Francisco et al v. Wells Fargo Bank, N.A.

Filing 8

MEMORANDUM OPINION and ORDER. 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 9/12/2013) (npk)

U.S. DISTRICT COURT

NORTHERN DlSTRICr OF tlEXAS

IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
STEFFEN W. FRANCISCO AND
SARAH FRANCISCO,

FILED
SEP

J

22013

§

§
§

Plaintiffs,

§
§

VS.

§
§

WELLS FARGO BANK, N.A.,

§

NO. 4:13-CV-666-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.

Defendant has alleged diversity of citizenship under 28

U.S.C.

§

1332 as the sole basis for removal.

Having considered

the amended notice of removal and the original state court
petition of plaintiffs, Steffen W. Francisco and Sarah Francisco,
attached thereto, the court concludes 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.
1.

Background
Plaintiffs initiated this action by filing their original
petition against defendant on August 5, 2013, in the District

Court of Tarrant County, Texas, 153rd Judicial District, as Cause
No. 153-267220-13.
court.

Defendant then removed the action to this

On August 30, 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.
In the prayer of their petition, plaintiffs do not state a
specific amount of damages.

Nor is there any other statement of

the amount of damages contained elsewhere in the petition, other
than a vague statement that plaintiffs seek damages of less than
$100,000.00.

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 $146,800.00.

Defendant argues that the value of the

property plus the unspecified damages requested by plaintiffs
satisfies the amount in controversy.

In support of its position,

defendant 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 plaintiffs could

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be divested of the property entirely.

Am. Notice of Removal at

5-9.
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
~The

district court would have original jurisdiction.

removing

party bears the burden of showing that federal subject matter
jurisdiction exists and that removal was proper.

H

Prudential Prop. Cas. Ins. Co., 276 F.3d 720, 723
2001).

~Moreover,

Manguno v.
(5th Cir.

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.

H

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
3

jurisdiction.

Acuna v.Brown & Root Inc., 200 F.3d 335, 339 (5th

eir. 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 & Hail & Gas Co., 63 F.3d 1326, 1335

(5th eir. 1995).
The amount in controversy is measured from the perspective
of the plaintiff.
(5th eir. 1958)

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

(per curiam).

In an action for declaratory or

injunctive relief, the amount in controversy is the "value of the
object of the litigation," or "the 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 eir. 1983).
III.
Analysis
Plaintiffs' petition does not make a demand for a specific
amount of damages, does not specify a dollar amount of recovery
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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 this goal

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

Am. Notice of Removal, Ex. C-1 at 14.

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 5-6.

Defendant 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
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property is the amount in controversy.

Id.

In its amended

notice of removal, defendant suggests that the value of the
property is approximately $146,800.000.

Id.

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 $146,800.00 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

value to plaintiffs' accomplishment of that goal.

While

1 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.
Prof! 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. 4:11-CV-030-A, 2011 WL 880135 (N.D. Tex. Mar.
14,2011).

6

plaintiffs appear to request equitable relief based on a claim
that they are entitled to hold legal title in the property, they
do not assert that such relief is based on a claim that they have
outright ownership of the property, free from any indebtedness.
Indeed, plaintiffs make statements to suggest that their
ownership of the property is encumbered by a debt, as the
petition describes a note and deed of trust, and questions
whether defendant is the rightful owner or holder of the note and
deed of trust.

The value to plaintiffs of their rights 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.
Further, defendant's argument that plaintiffs' mere request
for actual damages, statutory damages, compensatory damages,
treble damages, exemplary damages, and attorney's fees supports a
finding that the requisite amount in controversy exists likewise
is without merit.

Plaintiffs' petition does not state a specific

amount of damages, and nothing alleged on the face of the
petition would enable the court to conclude that the damages
sought would exceed the amount in controversy.

Further, without

an amount to serve as a basis for compensatory damages, the court
cannot form any reliable estimate for the amount plaintiffs could
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recover for additional damages.

Therefore, defendant's argument

is, at most, speculative, and also fails to establish the amount
in controversy.
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,
The court ORDERS that the above-captioned action be, and is
hereby, remanded to the state court from which it was removed.
SIGNED September 12, 2013.

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