Jeffers v. JPMorgan Chase Bank, National Association et al

Filing 5

MEMORANDUM OPINION AND ORDER granting 4 MOTION to Dismiss Plaintiff's Complaint and Brief in Support. (Amended Complaint due by 12/12/2016.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MONIQUE P. JEFFERS,

November 22, 2016
David J. Bradley, Clerk

§

Plaintiff,
v.

JP MORGAN CHASE BANK, NATIONAL
ASSOCIATION, Servicer;
JP MORGAN CHASE BANK NATIONAL
ASSOCIATION, Mortgagee; and
PATRICIA POSTON, Substitute
Trustee,
Defendants.

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CIVIL ACTION NO. H-16-3035

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendant JP Morgan Chase Bank,
N.A.'s ("JPMC") Motion to Dismiss Plaintiff's Complaint and Brief
in Support

( "JPMC' s

Motion to Dismiss")

Although the motion was
Monique P.

Jeffers,

explained below,

(Docket Entry No.

filed on October 21,

2016,

has not responded to it.

JPMC' s

Motion

to

Dismiss

4) .

Plaintiff,

For the reasons

will

be

granted

if

Plaintiff fails to amend within the allotted time.
I.

Factual and Procedural Background

Jeffers alleges the following facts in her Verified Original
Petition,

Application

Injunctive Relief. 1

1

for

Temporary

Restraining

Order

and

On June 1, 2016, a storm damaged Plaintiff's

Exhibit A-3 to Defendant JPMorgan Chase Bank, N.A.'s Notice
of Removal ("JPMC's Notice of Removal"), Docket Entry No. 1-1,
pp. 10-12, ~~ 5-15.

home located at 1414 Laura Hills Lane,
"Property").

On June 11, 2016,

Spring,

Texas 77386

(the

the Federal Emergency Management

Agency ("FEMA") declared several counties in Texas, including the
county in which the Property is located, a major disaster area.
On or about June 12, 2016, Plaintiff received a letter from
JPMC expressing an intent to foreclose on the Property.
alleged an amount

due

in arrears

of

$7,169.39.

The letter

On or about

July 20, 2016, Plaintiff received a letter dated July 16, 2016,from
defendant Patricia Poston regarding the referral of Plaintiff's
mortgage to foreclosure.
On

August

individuals

in

assistance
August
July

2016,

the

through

3,

27,

1,

FEMA

affected
Wednesday,

extended
areas

could

August

2016,
2016,

accelerating

10,

Plaintiff received a

$185,741.20

and

notifying

the

the

apply

during
for
On

2016.

which

disaster
or

about

letter from Poston dated

full

Plaintiff

time

debt
of

the

in

the

amount

foreclosure

of

sale

scheduled to take place on October 4, 2016.
On October 3, 2016, Plaintiff filed this action in state court
against defendants JPMC and Poston
seeking a

temporary restraining order and injunctive relief to

prevent imminent foreclosure.
restraining
foreclosure.

2

(collectively "Defendants"),

order
2

enjoining

Plaintiff was granted a temporary
Defendants

from

proceeding

with

JPMC timely removed the action to this court on the

Exhibit A-8 to
No. 1-1, pp. 78-79.

JPMC's

Notice
-2-

of

Removal,

Docket

Entry

basis of diversity jurisdiction and now seeks dismissal on the
grounds that Plaintiff has failed to plead a legally cognizable
claim.

II.
A.

Standard of Review

Subject-matter Jurisdiction

" [W] hen the issue is not raised by one of the parties,

a

district court is required, on its own accord, to inquire into and
determine whether federal

question or diversity of citizenship

jurisdiction exists over a removed case."
Prac.

&

Proc.

Juris.

courts have original

3739

§

(4th ed.)

§

3739 Remand, 14C Fed.

(citing cases) .

Federal

jurisdiction over civil actions where the

parties are diverse and the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs.
§

1332(a).

28

u.s.c.

A defendant has the right to remove a case to federal

court when federal jurisdiction exists and the removal procedure is
properly followed.
Ins.
§

Co.,

1441(a)).

See Manguno v. Prudential Property and Casualty

276 F.3d 720,

723

(5th Cir.

2002)

(citing 28 U.S.C.

If jurisdiction is based on diversity, an action "may

not be removed if any of the parties in interest properly joined
and served as defendants is a citizen of the State in which [the]
action is

brought."

28

u.s.c.

§

1441(b) (2)

Federal

courts

generally base decisions about subject-matter jurisdiction after
removal on the plaintiffs' allegations as they existed at the time
that the defendant removed the action.
-3-

Kidd v. Southwest Airlines,

Co., 891 F.2d 540, 546 (5th Cir. 1990).

Doubts about the propriety

of removal are to be resolved in favor of remand.

Id.

removing party bears the burden of

the court has

showing that

jurisdiction by a preponderance of the evidence.
B.

Thus, the

Id.

Rule 12 (b) (6)

A Rule 12(b) (6)
pleadings

and

is

motion tests the formal sufficiency of the

"appropriate

when

a

defendant

attacks

the

complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F. 3d 158, 161 (5th Cir. 2001), cert.
denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002).

To

defeat a motion to dismiss, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).

Bell

The court

generally is not to look beyond the pleadings in deciding a motion
to dismiss.
1999).

Spivey v.

Robertson,

197 F.3d 772,

774

(5th Cir.

"Pleadings" for purposes of a Rule 12(b) (6) motion include

the complaint, its attachments, and documents that are referred to
in the complaint and central to the plaintiff's claims.

Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
The court does not "strain to find inferences favorable to the
plaintiffs"

or

"accept

concl usory

deductions, or legal conclusions."
INSpire Ins.

Solutions,

Inc.,

allegations,

Southland Securities Corp. v.

365 F. 3d 353,

361

(internal quotation marks and citations omitted).
-4-

unwarranted

(5th Cir.

2004)

"[C] ourts are

required to dismiss, pursuant to
invalid legal theories,
pleaded."

Flynn v.

[Rule 12(b) (6)], claims based on

even though they may be otherwise well-

State Farm Fire and Casualty Insurance Co.

(Texas) , 605 F. Supp. 2d 811, 820 (W. D. Tex. 2009)

(citing Neitzke

v. Williams, 109 S. Ct. 1827, 1832 (1989)).
III.
A.

Analysis

Diversity Jurisdiction

1.

Amount in Controversy

"When the plaintiff's complaint does not allege a specific
amount

of

damages,

preponderance

of

the

the

removing

evidence

defendant

that

exceeds [the jurisdictional amount]

"

the

must

amount

prove

in

by

a

controversy

De Aguilar v. Boeing Co., 11

F. 3d 55, 58 (5th Cir. 1993), cert. denied, 116 S. Ct. 180 (1995).
The Fifth Circuit has set forth two ways to satisfy this burden.
First, jurisdiction will be proper if "it is facially
apparent" from the plaintiffs' complaint that their
"claims are likely above [$75, 000] . " .
. If the value
of the claims is not apparent, then the defendants "may
support federal jurisdiction by setting forth the
facts- [either] in the removal petition [or] by affidavitthat support a finding of the requisite amount."
Garcia v.
Cir. 2003)

Koch Oil Co.

of Texas

(quoting Allen v. R

&

Inc.,
H Oil

351 F. 3d 636,
&

Gas Co.,

639

(5th

63 F.3d 1326,

1335 (5th Cir. 1995)).
"In actions seeking declaratory or injunctive relief,

it is

well established that the amount in controversy is measured by the
value of the object of the litigation."
-5-

Hunt v. Washington State

Apple Advertising Comm'n, 97 S. Ct. 2434, 2443 (1977).
validity of

a

contract or a

question in its entirety,
amount in controversy."

right

value

of

real

Waller v.

property is

district's assessment.

to property is

called into

the value of the property controls the

F.2d 545, 547-48 (5th Cir. 1961).
the

"[W]hen the

Professional Ins.

Corp.,

296

A common method of establishing
to

look

to

a

county appraisal

Statin v. Deutsche Bank Nat. Trust Co., 599

F. App'x 545, 546-47 (5th Cir. 2014).

Reasonable bases for valuing

properties include "purchase price, market value, or outstanding
principal and interest."

Farkas v. GMAC Mortgage, L.L.C., 737 F.3d

338, 341 (5th Cir. 2013).
the preferred method.

This court considers market value to be

See,

e.g.,

Govea v.

JPMorgan Chase Bank,

N.A., Civil Action No. H-10-3482, 2010 WL 5140064, at *2-4

(S.D.

Tex. Dec. 10, 2010).
JPMC has attached to its Notice of Removal an assessment from
the

Montgomery

County

Central

Appraisal

District

assessed value of the property to be $263, 070. 3
offered no response.
a preponderance of

showing

the

Plaintiff has

JPMC has therefore met its burden to show by
the evidence that

the amount-in-controversy

requirement is met.
2.

Complete Diversity

The removing party also bears the burden of proving that the
parties are completely diverse.

3

See
No. 1-2.

Exhibit B to JPMC' s

Federal courts have jurisdiction

Notice
-6-

of

Removal,

Docket

Entry

over controversies between "Citizens of different States" by virtue
of 28 U.S.C.

§

1332(a) (1) and U.S.

Canst., Art.

III,

§

2.

"[A]

federal court must disregard nominal or formal parties and rest
jurisdiction only upon the citizenship of
controversy."
(1980)

real parties

to the

Navarro Savings Ass'n v. Lee, 100 S. Ct. 1779, 1782

(citations omitted) .

Plaintiff and defendant Poston are both citizens of Texas.
JPMC argues that Poston has been improperly joined and should be
dismissed from the action.
Improper j cinder is established by showing:
in pleading jurisdictional facts;

or

(2)

[the]

" ( 1) actual fraud
inability of the

plaintiff to establish a cause of action against the non-diverse
defendant."

Ross v. Citifinancial,

Inc., 344 F.3d 458, 461

(5th

Cir. 2003).

When assessing the plaintiff's inability to establish

a

action,

cause

of

the

court

conducts

"a

Rule

12 (b) (6) -type

analysis, looking initially at the allegations of the complaint to
determine whether the complaint states a
against the in- state defendant."
434 F.3d 303,

309

(5th Cir.

claim under state law

Guillory v. PPG Industries, Inc. ,

2005)

(citing Smallwood v.

Cent. R.R. Co., 385 F. 3d 568, 573 (5th Cir. 2004)
The

Rule

defendants.

12 (b) (6)

analysis

applies

Illinois

(en bane)).

equally

to

all

named

For the reasons explained in Section III.B., the court

has concluded that Plaintiff has failed to state a claim against
the in-state defendant,
preponderance

of

the

Poston.

evidence

JPMC has therefore shown by a
that

-7-

the

remaining

parties

are

completely

diverse

and

that

the

court

has

subject-matter

jurisdiction.
B.

Alleged Violation of HUD Regulations

Plaintiff

argues

that

Defendants

are

prohibited

from

foreclosing on the property by a moratorium set forth in the U.S.
Department of Housing and Urban Development's
4330.1 REV-S,

( "HUD")

Handbook

titled "Administration of Insured Home Mortgages"

(the "Handbook").

JPMC notes that courts have found no private

right of action for the failure to comply with HUD regulations.
See Wingfield v. Carrington Mortgage Services, LLC, 4:15-CV-453-A,
2015 WL 4886462, at *2 (N.D. Tex. Aug. 13, 2015); Holloway v. Wells
Fargo Bank,
(N.D.

Tex.

N.A.,
Feb.

3:12-CV-2184-G
26,

2013),

(BH),

report

2013 WL 1187156,

at *18

and recommendation adopted,

3:12-CV-2184-G (BH), 2013 WL 1189215 (N.D. Tex. March 22, 2013).
Plaintiff cites no basis for her claim other than the Handbook
itself, which does not grant such a right.

Plaintiff has therefore

failed to state a legally cognizable claim.
C.

Claim for Declaratory Relief

Plaintiff seeks relief under the Texas Uniform Declaratory
Judgment Act, Chapter 37 of the Texas Civil Practice and Remedies
Code.

Chapter 37 is a procedural, and not a substantive, provision

and therefore does not apply to actions in federal court.
Lloyd's of Texas v. Mitchell, 138 F.3d 208, 210
A

request

for

declaratory

judgment
-8-

under

Utica

(5th Cir. 1998).

state

law

is

thus

considered as a claim under the federal Declaratory Judgment Act.
See 28 U.S.C.

§

2201.

"Both Texas and federal law require the

existence of a justiciable case or controversy in order to grant
declaratory relief."

Val-Com Acquisitions Trust v. CitiMortgage,

Inc., 421 F. App'x 398, 400

(5th Cir. 2011)

(citing Bonham State

Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)).
case here,

Plaintiff's underlying claim fails,

declaratory relief has no merit.

Wheeler v.

When, as is the
her request for

U.S. Bank National

Ass'n, Civil Action No. H-14-0874, 2016 WL 554846, at *8 n.53 (S.D.
Tex. Feb. 10, 2016).
D.

Claim for Injunctive Relief

Plaintiff seeks injunctive relief prohibiting Defendants from
foreclosing

on the

Property.

temporary injunction,
specific elements:
(2)

Under Texas

law

(1) a cause of action against the defendant;
and

imminent, and irreparable injury in the interim."

Metcalfe,

obtain a

the applicant must plead and prove three

a probable right to the relief sought;

Motor Co.,

" [t] o

84 S.W.3d 198,
863 S.W.2d 56,

204
57

(Tex.

(Tex.

based on an invalid legal theory.

2002)

1993).

(3)

a probable,

Butnaru v. Ford

(citing

Walling v.

Plaintiff's claim is

Accordingly, Plaintiff is not

entitled to injunctive relief.
IV.

Conclusions and Order

For the reasons explained above,

the court concludes that

Plaintiff has failed to plead a legally cognizable cause of action.
-9-

Defendant

JP

Morgan

Plaintiff's Complaint

Chase

Bank,

N.A.'s

(Docket Entry No. 4)

Motion

to

Dismiss

is therefore GRANTED.

Although Plaintiff failed to respond to JPMC's Motion to Dismiss,
because Plaintiff is appearing pro se and because this action was
removed from state court, the court will provide Plaintiff with an
additional twenty days to file a complaint stating a claim against
JP Morgan Chase Bank, N.A.

If Plaintiff fails to do so, the case

will be dismissed for want of prosecution.
SIGNED at Houston, Texas, on this 22nd day of November, 2016.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-10-