Cummings v. Litton Loan Servicing, LP
Filing
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MEMORANDUM AND ORDER GRANTING 7 MOTION to Remand, DENYING AS MOOT 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CLAUDE CUMMINGS,
Plaintiff,
v.
LITTON LOAN SERVICING, LP,
Defendant.
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§ CIVIL ACTION NO. 4:12-cv-90
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MEMORANDUM AND ORDER
Pending before the Court is a Motion to Remand filed by Plaintiff Claude Cummings
(“Plaintiff” or “Cummings”) (Doc. No. 7), and a Motion to Dismiss filed by Defendant
Litton Loan Servicing, LP (“Defendant” or “Litton”) (Doc. No. 5). After considering the
motion, all responses thereto, and the applicable law, the Court finds that the Plaintiff’s
motion must be GRANTED. Defendant’s motion must be DENIED.
I.
BACKGROUND
In November 2011, Plaintiff Claude Cummings (“Plaintiff” or “Cummings”) filed a
civil action against Defendant Litton Loan Servicing, LP (“Defendant” or “Litton”) in the
295th Judicial District Court for Harris County, Texas. (Pl. Pet., Doc. No. 1-2.) In his state
court petition, Plaintiff alleges that, after his home was damaged by Hurricane Ike, Plaintiff
filed a claim under his homeowner’s policy, and notified his mortgage company, which was
either Fieldstone Mortgage Company (“Fieldstone”), or its alleged successor in interest,
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Litton.1 (Id. ¶¶ 6-8.) Plaintiff explains that, because the mortgage company made no effort to
repair his home, he expended his own money to do so. (Id. ¶¶ 8-9.) Plaintiff alleges that his
homeowner’s insurance then paid proceeds on the claim (Id. ¶ 10), but that Fieldstone said it
had no interest in the proceeds, and that Litton was its successor in interest. (Id.) Litton
informed Plaintiff that it was not the successor in interest to Fieldstone, that it had no
interest in the insurance proceeds, and that it would not sign a release for the proceeds. (Id.)
Plaintiff seeks a declaratory judgment that Litton breached the deed of trust “by failing to
elect to repair Plaintiff’s home and/or failing to endorse the check to reimburse [Plaintiff] . .
. for the cost of repair to his home.” (Id. ¶ 12.) Plaintiff also seeks attorneys’ fees under the
Texas Declaratory Judgment Act. (Id.)
On January 11, 2012, Defendant removed the case to this Court and filed a Motion to
Dismiss. (Doc. No. 5.) Thereafter, Plaintiff filed a Motion to Remand (Doc. No. 7), to which
a response and reply have been filed.
II.
LEGAL STANDARD
A party may remove to federal court any state court action over which the federal
district courts would have original jurisdiction. 28 U.S.C § 1441(a); see also Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “The removing party
bears the burden of showing that federal jurisdiction exists and that removal was proper.”
Manguno, 276 F.3d at 723 (citations omitted). To determine whether jurisdiction exists,
federal courts must look to the claims in the state court petition “as they existed at the time
of removal.” Id. (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.2d 256, 264 (5th
Cir. 1995)). The removal statute must be strictly construed in favor of remand; as a result,
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Because Plaintiff’s petition is vague, it is not clear which of these two companies Plaintiff claims to have
notified.
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any doubts as to whether removal is proper must be resolved against removal. Id. (citing
Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
Litton asserts that this Court has diversity jurisdiction, rendering its removal proper.
Diversity jurisdiction requires an amount in controversy exceeding $75,000, as well as
diversity of citizenship between the parties. 28 U.S.C. § 1332. The parties do not dispute the
existence of complete diversity; rather, at issue is whether this case meets the $75,000
amount in controversy requirement. To determine the amount in controversy for the
purposes of establishing diversity jurisdiction, federal courts ordinarily consider the
plaintiff’s claims as alleged at the time of removal. Manguno, 276 F.3d at 723 (citing St.
Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)). “If it is not
facially apparent from the petition that the amount in controversy exceeds the required
amount, the removing party must set forth summary judgment-type evidence, either in the
notice of removal or in an affidavit, showing that the amount in controversy is, more likely
than not, greater than $75,000.” Barth v. JPMorgan Chase Bank, Nat. Ass’n, 2012 WL
287827, at *1 (N.D. Tex. Jan. 31, 2012) (citing Manguno, 276 F.3d at 273; Allen v. R & H
Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
III.
ANALYSIS
Plaintiff’s state court petition does not specify the amount of recovery sought, nor
does it clearly define the value of the right sought to be protected. Rather, as is common in
state court petitions, Plaintiff’s allegations are very general. Plaintiff seeks a declaration that
Defendant must either endorse a check, or release the check’s maker from responsibility for
the funds, so that Plaintiff may cash the check. The petition does not indicate the value of
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the check.2 In urging that remand is inappropriate, Defendant offers only a conclusory
statement (and provides neither summary judgment evidence nor an affidavit) regarding the
value of the loan encumbering Plaintiff’s property. Defendant urges that, because the loan
exceeds $170,000, the amount in controversy requirement is met.
Defendant’s argument does not satisfy its burden to prove that removal was proper.
Plaintiff’s petition appears to relate not to the entire loan on Plaintiff’s property, but rather to
a discrete check, the amount of which is not indicated in the petition. Defendant does not
contend that this check exceeds $75,000, and does not explain why the Court should look to
the value of the loan in determining the amount in controversy. There is no logical reason,
from the face of Plaintiff’s petition, that the amount in controversy should be determined in
this way. Especially because any doubt as to whether removal is proper must be resolved in
favor of remand, the Court concludes that this case must be remanded.
IV.
CONCLUSION
For the foregoing reasons, Cummings’ Motion to Remand must be GRANTED.
Litton’s Motion to Dismiss must be DENIED as moot.
IT IS SO ORDERED.
SIGNED this the 1st day of March, 2012
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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In conjunction with Plaintiff’s Reply in support of his Motion to Remand, Plaintiff’s counsel submits an
affidavit informing the Court that the check at issue is in the amount of $21,303.90. (Doc. No. 11-1.) Plaintiff’s
counsel also indicates that attorneys’ fees should not exceed $7,500, and that the matter will in no way involve
more than $75,000. (Id.) Because the amount in controversy must be determined based on the petition itself at
the time of removal, the Court does not rely upon this affidavit in reaching its decision.
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