Bank of New York Mellon v. Cotton

Filing 18

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 12 MOTION for Summary Judgment, 16 Memorandum and Recommendations. Case is REMANDED to County Civil Court at Law No. One, Harris County, Texas. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BANK OF NEW YORK MELLON AS
TRUSTEE FOR THE BENEFIT OF
CERTIFICATE HOLDERS OF THE
CWABS INC., ASSET-BACKED
CERTIFICATES, SERIES 2004-6,
Plaintiff,
VS.
PATRICIA COTTON,
Defendant.

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CIVIL ACTION NO. H-13-756

OPINION AND ORDER OF REMAND
Pending before the Court in the above referenced cause for
forcible entry and detainer, removed from state court on diversity
grounds by Defendant Patricia Cotton (“Cotton”) when she was
proceeding pro se, are (1) Plaintiff Bank of New York Mellon’s
(“BONY’s”) motion for summary judgment (instrument #12) and (2)
United States Magistrate Judge Frances Stacy’s memorandum and
recommendation (#16) that this case be remanded to the County Civil
Court at Law No. One, Harris County, Texas because this Court lacks
subject-matter jurisdiction over it.

Neither BONY nor Cotton has

filed objections to the memorandum and recommendation.
Standard of Review
Findings to which no specific objections are made require that
the Court only to decide whether a magistrate judge’s memorandum
and recommendation is clearly erroneous or contrary to law.

Id.,

citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

The

district court “may accept, reject, or modify, in whole or in part,
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the findings or recommendations made by the magistrate judge.”

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U.S.C. § 636(b)(1)(C).
Diversity Jurisdiction and Removal
For a federal court to exercise diversity jurisdiction, the
citizenship of each plaintiff must be diverse from the citizenship
of each defendant and the amount in controversy must exceed the
jurisdictional minimum of $75,000.00.

28 U.S.C. § 1332(a).

The

party invoking diversity jurisdiction bears the burden of proving
that it exists.
Cir. 1995).

De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th

Thus the removing party must satisfy its burden of

proof that the amount in controversy exceeds $75,000.00, exclusive
of interests and costs, by demonstrating that it is facially
apparent from the petition that the claim likely exceeds that
amount or by setting forth facts in controversy that support a
finding that it does.
1335 (5th Cir. 1995).

Allen v. R&H Oil & Gas Co., 63

F.3d 1326,

Courts have “a continuing obligation to

examine the basis for their jurisdiction.

The issue may be raised

by parties, or by the court sua sponte at any time.”

MCG, Inc. v.

Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). “Any
doubt about the propriety of removal should be resolved in favor of
remand.”

Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008).

As observed by the Magistrate Judge and supported by documents
in the record, the procedural history of this suit is odd.

In May

24, 2009 Cotton purchased the house at 407 West Obion Road,
Houston, Texas.

On November 6, 2012, BONY purchased the property
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at a non-judicial foreclosure sale.

Nevertheless, Cotton remained

in possession of the property and on December 23, 2012, she filed
an “Original Petition for Forcible Entry and Detainer” against BONY
in the Harris County Justice Court Precinct One, Place Two (1-2),
Cause Number EV12C0026969.

BONY served Cotton with eviction

summons and a petition on January 12, 2013.

BONY won the case and

was awarded judgment for possession of the property on January 23,
2013.

Cotton, proceeding pro se and in forma pauperis, appealed

the judgment to the County Civil Court at Law One of Harris County,
Texas, Docket Number 1027338.
on

March

18,

2012,

one

day

Although the case was set for trial
before

Cotton

removed

the

suit,

purportedly on diversity grounds, asserting that the amount in
controversy was the current market value of the property, or
$77,569.00. BONY did not move for remand, but instead, on July 11,
2014 filed its pending motion for summary judgment, arguing that
this Court should enter a judgment in BONY’s favor and award it
possession of the property. Now represented by counsel, Cotton, in
her response (#15), contended that the removal was improper because
the amount in controversy was less than $75,000.00.
When a lawsuit’s dispute is over loss of title or a property,
the value of the property constitutes the measure of the amount in
controversy for removal.

Wells Fargo Bank NA v. Agnew, Civ. A. No.

3:14-CV-1646-L, 2014 WL 2158420, at *3 (N.D. Tex. May 23, 2014),
citing Burr v. JP Morgan Chase Bank, N.A., No. 4:11-CV-03519, 2012
WL 1016121, at *3 (S.D. Tex. Mar. 23, 2012).
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When the lawsuit is

a forcible detainer action involving foreclosed property, however,
the amount in controversy is not the fair market value of the
property; instead it is the value of the right of possession.
Agnew, 2014 WL 2158420, at *4, citing Fed. Nat. Mortg. Ass’n v.
Talley, No. 3:12-CV-1967-N-BH, 2012 WL 4005910, at *2 (N.D. Tex.
Aug. 16, 2012), report and recommendation adopted, 2012 WL 4005760
(N.D. Tex. Sept. 11, 2012)(collecting cases); Ezon v. Cornwall
Equities, Ltd., 540 F. Supp. 885, 889 (S.D. Tex. 1982).
Moreover there is no federal question jurisdiction here.
post-foreclosure

action

for

forcible

detainer

and

writ

“A
of

possession arises solely under state law and does not provide a
basis for federal jurisdiction.”

Agnew, 2014 WL 2158420, at *3,

citing Fed. Nat. Mortg. Ass’n v. Elliott, No. 3:10-CV-1321-L, 2010
WL 4627833, at *4 (N.D. Tex. Nov. 16, 2010)(holding that a forcible
detainer action to evict residents and obtain physical possession
of property under Tex. Prop. Code § 24.004 does not raise a federal
claim or provide a basis for federal question jurisdiction).
Thus the Court agrees with Magistrate Judge Stacy that the
removal was improper and that the case must be remanded for lack of
subject matter jurisdiction.

Accordingly, the Court

ADOPTS the Magistrate Judge’s memorandum and recommendation as
its own and
ORDERS that this case is REMANDED to the County Civil Court at
Law No. One, Harris County, Texas because this Court lacks subject-

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matter jurisdiction.
SIGNED at Houston, Texas, this

6th

day of

October , 2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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