Campbell et al v. Wells Fargo Bank NA
Filing
12
MEMORANDUM OPINION and ORDER granting 7 Motion to Remand filed by Frank D Campbell, Kay L Campbell. The court ORDERS that the above-captioned action be, and is hereby, remanded to the state court from which it was removed. (Ordered by Judge John McBryde on 9/16/2013) (npk)
FRANK D. CAMPBELL AND
KAY L. CAMPBELL,
§
§
§
Plaintiffs,
§
§
VS.
§
NO. 4:13-CV-630-A
§
WELLS FARGO BANK, N.A.,
§
§
Defendant.
§
MEMORANDUM OPINION
and
ORDER
Now before the court is the amended notice of removal filed
in the above-captioned action by defendant, Wells Fargo Bank,
N.A.
U.S.C.
Defendant has alleged diversity of citizenship under 28
§
1332 as the sole basis for removal.
Plaintiffs, Frank
D. Campbell and Kay L. Campbell, also filed a motion to remand,
to which defendant filed a response.
Although it appears to the
court that plaintiffs have failed to allege sufficient authority
for granting plaintiffs' motion, nevertheless, having considered
the amended notice of removal and the original state court
petition of plaintiffs, attached thereto, the court concludes,
sua sponte, that defendant 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.
I.
Background
Plaintiffs initiated this action by filing their emergency
motion for temporary restraining order in the County Court at Law
No.3, Tarrant County, Texas, as Cause No. 2013-004639-3, to
enjoin the foreclosure sale of their property by defendant.
Defendant then removed the action to this court.
On August 20,
2013, pursuant to this court's order, defendant filed its amended
notice of removal.
Defendant alleges that the court has subject
matter jurisdiction under 28 U.S.C.
§
1332 because of complete
diversity of citizenship between plaintiffs and defendant, and an
amount in controversy exceeding the sum or value of $75,000.00,
exclusive of interest and costs.
Nowhere in plaintiffs' petition is there any statement of
the amount of damages sought or any indication that plaintiffs
seek anything other than to enjoin the foreclosure of their
property.
However, defendant contends that, in the context of
foreclosure proceedings, the proper measure of the amount in
controversy is the value of the subject property, which defendant
asserts is $646,400.00.
Defendant argues that the value of the
property satisfies the amount in controversy.
In support of its
position, defendant cites to legal authority standing for the
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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.
Am. Notice of Removal at 5-8.
After having evaluated the amended notice of removal and all
state court documents, and after reviewing applicable legal
authorities, the court remains 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
construction of the removal statute."
Carpenter v. Wichita Falls
Indep. Sch. Dist., 44 F.3d 362, 365-66
(5th Cir. 1995)
3
(citation
omitted).
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,u or
~the
~value
value of the right to be
protected or the extent of the injury to be prevented. u
Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).
4
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 pursues this goal
by seeking an order barring any foreclosure proceedings.
Notice of Removal, Ex. B-2 at 1-2.
Am.
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.
Defendant contends that the fair-market value of the
property should serve as the amount in controversy because
plaintiffs request equitable relief to enjoin defendant from
foreclosing on the property.
Am. Notice of Removal at 6-8.
Defendant relies on the oft-cited argument that when equitable
relief is sought, the amount in controversy is measured by the
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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,
defendant suggests that the value of the property is
approximately $646,400.00.
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.
Defendant 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 controversy.
That is, for example, defendant's attribution of
the $646,400.00 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.
1
Plainly, 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
I 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 turn, 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: Il-CV-030-A, 2011 WL 880135 (N.D. Tex. Mar.
14,2011).
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value to plaintiffs' accomplishment of that goal.
While
plaintiffs appear to request equitable relief based on a claim
that they are entitled to hold legal title in the property, they
does not assert that such relief is based on a claim that they
have outright ownership of the property, free from any
indebtedness.
The value to plaintiffs of their right in the
litigation is, at most, the value of their interest in the
property, not the value of the property itself.
Thus, defendant
has not established the value of plaintiffs' interest in the
property.
Defendant 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.
Consequently, the court is remanding the case to the state court
from which it was removed, because of the failure of defendant to
persuade the court that SUbject matter jurisdiction exists.
IV.
Order
For the reasons given above,
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The court ORDERS that the above-captioned action be, and is
hereby, remanded to the state court from which it was removed.
SIGNED September 16, 2013.
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