Tabor v. Ocwen Loan Servicing, LLC et al, No. 4:2013cv00537 - Document 7 (N.D. Tex. 2013)

Court Description: MEMORANDUM OPINION and ORDER... this action is hereby remanded to the state court from which it was removed. See Order for further specifics. (Ordered by Judge John McBryde on 7/20/2013) (krg)

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Tabor v. Ocwen Loan Servicing, LLC et al Doc. 7 i ! r ,, u s. sax l cocu' , m cv r woxn-nrk x rRl oFrsxws r lx use cT I THE UNI N TED STATES DISTRICT 6UW - ?C 'FI ' (7 7' LED .. r- 1 URFoR'UwORTHRozvzszoxsa OTSr os z'o Tx HR zT c p r . . . . r. ... . '. i . . , . , Jg.2 (2 ! .t ) g, . . BRYTBR AR AO , j CAEKUSDSRC CIT ) 'YR,. I IT OJ L .T R w ' j j ! 1 ' Plai tiff , . j De t puy 5 VS . 5 5 g OCWEN LOAN SERFICING, LLC, 5 ET M ., 5 k n da ts Defe 1 l . I l 1 ! NO . 4 :13 -CV -537 -A 5 5 MEMOPAUDUM opzNlou and ORDER The courtlhas not been persuaded that it has subject matter i jurisdicti o on ker the abovecaptioned acti on. T herefore, the I . court is ordering the action remanded to the state court from ! 1 which it was rpmoved. i j ) 1. ; Background : i pl ntiff, Barry Tabor , initiated this acti by fili his ai ; on ng ! - o iia p t to i te D src Cut o T ra tCu t ,T x s rg n l e ihn n h itit or f a rn on y ea , ' 1 17th Judicial Pistrict, naming as defendants Ocwen Loan I l servicing, LLq, and Wells Fargo Bank , National Associ ation, as Trustee for soundview Home Loan Trust 2007-OPT5, Asset-Backed l Certificates, teri 2007es OPT5. By notice of removal filed July 1 1 2, 2013, defen ants removed the action to this court, alleging 1 I ! ! Dockets.Justia.com ' ! that this cour had subject matter jurisdi ction by reason of diversity of citizenship, as contemplated by 28 U . C. 5 1332, S. 1 and that the atount in controversy exceeds the sum or value of $75,000, exclu/ive of interest and costs, as contemplated by 5 13 ( . 3 2 a) l I 1 i In the noEice of removal, defendants alleged that because l plaintiff requysted declaratory and injuncti relief, t amount l ve he I i l 1 n controversyiwas the ' ' value of the right to be protected or the 1 . e e t o t ' ur t b pr v nt d.' Not c of R mo a 4 xt n f he j y o e e e e ' nj ie e val t ! ( ootnot and éitation omitt f e ed). And, where the mortgagor call ed i 1 1 no qe to Ih rg tt p oet ,o suh truh te t u sin ye ih o rp ry r og t h og h ltg to t r oe th se tr p oe t t e fi m re v le iia in o ' tc i n ie rpry, h a r a kt au r 1 o t e p o e t c n t t t d t e a o n i c n r v r y. B c u e f h r p r r o s iu e h m u t n o t o e s e as I the appraised kalue of t property at issue was at l he east l ! $147,700.00, dMfendants contend they established that the amount ) in controversy!exceeded the jurisdictional minimum. j Becaus o! a concern t defendants had not provided the e hat p court with inf rmation that would enable the court to f ind the existence of t e requisite jurisdictional amount, the court ordered defend nts to file an amended notice of removal , together , I l ) 1 1 2 ' with supportin documentation, showing that the amount in controversy ex eeds the jurisdictional amount. Defendants timely complied with the court's order . II . Basic Principles j T c ur 1s a ts wi h a s t me of ba c pri i e he o t t r i t ta e nt si nc pl s l announced by the Fifth Circuit: ! i n The remo ng part bears t bur #i y he den of sho wing that federal subject matter jurisdiction exists and that removal was proper.' ' Man uno v. Prudential Pro . & Cas. Ins. Co., 276 F.3d 720, 723 ( 5th Cir. 2002). n ! Moreover, because the effect of removal is to I 1 deprive the state court o f an action properly before it, removal f ; raises signifiiant federalism concerns, which mandate strict ç 1 1 construction o! the removal statute.' Carpenter v. Wichita '' F 1 1 ! alls Inde . 5th. Distw 44 F . 362, 365-66 ( 3d 5th Cir. 1995). Any doubts about whether removal jurisdiction is proper must ( 1 i ' r The emoval 'a ut , 28U. C.j1 4la pr vie ,i pe t n pa tt t tt e S. 4 ( ) o d s n ri t r,ha : ne ( nycvi a to b o h i aS aec r ofwhiht edititc urso t eUnie Al i l c n r ug t n tt ou t c h src o t f h t d St eshave or i ' idi i m a be r oved by t def at i nal urs cton, y em he endantort def he endant t s, o t diti co oft Unied St esf t diti a di son e br ng t pl he srct he t at or he srct nd vii m aci he ace wher s h ac ' i pendi e uc ton s ng. (mp ssa e . e ha i dd d) ! i I 1 1 3 ' r i i therefore be esolved against the exercise of federal jurisdiction. Acuna v. Brown & Root Incw 200 F. 335, 339 ( 3d 5th Cir . 2000). l l To deterùine t amount in controvers the court ordi he y, naril y I looks to the laintiff ' state court petition . Manquno, 276 F.3d s at 723 . If i is not facially apparent from the petition that the amount in controversy exceeds the required amount , the ! re moving partk must set forth summar judg y menttype evidence, ! l e t er i t e jo ce of r m va o i a a i a t, s o n t a i h n h n ti e o l r n n ff d vi h wi g h t ! i the amount in i controversy is, more likely than not, greater than $75,000. Id.; Allen v . R & H Oil & Gas Co., 63 F.3d 1326, 1335 ( 5th Cir. l99A). The amount in controversy is measured from the ! ! perspective o/j the plaintiff. See Garcia v . Koch Oil Co. of ! ! Te xas I ncw 351 F. 636, 640 n. ( h Cir. 2003). 1 3d 4 5t 1 111. The True Nature of Plaintiff ' Claims s 1 5 T e pe t n b w c pl n f i ti e t s ac o i t h ti ( jo y hi h ai ti f ni at d hi ti n n he ) s at c ur d is n s c y a d l r a u t of r c v y s u t, t e o t qe ot pe if ol a mo n e o er o gh ! nor does it define in any way the value of the right sought to be protected or t e extent of the injury sought to be prevented. I l 4 ! I Rather, the a legations of the petition are typical of many state court petitio s that are brought before this court by notices of removal in wh ' ch the plaintiff makes vague , general, and obviously leg l1y baseless allegations in an attempt to frustrate the procedure a lender is pursuing, or has pursued, to regain ! possession of i residential property the plaintiff used as security ; 1 for the makin i of a loan . As the c urt has been required to do in other cases of this kind , the cou t has undertaken an evaluation of the true nature $ of plaintiff 'g claims . Having done so , and having considered the f i authorities a l arguments cited by defendants in the amended d n i e of re I t c ur r ma ns u er ua d t t t a o nt ot c m8 val, he o t e i np s de ha he m u i I n controvers exceeds the required jurisdictional minimum. I the a n éended notice of remo val def endants ess entiall y 1 I reurge the arjuments made i the origi n nal notice of removal: ! ! that the valuelof the right to be protected or injury to be l peetdrpeet teaon i cnrvry. We,a hr , rvne eysns h mut n otoes hn s ee t object is lor a mortgagor to protect his property, defendants he j f contend that tle fair market value of the property constitutes h 1 the amount in controversy . The basis of this argument , as it 5 l i l pertains to p aintiff, is that plaintiff in his state court petition seek a judicial determination of the parties' rights and obligatiops with regard to the property , and that plaintiff r ; seeks by this i l litigation to protect title to his property . I I A review l plaintiff' pleadings, however, makes clear that of s l ! plaintiff makès no claim to outright title to the property . j ! While defendauts are correct that p laintiff challenges ( defendants' i pterest i the property, plai n ntiff als acknowledges o that whoever oes hold the note would have standing to foreclose on the proper 1 . y Thus , defendants ' attempts to distinguish this l court ' prev i us decisions in Ballew v . America 's Servicinq Co ., s case number 4 :ll-CV-030-A , and Johnson v . Mortqaqe Factory , Inc ., ! i 4: l3-cv-213- , on that basis, are unavailing. Defendants have A d 1 1 offered nothi g further to establish the amount in controversy . To summa#ize, the court is convinced that there is no i 1 l legitimate di.pute in this action over ownership to the property , only plaintiff 's efforts to extend the time he can stay on the p roperty and i llay the sale of the property through foreclosure . e No informatio has been provided to the court that would enable the court to place a value on the interest plaintiff seeks to 1 1 1 1 6 ' ! I protect by th s action . Thus, defendants have not shown by a preponderance of the evidence that the amount in controversy in this action e ceeds $75,000, exclusive of interest and costs. Consequently,j the court lacks subject matter jurisdiction over ! i the action, apd it should be remanded to the state court from 1 ) wh ich it was xemoved . j I i Iv . l Order Thereforq , l ) The court ORDERS that this action be , and is hereby , è 1 rm ne t te sae cut fo w ih i w srm vd. e add o y tt or rm hc t a eoe SI GNED July * / 1 , i z 2 013 . I 1 1 ' - i 1 J CBRYDE ni l 1 I 1 1 ( I I 7 I 1 d States Distric Judge

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