Mendez v. Aguilar et al

Filing 17

ORDER DENYING 11 Motion for Leave to Amend; DENYING 12 Motion for Reconsideration. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
GRACIE MENDEZ f/k/a GRACIE
BARRIENTOS,

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§ Civil Action No. SA-14-CV-326-XR
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ORDER

Plaintiff,
v.
WELLS FARGO BANK, N.A., et. al.,
Defendants.

On this date, the Court considered Plaintiff’s motion for reconsideration. Doc. No. 12.
After careful consideration, the motion is DENIED.
DISCUSSION
On April 29, 2014, Plaintiff Gracie Mendez filed a motion to remand this foreclosure
case on the grounds that subject matter jurisdiction was lacking. See Doc. No. 4. Specifically,
Plaintiff argued that there was not complete diversity of the parties because one of the named
Defendants, mortgage trustee Robert Aguilar, was a citizen of the same state as Plaintiff (Texas).
Id. On May 13, 2014, this Court entered an order denying the motion to remand after finding
that Mr. Aguilar had been improperly joined. Doc. No. 10; see Smallwood v. Illinois Cent. R.
Co., 385 F.3d 568, 573 (5th Cir. 2004)(discussing the improper joinder exception to the complete
diversity rule). In its order, the Court found that Plaintiff had no reasonable basis to recover
against Mr. Aguilar in state court and that, consequently, his citizenship could be disregarded
and the claims against him dismissed. Id.
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In lieu of litigating the merits of her claim in this forum, Plaintiff has filed a motion for
reconsideration, again seeking to remand the case to state court.

Doc. No. 12.

Plaintiff

challenges this Court’s conclusion that she has no reasonable basis to recover against Mr.
Aguilar in state court. Id. In her state court petition, Plaintiff alleged that Mr. Aguilar is
individually liable for the lender’s alleged failure to send notices of intent to accelerate. See
Orig. Pet. at ¶ 9. In its order denying Plaintiff’s motion to remand, this Court found that notice
of intent to accelerate was mailed on or about October 14, 2013. Doc. No. 10. Recognizing that
it is uncertain whether the duty to send notice of intent to accelerate extends to the trustee, the
Court found that, because such a notice was in fact sent, Plaintiff could not expect to recover on
this theory. Id.
In her motion to reconsider, Plaintiff admits that notice of intent to accelerate was mailed
in October, 2013. Doc. No. 12 at 2. However, Plaintiff argues that she made a payment in
response to this notice, and that by accepting this payment, the lender abandoned its acceleration.
Id. According to Plaintiff, any further acceleration required a new notice of intent to accelerate.
Id. (“That is to say, once [the bank] took the payment, the Plaintiffs get a do over on the
notices”). Plaintiff is impliedly advancing a two-part legal argument that: (1) a new notice of
intent to accelerate is always required after a borrower accepts a payment; and (2) the duty to
provide a successive notice of intent to accelerate extends to the trustee. For the purposes of this
motion, the Court need not take a position on this unsettled area of Texas property law.1 In this
case, the lender never actually accepted Plaintiff’s attempted payments. This is evident from the
face of Plaintiff’s state court pleading. Therein, Plaintiff admits that her attempted payment was

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In fact, in conducting an improper joinder analysis, it is often inappropriate for a federal court whose jurisdiction is
questioned to opine on unsettled questions of state law. Cf. Minella v. Bank of Am., N.A., No. SA-14-CV-174, 2014
WL 1330554 (W.D. Tex. Apr. 1, 2014).

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returned to her on November 22, 2013. See Orig. Pet. ¶ 6.

Even assuming the accuracy of

Plaintiff’s legal arguments, it is difficult, if not impossible, to see how the bank could have
“accepted” her payment when it was immediately returned. Thus, the factual underpinnings of
Plaintiff’s theory of the trustee’s liability – that no effective notice of intent to accelerate was
ever mailed – remains flawed.

Consequently, the Court again finds that Mr. Aguilar was

improperly joined and DENIES this motion to reconsider its previous order denying Plaintiff’s
motion to remand. Doc. No. 12.
Plaintiff has also filed a motion for leave to amend her petition, to re-add Mr. Aguilar as
a Defendant. Doc. No. 11. In considering Plaintiff’s motion to reconsider, the Court necessarily
reaffirmed its prior finding that Plaintiff has no reasonable basis to recover against Mr. Aguilar.
As a result, Plaintiff’s proposed amendment would be “futile” and leave to amend is properly
denied under Rule 15. See Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am.
Co., 195 F.3d 765, 771 (5th Cir. 1999).
CONCLUSION
In light of the foregoing analysis, the motion to reconsider is hereby DENIED. Doc. No.
12. In addition, Plaintiff’s motion for leave to amend is also DENIED. Doc. No. 11.
SIGNED this 23rd day of May, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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