The Wolf Lives On After Death as Mark Chases Margaret’s Estate, the Grinch of Christmas

ORDER

On this date, the Court considered Plaintiff’s Motion to Remand (ECF No. 6) and Defendant’s Response (ECF No. 7).

After careful consideration, the motion is DENIED.

BACKGROUND

Plaintiff Margaret Camero (“Plaintiff”) filed her original petition on November 30, 2021, in the 407th Judicial District Court, Bexar County, Texas.

ECF No. 1-1 at 6

. Defendant Wilmington Savings Fund Society1 (“Defendant”) removed the case to this Court on December 21, 2021 on the basis of diversity jurisdiction.

ECF No. 1.

Plaintiff is the surviving spouse of Isaac Camero.

ECF No. 1-1 at 6.

Plaintiff owned the property at 463 E. Palfrey, San Antonio, TX 78223 (“the Property”), and during her marriage executed a warranty deed to her husband for the Property. Id.

Mr. Camero subsequently obtained a reverse mortgage with the Defendant.

Id.

Mr. Camero fell behind on the obligations due under

the reverse mortgage before his death in 2019.

Id. at 7.

Isaac Camero died intestate, and no probate case has been filed.

Id.

On September 7, 2021, Defendant conducted a foreclosure sale of the Property.

Id.

Plaintiff alleges that Defendant wrongfully foreclosed on the loan and conducted a sale of the Property by failing to provide notices of foreclosure to all heirs to the Estate of Isaac Camero as well as selling the Property at a price disproportionate to its true value.

ECF No. 1-1 at 7.

Plaintiff seeks

(1) declaratory judgment for legal title of the Property;

(2) declaratory judgement setting aside the foreclosure sale of the Property;

and

(3) judgment for the value of the Property.

Id.

Plaintiff filed the instant motion to remand, arguing that this Court lacks jurisdiction because the amount in controversy does not exceed $75,000.

ECF No. 6.

Defendant opposes remand.

ECF No. 7.

DISCUSSION

I. Legal Standard

On a motion to remand, a court must consider whether removal to federal court was proper. Removal is proper in any “civil action brought in a State court of which the district courts of the United States have original jurisdiction.”

28 U.S.C. § 1441(a).

The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.

De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

If the removing party asserts federal jurisdiction on the basis of diversity jurisdiction, it must demonstrate that there is complete diversity among the parties and that the amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1)–(4).

It follows, then, that the removing party has the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

The amount in controversy is determined by the amount sought on the face of the plaintiff’s pleadings, so long as the plaintiff’s claim is made in good faith.

St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); De Aguilar, 47 F.3d at 1408.

Removal is thus proper if it is “facially apparent” from the complaint that the claim or claims asserted exceed the jurisdictional amount.

Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

Where it is facially apparent that the amount in controversy exceeds $75,000, remand is not warranted unless the plaintiff establishes “to a legal certainty that the claim is really for less than the jurisdictional amount.”

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

In evaluating a motion to remand, a court must resolve “all factual allegations,” “all contested issues of substantive fact,” and “all ambiguities in the controlling state law” in the plaintiff’s favor.

Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005).

The court must evaluate the removing party’s right to remove “according to the plaintiffs’ pleading at the time of the petition for removal.”

Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939); see also Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)

(“The jurisdictional facts that support removal must be judged at the time of removal.”).

Once diversity jurisdiction is established, “subsequent events that reduce the amount in controversy to less than $75,000 generally do not divest the court of diversity jurisdiction.”

Gebbia, 233 F.3d at 883 (citing St. Paul Mercury Indem. Co., 303 U.S. at 289–90).

Post-removal affidavits, stipulations, and amendments reducing the claim below the requisite “do not oust the district court’s jurisdiction once it has attached.”

St. Paul Mercury Indem. Co., 303 U.S. at 293.

II. Analysis

Plaintiff asserts that this case only concerns the value between the sale price of the Property and the alleged market value of the Property—$29,963.81. ECF No. 6 at 2.

However, in her petition, Plaintiff seeks money damages for “the value of the real property,” which she alleges is $162,000.00. ECF No. 1-1 at 7.

If a plaintiff demands a specific amount of damages in her petition, “[t]he amount stated in the complaint is itself dispositive of jurisdiction if the claim is apparently made in good faith.”

Scarlott v. Nissan N. Am., 771 F.3d 883, 888 (5th Cir. 2014) (quoting Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1069 (5th Cir. 1989)) (alteration in original).

Thus, Plaintiff’s demand for the value of the Property puts the amount in controversy in excess of $75,000.

Furthermore, Plaintiff seeks declaratory judgement for title to the Property and to set aside the foreclosure. ECF No. 1-1 at 7.

“[T]he amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extend of the injury to be prevented.”

Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).

When a plaintiff seeks to invalidate a foreclosure sale, the amount in controversy can be measured by the value of the real property.

See id.; Funke v. Deutsche Bank Nat’l Tr. Co., No. 5:14-CV-307-DAE, 2014 WL 3778831, at *2 (W.D. Tex. July 31, 2014).

Plaintiff asserts in her petition that the value of the Property is $162,000.

ECF No. 1-1 at 7.

In its removal petition, Defendant provides evidence that the appraised value of the Property is $189,150.

ECF No. 1-1 at 24;

see also Garcia v. Koch Oil of Tex., Inc., 351 F.3d 636, 639 (5th Cir. 2003)

(“[D]efendants ‘may support federal jurisdiction by setting forth the facts—[either] in the removal petition [or] by affidavit—that support a finding of the requisite amount.’”) (quoting Allen, 63 F.3d at 1335) (emphasis in original).

By either measure, in seeking to invalidate the foreclosure sale, Plaintiff puts the amount in controversy in excess of $75,000.

CONCLUSION

For the reasons stated herein, Plaintiff’s Motion to Remand (ECF No. 6) is DENIED. It is so ORDERED.

SIGNED this 9th day of February, 2022.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

Defendant Wilmington Savings Fund Society, FSB, not Individually, but solely as Trustee for Nationstar HECM Acquisition Trust 2020-1 (“WSFS” or “Defendant”) files this Response to the Motion to Remand filed by Plaintiff Margaret Camero, Individually and on Behalf of the Estate of Issac Camero, Deceased (“Plaintiff”) [ECF No. 6], and Brief in Support and respectfully shows as follows:

I.

Plaintiff in her Motion to Remand makes a single argument, namely, that the amount in controversy is not met.

In support of her argument, Plaintiff states that she in her Petition that she is only seeking $29,963.81 in money damages.

Motion to Remand, ¶B. Plaintiff states that she is not seeking to invalidate Defendant’s lien or to enjoin foreclosure. Id., ¶¶D-E.

Plaintiff’s argument, however, is directly contradicted by her Petition.

In her actual pleading, Plaintiff states that she is seeking “[j]udgment against defendants … for the value of the real property”.

ECF No. 1-1, p.7 at Prayer for Relief.

In this same pleading, Plaintiff specifies that the value of the subject property is $162,000.00.

ECF No. 1-1, p.6 at ¶11.

Also in her Prayer, Plaintiff also pleads for a “judgment setting aside the foreclosure sale of the property conducted on 9/7/2021” and for “legal title to the real property”.

ECF No. 1-1, p.7 at Prayer for Relief.

This claim for relief follows Plaintiff’s allegations in her Petition that Defendant failed to provide notice of default, acceleration and sale to her and her siblings; that no order for foreclosure had been entered first; and also that no judicial determination of heirship had been made.

ECF No. 1-1, p.7 at ¶¶9-13.

Plaintiff pleads that the subject property sold at this foreclosure sale for $132,039.19 and that its actual value, as indicated above, was $162,000.00.

ECF No. 1-1, p.6 at ¶11.

Jurisdiction is determined at the time of removal.

Beef Group v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000).

The removing party must show the complete diversity of the parties and that the amount in controversy is more than $75,000.00.

See De Aguilar v. Boeing, Co., 47 F.3d 1404, 1408 (5th Cir. 1995); see also 28 U.S.C. § 1332.

The amount in controversy is determined, among other ways, by the plaintiff “demand[ing] a specific amount of damages” in its complaint.

Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 888 (5th Cir. 2014).

If a specific amount is demanded, the amount stated in the complaint is dispositive when made in good faith.

Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87, 135 S. Ct. 547 (2014); Scarlott, 771 F.3d at 888.

Here, Plaintiff in her Petition very clearly makes two different claims for relief.

The first is for money damages in the amount of the value of the property, which she specifies to be $162,000.00.

ECF No. 1-1, p.6 at ¶11.

This demand alone shows that the amount in controversy exceeds $75,000.00.

Secondly, Plaintiff also clearly in her Petition states that she seeks “[a] judgment setting aside the foreclosure sale of the property” and for “legal title to the real property”.

ECF No. 1-1, p.6 at ¶11.

When a party seeks to invalidate a foreclosure sale, the amount in controversy in the value of the property, which can be determined by the tax-assessed value.

Funke v. Deutsche Bank Nat’l Tr. Co., No. 5:14-CV-307-DAE, 2014 U.S. Dist. LEXIS 104438 *5-6 (W.D. Tex. July 13, 2014).

In an identical situation where a plaintiff filed a suit to declare a foreclosure sale void but then claimed in its motion to remand that it was only seeking money damages for the foreclosure, United States District Judge Keith Ellison held that the allegations in the petition controlled and the amount in controversy for such a claim is the value of the property.

Perkins v. Bank of Am., No. 12-CV-3049, 2013 U.S. Dist. LEXIS 117 *7 (S.D. Tex. Jan. 2, 2013).

Furthermore, to the extent that Plaintiff in her Motion to Remand suggests that she never pled in her Petition that was seeking a judgment for the invalidation of the foreclosure sale, her pleading expressly indicates the contrary.

Not only does she include in her Prayer for Relief a request for a judgment that the sale be set aside and for title, but this request follows after her allegations that foreclosure notices were not properly given, that an order for sale was not first obtained, and that a judicial determination of heirship had not been obtained.

ECF No. 1-1, p.7 at ¶¶9-13.

While Defendant disagrees with these contentions, the language of Plaintiff’s Petition is clear that she includes in her live pleading a claim for the invalidation of the foreclosure sale.1

WHEREFORE, PREMISES CONSIDERED, Defendant asks that Plaintiff’s Motion to Remand be denied and that Defendant receive all other relief to which it may be entitled.

Respectfully submitted,

By: /s/ Mark D. Cronenwett
MARK D. CRONENWETT
Attorney in Charge Texas Bar No. 00787303
mcronenwett@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, PC
14160 North Dallas Parkway, Ste. 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686
ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

The undersigned certifies that on January 26, 2022, a true and correct copy of the foregoing document was delivered via regular U.S. mail to the party listed below:

Margaret Camero 463 E. Palfrey
San Antonio, Texas 78223
Pro Se

/s/ Mark D. Cronenwett
MARK D. CRONENWETT

(1) FILE THE COMPLETE STATE COURT RECORD. Pursuant to 28 U.S.C. § 1447(b) and the Fact Sheet for Judge Xavier Rodriguez (available at https://www.txwd.uscourts.gov), if not already done, the removing party(ies) shall, within fourteen days of this Order, supplement the record with all state court pleadings. The supplement is to be filed electronically and shall include a copy of the complete file, including the docket sheet, in this cause from the court from which this case was removed.

(2) PROPERLY PLEAD THE CITIZENSHIP OF ALL PARTIES. If this case has been removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332, the removing party has the burden to demonstrate that there is complete diversity by properly pleading the citizenship of all parties. Parties must make “clear, distinct, and precise affirmative jurisdictional allegations.”

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).

The removing party shall ensure that they have properly pled the citizenship of all parties in this case as outlined below, and shall file an amended notice of removal or supplement their original notice of removal within 14 days of this Order if they have not. Failure to file an amended Notice of Removal or to supplement the record with proper citizenship allegations within 14 days may result in remand of this action by the Court without further notice.

(a) Individuals/Natural Persons: For individuals, pleading residence is insufficient; the notice of removal must plead their citizenship.

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019)

(“For individuals, citizenship has the same meaning as domicile, and the place of residence is prima facie the domicile. Nevertheless, citizenship and residence are not synonymous terms. Citizenship requires not only residence in fact but also the purpose to make the place of residence one’s home. Therefore, an allegation of residency alone does not satisfy the requirement of an allegation of citizenship.”) (cleaned up).

(b) LLCs, Partnerships, and Unincorporated Associations: The citizenship of limited liability entities is determined by the citizenship of all their members.

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).

Similarly, the citizenship of a partnership is determined by the citizenship of all its partners.

Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990); Corfield v. Dallas Glen Hills, L.P., 355 F.3d 853, 856 n.3 (5th Cir. 2003).

“A party seeking to establish diversity jurisdiction must specifically allege the citizenship of every member of every LLC or partnership involved in a litigation.”

Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017).

When members or partners are themselves entities or associations, citizenship must be traced through however many layers of members/partners there are until arriving at the entity that is not a limited liability entity or partnership and identifying its citizenship status.

See Mullins v. TestAmerica, Inc., 564 F.3d 386, 397-98 (5th Cir. 2009).1

(c) Corporations: A corporation is a citizen of its state(s) of incorporation and of the state in which its principal place of business is located, as determined by the “nerve center” test. 28 U.S.C. § 1332(c)(1);

Lincoln Property Co. v. Roche, 546U.S. 81 (2005); Hertz Corp. v. Friend, 559 U.S. 77 (2010).

The removing party must allege both a corporation’s state of incorporation and its principal place of business.

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019).

(3) SUBMIT AN ADVISORY TO THE COURT WITH ANSWERS TO THE FOLLOWING QUESTIONS WITHIN 7 DAYS:

(a) The date on which the removing party was served with a summons and petition. If the Notice of Removal is filed more than thirty days after this date, explain why. If removal is based on “other paper,” identify the paper (provide it if not already provided) and state the date on which it was received.

(b) Identify whether any defendants who had been served prior to the time of removal are citizens of Texas.

(c) Identify any defendant who had been served prior to the time of removal who did not formally join in the notice of removal and the reasons therefor (provide copies of written consents, if any, if not already on file).

(d) Was this case removed from one of the following counties: Atascosa, Bandera, Bexar, Comal, Dimmit, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, Real, or Wilson. If no, state what county it was removed from.
NOTICE TO PLAINTIFF(s):

(1) MOTIONS TO REMAND: Plaintiff(s) must file a motion to remand based on any procedural defects in removal within thirty days of the filing of the Notice of Removal. 28  U.S.C. § 1447(c). The Court will not sua sponte remand on the basis of a procedural defect.

(2) SERVICE OF PROCESS: Rule 4 applies to a civil action after it is removed from state court. If any Defendant has not yet been served (including the removing Defendant), Plaintiff must serve them pursuant to Rule 4. Failure to timely serve a defendant may result in dismissal pursuant to Rule 4(m).

NOTICE TO ALL PARTIES: Any motion filed in the state court before removal that still requires resolution in this Court must be re-filed as a new motion in this Court.

SIGNED this December 28, 2021.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

NOTICE

13. Pursuant to 28 U.S.C. Section 1446(d), a copy of this Notice is being filed with the Clerk of Court for the 407th Judicial District Court, Bexar County, Texas.

14. The contents of Exhibit B constitute the entire file of the State Court Action.

CONCLUSION

For the reasons described above, Defendant respectfully requests this Court take jurisdiction over this matter and proceed as if it had been originally filed herein.

Respectfully submitted,

By: /s/ Mark D. Cronenwett

MARK D. CRONENWETT
Attorney in Charge
Texas Bar No. 00787303
mcronenwett@mwzmlaw.com

MACKIE, WOLF, ZIENTZ & MANN, PC
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

ATTORNEYS FOR DEFENDANT

List of all Counsel of Record

For Plaintiff:

Pro Se
Margaret Camero 463 E. Palfrey
San Antonio, Texas 78223 For Defendant:
Mark D. Cronenwett Texas Bar No. 00787303
Mackie Wolf Zientz & Mann, P. C.
14160 North Dallas Parkway Dallas, TX 75254
(214) 635-2650
(214) 635-2686 – Facsimile
mcronenwett@mwzmlaw.com

INDEX OF DOCUMENTS ATTACHED

Exhibit A Copy of the Docket Sheet for Cause No. 2021CI24567 in the 407th Judicial District Court, Bexar County, Texas;

Exhibit B Pleadings in Cause No. 2021CI24567 in the 407th Judicial District Court, Bexar County, Texas;

B-1 Plaintiff’s Original Petition, November 30, 2021;

B-2 Issued Citation on Wilmington Savings Fund Society, December 2, 2021;

B-3 Defendant’s Original Answer, December 20, 2021; Exhibit C Declaration of Mark D. Cronenwett; and
C-1 Print out from the Bexar Appraisal District web-site, December 21, 2021.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served via regular U.S. mail on December 21, 2021 on the following party:

Margaret Camero
463 E. Palfrey
San Antonio,
Texas 78223

/s/ Mark D. Cronenwett