Holpin et al v. Deutsche Bank National Trust Company, as Trustee
Memorandum Opinion and Order: To summarize, the court is convinced that there is no legitimate dispute in this action over ownership to the property, only plaintiffs' efforts to extend the time they can stay on the property and delay the sal e of the property through foreclosure. No information has been provided to the court that would enable the court to place a value on the interest plaintiffs seek to protect by this action. Thus, defendant has not shown by a preponderance of the ev idence 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. The court ORDERS that this action be, and is hereby, remanded to the state court from which it was removed. (Ordered by Judge John McBryde on 8/12/2013) (mdf)
Holpin et al v. Deutsche Bank National Trust Company, as Trustee
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXl S
FORT WORTH DIVISION
AUG I 22013
CLERK, u.s. DISTRICT COURT
SARA HOLPIN, ET AL.,
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF THE HOME
EQUITY MORTGAGE LOAN ASSETBACKED TRUST SERIES INABS
2005-D, HOME EQUITY MORTGAGE
LOAN ASSET-BACKED CERTIFICATES,
SERIES INABS 2005-D UNDER THE
POOLING AND SERVICING AGREEMENT
DATED DEC. 1, 2005,
The court has not been persuaded that it has SUbject matter
jurisdiction over the above-captioned action.
court is ordering the action remanded to the state court from
which it was removed.
Plaintiffs, Sara Holpin and Lennie Holpin, initiated this
action by filing their original petition and application for
temporary restraining order in the District Court of Tarrant
County, Texas, 96th Judicial District, naming as defendant
Deutsche Bank National Trust Company, as Trustee of the Home
Equity Mortgage Loan Asset-Backed Trust Series INABS 2005-D, Home
Equity Mortgage Loan Asset-Backed Certificates, Series INABS
2005-D Under the Pooling and Servicing Agreement Dated Dec. 1,
By notice of removal filed June 26, 2013, 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, as contemplated by 28
No amount in controversy is found on the face of the
In the notice of removal, defendant alleged that
because plaintiffs requested injunctive relief, the amount in
controversy was the "value of the right to be protected or the
extent of the injury to be prevented."
Notice of Removal at 3
Defendant argued that if plaintiffs
successfully enjoined it from foreclosing on the property,
defendant would lose its interest in the property, which is
valued at $92,000.00.
Additionally, defendant argued that
plaintiffs' request for double or treble damages, actual and
compensatory damages, and attorney's fees, all exceeded the
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.
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
lThe removal statute, 28 U.S.C. § 1441(a) provides, in pertinent part, that:
(continued ... )
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
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th
To determine the amount in controversy, the court ordinarily
looks to the plaintiff's state court petition.
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
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).
( ... continued)
[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.
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
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 amended notice of removal, defendant relies primarily
on plaintiffs' claim for common-law fraud to support its
allegations as to the amount in controversy.
As argued by
defendant in the amended notice of removal, the fraud claim is
based on a contention in the petition that defendant wrongfully
represented itself to be the proper entity to which plaintiffs
should submit paYments, and that the representation was made to
obtain plaintiffs' mortgage paYments and fees.
According to defendant, the proper measure of damages for
fraud in this case would be out-of-pocket damages, which
"computes the difference between the value paid and the value
Formosa Plastics Corp. USA v. Presidio Eng'rs and
Contractors, Inc., 960 S.W.2d 41, 49 (Tex. 1998).
defendant argues that the value paid would be the mortgage
paYments plaintiffs paid to defendant; however, by contending
that defendant was not the proper party to receive the paYments,
plaintiffs have essentially alleged that they received no value.
Plaintiffs have paid mortgage paYments in the amount of
$71,740.04, which defendant contends establishes a substantial
portion of the amount in controversy; the remaining causes of
action and request for attorney's fees, combined with the
$71,740.04, cause the amount in controversy to exceed $75,000.
In the petition, under the heading "Common Law Fraud,"
plaintiffs recite the elements of a cause of action for fraud: a
material misrepresentation, that was false, that was known to be
false at the time it was made, on which defendant intended
plaintiffs to rely, and on which they actually relied to their
The petition then contends that
[a] material misrepresentation was made as to the
Defendant's ability and willingness to accept mortgage
paYments and to potentially modify the note. Defendant
has declared to be the proper entity to submit paYments
to and to enter into loan repaYment agreements with.
After unfulfilled requests to view the original
Promissory Note, Defendant was not able to prove they
are, in fact, the holder of the note. Furthermore,
Defendant has not produced the loan servicing agreement
evidencing the right to collect notes on behalf of the
note holder. Defendant sent a proposed loan
modification to Plaintiffs but still proceeded to post
their Property and refused to pull such sale so that
Plaintiffs could review, discuss, negotiate and/or
accept such offer. Said misrepresentations were made
to obtain the Plaintiffs' fees and mortgage paYments,
and Defendant intended for Plaintiffs to rely on said
representation in making these paYments. Plaintiffs
did in fact rely on this promise. Due to this
reliance, Plaintiffs are financially injured.
Am. Notice of Removal, Ex. D-1, Pet. at 12-13 (paragraphs and
paragraph numbers omitted, errors in original).
No facts are
alleged in the petition, however, as would support plaintiffs'
For example, the petition fails to allege that
defendant made any material misrepresentations to the plaintiffs.
Formosa Plastics, 960 S.W.2d at 47.
Instead, plaintiffs appear
to allege that defendant failed or refused to communicate with
them at all concerning their mortgage paYments, as plaintiffs
alleged that they "do not know how or when Defendant obtained the
right to collect their mortgage paYments" and "did not receive
proper notice from any party that the note had been assigned" to
Id., Pet. at 8.
Similarly, plaintiffs alleged that
on mUltiple occasions they have attempted to communicate with
defendant about their mortgage loan, but have been unable to
speak to anyone with any authority on that subject.
The sum of the foregoing discussion is that the petition
fails to state a claim for common law fraud.
fraud claim cannot serve as the basis for determining the amount
The remaining arguments in the amended notice of
removal are, at most, speculative, and also fail to establish the
amount in controversy.
To summarize, the court is convinced that there is no
legitimate dispute in this action over ownership to the property,
only plaintiffs' efforts to extend the time they can stay on the
property and delay the sale of the property through foreclosure.
No information has been provided to the court that would enable
the court to place a value on the interest plaintiffs seek to
protect by this 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.
The court ORDERS that this action be, and is hereby,
remanded to the state court from which it was removed.
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