Fuller v. Bank of America, N.A. et al
Filing
6
MEMORANDUM OPINION and ORDER. 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 11/14/2013) (npk)
IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF T
FORT WORTH DIVISION
TONIA FULLER,
rROV I 11 2013
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§
Plaintiff,
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VS.
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BANK OF AMERICA, N.A., AND
NATIONSTAR MORTGAGE, LLC,
NO. 4:13-CV-886-A
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Defendants.
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MEMORANDUM OPINION
and
ORDER
The court has not been persuaded that it has subject matter
jurisdiction over the above-captioned action.
Therefore, the
court is ordering the action remanded to the state court from
which it was removed.
1.
Background
Plaintiff, Tonia Fuller, initiated this action by filing her
original petition, application for temporary restraining order,
and request for temporary injunction in the District Court of
Tarrant County, Texas, 141st JUdicial District, naming as
defendants Bank of America, N.A. ("Bank of America"), and
Nationstar Mortgage, LLC ("Nationstar").
Bank of America removed
the action, 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 U.S.C.
§
1332.
The allegations in the state court pleadings pertain to
plaintiff's property on winterwood Drive in Kennedale, Texas.
Plaintiff claims that in or around October 2012, she became
concerned that she would be unable to meet her mortgage
obligation due to unemployment and medical bills.
She alleges
that she contacted Bank of America and was granted a special
forbearance.
Pursuant to the forbearance, plaintiff did not make
payments for October, November, or December of 2012, but did make
her regular payment for January of 2013, after which she received
a letter from Bank of America indicating that her loan was
current.
Plaintiff states that she continued to make regular
payments from January until May of 2013, at which time she sought
to modify her loan with Bank of America.
Plaintiff alleges that
Bank of America then allowed her to make payments twice per
month, beginning May 15, 2013.
After receiving notice from Bank
of America that Nationstar was the new servicer of plaintiff's
loan, plaintiff attempted to make payments to Nationstar for
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June, July, and August of 2013, but her payments were rejected
and plaintiff was informed that Nationstar would not accept
partial payments and had no record of the loan modification.
Plaintiff asserts claims against defendants for violation of
the Deceptive Trade Practices Act, breach of contract, fraud, and
negligent misrepresentation, and seeks economic and actual
damages, temporary restraining orders, temporary injunction,
attorney's fees, and costs of court.
II.
Basic Principles
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,
(5th Cir. 2002).
723
"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 ... )
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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
jurisdiction.
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th
cir. 2000).
To determine the amount in controversy, the court ordinarily
looks to the plaintiff's state court petition.
at 723.
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
$75,000.
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.
(emphasis added).
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III.
The True Nature of Plaintiff's Claims
The petition by which plaintiff 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 prevented.
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 Bank of America in the notice
of removal, the court is unpersuaded that the amount in
controversy exceeds the required jurisdictional minimum.
Nothing on the face of the petition provides sufficient
information as to the amount in controversy.
removal, Bank of America contends that
is sought,
II
In the notice of
[w]hen equitable relief
'the amount in controversy is measured by the value of
the object of the litigation. '"
Notice of Removal at 3.
Bank of
America argues that in the context of a mortgagor seeking to
protect his entire property, the fair market value of the
property is the proper measure of the amount in controversy.
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Bank of America asserts that the fair market value of the subject
property is $245,400.00 and that this amount satisfies the
jurisdictional minimum amount in controversy.
However, the fact that the value of the property mentioned
in plaintiff's pleadings might be more than $75,000.00 does not
establish the amount in controversy.
Nowhere does plaintiff in
her state court pleadings indicate that the fair market value of
the property represents the amount in damages she is requesting.
Further, a review of plaintiff's pleadings makes clear that
nothing therein gives rise to a claim to outright title to the
property.
Rather, plaintiff is alleging that defendants have
failed to honor an agreement for loan modification and have
wrongfully scheduled the property for a sale pursuant to
foreclosure.
Hence, the court is convinced that there is no
legitimate dispute in this action over ownership to the property,
nor is there any basis in the petition by which Bank of America
can establish that the amount in controversy exceeds the
jurisdictional minimum.
No information has been provided to the court that would
enable the court to place a value on the interest plaintiff seeks
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to protect by this action.
Thus, Bank of America 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.
IV.
Order
Therefore,
The court ORDERS that this action be, and is hereby,
remanded to the state court from which it was removed.
SIGNED November 14, 2013.
Judge
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