeds the jurisdictional amount.

Defendant 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." 1

Carpenter v. Wichita

Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995).

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The removal statute, 28 U.S.C. § 1441(a) provides, in pertinent part, that:

[A]ny civil action brought in a State court ofwhich 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.

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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

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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 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 defendant in the amended
notice of removal, the court remains unpersuaded that the amount
in controversy exceeds the required jurisdictional minimum.
In the state court petition plaintiffs alleged that at some
point after they executed the note and deed of trust used to
purchase their property, the loan was securitized into a trust.
When this occurred, the note and deed of trust became bifurcated.
Plaintiffs claim defendant has failed to show it has the right or
authority to foreclose on their property until it produces

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evidence of the original signed promissory note and subsequent
assignments, and they seek declarations to that effect.

Nothing

in the petition, however, could lead to the conclusion that
plaintiffs are the holder of the original note, or that
plaintiffs would be entitled to enjoin foreclosure and eviction
by whoever holds the original note, or that plaintiffs are
entitled to outright title to the property.
Defendant in the amended notice of removal persists in its
contention that the value of the property constitutes the amount
in controversy.

However, nothing on the face of the petition

indicates that such represents the amount plaintiffs are seeking
in this litigation.

Defendant in the amended notice of removal

relies essentially on the same arguments set forth in the notice
of removal to support its contention, adding citations to
opinions from other district courts, some from other
jurisdictions, in support thereof.

The court is not persuaded by

the non-binding authorities cited in the amended notice of
removal.
Defendant also relies in part on Waller v. Professional
Insurance Corporation, 296 F.2d 545, 547-48 (5th Cir. 1961), to

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support its argument regarding the amount in controversy.

This

court has previously explained its reasoning for finding Waller
inapposite to determining the amount in controversy in cases such
as the instant action.

See Ballew v. America's Servicing Co.,

No. 4:11-CV-030-A, 2011 WL 880135 (N.D. Tex. Mar. 14, 2011).
Defendant has failed to persuade the court otherwise.
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
SIGNED April 23, 2013.

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