Gonzalez v. Community Loan Servicing, LLC

Filing 7

OPINION AND ORDER re #5 Opposed MOTION to Remand. Connie Cobb (Substitute Trustee) terminated. (Signed by Judge Micaela Alvarez) Parties notified.(JenniferNogueira, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

April 27, 2021
Nathan Ochsner, Clerk

MIGUEL ANGEL HERRERA
GONZALEZ,

§
§
§
Plaintiff,
§
§
VS.
§
§
COMMUNITY LOAN SERVICING, LLC; §
and CONNIE COBB, Substitute Trustee, §
§
Defendants.
§ CIVIL ACTION NO. 7:21-cv-00132
COMMUNITY LOAN SERVICING, LLC, §
§
§
Counter- Plaintiff,
§
§
VS.
§
§
MIGUEL ANGEL HERRERA
§
GONZALEZ,
§
§
Counter-Defendant.
OPINION AND ORDER
The Court now considers Plaintiff’s “Motion to Remand”1 and Defendant Community
Loan Servicing, LLC’s response.2 After considering the motion, record, and relevant authorities,
the Court DENIES Plaintiff’s motion.
I. BACKGROUND
This is a foreclosure case. Plaintiff originally filed suit on April 5, 2021, in Texas state
court seeking a temporary restraining order to halt the foreclosure sale of his home in Hidalgo

1
2

Dkt. No. 5.
Dkt. No. 6.

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County, Texas, scheduled for April 6th.3 The state judge granted a temporary restraining order
on April 5th.4 Substitute trustee Defendant Connie Cobb was served on April 6th and advised
Defendant Community Loan Servicing, LLC of the lawsuit. 5 Defendant Community Loan
Servicing filed its answer and counterclaim in state court on April 7th6 and removed to this Court
on the same day.7 Plaintiff filed the instant motion to remand on April 22nd.8 Defendant
responded on the same day.9 The issue of the Court’s jurisdiction is ripe for decision. The Court
turns to its analysis.
II. ANALYSIS
Plaintiff first argues that the Court should remand this case because it does not involve a
federal question.10 This Court has already rejected this argument made by Plaintiff’s same
counsel Juan Angel Guerra.11 The Court reiterates that diversity jurisdiction is a sufficient basis
upon which to maintain jurisdiction over this case.
Plaintiff next argues that the “parties are not divers [sic].”12 Plaintiff is a citizen of
Texas,13 Defendant Community Loan Servicing is a citizen of Delaware and Florida. 14 Substitute
trustee Connie Cobb is a citizen of Texas,15 but is an improperly joined party and is thus
DISMISSED from this case for the same reasons numerous courts have already laid out:

3

Dkt. No. 1-2 at 2–3.
Dkt. No. 1-3.
5
Dkt. No. 1 at 1, ¶ 2.
6
Dkt. No. 1-2 at 13.
7
Dkt. No. 1.
8
Dkt. No. 5.
9
Dkt. No. 6.
10
Dkt. No. 5 at 1, ¶ 3.a.
11
Garcia v. Metro. Life Ins. Co., No. 1:19-cv-113, 2019 WL 4280098, at *4 (S.D. Tex. Aug. 16, 2019) (Morgan, J.)
(holding that the Court may have subject matter jurisdiction under federal question jurisdiction or diversity
jurisdiction), report and recommendation adopted, 2019 WL 4274228 (S.D. Tex. Sept. 10, 2019) (Rodriguez, J.).
12
Dkt. No. 5 at 1, ¶ 3.b.
13
Dkt. No. 1-2 at 1, § II.
14
Dkt. No. 1 at 4, ¶ 13.
15
Id. ¶ 14.
4

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Plaintiff fails to allege any cognizable claim against the substitute trustee and the substitute
trustee is not a necessary or relevant party with respect to the relief Plaintiff does seek.16
Plaintiff last argues that the amount in controversy is less than $75,000, excluding
interest and costs, because Plaintiff is “suing only for the equity.”17 Numerous courts including
this one have rejected this argument.18 The Court reiterates that the amount in controversy is the
value of the property at issue, which the Hidalgo County Central Appraisal District appraised at a
value of $175,045.19
Accordingly, the Court finds that it has diversity jurisdiction over this case under 28
U.S.C. § 1332. The Court DENIES Plaintiff’s motion to remand and request for attorney’s fees.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 27th day of April 2021.
___________________________________
Micaela Alvarez
United States District Judge

16

Dempsey v. Deutsche Bank Nat'l Tr. Co., No. 1:20-cv-203, 2020 WL 7384687, at *2 (S.D. Tex. Dec. 16, 2020)
(Rodriguez, J.) (collecting Fifth Circuit cases); Ordonez v. NewRez LLC, No. 7:20-cv-326, 2020 WL 7258363, at *4
(S.D. Tex. Dec. 9, 2020) (Alvarez, J.); Garcia, 2019 WL 4280098, at *4–5; Flores del Campo v. U.S. Bank, N.A.,
No. 7:19-cv-76, 2019 U.S. Dist. LEXIS 212067, at *5 (S.D. Tex. Apr. 9, 2019) (Alvarez, J.); Rodriguez v. Wells
Fargo Bank, N.A., No. 7:18-cv-109, 2018 U.S. Dist. LEXIS 231333, at *8 (S.D. Tex. June 11, 2018) (Alvarez, J.);
Padalecki v. Bank of Am., N.A., No. SA-14-CV-267-XR, 2014 WL 6965390, at *4 (W.D. Tex. Dec. 5, 2014);
Williams v. Wells Fargo Bank, No. 4:13-cv-825, 2014 WL 1024003, at *5 (S.D. Tex. Mar. 13, 2014) (Harmon, J.).
17
Dkt. No. 5 at 2, ¶ 3.c.
18
See Ordonez, 2020 WL 7258363, at *3; Garcia, 2019 WL 4280098, at *5; Silver Gryphon, L.L.C. v. HSBC Bank
USA, N.A., No. CIV.A. H-14-443, 2014 WL 2611811, at *3 (S.D. Tex. June 11, 2014) (Miller, J.); Mason v. Bank of
Am., N.A., No. 4:12CV291, 2013 WL 589556, at *2 (E.D. Tex. Feb. 14, 2013), report and recommendation
adopted, No. 4:12CV291, 2013 WL 1313769 (E.D. Tex. Mar. 28, 2013); Martinez v. BAC Home Loans Servicing,
LP, 777 F. Supp. 2d 1039, 1043 (W.D. Tex. 2010).
19
Dkt. No. 1-7 at 2; see Statin v. Deutsche Bank Nat. Tr. Co., 599 F. App'x 545, 546 (5th Cir. 2014) (“[A] county
appraisal district's assessment of the property . . . is a common way the amount-in-controversy requirement is
proven . . . .”).

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