Tabor v. Ocwen Loan Servicing, LLC et al
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 7/20/2013) (krg)
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BRYTBR
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OCWEN LOAN SERFICING, LLC,
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NO . 4 :13 -CV -537 -A
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MEMOPAUDUM opzNlou
and
ORDER
The courtlhas not been persuaded that it has subject matter
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jurisdicti o
on ker the abovecaptioned acti
on. T
herefore, the
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court is ordering the action remanded to the state court from
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which it was rpmoved.
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Background
:
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pl ntiff, Barry Tabor , initiated this acti by fili his
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on
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o iia p t to i te D src Cut o T ra tCu t ,T x s
rg n l e ihn n h itit or f a rn on y ea ,
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17th Judicial Pistrict, naming as defendants Ocwen Loan
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servicing, LLq, and Wells Fargo Bank , National Associ
ation, as
Trustee for soundview Home Loan Trust 2007-OPT5, Asset-Backed
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Certificates, teri 2007es
OPT5. By notice of removal filed July
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2, 2013, defen ants removed the action to this court, alleging
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CAEKUSDSRC CIT )
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Plai tiff ,
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that this cour had subject matter jurisdi
ction by reason of
diversity of citizenship, as contemplated by 28 U . C. 5 1332,
S.
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and that the atount in controversy exceeds the sum or value of
$75,000, exclu/ive of interest and costs, as contemplated by 5
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In the noEice of removal, defendants alleged that because
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plaintiff requysted declaratory and injuncti relief, t amount
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he
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n controversyiwas the '
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value of the right to be protected or the
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e e t o t ' ur t b pr v nt d.' Not c of R mo a 4
xt n f he j y o e e e e '
nj
ie
e val t
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( ootnot and éitation omitt
f
e
ed). And, where the mortgagor call
ed
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no qe to Ih rg tt p oet ,o suh truh te
t u sin ye ih o rp ry r og t h og h
ltg to t r oe th se tr p oe t t e fi m re v le
iia in o ' tc i n ie rpry, h a r a kt au
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o t e p o e t c n t t t d t e a o n i c n r v r y. B c u e
f h r p r r o s iu e h m u t n o t o e s
e as
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the appraised kalue of t property at issue was at l
he
east
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$147,700.00, dMfendants contend they established that the amount
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in controversy!exceeded the jurisdictional minimum.
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Becaus o! a concern t defendants had not provided the
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hat
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court with inf rmation that would enable the court to f ind the
existence of t e requisite jurisdictional amount, the court
ordered defend nts to file an amended notice of removal , together
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with supportin
documentation, showing that the amount in
controversy ex eeds the jurisdictional amount. Defendants timely
complied with the court's order .
II .
Basic Principles
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T c ur 1s a ts wi h a s t me of ba c pri i e
he o t t r
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t
ta e nt
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nc pl s
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announced by the Fifth Circuit:
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The remo ng part bears t bur
#i
y
he
den of sho
wing that federal
subject matter jurisdiction exists and that removal was proper.'
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Man uno v. Prudential Pro . & Cas. Ins. Co., 276 F.3d 720, 723
(
5th Cir. 2002). n
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Moreover, because the effect of removal is to
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deprive the state court o f an action properly before it, removal
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raises signifiiant federalism concerns, which mandate strict
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construction o! the removal statute.' Carpenter v. Wichita
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alls Inde . 5th. Distw 44 F . 362, 365-66 (
3d
5th Cir. 1995).
Any doubts about whether removal jurisdiction is proper must
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The emoval 'a ut , 28U. C.j1 4la pr vie ,i pe t n pa tt t
tt e
S. 4 ( ) o d s n ri t r,ha :
ne
( nycvi a to b o h i aS aec r ofwhiht edititc urso t eUnie
Al i l c n r ug t n tt ou t
c h src o t f h t d
St eshave or i ' idi i m a be r oved by t def
at
i nal urs cton, y em
he endantort def
he endant t
s, o
t diti co oft Unied St esf t diti a di son e br ng t pl
he srct
he t
at or he srct nd vii m aci he ace
wher s h ac ' i pendi
e uc ton s
ng.
(mp ssa e .
e ha i dd d)
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therefore be
esolved against the exercise of federal
jurisdiction. Acuna v. Brown & Root Incw 200 F. 335, 339 (
3d
5th
Cir . 2000).
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To deterùine t amount in controvers the court ordi
he
y,
naril
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looks to the
laintiff ' state court petition . Manquno, 276 F.3d
s
at 723 . If i
is not facially apparent from the petition that
the amount in controversy exceeds the required amount , the
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moving partk must set forth summar judg
y
menttype evidence,
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e t er i t e jo ce of r m va o i a a i a t, s o n t a
i h n h n ti
e o l r n n ff d vi h wi g h t
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the amount in i
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. l99A). The amount in controversy is measured from the
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perspective o/j the plaintiff. See Garcia v . Koch Oil Co. of
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ncw 351 F. 636, 640 n. ( h Cir. 2003).
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111.
The True Nature of Plaintiff ' Claims
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T e pe t n b w c pl n f i ti e t s ac o i t
h ti (
jo y hi h ai ti f ni at d hi ti n n he
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s at c ur d is n s c y a d l r a u t of r c v y s u t,
t e o t qe ot pe if
ol a mo n
e o er o gh
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nor does it define in any way the value of the right sought to be
protected or t e extent of the injury sought to be prevented.
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Rather, the a legations of the petition are typical of many state
court petitio s that are brought before this court by notices of
removal in wh '
ch the plaintiff makes vague , general, and
obviously leg l1y baseless allegations in an attempt to frustrate
the procedure
a lender is pursuing, or has pursued, to regain
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possession of i
residential property the plaintiff used as security
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for the makin i of a loan .
As the c urt has been required to do in other cases of this
kind , the cou t has undertaken an evaluation of the true nature
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of plaintiff 'g claims . Having done so , and having considered the
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authorities a l arguments cited by defendants in the amended
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n i e of re I t c ur r ma ns u er ua d t t t a o nt
ot c
m8
val, he o t e i np s de ha he m u
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n controvers exceeds the required jurisdictional minimum.
I the a
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éended notice of remo
val def
endants ess
entiall
y
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reurge the arjuments made i the origi
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nal notice of removal:
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that the valuelof the right to be protected or injury to be
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peetdrpeet teaon i cnrvry. We,a hr ,
rvne eysns h mut n otoes hn s ee
t object is lor a mortgagor to protect his property, defendants
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contend that tle fair market value of the property constitutes
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the amount in controversy . The basis of this argument , as it
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pertains to p aintiff, is that plaintiff in his state court
petition seek a judicial determination of the parties' rights
and obligatiops with regard to the property , and that plaintiff
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seeks by this i
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litigation to protect title to his property .
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A review l plaintiff' pleadings, however, makes clear that
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plaintiff makès no claim to outright title to the property .
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While defendauts are correct that p laintiff challenges
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defendants' i
pterest i the property, plai
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ntiff als acknowledges
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that whoever
oes hold the note would have standing to foreclose
on the proper 1 .
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Thus , defendants ' attempts to distinguish this
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court ' prev i us decisions in Ballew v . America 's Servicinq Co .,
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case number 4 :ll-CV-030-A , and Johnson v . Mortqaqe Factory , Inc .,
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4:
l3-cv-213- , on that basis, are unavailing. Defendants have
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offered nothi g further to establish the amount in controversy .
To summa#ize, the court is convinced that there is no
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legitimate di.pute in this action over ownership to the property ,
only plaintiff 's efforts to extend the time he can stay on the
p roperty and
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llay the sale of the property through foreclosure .
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No informatio
has been provided to the court that would enable
the court to place a value on the interest plaintiff seeks to
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protect by th s action . Thus, defendants have not shown by a
preponderance of the evidence that the amount in controversy in
this action e ceeds $75,000, exclusive of interest and costs.
Consequently,j
the court lacks subject matter jurisdiction over
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the action, apd it should be remanded to the state court from
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wh ich it was xemoved .
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Order
Thereforq ,
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The court ORDERS that this action be , and is hereby ,
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rm ne t te sae cut fo w ih i w srm vd.
e add o y tt or rm hc t a eoe
SI
GNED July * /
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2 013 .
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J
CBRYDE
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d States Distric
Judge
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