Phillips v. Green Tree Servicing, LLC et al

Filing 10

MEMORANDUM AND ORDER GRANTED 6 MOTION to Remand (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARILYN PHILLIPS,
Plaintiff,
v.
HOMECOMINGS123, et al.,
Defendants.

§
§
§
§
§
§
§

CIVIL ACTION NO. H-14-2211

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Remand [Doc. # 6] filed by
Plaintiff Marilyn Phillips, to which Green Tree Servicing LLC (“Green Tree”) filed
a Response [Doc. # 9]. Having reviewed the full record and applicable legal
authorities, the Court grants the Motion to Remand.
Plaintiff filed this lawsuit on May 10, 2013, challenging an impending
foreclosure on her home. Defendants GMAC Mortgage, LLC, and Homecomings
Financial, LLC, had previously filed bankruptcy petitions in May 2012.1 Plaintiff did not

serve Green Tree with the state court lawsuit, but Green Tree nonetheless filed an
Original Answer on July 8, 2014. Green Tree then filed a Notice of Removal on
August 1, 2014. Plaintiff filed a timely Motion to Remand, arguing that the removal

1

By Order [Doc. # 8] entered September 2, 2014, all claims against these two
Defendants were dismissed.

P:\ORDERS\11-2014\2211MRemand.wpd

140929.0954

was untimely because it occurred more than one year after the lawsuit was
commenced. The Motion to Remand is now ripe for decision.
A case may not be removed on the basis of diversity jurisdiction “more than
one year after commencement of the action, unless the district court finds that the
plaintiff has acted in bad faith in order to prevent the defendant from removing the
action.” 28 U.S.C. § 1446(c)(1). Green Tree argues that Plaintiff acted in bad faith
by failing to effect timely service. The Court cannot find from this record that
Plaintiff’s failure to serve Green Tree promptly was the result of bad faith designed
to prevent Green Tree from removing the case. As a result, the removal was untimely
pursuant to § 1446(c)(1), and it is hereby
ORDERED that Plaintiff’s Motion to Remand [Doc. # 9] is GRANTED and
this case will be remanded by separate order to the 113th Judicial District Court of
Harris County, Texas.
SIGNED at Houston, Texas, this 29th day of September, 2014.

P:\ORDERS\11-2014\2211MRemand.wpd

140929.0954

2