Pechua, Inc. v. America's Wholesale Lender et al

Filing 48

MEMORANDUM AND ORDER granting 12 Opposed MOTION to Remand (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
§
§
Plaintiff,
§
VS.
§
§
AMERICA’S WHOLESALE LENDER, et §
al,
§
§
Defendants.
§

March 30, 2017
David J. Bradley, Clerk

PECHUA, INC.,

CIVIL ACTION NO. 3:16-CV-364

MEMORANDUM OPINION AND ORDER
Before the Court is Pechua Inc.’s (“Pechua”) Motion to Remand. Dkt. 12. Pechua
argues that the Defendants did not provide sufficient evidence of the parties’ complete
diversity of citizenship in their Notice of Removal. Dkt. 1. Pointing to recent United
States Supreme Court precedent, Pechua argues that in these circumstances, the
citizenship of the trust—and not the trustee—controls for the purpose of determining
diversity. Based upon the motion and the parties’ subsequent filings, and for the reasons
that follow, the Court will GRANT Pechua’s motion to remand.
I. Background
Pechua is a Nevada corporation with a lien on subject property located in Brazoria
County, Texas. The Deed of Trust specifies that federal law and Texas state law govern.
Pechua filed Plaintiff’s Original Petition and Application for Ex Parte Temporary
Restraining Order and Temporary Injunction in the 239th Judicial District Court of
Brazoria County, Texas. Dkt. 1-2. Pechua named the following entities as defendants: 1)
America’s Wholesale Lender (“AWL”); 2) Structured Asset Securities Corporation
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Mortgage Loan Trust, Mortgage Pass-Through Certificates Series 2006-BC5 (“Trust”); 3)
Specialized Loan Servicing, LLC (“SLS”); 4) Bank of America, N.A. (“BANA”); and 5)
Mortgage Registration Systems, Inc. (“MERS”).

Pechua sought declaratory relief

regarding the statute of limitations and the Defendants’ lack of standing to foreclose.
Pechua also sought quiet title and brought claims in trespass, negligence per se, gross
negligence, and for violations of the Texas Civil Practice and Remedies Code.
The Removal Defendants’1 timely filed Notice of Removal states that U.S. Bank,
N.A., (“U.S. Bank”) as Trustee for the Structured Asset Securities Corporation Mortgage
Loan Trust Mortgage Pass-Through Certificates Series 2006-BC5 was incorrectly sued as
the trust itself. It further alleges that U.S. Bank is the correct party to be sued. 2 The
Notice of Removal argued that this Court has subject matter jurisdiction due to complete
diversity of citizenship between the parties. The Notice based this conclusion on the
citizenship of U.S. Bank and the other named defendants—not on the citizenship of the
members of the trust. It is undisputed that a sufficient amount in controversy exists to
confer federal subject matter jurisdiction. The diversity of citizenship among the nontrust entities is likewise undisputed. Determining the appropriate citizenship of the trust
is therefore the sole issue before the Court.

1

Defendants AWL and BANA are represented by separate counsel and did not join the
Defendants’ Notice of Removal. However, they filed a response to the Motion to Remand. Dkt.
34.
2

The Notice of Removal provides Minnesota as the state of citizenship for U.S. Bank. The
Notice argues that the Trust is an improperly joined party, and therefore does not provide
information regarding its citizenship.
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II. Analysis
A.

Standard of Review

Generally, a defendant may remove to federal court any state court civil action
over which the federal court would have “original jurisdiction.” 28 U.S.C. § 1441(a); see
Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir.2007). Federal courts
have “original jurisdiction” over civil actions where the parties are diverse and the matter
in controversy exceeds the sum or value of $75,000, exclusive of interests and costs. 28
U.S.C. § 1332(a). However, such diversity jurisdiction requires complete diversity—that
is, the citizenship of each plaintiff must be diverse from the citizenship of each defendant.
See, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, XX (1996).

“[D]oubts regarding

whether removal jurisdiction is proper should be resolved against federal jurisdiction.”
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.2000). The removing party
therefore bears the burden of showing by a preponderance of the evidence that removal is
proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002).
B.

Applicable Law

Artificial entities are not ‘citizens’ under the law; they instead retain the
citizenship of their individual members. However, courts have carved out exceptions for
corporations and national banks, which are treated as citizens for diversity purposes.
Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 461 (1980). A corporation is a citizen of both
the state where it is incorporated and of the state where its principal place of business is
located. 28 U.S.C. § 1332(c)(1). A national bank “is a citizen of the State in which its

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main office, as set forth in its articles of association, is located.” Wachovia Bank, N.A. v.
Schmidt, 546 U.S. 303, 307 (2006).
The motion before the Court requires it to determine the citizenship of a trust for
which the trustee is a national bank. Under Texas law, the term “trust” refers to “the
fiduciary relationship governing the trustee with respect to the trust property.” Huie v.
Deshazo, 922 S.W.2d 920, 926 (Tex. 1996). Texas requires plaintiffs to make the trustee
a party to the action in order to obtain relief against the trust. Ray Maloolv Trust v. Juhl,
l86 S.W .3d 568, 570 (Tex. 2006). Texas law acknowledges several entities that are
termed “trusts” but that are not subject to the law surrounding traditional trusts. See, e.g.,
Tex. Prop. Code Ann. § 111.003(3). These “business trusts” are instead viewed as
unincorporated associations. May v. New Century Mortgage Corp., CIVIL ACTION NO.
4:16-cv-1272 (S.D. Tex. Sept. 16, 2016).
Courts have long grappled with determining the citizenship of trusts. The United
States Supreme Court recently acknowledged that this confusion “is understandable and
widely shared.” Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012, 1016
(2016).

In Navarro Savings Association v. Lee, the Supreme Court reaffirmed the

common law principle that trustees who are real parties to the controversy may “sue in
their own right, without regard to the citizenship of the trust beneficiaries.” 446 U.S.
458, 465-66 (1980). A trustee is a real party to the controversy when its control over the
trust’s assets is “real and substantial.” Id. At 465. Navarro provides several factors for
determining whether a trustee is a real party: whether the trustee has legal title; whether
the trustee manages the assets; whether the trustee controls the litigation. Id.
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Nearly four decades later, the Court revisited citizenship determinations regarding
trusts. In Americold Realty Trust v. Conagra Foods, Inc., the Court found that a real
estate investment trust created by Maryland statute took the citizenship of its members.
136 S. Ct. 1012, 1014 (2016). In so finding, the Court reaffirmed the principle that—
aside from the “limited exception” carved out for corporations—entities took the
citizenship of their members. Id. At 1015-16.

The Court also rejected the Plaintiff’s

argument that Navarro stands for the proposition that “anything called a ‘trust’ possesses
the citizenship of the trustees alone, not its shareholder beneficiaries as well.” Id. at
1016. The Court distinguished between ‘traditional trusts’—less a legal entity than a
fiduciary relationship—and so-called ‘business trusts’—that is, entities that are called
‘trusts’ but “have little in common with this traditional template.” Id. According to the
Court, neither the “oft-repeated rule” (that an unincorporated entity possesses the
citizenship of its members) “nor Navarro limits an entity’s membership to its trustees just
because the entity happens to call itself a trust.” Id. Increasingly, courts within the
United States Fifth Circuit have read Americold as a mandate to analyze whether a
corporate or national bank trustee is a real and substantial party before basing diversity
jurisdiction upon the trustee’s citizenship.3
3

See, e.g., Pitts v. Bank of New York Mellon et al, CIVIL ACTION NO. 4:16-CV-01410 (S.D.
Tex. Feb. 21, 2017); Guillen v. Countrywide Home Loans, Inc., Civil Action H-15-849, 2016
WL 7103908 (S.D. Tex. Dec. 6, 2016); May v. new Century Mortgage Corp., CIVIL ACTION
NO. H-16-1272 (Sept. 19, 2016); Swoboda v. Ocwen Loan Servicing, LLC, CIVIL ACTION
NO. H-13-2986 (S.D. Tex. Sept. 19, 2016). But see Halley v. Deustche Bank National Trust Co.,
CIVIL ACTION NO. H-15-1174, 2016 WL 3855872 (S.D. Tex. July 15, 2016); HSBC Bank
USA v. Johnson, CIVIL ACTION NO. H-15-0277, 2016 WL 1626219, at *1 (S.D. Tex. Apr. 25,
2016) (finding that national bank trustee’s citizenship controlled for diversity purposes without
conducting “real party in interest” analysis).
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C.

Application

The Court must determine whether the trust constitutes a fiduciary relationship
between U.S. Bank and the beneficiaries. If it does, then a traditional trust exists and
U.S. Bank’s citizenship (Minnesota) is the basis for diversity jurisdiction. However, if
instead there is “an unincorporated association only nominally operating as a ‘trust,’”
then the citizenship of the individual members must serve as the basis for diversity
jurisdiction. May, CIVIL ACTION NO. H-16-1272 at *9. The Court therefore examines
the Navarro factors to determine whether U.S. Bank is a real party to the controversy.
See Navarro Savings Association v. Lee, 446 U.S. 458, 465-66 (1980). Finally, the Court
looks to an additional factor: the parties’ relative powers and responsibilities that are not
accounted for in the factors above. See Guillen v. Countrywide Home Loans, Inc., Civil
Action H-15-849, 2016 WL 7103908 (S.D. Tex. Dec. 6, 2016). Here, in addition to
Trustee U.S. Bank and the Certificateholders (beneficiaries), Wells Fargo, N.A. serves as
the Master Servicer. The Trust Agreement (“TA”) defines ‘servicing’ as “the act of
managing or collecting payments on the mortgage loans or any other assets of the Trust
Fund by an entity that meets the definition of ‘servicer ….’ Dkt. 12-1, p. 56. Pechua
attached the complete Trust Agreement TA with its Motion to Remand. Dkt. 12-1. The
Removal Defendants attached applicable portions of the Servicing Agreement (“SA”) to
its Objections to Plaintiff’s Motion to Remand. Dkt. 23-1. These documents help to
clarify whether the Trust is a traditional or a business trust.

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i. Whether the trustee has legal title:
It is undisputed that U.S. Bank has legal title to the trust assets. Under the TA, the
Trustee is conveyed, “in trust, all the right, title and interest of the Depositor in and to the
Mortgage Loans. Such conveyance includes, without limitation, the right to all payments
of principal and interest received ….” Dkt. 12-1, para. 2.01(a). The SA likewise confirms
that:
The ownership of each Mortgage Note, Mortgage, and the contents of the
Servicing File shall be vested in the Trustee and the ownership of all
records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in the Trustee and shall be retained and maintained, in trust, by the Servicer
at the will of the Trustee in such custodial capacity only.
Dkt. 23-1, para. 2.01. The first prong therefore weighs in favor of a traditional trust.
ii. Whether the trustee may invest the assets for the shareholders’ benefit:
The TA mandates that funds “shall be invested in Eligible Investments selected by
and at the written direction of [the Seller].” Dkt. 12-1, para. 4.01(e). In the absence of
written directions, funds must be invested in a named money market account.

Id.

Finally, funds that are in the Certificate Account just prior to the Distribution Date may
be invested by the Master Servicer in an Eligible Investment. Id.

Neither the Removal

Defendants’ Objections nor Defendants BANA’s separate Response to Plaintiff’s Motion
to Remand provide evidence that U.S. Bank has the right to invest the trust’s assets. The
second prong, therefore, favors finding that this is a business trust.

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iii. Whether the trustee controls trust litigation:
“[T]he Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive ….” TA, 6.01(d). However, the
Trustee must promptly remit any such complaint to the Master Servicer. Id. Here, the
Master Servicer is responsible for foreclosure proceedings. TA, 9.04(a). This prong
favors a business trust as well.
iv. Powers and responsibilities of the trustee, beneficiaries, and Master Servicer
Courts also consider the relative responsibilities of the trust’s parties when
deciding whether an entity is a traditional trust or a business trust (i.e., an unincorporated
entity). Two recent opinions authored by Judge Miller of the United States Southern
District of Texas—Houston Division shed light on the distinction. Both opinions were
written after Americold; both involve real property foreclosures with a trust is a
defendant; both trusts have national bank trustees; and both opinions engage in identical
analyses to determine whether the trust itself is of the ‘traditional’ or ‘business’ variety.
Applying the individual facts of each case, the court reached two different conclusions.
See Rodriguez v. Deutsche Bank National Trust Company, CIVIL ACTION NO. H-161697, 2017 WL 371141, at *3 (S.D. Tex. Jan. 26, 2017); Guillen v. Countrywide Home
Loans, Inc., Civil Action H-15-849, 2016 WL 7103908, at *8 (S.D. Tex. Dec. 6, 2016).
In Guillen, the Court found relevant the fact that the “Securityholders appoint the
Program Manager to administer mortgage loans on their behalf and the trustee must
receive written permission from the Program Manager prior to taking action.” 2016 WL
7103908, at *8. The court also noted that while the trustee could bring a suit for default,
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the Program Manager could waive the default, direct the method of conducting any
remedy, and initiate suit should the trustee fail to do so. Id. According to the court, the
Securityholders’ overriding powers gave them significant control over the trustee. Id.
Accordingly, the court found that the trust was a business trust. In contrast, the Court
found that the trust in Rodriguez had sufficiently demonstrated its status as a traditional
trust.

2017 WL 371141, at *3.

There, the court considered evidence that

Certificateholders could not control the management and operation of the trust or bring
any suit on behalf of the trust.
Here, the balance of power conferred by the TA is weighted on the side of the
non-Trustee parties (the Certificateholders and the Master Servicer).

For example,

Certificateholders may remove the Trustee. Dkt. 12-1, para. 6.06(e). They may waive
any default. Id. at 6.16. They may remove the Credit Risk Manager. Id. at 9.37. The
Master Servicer “shall master service the Mortgage Loans and shall have full power and
authority … to do any and all things that it may deem necessary or desirable in
connection with the servicing and administration of the Mortgage Loans ….” Id. at
9.04(a). Under the TA, the Trustee authorizes and empowers the Master Servicer to act
in its discretion to execute instruments of satisfaction and cancellation. Id. The Master
Servicer also maintains custodial accounts, id. at 9.06(a), necessary insurance policies, id.
at 9.16(a), and may “in its sole discretion undertake any such action that it may deem
necessary or desirable ....” Id. at 9.30(c). On the balance, U.S. Bank as Trustee is
entrusted with less powers and responsibilities than either the Certificateholders or the

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Master Servicer. Weighing all factors, the Court finds that the trust at issue is a business
trust.
III.

Conclusions and Order

Having found that a business trust exists, the Court must look to the citizenship of
its individual members to determine whether the Court has subject matter jurisdiction
over this case. The Removal Defendants did not provide the citizenship of the trust’s
members. Therefore, they have not met their burden to show by a preponderance of the
evidence that removal is proper. Accordingly, the Court REMANDS this case to the
239th Judicial District Court of Brazoria County, Texas.

All pending motions are

DENIED as moot.
SIGNED at Galveston, Texas, this 30th day of March, 2017.
___________________________________
George C. Hanks Jr.
United States District Judge

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