Loveman v. Bank of New York Mellon
Filing
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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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UN DI
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FORT WORTH DIVISION
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B RR B. L VE N
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NORTHERN DISTRICT OF TE V:,y.
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Plaqntiff ,
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NO . 4 :13 -CV -538 -A
BANK OF NEW YORK MELLON F/K/A j
BANK OF NEW kORK AS TRUSTEE FOR 5
THE CERTIFICATE HOLDERS OF
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CERTIFICATES IERIES 2003-5,
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CW , I . XSSETABS NC 1
BACKED
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Defj ndant .
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M EMORAN DUM op lu zou
and
ORDER
Now befqre the court is the amended notice of removal filed
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in the abovezcaptioned action by defendant , Bank of New York
Mellon f/k/a sank of uew york as Trustee for the cèrtificate
Holders of cwaBs , Inc . Asset-Backed certificate series 2oo3-s .
Defendant has alleged diversity of citizenship under 28 U .S .C . 5
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1332 as the Mole basis for removal. Having considered the
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amended notiqq of removal and the original state court pet
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of plaintifft Barry B . Loveman, attached thereto, the court
concludes that defendant has failed to sufficiently allege the
required amotnt i controversy, and t
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hat t case s
he
houl be
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remanded to yhe state court f whic i was removed.
rom
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Backqround
Plaintiff ipitiated this action by filing his original
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petition agai
zst defendant on June 3, 201 i the District Court
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of Tarrant County , Texas, 236th Judicial District , as Cause No .
236-266208-13) Defendant then removed the action to this court .
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On July
2113, pursuant to this court' order, defendant filed
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its amended n4tice of removal . Defendant alleges that the court
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has subject mltter jurisdiction because of complete diversity of
citizenship between plaintiff and defendant , and an amount in
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controversy exceeding the sum or value of $75,000.00, exclusive
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of interest ahd costs .
see
U . S.C. 5 1332 (
a).
I the p#ayer of his petition, plai
n
ntiff does not state a
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specific amoupt of damages . Nor is there any other statement of
the amount of damages contained elsewhere in the petition .
However , defendant contends that because plaintiff is seeking
injunctive repief regarding the right to his property, the amount
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n controvers# is the amount plaintiff owes on the associated
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prom is:ory note , which defendant contends is more than
$75,000.00. Defendant argues that plaintiff alleges that the
note is entirely unenforceable , and , therefore, the remaining
balanèe on
is the amount in controversy .
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After haying evaluated the pleadings , and after reviewing
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applicable leéal authorities, the court remains unpersuaded that
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the amount in cqntroversy in this action meets or exceeds the
requirpd amoupt .
II.
Basic Principles
The court beg ins w ith a statement of basic principles
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announced by the Fifth Circuit :
Pursuant to 28 U . C. 5 1441 (
S.
a), a defendant may remove to
federal courtt any state court action over which the federal
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district coukt would have original jurisdiction. nThe removing
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party bears tle burden of showing that federal subject matter
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jurisdiction j '
exists and that removal was proper n
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M anqun o v .
Prudential Prop. Cas. Ins. Co., 276 F. 720, 723 (
3d
5th Cir.
2OO1)
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Moreiver, because the effect of removal is to deprive
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the state co/i of an action properly before it, removal raises
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significant federalism
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concerns, which mandate strict
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construction o f the removal statute . ' carpenter v . wichita Falls
Indep. Sch . Distw 44 F . 362, 365-66 (
3d
5th Cir. 1995) (
citation
omitted). Ahy doubts abbut whether removal jurisdiction is
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pr
oper muàt therefore be resol
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ved against the exercise of federal
j is c o i Ac a v. Br wn & R ot I . 20 F. d 33 33 (t
ur di ti nt un
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2000).
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To determine the amount in controversy for the purpose of
establishing jiversity jurisdiction, the court ordinarily looks
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to the plaintkff's state court petition .
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Manquno, 276 F. at
3d
723. If it 1I not facially apparent from the petition that the
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amount in coùtroversy is greater than $7s,ooo, the removing party
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must set fortE summary judgment-type evidence, either in the
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notice of removal or in an affidav it , showing by a preponderance
of the evidehce that the amount in controversy exceeds that
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amount. Id.; Allen v. R & H oil & Gas coo, 63 F.3d 1326, 1335
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sth cir . 199l ).
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The amoint i controversy is measure f m the pers
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d ro
pecti
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ot the plaintiff. Vranev v. Cnty. of Pinellas, 250 F. 617, 618
2d
( cir. 19$8) ( curia
5th
per
m). In an action for declaratory or
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injunctive rèlief, the amount in controversy is the nvalue of the
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object of the litigation,' or uthe value of the right to be
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protected or the extent of the injury to be prevented.'
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Leininger v . qeininger, 705 F . 727, 729 (
L
2d
5th Cir. 1983).
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Anal
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P ai i l s pet ti n d es n t ma e a d ma d f r a s ec fi
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amount of dapages and does not define with specificity the value
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of the riéht it seeks to protect or the extent of the injury it
seeks to preMent. As a result, the court evaluates the true
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nature of plaintiff's claims to determine the amount actually in
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controversy between the parties .
The truejnature of this action is for plaintiff to maintain
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possession ofjresidential property he used as security for the
making of a loan . As the petition alleges , plaintiff pursues
these goals by seeking an order barring any foreclosure or
forcible detaz
iner proceedings on the property , and seeking
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unspecified cpmpensatory, statutory , and exemplary damages
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related to hit state 1aw causes of action . Thus, considering
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plaintiff 's original petition , the court has not been prov ided
with any infcrmation from which it can determine that the value
to plaintiff of such relief is greater than $75,000.00.
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efendapt contends that plaintiff owes more than $75,000.00
on the note, that plaintiff is claiming that the note is entirely
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unenforceable , and , therefore , the amount in controversy is the
amount owed on the note . Defendant attempts to distinguish this
Case from other mortgage fdreclosure cases which lacked subject
matter jurisdicti by focusing on i argument that pl ntiff
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ng on the note
claims that hl does no: owe anythi
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The coutt is not #ersuaded that the alleged monetary amount
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owed on the note supplies the basis for plaintiff's interest in
the property , especially given that plaintiff himself has not
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pleaded how Yùch equity he has in the property . Defendant does
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not cite to, nor can the court discern , any such statement in the
petition t sppport a fi
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nding that the a
mount owed on the loan is
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amount ip controversy . That is , for example , defendant 's
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attribution of the greater than $75,000. amount as damages is
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an act of its own doing--not plaintiff r . To the extent that
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these statements suggest that the remaining loan amount is the
proper measur: of the amount in controversy in this action, the
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court rejectsfthat argument.
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Plainly , the sole goal of plaintiff's action is to avoid or
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delay a foreclosure sale and to be able to retain possession of
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the property. Not ng is ailege that would assign a monetar
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value to plaiùtiff's accomplishment of those goals. While
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plaintiff app#ars to request equitable relief based on a claim
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at he is entitled to hold legal title in the property , he does
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not assert that such relief is based on a claim that she has
outright ownership of the property , free from any indebtedness .
While defendapt makes àrguments that plaintiff is contending he
o s no hi g/ s h a i s a g me t t a pl nti f f l t a mi
we t n l uc s t r u n h t ai f ai s o d t
that he ài
gned a promissbr note or deed 6f trust b# only
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admitting to'jallegedly sign l
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ingq' such documents, plaintiff
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makes statements to suggest that his ownership of the property il
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encumbered by a debt, as the petition describes a note and deed
of trust , andjquestions.whether defehdant is the rightful owner
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or holder of the note and deéd of trust . Throughout the
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petition, p1alntiff reters to the note and deed of trust , alleges
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that def
endanj lacks the authori to foreclose because it is not
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tHe hoïder of'the original note, that there is no record of an
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assignment Of the yeed of trust to defendant, anu yua: yuere is
ambigu ity over who holds the note .
Plaintiff also speculates
that the note!could have been securitized and/or sold and that
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beiame the real parties i interest on t Note,' but
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does not contend that he owes nothing ön the note or that he
should own the property free and clear of al1 debt . Notice of
Removal, Ex . C1, at 4 . Thus , the value to plaintiff of his
ri hts i t jl t g i n i at mos t val of hi i t e t
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n he i i at o s,
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in the properby, not the aùount defendaht alleges is owed on the
loan . Thus, defendant has not established the value of
plaintiff 's interest in the property .
Defen:aùt has not pro
ven by a preponderance og :ue evidence
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that the amount actually in controversy in this action exceeds
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the sum or value of $7s , ooo .oo, excluding interest and costs .
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Consequently , the court is remanding the case to the state court
from which it was rèmoved , because of thè failure of defendant to
Persuade the court that subject matter jurisdiction exists.
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order
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For the teasons given above ,
The court ORDERS that the above-captioned
hereby , remanded to the state court from zzd ' h i
tio
be , and is
was re
ved
sc s a!z J ? a l
zu o q y è( oa.
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CBRYDE
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d states Distr 'c
Judge
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