Pichini, Jr. v. Highlands Residential Mortgage, Ltd et al

Filing 8

ORDER DENYING 6 Motion to Remand. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

6

PM

14

31

PETER Q. PICHINI, JR.,
Plaintiff,
CAUSE NO.: A-17-CA-00258-SS

-vs-

HIGHLANDS RESIDENTIAL
MORTGAGE, LTD, CENLAR FSB, and
BARRETT DAFFIN FRAPPIER
TURNER & ENGEL LLP,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Plaintiff Peter Q. Pichini, Jr. (Pichini)'s Motion to Remand [#6] and Defendants

Highlands Residential Mortgage, LTD (Highlands) and Cenlar FSB (Cenlar) (collectively

Defendants)'s Response [#7] in opposition. Having reviewed the documents, the governing law,
and the file as a whole, the Court now enters the following opinion and order.

Background
This case originates out of efforts to foreclose on real property located at 1725 Cactus
Mound Drive, Leander, Williamson County, Texas, 78641 (the Property). According to the

Amended Complaint,

Pichini purchased the Property via special warranty deed on

April 17, 2015. Supp. Not. Removal [#4-2] Ex. B-2 (Am. Pet.) ¶ 9. Pichini financed the purchase

with a $237,105 Note to Highlands secured by a deed of trust in favor of Highlands (the
Mortgage). Id. According to Pichini, as all times during the life of the Mortgage, he made

payments directly to Highlands and received monthly loan statements from Highlands. Id. ¶ 11.

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On August 26, 2016, Defendant Barrett Daffin Frappier Turner & Engel LLP (the Law
Firm) sent Pichini a letter attempting to collect money on behalf of Highlands and the alleged

mortgage servicer, Cenlar. Id. ¶12. On September 13, 2016, the Law Firm mailed Pichini a
notice of acceleration and a notice of substitute trustee's sale, claiming authority from Cenlar's
role as servicer for the Mortgage. Id. ¶ 13. Three days later, Highlands executed an appointment

of substitute trustee. Id. ¶14. On November

1,

2016, the Law Firm conducted a foreclosure sale

on the Property. Id. ¶15.
On February 16, 2017, Pichini filed suit in the 425th Judicial District Court, Williamson

County, Texas against Defendants and the Law Firm. Notice Removal [#1-3] Ex. B-i (Original

Pet.).' In his Amended Petition, Pichini asserts two claims for declaratory relief, a claim to quiet
title, and a request for injunctive relief. Am. Pet.

¶IJ

16-25. In his first claim for declaratory

relief, Pichini alleges "[Cenlar] has no authority to act as a mortgage servicer because no

servicing agreement exists that allowed [Cenlar] to service Plaintiff's mortgage." Pichini

specifically states, "The Truth in Lending Act, 15 [U.S.C. §J1641(g) [TILA] requires that a
notice of new creditor be sent to the debtor within 30 days of the sale or transfer of a mortgage or
loan. This never occurred." Id. ¶ 16 (footnote omitted). In a footnote, Pichini denies seeking

relief under TILA, claiming "[t]he reference to the statute and its penalties is to further illustrate
the irregularity of the handling of Plaintiffs mortgage and the plausibility of further

irregularities." Id. ¶ 16 n. 1. Pichini also alleges Cenlar failed to notify Pichini it was appointed to
act as the Mortgage servicer as required under the Real Estate Settlement Procedures Act, 12

U.S.C.

§

2605(b) (RESPA). Id. ¶ 19.

'Pichini filed his Amended Petition less than an hour after filing his Original Petition. Compare Original Pet. with
Am. Pet. The only difference between the two petitions this Court can discern is the addition of a sworn verification
with the Amended Petition. Id.

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Pichini's second claim for declaratory relief asks the court to declare the substitute
trustee's deed void because the foreclosure sale was conducted by Cenlar, which allegedly acted
without authority as the Mortgage servicer. Id. ¶ 19. Similarly, Pichini' s claim to quiet title seeks
to remove the cloud on the Property's title because the November 1, 2016 foreclosure sale "was

conducted by an entity that had no authority to act.

. .

." Id. ¶ 20. Finally, Pichini' s request for

injunctive relief seeks to prevent Defendants from continuing any eviction efforts in light of the

disputed foreclosure sale. Id. ¶1121-25.
On March 24, 2017, Defendants timely removed the case to this Court. Notice Removal
[#1]. On April 21, 2017, Plaintiff filed a motion to remand the case to state court. Mot. Remand

[#6]. That motion is now ripe for review.

Analysis
I.

Legal Standard
In general, a defendant may remove a civil action from state court to federal court if the

action originally could have been brought in federal court. See 28 U.S.C.

§

1441(a). Federal

courts have federal question jurisdiction over "all civil actions arising under the Constitution,
laws, or treaties of the United States." Id.

§

1331. "The well-pleaded-complaint rule has long

governed whether a case 'arises under' federal law for purposes of § 1331." Holmes Grp., Inc.

v.

Vornado Air Circulation Sys., 535 U.S. 826, 830 (2002). Under this rule, a case "arises under"

federal law if "a well-pleaded complaint establishes either that federal law creates the cause of

action or that the plaintiff's right to relief necessarily depends on resolution of a substantial

question of federal law." Franchise Tax. Bd. of Cal.

v.

Constr. Laborers Vacation Tr. for S. Cal.,

463 U.S. 1, 27-28. Furthermore, the federal question "must be disclosed upon the face of the

complaint, unaided by the answer.

. .

." Gully

v.

First Nat'! Bank, 299 U.S. 109, 112 (1936).

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Additionally, "[tjhe removing party bears the burden of showing that federal jurisdiction
exists and that removal was proper." Manguno

v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d

720, 723 (5th Cir. 2002) (citation omitted). "To determine whether jurisdiction is present for

removal, we consider the claims in the state court petition as they existed at the time of

removal." Id. (citation omitted). Any ambiguities are construed against removal. Acuna

v.

Brown

& Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).

II.

Application
Defendants argue this Court has federal question jurisdiction over Pichini' s claims

because they arise under federal law. Notice Removal [#1] ¶J 1-4. Because the Court agrees, the
Court denies Pichini's motion to remand.
In his Amended Petition, Pichini's claims center on alleged violations of TILA and

RESPAtwo federal statutes that govern consumer finance transactions including mortgage
lending. See Am. Pet. ¶J 16-25. These alleged violations of RESPA and TILA arise under the
laws of the United States because they "raise a stated federal issue, actually disputed and

substantial, which a federal forum may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities." See Sing/i

v.

Duane Morris LLP,

538 F.3d 334, 338 (5th Cir. 2008) (internal quotation marks omitted) (quoting Grable & Sons

Metal Prods., Inc.

v.

Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)).

Moreover, Pichini's right to relief depends on the resolution of questions of federal law.
In particular, all of Pichini's claims hinge on whether Cenlar acted without authority because

Cenlar allegedly failed to notify Pichini either that (1) Cenlar was a new creditor as required
under TILA or (2) Cenlar was appointed to act as the Mortgage servicer as required under
RESPA. Pichini's allegation Cenlar had no authority to conduct the foreclosure sale is the only

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allegation of wrongdoing supporting Pichini's requests for relief. In essence, because federal law
determines whether Cenlar had the authority to support the foreclosure action and Pichini alleges

improper foreclosure due to lack of authority, federal subject-matter jurisdiction exists.
Therefore, Defendants met their burden of showing the Court has subject-matter

jurisdiction over this removed action, and Pichini's motion to remand is DENIED.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Peter Q. Pichini, Jr.'s Motion to Remand [#6] is

DENIED.
SIGNED this the

/

day of May 2017.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

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