Solomon v. Freedom Mortgage Corp.
(5:22-cv-00017)
District Court, W.D. Texas
JAN 10, 2022 | REPUBLISHED BY LIT: JAN 12, 2022
ORDER OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT
Before the Court is the Joint Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 41(a) on January 28, 2022 (docket #7).
The parties advise they have resolved the issues between them and ask the Court to enter an Agreed Order dismissing this civil action with prejudice with each party to bear their own costs and fees.
The Court finds the joint motion has merit and should be granted.
Accordingly, IT IS HEREBY ORDERED that the Joint Motion to Dismiss (docket #7) is GRANTED such that IT IS HEREBY ORDERED, ADJUDGED and DECREED that this case and all claims of the Plaintiff asserted against the Defendant in this case are DISMISSED WITH PREJUDICE to the re-filing of same with costs and fees to be borne by the party incurring same.
All relief not expressly granted herein is DENIED. Motions pending, if any, are also DISMISSED, and this case is now CLOSED.
SIGNED this 29th day of January, 2022.
FRED BIERY
UNITED STATES DISTRICT JUDGE
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AMENDED NOTICE OF REMOVAL
Defendant Freedom Mortgage Corp., (“Defendant”) files this Amended Notice of Removal1 pursuant to diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332.
I. INTRODUCTION
1. On December 29, 2021, Plaintiff Crystal S. Solomon (“Plaintiff”) filed her Original Petition (“Petition”) in the 438th Judicial District Court of Bexar County, Texas under Cause No. 2021CI26319 (the “State Court”).2
2. In the Petition, Plaintiff asserts claims against Defendant for violation of Federal CARES Act Foreclosure Moratorium (15 USC §9056(b)) stemming from the servicing of the mortgage encumbering the real property located at 11326 Fine Design, San Antonio, Texas 78245 (the “Property”).
Plaintiff also seeks declaratory judgment, application for restraining order, and injunctive relief preventing sale of the Property.
1 Exhibit B to the Original Notice of Removal was incorrect. The correct Exhibit B is attached hereto.
2 Exhibit A.
3. Pursuant to 28 U.S.C. § 1446(a), copies of process, pleadings, orders, and other papers filed in the state court action and obtained by Defendant are attached hereto and marked as Exhibit A.3
II. TIMELINESS OF REMOVAL
4. This suit was filed on December 29, 2021. Defendant has not been served with process. Therefore, this removal is timely.
III.
BASIS FOR REMOVAL: DIVERSITY JURISDICTION
5. This Court has original jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). The requirements for diversity jurisdiction are met in this case, as Plaintiff and Defendant are completely diverse in citizenship and the amount in controversy, exclusive of interests and costs, exceeds $75,000.00.
A. Complete Diversity Exists.
6. Plaintiff is citizens of Texas, residing in Bexar County, Texas.4
7. Freedom is incorporated in New Jersey with its principal place of business in New Jersey. A corporation is a citizen of the state where it is incorporated and the state where it has its. principal place of business.5 Accordingly, Freedom is a citizen of New Jersey for purposes of diversity jurisdiction.
8. Because Plaintiff is a citizen of Texas and the only properly served defendant, Freedom, is a citizen of New Jersey, complete diversity of the Parties exists.
3 Please note that a request has been submitted to the State Court to for copies of the Temporary Order entered on 12/30/2021 and notice of the hearing set for 01/13/2022. This Notice of Removal will be supplemented as soon as these documents are received and copies of such will be provided to this Court.
4 See Exhibit A, Pet. at ¶ 2.
5 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
B. The Amount in Controversy Exceeds $75,000.00.
9. In the Original Petition, Plaintiff seeks injunctive relief to enjoin Defendant from taking any action to foreclose the Property.6 When such relief is sought, the amount in controversy is measured by the value of the object of the litigation.7
When the object of the mortgagors’ litigation is the protection of their entire property, the fair market value of the property is the proper measure of the amount in controversy.8
Here, the value of the Property is at least $218,800.9
Therefore, based on the amount of monetary damages Plaintiff seeks and the value of the injunctive relief sought, the amount in controversy exceeds $75,000.00 and removal is proper.
IV.
BASIS FOR REMOVAL: FEDERAL QUESTION JURISDICTION
10. Alternatively, removal is proper because this case is a civil action involving a federal question. Plaintiff brings a claim for violations of the CARES Act, 15 U.S.C. 9056, over which this Court has original jurisdiction pursuant to 28 U.S.C. § 1331.10
V. VENUE
11. Venue is proper in the Western District of Texas, San Antonio Division pursuant to 28 U.S.C. § 1441(a) because Bexar County, Texas is located within this District and cases arising from Bexar County, Texas are properly assigned to the Western District of Texas.11
6 See Petition at ¶¶ 44–47.
7 Farkas v. GMAC Mortg., LLC, 737 F.3d 338, 341 (5th Cir. 2013).
8 Id.
9 See Bexar County Appraisal District Summary, attached as Exhibit B. It is appropriate for the Court to take judicial notice of the Bexar County Tax Appraisal because it is a public record and the information it provides is readily ascertainable and the source – the Bexar County Tax Appraisal District – cannot reasonably be questioned. See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011).
10 See Original Petition at ¶ 36-41. See also Koy-Ghadoush v. Andreiu, 2021 WL 3125515, at *1 (C.D. Cal. Apr. 28, 2021).
11 28 U.S.C. § 124(a)(1).
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VI.
ADDITIONAL REQUIREMENTS
12. Plaintiff has not demanded a jury trial in her Petition.
13. Written Amended Notice of Removal will be provided to Plaintiff and filed with the District Clerk of Bexar County, Texas contemporaneously with this pleading.
Having satisfied the requirements for removal under 28 U.S.C. §§ 1441 and 1332, Freedom Mortgage Corporation. gives notice that Cause No. 2021CI26319, now pending in the 438th Judicial District Court of Bexar County, Texas, has been removed to this Court.
Respectfully submitted,
By: /s/ S. David Smith
S. DAVID SMITH
Texas Bar No. 18682550 Fed. I.D. No. 14233
sdsmith@bradley.com
Bradley Arant Boult Cummings LLP
600 Travis Street, Suite 4800
Houston, Texas 77002
(713) 576-0307 Telephone
(713) 576-0301 Telecopier
ATTORNEY IN CHARGE FOR DEFENDANT FREEDOM MORTGAGE CORP.
OF COUNSEL:
MELISSA S. GUTIERREZ
Texas Bar No. 24087648 Fed. I.D. No. 2255351
mgutierrez@bradley.com
Bradley Arant Boult Cummings LLP
600 Travis Street, Suite 4800
Houston, Texas 77002
(713) 576-0300
(713) 576-0301
CERTIFICATE OF SERVICE
I certify that on this 10th day of January, 2022, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. I further certify that a true and correct copy of the foregoing has been served on all counsel of record as follows:
Via CMRRR# 9314 8699 0430 0090 5347 00
& E-mail: jgm@minervelaw.com
James Minerve
13276 N Highway 183, Ste 209
Austin, Texas 78750
Attorney for Plaintiff
/s/ S. David Smith
S. David Smith
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CIVIL DOCKET FOR CASE #: 5:22-cv-00017-FB
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| Solomon v. Freedom Mortgage Corp. Assigned to: Judge Fred Biery
Cause: 28:1332 Diversity-Injunctive & Declaratory Relief |
Date Filed: 01/10/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Crystal S. Solomon | represented by | James Minerve The Minerve Law Firm 115 Saddle Blanket Trail Buda, TX 78610 888-819-1440 Fax: 888/230-6397 Email: jgminerve@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Freedom Mortgage Corporation | represented by | Melissa S. Gutierrez Bradley Arant Boult Cummings LLP 600 Travis Street, Suite 4800 Houston, TX 77002 713-576-0300 Fax: 713-576-0301 Email: mgutierrez@bradley.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDS. David Smith Bradley Arant Boult Cummings LLP 600 Travis Street, Suite 4800 Houston, TX 77002 713-576-0300 Fax: 713-576-0301 Email: sdsmith@bradley.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/10/2022 | 1 | NOTICE OF REMOVAL by FREEDOM MORTGAGE CORPORATION (Filing fee $402 receipt number 0542-15599381), filed by FREEDOM MORTGAGE CORPORATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(Smith, S.) (Entered: 01/10/2022) |
| 01/10/2022 | 2 | Certificate of Interested Parties by FREEDOM MORTGAGE CORPORATION. (Smith, S.) (Entered: 01/10/2022) |
| 01/10/2022 | 3 | Amended NOTICE of Removal by FREEDOM MORTGAGE CORPORATION re 1 Notice of Removal , filed by FREEDOM MORTGAGE CORPORATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Smith, S.) (Entered: 01/10/2022) |
James Minerve provides legal and transactional services primarily to distressed property owners, technology firms, construction contractors, and start-ups. His practice areas include, intellectual property, construction law, real estate, mortgage finance, probate and business formation. He has a mechanical engineering degree; is a patent lawyer; the general counsel of MoneyFund, Inc., a mortgage brokerage and investment firm; and a partner with the FDR Group, a real estate development network that provides comprehensive real estate development services aliquot and turn-key.
Mr. Minerve is based in the Austin-San Antonio, Texas area, is licensed to practice patent law nationwide and services construction contractors and start-ups throughout Texas.
Mr. Minerve has been providing technical services in construction since 1988, and legal services since 1998.
Mr. Minerve offers the following deliverables on a flat fee basis: filing petitions and temporary restraining orders to stop foreclosures; loan modification negotiations; drafting and filing patent applications; drafting and filing trademark and copyright registration applications; drafting construction, real estate, and entertainment contracts; drafting and filing articles of organization, operating agreements and by-laws, non profit exemption applications, condominium conversions, wills, grant and loan applications, business plans; filing and enforcing mechanic’s liens.
