Norvelle et al v. PNC Mortgage et al

Filing 5

Memorandum Opinion and Order: PNC has not proven by a preponderance of the evidence that the amount actually in controversy in this action exceeds the sum or value of $75,000.00, excluding interest and costs. The court ORDERS that the above-captioned action is remanded to the state court from which it was removed. (Ordered by Judge John McBryde on 8/6/2013) (dnw)

IN THE UNITED STATES DIST
NORTHERN DISTRICT OF
FORT WORTH DIVISI
DAVID K. NORVELLE AND
SYLVIA D. NORVELLE,

§
§

Deputy

§
§

Plaintiffs,

§

VS.

§

NO. 4:13-CV-410-A

§

PNC MORTGAGE, A DIVISION OF
PNC BANK NATIONAL ASSOCIATION,
AND FAIRWAY INDEPENDENT
MORTGAGE CORPORATION,

§
§
§
§
§

Defendants.

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MEMORANDUM OPINION
and
ORDER
Now before the court is the notice of removal filed in the
above-captioned action by defendant PNC Mortgage, a Division of
PNC Bank National Association ("PNC").
of citizenship under 28 U.S.C.

§

PNC has alleged diversity

1332 as the basis for removal.

Having considered the notice of removal and the second amended
state court petition of plaintiffs, David K. Norvelle and Sylvia
D. Norvelle, attached thereto, the court concludes that PNC has
failed to sufficiently allege that this court has subject matter
jurisdiction, and that the case should be remanded to the state
court from which it was removed.

1.

Background
Plaintiffs initiated this action by filing their original
petition against PNC and Fairway Independent Mortgage Corporation
("Fairway")l in the District Court of Tarrant County, Texas,
236th Judicial District, as Cause No. 236-265256-13.

PNC alleges

that the court has subject matter jurisdiction because there is
complete diversity of citizenship between plaintiffs and PNC, and
an amount in controversy exceeding the sum or value of
$75,000.00, exclusive of interest and costs.
In the prayer of their petition, plaintiffs do not state a
specific amount of damages.

However, PNC contends that, because

plaintiffs included a statement in the jurisdictional section of
their petition that they were seeking "monetary relief of
$100,000 or less and non-monetary relief," that the amount in
controversy requirement is satisfied.

PNC also contends that, in

the context of foreclosure proceedings, the proper measure of the
amount in controversy is the value of the subject property, which
PNC asserts is $118,600.00.

PNC argues that the value of the

property plus the unspecified damages requested by plaintiffs

1 PNCcontends

that Fairway, a Texas corporation, was improperly joined to defeat diversity
jurisdiction, and, therefore, complete diversity exists. Because the court concludes that the amount in
controversy requirement for diversity jurisdiction has not been satisfied, the court need not determine
whether joinder of Fairway was proper.
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satisfy the amount in controversy.

In support of its position,

PNC cites to legal authority standing for the proposition that
the right, title, and interest plaintiffs have in the property
constitutes the proper measure of the amount in controversy in an
action such as this one, where a party could be divested of the
property entirely.

Notice of Removal at 6-8.

After having carefully evaluated the notice of removal and
all state court documents, and after reviewing applicable legal
authorities, the court is unpersuaded that the amount in
controversy in this action meets or exceeds the required amount.
II.
Basic Principles
The court begins with a statement of basic principles
announced by the Fifth Circuit:
Pursuant to 28 U.S.C.

§

1441(a), a defendant may remove to

federal court any state court action over which the federal
district court would have original jurisdiction.

~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.

2001).

~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
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construction of the removal statute."

Carpenter v. Wichita Falls

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

(citation

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 for the purpose of
establishing diversity jurisdiction, the court ordinarily looks
to the plaintiff's state court petition.
723.

Manguno, 276 F.3d at

If it is not facially apparent from the petition that the

amount in controversy is greater than $75,000, the removing party
must set forth summary judgment-type evidence, either in the
notice of removal or in an affidavit, showing by a preponderance
of the evidence that the amount in controversy exceeds that
amount.

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.
(5th Cir. 1958)

Vraney v. Cnty. of Pinellas, 250 F.2d 617, 618

(per curiam).

In an action for declaratory or

injunctive relief, the amount in controversy is the
object of the litigation," or

~the

~value

value of the right to be

protected or the extent of the injury to be prevented."
Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).
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of the

III.

Analysis
Plaintiffs' petition does not make a demand for a specific
amount of damages, does not specify a dollar amount of recovery
sought that is at least $75,000.00, and does not define with
specificity the value of the right it seeks to protect or the
extent of the injury it seeks to prevent.

As a result, the court

evaluates the true nature of plaintiffs' claims to determine the
amount actually in controversy between the parties.
The true nature of this action is to maintain possession of
residential property plaintiffs used as security for the making
of a loan.

As the petition alleges, plaintiffs pursue these

goals by seeking an order (1) barring any foreclosure or forcible
detainer proceedings, and (2) awarding unspecified damages and
attorney's fees.

Notice of Removal, Ex. A at 6, 9-10.

Thus,

considering plaintiffs' original petition, the court has not been
provided with any information from which it can determine that
the value to plaintiffs of such relief is greater than
$75,000.00.
PNC contends that the statement in the petition that
plaintiffs seek "monetary relief of $100,000.00 or less"
conclusively satisfies the amount in controversy requirement;
however, this statement in the petition relates more to general
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jurisdictional requirements of the District Court of Tarrant
County than it does to the specific value of the relief
plaintiffs are seeking.

Furthermore, the phrase "monetary relief

of $100,000.00 or less" lacks any precision or specificity, could
represent any figure within a wide range of dollar amounts, and,
without more, is hardly sufficient to show by a preponderance of
the evidence that the amount in controversy exceeds $75,000.00.
PNC also contends that the fair-market value of the property
should serve as the amount in controversy because plaintiff
requests equitable relief to enjoin defendant from foreclosing on
the property.

Notice of Removal at 6-7.

PNC relies on the oft-

cited argument that when equitable relief is sought, the amount
in controversy is measured by the value of the object of the
litigation, and when a mortgagor is attempting to protect his
property, the fair market value of the property is the amount in
controversy.

In its notice of removal, PNC suggests that the

value of the property is approximately $118,600.00.
The court is not persuaded by the argument that the above
figure supplies the basis for plaintiffs' interest in the
property, especially given that plaintiffs have not pleaded how
much equity they have in the property.

PNC does not cite to, nor

can the court discern, any such statement in the petition to
support a finding that the value of the property is the amount in
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controversy.

That is, for example, PNC's attribution of the

$118,600.00 figure as damages is an act of its own doing--not
plaintiffs'.

To the extent that these statements suggest that

the property value is the proper measure of the amount in
controversy in this action, the court rejects that argument. 2
PNC contends that plaintiffs are seeking outright ownership
of the property free and clear of any debt, and, therefore, the
amount in controversy requirement is met.

PNC asserts that

because plaintiffs allege that PNC had no right to foreclose on
the property or to interfere with plaintiffs' use and enjoYment
of the property, plaintiffs seek to quiet title, and plaintiffs
fail to allege that they would make the agreed mortgage paYments,
then plaintiffs are claiming ownership free of any debt
whatsoever.
Clearly, the sole goal of plaintiffs' action is to avoid or
delay a foreclosure sale and to be able to retain possession of
the property.

Nothing is alleged that would assign a monetary

The court is familiar with the unpublished Fifth Circuit opinion, Nationstar Mortg. LLC v.
Knox, 351 F. App'x 844 (5th Cir. 2009). The pertinent portion of Nationstar, in tum, relies on Waller v.
Profl Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961). 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: ll-CV-030-A, 2011 WL 880135 (N.D. Tex. Mar.
14,2011).
2

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IV.
Order
For the reasons given above,
The court ORDERS that the above-captioned action be, and is
hereby, remanded to the state court from which it was removed.
SIGNED August 6, 2013.

Judge

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