Loveman v. Bank of New York Mellon, No. 4:2013cv00538 - Document 8 (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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' Loveman v. Bank of New York Mellon Doc. 8 1 j 1 . ,.h ,. UN DI STRI COURT CT ê NORTWE QNDI TRI OFTF S S W M t I THE UNI N TED STATES DISTRI ' OV)Y:' x C ' :' 1: C ) 9' F t: FORT WORTH DIVISION j j j.., .y< . yu,s (), 'J. j. , j ' j , . -; - ! , y ; .) .) A L2(2: . : / ) 22 Q : , 'j ( : / . . 1 ! ., . ( . U .. , . ,. . G '' U. DI **Xz K STRI Ck tR' CT i ) I ' B RR B. L VE N A Y O V . ED NORTHERN DISTRICT OF TE V:,y. E.;. ..). jy. .j( tjj y.y ) - 5 , Plaqntiff , i W je jppp -, , t k 5 5 5 5 VS . NO . 4 :13 -CV -538 -A BANK OF NEW YORK MELLON F/K/A j BANK OF NEW kORK AS TRUSTEE FOR 5 THE CERTIFICATE HOLDERS OF 5 CERTIFICATES IERIES 2003-5, S 5 CW , I . XSSETABS NC 1 BACKED 5 è Defj ndant . e 5 : M EMORAN DUM op lu zou and ORDER Now befqre the court is the amended notice of removal filed ' 1 in the abovezcaptioned action by defendant , Bank of New York Mellon f/k/a sank of uew york as Trustee for the cèrtificate Holders of cwaBs , Inc . Asset-Backed certificate series 2oo3-s . Defendant has alleged diversity of citizenship under 28 U .S .C . 5 . ( 1332 as the Mole basis for removal. Having considered the ' j ! ition amended notiqq of removal and the original state court pet ) of plaintifft Barry B . Loveman, attached thereto, the court concludes that defendant has failed to sufficiently allege the required amotnt i controversy, and t n hat t case s he houl be d 1 remanded to yhe state court f whic i was removed. rom h t l i 1 . ' ! j . 1 j ' Dockets.Justia.com i 1 I . 1 Backqround Plaintiff ipitiated this action by filing his original ! . petition agai zst defendant on June 3, 201 i the District Court 3, n of Tarrant County , Texas, 236th Judicial District , as Cause No . 236-266208-13) Defendant then removed the action to this court . . On July 2113, pursuant to this court' order, defendant filed 0 s I its amended n4tice of removal . Defendant alleges that the court i has subject mltter jurisdiction because of complete diversity of citizenship between plaintiff and defendant , and an amount in ' controversy exceeding the sum or value of $75,000.00, exclusive : of interest ahd costs . see U . S.C. 5 1332 ( a). I the p#ayer of his petition, plai n ntiff does not state a . : specific amoupt of damages . Nor is there any other statement of the amount of damages contained elsewhere in the petition . However , defendant contends that because plaintiff is seeking injunctive repief regarding the right to his property, the amount l i i i n controvers# is the amount plaintiff owes on the associated . i prom is:ory note , which defendant contends is more than $75,000.00. Defendant argues that plaintiff alleges that the note is entirely unenforceable , and , therefore, the remaining balanèe on is the amount in controversy . J i I ) After haying evaluated the pleadings , and after reviewing ! applicable leéal authorities, the court remains unpersuaded that t the amount in cqntroversy in this action meets or exceeds the requirpd amoupt . II. Basic Principles The court beg ins w ith a statement of basic principles l announced by the Fifth Circuit : Pursuant to 28 U . C. 5 1441 ( S. a), a defendant may remove to federal courtt any state court action over which the federal ' . j district coukt would have original jurisdiction. nThe removing i ) party bears tle burden of showing that federal subject matter h ! jurisdiction j ' exists and that removal was proper n g . M anqun o v . Prudential Prop. Cas. Ins. Co., 276 F. 720, 723 ( 3d 5th Cir. 2OO1) u Moreiver, because the effect of removal is to deprive o è the state co/i of an action properly before it, removal raises rt l 1 significant federalism ( concerns, which mandate strict I l ' construction o f the removal statute . ' carpenter v . wichita Falls Indep. Sch . Distw 44 F . 362, 365-66 ( 3d 5th Cir. 1995) ( citation omitted). Ahy doubts abbut whether removal jurisdiction is ! pr oper muàt therefore be resol l ved against the exercise of federal j is c o i Ac a v. Br wn & R ot I . 20 F. d 33 33 (t ur di ti nt un o o nc- O 3 5, 9 5 h , . 2000). ; ' i i ( 7 To determine the amount in controversy for the purpose of establishing jiversity jurisdiction, the court ordinarily looks d i i to the plaintkff's state court petition . 1 j Manquno, 276 F. at 3d 723. If it 1I not facially apparent from the petition that the s ' ) 4 . . . amount in coùtroversy is greater than $7s,ooo, the removing party ! ' ' . ( : must set fortE summary judgment-type evidence, either in the h notice of removal or in an affidav it , showing by a preponderance of the evidehce that the amount in controversy exceeds that i amount. Id.; Allen v. R & H oil & Gas coo, 63 F.3d 1326, 1335 i ! ( sth cir . 199l ). i s The amoint i controversy is measure f m the pers n d ro pecti ve ot the plaintiff. Vranev v. Cnty. of Pinellas, 250 F. 617, 618 2d ( cir. 19$8) ( curia 5th per m). In an action for declaratory or I injunctive rèlief, the amount in controversy is the nvalue of the i ! . object of the litigation,' or uthe value of the right to be ' ( protected or the extent of the injury to be prevented.' ' Leininger v . qeininger, 705 F . 727, 729 ( L 2d 5th Cir. 1983). , yyz . i i Anal vsis I P ai i l s pet ti n d es n t ma e a d ma d f r a s ec fi l nt ff' i o o o k e n o p i c ! amount of dapages and does not define with specificity the value 1 ! of the riéht it seeks to protect or the extent of the injury it seeks to preMent. As a result, the court evaluates the true ! j ' . , ! 4 i j l I 1 ! I j , . ' . . ' . . ' nature of plaintiff's claims to determine the amount actually in ( controversy between the parties . The truejnature of this action is for plaintiff to maintain f possession ofjresidential property he used as security for the making of a loan . As the petition alleges , plaintiff pursues these goals by seeking an order barring any foreclosure or forcible detaz iner proceedings on the property , and seeking j unspecified cpmpensatory, statutory , and exemplary damages i r related to hit state 1aw causes of action . Thus, considering s plaintiff 's original petition , the court has not been prov ided with any infcrmation from which it can determine that the value to plaintiff of such relief is greater than $75,000.00. ! l D efendapt contends that plaintiff owes more than $75,000.00 on the note, that plaintiff is claiming that the note is entirely ( unenforceable , and , therefore , the amount in controversy is the amount owed on the note . Defendant attempts to distinguish this Case from other mortgage fdreclosure cases which lacked subject matter jurisdicti by focusing on i argument that pl ntiff i on ts ai j e ng on the note claims that hl does no: owe anythi . The coutt is not #ersuaded that the alleged monetary amount 7 . owed on the note supplies the basis for plaintiff's interest in the property , especially given that plaintiff himself has not ; 2 pleaded how Yùch equity he has in the property . Defendant does ? 5 l . ' j y . . . .. ' not cite to, nor can the court discern , any such statement in the petition t sppport a fi o I nding that the a mount owed on the loan is the J l amount ip controversy . That is , for example , defendant 's 7 attribution of the greater than $75,000. amount as damages is 00 1 an act of its own doing--not plaintiff r . To the extent that s these statements suggest that the remaining loan amount is the proper measur: of the amount in controversy in this action, the l 1 court rejectsfthat argument. i Plainly , the sole goal of plaintiff's action is to avoid or 1 delay a foreclosure sale and to be able to retain possession of : the property. Not ng is ailege that would assign a monetar hi d y value to plaiùtiff's accomplishment of those goals. While ) plaintiff app#ars to request equitable relief based on a claim th ) at he is entitled to hold legal title in the property , he does t ( not assert that such relief is based on a claim that she has outright ownership of the property , free from any indebtedness . While defendapt makes àrguments that plaintiff is contending he o s no hi g/ s h a i s a g me t t a pl nti f f l t a mi we t n l uc s t r u n h t ai f ai s o d t that he ài gned a promissbr note or deed 6f trust b# only y admitting to'jallegedly sign l ' ' ingq' such documents, plaintiff ' makes statements to suggest that his ownership of the property il . encumbered by a debt, as the petition describes a note and deed of trust , andjquestions.whether defehdant is the rightful owner k ' . i; ? 6 1 l ( : ' ' ===... = =. i ' ! ' . . or holder of the note and deéd of trust . Throughout the j. . . . . .. . ' , . petition, p1alntiff reters to the note and deed of trust , alleges J 1 ( . . . that def endanj lacks the authori to foreclose because it is not ty ' . . . tHe hoïder of'the original note, that there is no record of an , ' . assignment Of the yeed of trust to defendant, anu yua: yuere is ambigu ity over who holds the note . Plaintiff also speculates that the note!could have been securitized and/or sold and that ( investors ' ' beiame the real parties i interest on t Note,' but n he ' does not contend that he owes nothing ön the note or that he should own the property free and clear of al1 debt . Notice of Removal, Ex . C1, at 4 . Thus , the value to plaintiff of his ri hts i t jl t g i n i at mos t val of hi i t e t g n he i i at o s, t, he ue s n er s è in the properby, not the aùount defendaht alleges is owed on the loan . Thus, defendant has not established the value of plaintiff 's interest in the property . Defen:aùt has not pro ven by a preponderance og :ue evidence ( è that the amount actually in controversy in this action exceeds i l the sum or value of $7s , ooo .oo, excluding interest and costs . 1 Consequently , the court is remanding the case to the state court from which it was rèmoved , because of thè failure of defendant to Persuade the court that subject matter jurisdiction exists. ' 5 1 j t . . . . . 7 ( 1 ) . .. . * : ) i i j ! zv 1 q order . I . For the teasons given above , The court ORDERS that the above-captioned hereby , remanded to the state court from zzd ' h i tio be , and is was re ved sc s a!z J ? a l zu o q y è( oa. . J ! CBRYDE i i l r ( . j . 1 : i . 1 ë k . I i 1 i l . 1 1 . ( i I j . l - 8 d states Distr 'c Judge

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