Deutsche Bank National Trust Company, as Trustee v. Novosad et al

Filing 7

ORDER entered DENYING 4 MOTION to Abate.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE,
Plaintiff,
v.
RANDY L. NOVOSAD and MICHELLE
NOVOSAD,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

August 06, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-1301

ORDER DENYING MOTION TO ABATE
On January 29, 2005, the defendants, Randy and Michelle Novosad, received a home equity
loan for $216,000 from Resmae Mortgage Corporation, secured by real property in Sugar Land,
Texas. (Docket Entry No. 1 at 3). The plaintiff, Deutsche Bank National Trust Company, is the
owner and holder of the note and the beneficiary of the security instrument. Id. Deutsche Bank sued
the Novosads, seeking to enforce its security interest through a non-judicial foreclosure or,
alternatively, a judicial foreclosure. Id. at 4–5.
Michelle Novosad moved to abate this federal case, arguing that Deutsche Bank previously
sued the Novosads in the 268th Judicial District Court of Fort Bend County, Texas. (Docket Entry
No. 4 at 1). Novosad asserts that:
When as in this case there are two lawsuits of the same subject matter, the Court in
an exercise of its sole discretion, can abate an action for reasons of comity,
convenience, and orderly procedure, taking into consideration the practical results
to be obtained. As a practical matter, it makes sense to permit the District Court
Case, in Fort Bend County, to proceed, and abate this case to avoid the expense and
inconvenience of litigation [sic] the same issues in multiple courts.
Id. at 3. Deutsche Bank did not respond.
1

“Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14 (1983); Saucier v. Aviva Life &
Annuity Co., 701 F.3d 458, 462 (5th Cir. 2012) (“[A] court may abstain from a case that is part of
parallel, duplicative litigation under ‘exceptional circumstances.’) (citing Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976)). Six factors relevant to determining
whether “exceptional circumstances” are present include:
(1) assumption by either court of jurisdiction over a res; (2) relative inconvenience
of the fora; (3) avoidance of piecemeal litigation; (4) the order in which jurisdiction
was obtained by the concurrent forums; (5) the extent to which federal law provides
the rules of decision on the merits; and (6) the adequacy of the state proceedings in
protecting the rights of the party invoking federal jurisdiction.
Saucier, 701 F.3d at 462 (citing Kelly Inv., Inc. v. Continental Common Corp., 315 F.3d 494, 497
(5th Cir. 2002)). “These factors are not applied mechanically, but carefully balanced ‘with the
balance heavily weighted in favor of the exercise of jurisdiction.’” Moses, 460 U.S. at 16.
Novosad has not shown that exceptional circumstances are present under the federal
standard.

She cites the Texas common-law standard for determining whether “inherently

interrelated” cases filed in multiple state courts should be abated. See, e.g., In re J.B. Hunt Transp.,
Inc., 492 S.W.3d 287, 294 (Tex. 2016) (“‘The general common law rule in Texas is that the court
in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.’
As a result, when two suits are inherently interrelated, ‘a plea in abatement in the second action must
be granted.’” (emphasis in original)). The federal standard requires the careful balancing of the six
factors listed. That cannot be done on the current record, which consists only of Deutsche Bank’s
state-law application for an expedited foreclosure. (Docket Entry No. 4-1).
On this record, the motion to abate, (Docket Entry No. 4), is denied.

2

SIGNED on August 6, 2018, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

3