Federal Court Showdown: Intervenor Challenges Premature Motion Over Contested Jurisdiction

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

Intervenor-Plaintiff Joanna Burke respectfully files this Motion to Strike Defendants’ Motion for Summary Judgment (Dkt 38) on the following grounds:

I. ARGUMENT

1. Prematurity of Defendants’ Motion

Defendants’ Motion for Summary Judgment (Dkt 38) improperly addresses the merits of Intervenor-Plaintiff’s claims without this Court first resolving its subject-matter jurisdiction.

Federal courts must establish jurisdiction as a threshold matter before considering the merits of any claims or defenses.

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999).

2. Procedural Deficiency

The Court’s jurisdiction remains unresolved due to the significant procedural ambiguities surrounding Defendants’ reliance on diversity jurisdiction.

Specifically, Intervenor-Plaintiff’s valuation, as detailed in the simultaneously filed in Plaintiff-Intervenor’s response to Defendants Motion for Summary Judgment (Dkt 38), falls definitively below the statutory requirement of $75,000 under 28 U.S.C. § 1332, thereby undermining the basis for federal jurisdiction.

3. Improper Conflation of Jurisdiction and Merits

Defendants’ motion (Dkt 38) improperly conflates the jurisdictional inquiry with substantive arguments about Intervenor-Plaintiff’s interest in the case, which is procedurally improper.

Federal courts must resolve jurisdictional issues as a threshold matter before addressing the merits of any claims or defenses.

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999).

Under Federal Rule of Civil Procedure 12(f), “the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” either on its own or upon motion by a party.

Although Defendants’ Motion for Summary Judgment is not technically a pleading under Rule 7(a), courts have the discretion to strike filings that are procedurally improper or premature to maintain clarity and fairness in the proceedings.

This discretion has been exercised in cases like TEVA Pharmaceuticals USA, Inc. v. Becerra (1:25-cv-00113), District Court, District of Columbia, Feb. 27, 2025, where a motion for summary judgment was struck as premature.

Defendants’ premature filing further undermines their reliance on diversity jurisdiction, as detailed in Plaintiff-Intervenor’s simultaneously filed Response to the Motion for Summary Judgment.

Without resolving the contested subject-matter jurisdiction, Defendants’ motion improperly seeks substantive determinations that fall outside this Court’s authority at this stage.

II. REQUESTED RELIEF

WHEREFORE, PREMISES CONSIDERED, Intervenor-Plaintiff Joanna Burke respectfully requests that this Court:

1. Strike Defendants’ Motion for Summary Judgment as premature and procedurally improper;

2. Defer any consideration of the merits until the contested subject-matter jurisdiction is fully resolved; and

3. Grant such further relief as the Court deems just and proper.

A proposed order has been filed separately.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001, and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration ….

CONCLUSION

For the reasons stated above, this Court should GRANT Intervenor-Plaintiff’s requested relief and provide any additional relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 15th day of April, 2025.

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

STATEMENT OF FACTS

On April 1, 2025, after normal court operating hours, Joanna Burke received a copy of Defendants’ Motion for Summary Judgment (“DMSJ”) (Dkt 38) via email from Baker Donelson, the counsel responsible for removing the action to federal court.

Joanna Burke has identified alarming inconsistencies in the procedural handling of this case under the Federal Rules of Civil Procedure, which have undermined her civil and due process rights.

These discrepancies are not isolated but reflect broader concerns across related proceedings in this courthouse.

TIMELINE OF KEY EVENTS

1.     Sept. 1, 2023: Plaintiff Jeff Samuels, represented by an attorney, filed a case to halt nonjudicial foreclosure and obtained a $100 cash bond TRO signed by Judge Manor.

2.     Sept. 20, 2023: Plaintiff’s attorney moved to withdraw; this was granted by court order on Nov. 20, 2023.

3.     Nov. 15, 2023: Defendant AVT Title Services filed its Original Answer and Verified Denial, despite no formal service of process.

4.     Dec. 5, 2023: Joanna Burke filed her Verified Petition in Intervention Seeking Declaratory Judgment and Application for Injunctive Relief.

5.     Dec. 12, 2023: Joanna Burke filed her Verified Motion for Summary Judgment in state court prior to removal.

6.     Dec. 15, 2023: Defendants removed the case to federal court citing:

o   28 U.S.C. § 1446(b)(1): Arguing timeliness as PHH, Deutsche Bank, and Power Default had not been formally served with process.

o   28 U.S.C. § 1332: Claiming original jurisdiction based on diversity of citizenship and an amount in controversy exceeding $75,000, exclusive of interest and costs.

7.     Dec. 18, 2023: Joanna Burke filed her Verified Emergency Motion to Retain Jurisdiction after removal, highlighting procedural deficiencies and citing strict removal law, docketed on Dec. 19, 2023 (EXHIBIT 1).

8.     March 25, 2025: Judge Bennett issued an order denying Plaintiff’s motion to remand and Defendants’ motion(s) to dismiss, while ambiguously recognizing Joanna Burke as an “active participant” in the case (Dkt 37, footnote n.1).

9.     April 1, 2025: After normal court operation hours, Defendants filed their Motion for Summary Judgment (“DMSJ”), continuing procedural inconsistencies that misrepresent the true facts, which in turn undermine Joanna Burke’s civil and due process rights (Dkt 38).

I. INTRODUCTION

Federal courts operate under limited jurisdiction and may only adjudicate claims within constitutional or statutory authority. Strict adherence to removal statutes is essential to preserving jurisdictional validity.

Intervenor-Plaintiff Joanna Burke asserts that Judge Bennett’s acknowledgment of her procedural status cannot override jurisdictional deficiencies stemming from improper removal.

This response highlights procedural errors and jurisdictional ambiguities that demand remand to state court.

Preliminary Objection:

The Court Must Resolve Jurisdiction Before Addressing Merits

Defendants’ Motion for Summary Judgment improperly delves into the merits of Intervenor-Plaintiff Joanna Burke’s claims without the Court first establishing its subject-matter jurisdiction.

Under longstanding principles of federal procedure, jurisdictional questions must be resolved as a threshold matter before any substantive evaluation of claims or defenses (Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)).

The Court’s authority to proceed is contingent on proper adherence to jurisdictional requirements under 28 U.S.C. §§ 1331 and 1332.

In this case, the alleged improper joinder of AVT Title Services and Power Default Services, as well as the valuation of Intervenor-Plaintiff Joanna Burke’s claims, raise significant procedural questions that must be settled first.

Any attempt to assess the merits of the Intervenor-Plaintiff’s claims, including her interest in the case, is premature and procedurally improper at this stage.

Until jurisdiction is established, all such arguments must be set aside.

II. LEGAL STANDARD

Federal courts must possess statutory or constitutional authority to adjudicate a claim. Removal statutes are strictly construed, with any failure to establish jurisdiction necessitating remand under 28 U.S.C. § 1447(c).

1.     Jurisdictional Limitations: Federal courts require statutory authority to adjudicate cases.

See Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

2.     Burden of Proof: The removing party bears the burden of proving jurisdiction.

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

3.     Duty to Assess Jurisdiction: Federal courts have an independent duty to assess jurisdiction at any stage of proceedings.

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).

III. ARGUMENT

A. Procedural Deficiencies in Removal

Defendants’ removal violated statutory requirements under 28 U.S.C. § 1446, including:

1.     Rule of Unanimity Violation: Defendants failed to secure unanimous consent from AVT Title Services, LLC (“AVT”).

See Getty Oil Corp., Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988).

2.     Improper Classification of AVT: AVT was misclassified as a nominal party despite substantive participation.

See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 838 (1989).

B. Failure to Establish Federal Jurisdiction

Defendants’ removal fails to meet jurisdictional requirements under both diversity and federal question standards:

·        Diversity Jurisdiction: Joanna Burke’s Verified Petition raised claims solely under Texas law, precluding diversity jurisdiction under 28 U.S.C. § 1332.

·        Federal Question Jurisdiction: No claims “arising under” federal law were presented, invalidating jurisdiction under 28 U.S.C. § 1331.

C. Judicial Ambiguity in Federal Court

Judge Bennett’s order ambiguously recognized Joanna Burke’s status as a Plaintiff-Intervenor but failed to address substantive filings, including her Verified Motion for Summary Judgment.

While her motion directly challenged Defendants’ claims and procedural jurisdiction, the federal court’s failure to address it reflects a broader pattern of procedural oversight that undermines the integrity of these proceedings.

By sidelining substantive filings, the federal court exacerbates uncertainties in its jurisdictional foundation, further strengthening the argument for remand to state court.

D. Fraudulent Removal Allegations

The removal of this case to federal court is tainted by material misrepresentations and procedural deficiencies that undermine its legitimacy, constituting fraudulent removal under established legal principles.

Defendants misrepresented Joanna Burke’s status as “nonsuited, dismissed or terminated,” despite clear evidence of her active participation (EXHIBIT 1 [EXHIBIT F1]; Dkt 1-3 and 1-4).

This deliberate mischaracterization skewed the removal process by excluding a critical party whose filings challenged the jurisdictional and procedural validity of Defendants’ claims.

Similarly, Defendants’ classification of AVT as a nominal party contradicts Texas law, which recognizes the trustee’s substantive responsibilities in foreclosure proceedings

(Thayer v. Life Association, 112 U.S. 717, 719 (1885); Davies Enters. v. Blue Sky Bank, No. SA-23-CV-01527-JKP (W.D. Tex. Apr. 9, 2024)).

The court’s strict limitation to pleadings at the time of removal does not preclude consideration of post-removal evidence when fraudulent removal is alleged.

Courts have consistently held that jurisdictional defects discovered post-removal invalidate the removal itself

(Cliff v. Bonner, 770 S.W.2d 97, 99 (Tex. App. 1989))

(“Failure to comply with removal statutes deprives federal courts of jurisdiction.”);

Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 573 (5th Cir. 2004)).

Joanna Burke’s Dec. 18 filing (Exhibit 1) exposes procedural violations that implicate both the substitute trustee and Defendants, directly challenging the validity of removal.

Defendants’ procedural bad faith, exemplified by their material misrepresentations and disregard for statutory requirements, justifies the court’s consideration of Exhibit 1.

This filing is integral to understanding the full scope of procedural defects and fraudulent conduct that undermine federal jurisdiction. The removal’s invalidity reinforces the case for remand to state court, where these claims can be properly addressed.

Furthermore, the Fifth Circuit’s published opinion in Wilson v. Kemper Corporate Services, Inc., No. 24-60090, 5th Cir., Apr. 11, 2025 (pub. op.), reaffirms that improper joinder only applies when there is no possibility of recovery under state law (Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004), en banc).

The court emphasized that piercing the pleadings for a more detailed factual analysis is permissible only under “limited circumstances” to assess discrete and undisputed facts that would preclude recovery.

Here, Judge Bennett failed to consider Joanna Burke’s Verified Petition and Motion for Summary Judgment, which substantively detailed procedural violations implicating AVT.

These claims establish a reasonable possibility of recovery, invalidating the improper joinder determination and undermining the legitimacy of federal jurisdiction.

The Fifth Circuit also underscored that substantive claims must be reviewed under Rule 12(b)(6) standards, stating that if a plaintiff’s claims survive this threshold, joinder is proper (Wilson, No. 24-60090, pub. op.).

Joanna Burke’s claims against AVT clearly surpass this threshold under Texas law, further highlighting the procedural defects in removal and reinforcing the case for remand to state court.

Failure of Diversity Jurisdiction

Joanna’s intervention underscores her restrained and precise demands — a declaratory judgment, modest court costs of around $200, and specific injunctive relief, including the Temporary Restraining Order (TRO).

Importantly, her valuation falls definitively under $75,000, as evidenced in the December 18 motion, now labeled as EXHIBIT 1 and attached to this response.

Joanna Burke’s claim is distinct and separate from Plaintiff Jeff Samuels’ claims for purposes of diversity jurisdiction.

Her valuation, as detailed in EXHIBIT 1, falls definitively under the $75,000 threshold and does not meet the statutory requirement under 28 U.S.C. § 1332.

This failure independently undermines diversity jurisdiction and further invalidates the removal of this case to federal court.

The Defendants’ reliance on diversity jurisdiction falters without meeting the statutory monetary threshold, rendering their removal legally baseless.

The Substitute Trustee is Not a Nominal Party

As highlighted in the December 18 motion (EXHIBIT 1), the substitute trustee’s role is far from nominal and demands strict compliance with Texas foreclosure law.

The motion references longstanding legal precedent, such as Thayer v. Life Association, 112 U.S. 717, 719 (1885), which emphasizes the trustee’s active role in foreclosure proceedings.

Furthermore, case law like Harwath v. Hudson underscores that strict adherence to notice requirements under the deed of trust is a prerequisite for the trustee’s authority to conduct a sale.

Indeed, recently US District Judge Pulliam remanded a case for this very reasoning. See; Davies Enters. v. Blue Sky Bank, No. SA-23-CV-01527-JKP (W.D. Tex. Apr. 9, 2024).

In this case, supported by this response and in conjunction with Dkt 1 as filed with removal Exhibits, the substitute trustee failed to meet these compliance requirements, as evidenced by the notice of foreclosure sale listing the indebtedness as zero dollars (EXHIBIT 1, EXHIBIT F2) — a procedural defect that combined with Judge Hittner’s deficient order itself, invalidates the legitimacy of the sale. (EXHIBIT 1, EXHIBIT F3).

Additionally, the all-important fact Judge David Hittner’s order is time-barred, in law, as discussed in great depth in related case  (4:24-cv-00897), District Court, S.D. Texas.

Judge Pulliam lists many cases in support of remand and where the substitute trustee is not a nominal party, stating, in part, that

“In Texas, a trustee may be individually liable for failing to comply with the terms of the deed of trust or the notice and sale provisions of § 51.002 of the Texas Property Code.

Thus, when a plaintiff asserts actual misconduct on the part of the trustee, a court must assess whether such allegations give rise to a reasonable basis for plaintiff to recover against the trustee in state court.”.

This irrefutably applies to Plaintiff-Intervenor, Joanna Burke.

This issue is detailed thoroughly in EXHIBIT 1, reinforcing that the trustee’s actions are a substantive legal concern and not merely nominal.

Preservation of Joanna Burke’s Right to Remand

Intervenor-Plaintiff Joanna Burke’s immediate objection to federal removal, conveyed through her email, underscores her deliberate and consistent refusal to participate in federal court proceedings.

Notably, the Defendants themselves incorporated this email into their filings, effectively validating the legitimacy of her position (as recognized by Defendants in Dkt 38 and attaching Exhibit C).

By promptly objecting, Joanna Burke maintained procedural integrity and preserved her right to challenge the removal.

Legal precedent, such as Getty Oil Corp. v. Ins. Co. of North America, 841 F.2d 1254 (5th Cir. 1988), reaffirms that plaintiffs who act swiftly retain their right to object to procedural defects in removal petitions.

Joanna Burke’s decisive objection, acknowledged by the Defendants, not only challenges the flawed removal but further highlights its baseless foundation, cementing the case for remand.

Untimely Recognition of the Intervenor-Plaintiff

Federal courts often stress the importance of timely intervention to uphold procedural fairness, yet here, the recognition of Joanna Burke as the Intervenor-Plaintiff was anything but timely.

Judge Bennett failed to acknowledge her status until 16 months after removal—deep into the discovery phase.

This significant delay deprived Joanna Burke of the opportunity to fully assert her legal standing and effectively participate in the proceedings, undermining the principles of procedural integrity that federal courts claim to uphold.

This untimely acknowledgment further compounds the issue of Judge Bennett’s improper joinder assessment, which disregarded AVT’s substantive role as Substitute Trustee under Texas law.

Legal precedents, such as Thayer v. Life Association and Davies Enters. v. Blue Sky Bank, highlight that trustees hold significant legal responsibilities in foreclosure proceedings and cannot be dismissed as nominal parties.

Despite this, Judge Bennett dismissed AVT and Power Default as nominal parties, relying solely on the insufficient allegations in Plaintiff’s Original Petition, while ignoring the substantive claims raised in Joanna Burke’s Verified Petition.

Joanna Burke’s Verified Petition detailed procedural violations, including deficiencies in foreclosure notices, which directly implicate AVT and Power Default.

The Court’s reliance on the improper joinder doctrine to dismiss these parties prematurely conflicts with established principles, such as those in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 573 (5th Cir. 2004), which require courts to assess whether there exists a reasonable basis for recovery under state law.

By failing to recognize the substantive responsibilities of the trustee and dismissing AVT and Power Default prematurely, the Court compounds the procedural ambiguities surrounding Joanna Burke’s standing, further strengthening the argument for remand to state court.

IV. REQUESTED RELIEF

For the reasons stated herein, Intervenor-Plaintiff Joanna Burke respectfully requests:

1.     Denial of Defendants’ Motion for Summary Judgment due to unresolved procedural and jurisdictional ambiguities.

2.     Dismissal of this case for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c) and remand to state court.

A proposed order has been filed separately.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001, ….

CONCLUSION

Judge Bennett’s order exemplifies a lop-sided approach that undermines procedural integrity and due process.

By dismissing AVT and Power Default as nominal parties and mooting Intervenor-Plaintiff Joanna Burke’s filings without substantive review, the Court deprived her of a meaningful opportunity to be heard—the cornerstone of constitutional due process.

This omission exemplifies the broader pattern of procedural ambiguity and unfairness that has marred these proceedings, but it does not overcome Intervenor-Plaintiff’s argument that this court lacks subject-matter jurisdiction and cannot avoid the facts presented by Joanna Burke, mandating remand.

The Fifth Circuit’s recent April 11, 2025 published opinion in Wilson v. Kemper Corporate Services, Inc., No. 24-60090, reaffirms that improper joinder analysis must thoroughly assess the possibility of recovery under state law.

Judge Bennett’s failure to properly evaluate Intervenor-Plaintiff Joanna Burke’s Verified Petition, alongside procedural ambiguities surrounding AVT’s foreclosure conduct, mirrors the jurisdictional errors reversed in Wilson.

These parallels mandate remand to state court, where all parties’ substantive claims can receive fair and thorough consideration.

For the reasons stated above, this Court should GRANT Intervenor-Plaintiff’s requested relief and provide any additional relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 15th day of April, 2025.

Defendants PHH Mortgage Corporation (“PHH”) and Deutsche Bank National Trust Company as Trustee for FFMLT Trust 2004-FF3 Mortgage Pass-Through Certificates Series 2004-FF3 (“Deutsche Bank”) file this Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Plaintiff did not assert any legal claims against PHH and Deutsche Bank but merely filed a Petition seeking injunctive relief to prevent foreclosure of the real property at issue.

Plaintiff admitted in the Complaint that he defaulted on the mortgage payments and the mortgage loan at issue is over seventeen years delinquent.

Further, summary judgment is proper on Joanna Burke’s Petition in Intervention because she has asked to be removed from this case and there is no common issue of fact or law connecting her to this case.

There is no issue of material fact and summary judgment is proper.

I.                FACTS

1.               Plaintiff signed a Deed of Trust dated January 22, 2004 in favor of First Franklin Financial Corp., subsidiary of National City Bank of Indiana (“Deed of Trust) to secure payment of an underlying Note in the original principal amount of $300,000.00.1

The Deed of Trust is recorded in the official public records of Harris County, Texas as Document No. 200407314.2

(The Note and Deed of Trust are collectively referred to as the “Loan.”)

The Deed of Trust encumbers the real property commonly known as 14810 Winding Waters Drive, Cypress, Texas 77429 (the “Property”).3

Deutsche Bank is the current owner and holder of the Note and Deed of Trust consistent with the Assignment of Deed of Trust recorded in the official public records of Harris County, Texas as Document No. 20100486612.4

PHH Mortgage Corporation (“PHH”) is the current authorized servicer for Deutsche Bank with respect to this Loan.5

2.               Plaintiff defaulted on his required monthly mortgage payments.6

PHH, through its authorized foreclosure counsel, set the Property for the September 5, 2023 foreclosure sale.7

3.               Plaintiff submitted a Mortgage Assistance Application on August 21, 2023, immediately preceding the scheduled foreclosure sale.8

Plaintiff then filed his Application for Temporary Restraining Order and Injunctive Relief on September 1, 2023 (“Complaint”).

Plaintiff did not assert any substantive causes of action or claims for relief beyond the request for injunctive relief.

4.                Due to the litigation, PHH did not go forward with the foreclosure sale.

PHH sent a letter to Plaintiff on September 18, 2023 notifying him that the loan did not qualify for a

1 See Complaint, Pages 2-3; See also PHH Business Records Affidavit, Exhibit A.

2 See Deed of Trust, Exhibit A to Complaint.

3 Id.

4 See Assignment, Exhibit B. It is appropriate for the Court to take judicial notice of the Assignment because its source, the Official Public Records of Harris County, cannot be questioned. See also PHH Business Records Affidavit, Exhibit A.

5 See PHH Business Records Affidavit, Exhibit A.

6 See Complaint, Pages 2-3; See also PHH Business Records Affidavit, Exhibit A.

7 See Notice of Trustee Sale, Exhibit C to Complaint.

8 See Mortgage Assistance Application, Exhibit D to Complaint.

modification.9

5.               The loan remains over seventeen years delinquent, currently due for the December 1, 2007 monthly payment.10

The total outstanding balance on the loan includes unpaid interest in the amount of $264,733.87 and unpaid taxes and insurance in the amount of $208,539.54.11

6.               Third-party Joanna Burke filed a “Verified Petition in Intervention” on December 5, 2023.

Her claims in no way relate to the mortgage loan at issue in this case, the Property at issue in this case, or Plaintiff Jeff Samuels. PHH and Deutsche Bank then removed the case to this Court.

7.               Plaintiff has a long history of litigation with PHH and Deutsche Bank, including the following cases:

·       4:11-cv-01658; Deutsche Bank National Trust Company, As Trustee v. John Burke & Joanna Burke; U.S. District Court for the Southern District of Texas

·       15-20201; Deutsche Bank Natl Trust Co. v. Joanna Burke, et al.; United States Court of Appeals for the Fifth Circuit

·       18-20026; Deutsche Bank Natl Trust Co. v. Joanna Burke, et al.; United States Court of Appeals for the Fifth Circuit

·       18-1370; Burke v. Deutsche Bank National Trust Company; United States Supreme Court

·       4:18-cv-4544; Joanna Burke and John Burke v. Ocwen Loan Servicing, LLC; U.S. District Court for the Southern District of Texas

·       19-20267; Burke v. Ocwen Loan Servicing, LLC; United States Court of Appeals for the Fifth Circuit

Suits in which Burke attempted to intervene:

·       9:17-cv-80495; Consumer Financial Protection Bureau v. Ocwen Financial Corp., et al; United States District Court for the Southern District of Florida, West Palm Beach Division.

·       19-13015; Joanna Burke and John Burke – Interested Parties, CFPB v. Ocwen Loan Servicing, LLC; United States Court of Appeals for the Eleventh Circuit

9 See Decision on the Request for Mortgage Assistance, Exhibit A-1; See also PHH Business Records Affidavit,

Exhibit A.

10 See Payoff Quote, Exhibit A-2; See also PHH Business Records Affidavit, Exhibit A.

11 Id.

·       1:18-cv-5936; Jose L. Parra v. Ocwen Loan Servicing, LLC; United States District Court for the Northern District of Illinois, Eastern

·       21-12160; Ocwen Financial Corp. v. John Burke, et al.; United States Court of Appeals for the Eleventh Circuit.

II.             SUMMARY JUDGEMENT EVIDENCE

8.               In support of this Motion, PHH relies upon incorporates the following summary judgment evidence:

Exhibit A                    PHH Mortgage Corporation Business Records Affidavit

Exhibit A-1       Decision on the Request for Mortgage Assistance

Exhibit A-2       Payoff Quote

Exhibit B                    Assignment

Exhibit C                    E-mail from Joanna Burke

III.           SUMMARY JUDGMENT STANDARD

9.               Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”12

The Supreme Court has further held that the moving party may discharge its summary judgment burden of proof by showing that there is an absence of evidence to support the non-moving party’s case.13

10.            If the non-moving party bears the burden of proof at trial, the moving party need only point to the absence of any fact issue in the record, and the evidentiary burden then shifts to 12 FED. R. CIV. P. 56(c);

See also Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)

(“Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law.”).

13 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

the non-moving party to show with significant probative evidence that there exists a triable issue of fact.14 In that regard, a “complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial and mandates the entry of summary judgment.”15 The non-moving party must do more than show that there is some metaphysical doubt as to the material facts.16 Moreover, “self-serving allegations are not the type of significant probative evidence required to defeat summary judgment.”17 Thus, “conclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment.”18

IV.           ARGUMENTS AND AUTHORITIE

A.              Plaintiff’s claim for injunctive relief fails as a matter of law because there are no underlying legal claims.

11.            Summary judgment is proper because Plaintiff does not allege any causes of action against PHH or Deutsche Bank.

The only relief sought by Plaintiff is a temporary injunction to prevent foreclosure.

It is well-established that injunctive relief is a remedy, not a standalone cause of action.

Injunctive relief serves as a means to enforce rights or prevent wrongs arising from a substantive legal claim.

In other words, although a request for injunctive relief arises out of a cause of action, the remedy sought and the cause of action itself are “separate and distinct.”19

There is no such thing as a suit for a traditional injunction in the abstract … [A] traditional

14 Id. at 322; Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990); see also Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002) (“The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that that record contains no support for the non-moving party’s claim.”).

15 U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008).

16 Id. at 586.

17 U.S. v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001).

18 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (non-movant cannot defeat a motion for summary judgment with “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla” of evidence).

19 See United States v. Smelser, 87 F.2d 799, 801 (5th Cir.1937); see also W. Oil & Gas JV, Inc. v. Castlerock Oil Co., Inc., 91 Fed.Appx. 901, 904 (5th Cir.2003) (distinguishing between equitable remedies and causes of action, and noting that equitable remedies are unavailable in the absence of a cognizable cause of action).

injunction is a remedy potentially available only after a plaintiff can make a showing that some independent legal right is being infringed—if the plaintiff’s rights have not been violated, he is not entitled to any relief, injunctive or otherwise.20

Here, because Plaintiff has not asserted any such claims, the Court has no basis upon which to grant the requested injunction and summary judgment is warranted.

12.            Furthermore, Plaintiff has not met the requirements for the injunctive relief he seeks.

To obtain injunctive relief, a plaintiff must demonstrate:

(1) a substantial likelihood of success on the merits;

(2) a substantial threat that he will suffer irreparable injury if the injunction is not granted;

(3) that the threatened injury outweighs any harm that the injunction might cause the Defendants;

and

(4) that the injunction will not disserve the public interest.21

13.            Here, Plaintiff cannot satisfy these requirements for several reasons. Without a valid underlying cause of action, there can be no likelihood of success on the merits.22

Plaintiff’s failure to articulate any legal basis for preventing the foreclosure means that his claim for injunctive relief is entirely unsupported.

Plaintiff admits that he defaulted on his mortgage payments, that the Loan is in default, and that he was aware of the scheduled foreclosure sale.23

The Loan is in fact severely delinquent, currently due for the December 1, 2007 monthly payment.24

Plaintiff complains that the total loan balance is too high, but the severe delinquency of the Loan is the reason.

The total outstanding balance on the loan includes unpaid interest in the amount of $264,733.87 and unpaid taxes and insurance in the amount of $208,539.54.25

20 Williams v. Walsh, 558 F.2d 667, 670–71 (2d Cir.1977)

21 Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).

22 Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (holding that injunctive relief requires that plaintiff first plead viable underlying cause of action).

23 See Complaint, Pages 2-3.

24 See Payoff Quote, Exhibit A-2; See also PHH Business Records Affidavit, Exhibit A.

25 See Payoff Quote, Exhibit A-2; See also PHH Business Records Affidavit, Exhibit A.

The evidence demonstrates that PHH and Deutsche Bank acted lawfully and within their contractual rights by scheduling the foreclosure sale and summary judgment is proper on Plaintiff’s Complaint.

B.              Summary judgment is proper on Joanna Burke’s Petition in Intervention because she has “disavowed” any interest in this case, there is no common question of law or fact, and she has no interest in this suit.

14.            As a threshold matter, Joanna Burke sent an e-mail to counsel for PHH and Deutsche Bank on April 16, 2024 “disavowing” any claim or interest in this case and purporting to request to be dismissed from the case:26

Joanna Burke has taken no action in this case since sending this e-mail.

Because Joanna Burke has “disavowed” any claim or interest in this case and has abandoned her Petition in Intervention, summary judgment is proper.

15.            Further, the federal rules only allow a party to voluntarily join a pending lawsuit when a common question of law or fact is involved.27

An intervenor must show she has an interest in the suit that is direct, substantial, and legally protectable.28

Here, Joanna Burke’s Petition in

26 See e-mail from Joanna Burke, Exhibit C.

27 Deus v. Allstate Ins., 15 F3d 506, 525 (5th Cir. 1994).

28 La Union del Pueblo Entero v. Abbott, 29 F4th 299, 305 (5th Cir. 2022).

Intervention is an impermissible attempt to file a lawsuit against PHH and Deutsche Bank even though her allegations have nothing to do with Jeff Samuels’ Loan or the Property.

Plaintiff attempts to file her own independent lawsuit against PHH and Deutsche Bank within this suit.

There is no common question of law or fact. Joanna Burke seeks declaratory relief and seeks to prevent the foreclosure of her own real property, with no relationship alleged to Jeff Samuels at all.

Joanna Burke has no interest in this lawsuit at all, let alone one that is direct, substantial, or legally protectable.

Because Joanna Burke’s Petition in Intervention has no relationship at all to Jeff Samuels, the Loan, or the Property, her Petition in Intervention was improper and summary judgment is warranted.

V.              CONCLUSION

Summary judgment is proper on Plaintiff’s Complaint because he asserts no underlying causes of action to support his requested injunctive relief.

He admits that the loan is delinquent and that he was notified of the foreclosure sale.

There is no issue of material fact.

Furthermore, summary judgment is proper on Joanna Burke’s Petition in Intervention because she has asked to be removed from this case and there is no common question of law or fact.

Joanna Burke has no relationship at all to Jeff Samuels, the Loan, or the Property and she alleges no such relationship.

PHH and Deutsche Bank respectfully request that the Court grant final summary judgment in their favor and all other relief to which they may be justly entitled.

Respectfully submitted,

ORDER

Before the Court are (1) pro se Plaintiff Jeff Samuels’ (“Plaintiff’) Motion to Remand (Doc. #8) and Defendants PHH Mortgage Corporation (“PHH”), Deutsche Bank National Trust Company, as Trustee for FFMLT TRUST 2004-FF3, Mortgage Pass-Through Certificates, Series 2004-FF3 (“Deutsche Bank”),

and Power Default Services, Inc.’s (“Power Default”) Response (Doc. #9); (2)

Defendant AVT Title Services, LLC (“AVT”) Motion to Dismiss Plaintiffs Claims (Doc. #5);

and

(3) AVT’s Motion to Dismiss pro se Intervenor-Plaintiffs Joanna Burke’s (“Intervenor-Plaintiff’) Claims (Doc. #6). 1

Having considered the parties’ arguments, the submissions, and the applicable legal authority, the Court denies the Motion to Remand and denies the Motions to Dismiss as moot.

I. Background

On September 1, 2023, Plaintiff filed this action in the 234th Judicial District of Harris County to prevent foreclosure of real property located at 14810 Winding Waters Drive, Cypress, Texas 77429 (the “Property”).

Doc. #1, Ex. 1.

In his supporting Affidavit, Plaintiff alleges that he submitted a loan modification application to Defendant PHH and is seeking injunctive relief to prevent the scheduled foreclosure sale of the Prope1ty.

Id. at 12-13.

Defendants PHH, Deutsche Bank, Power Default, and A VT were all named as parties involved in the process to foreclose on the Property.

Id.

On December 15, 2023, PHH, Deutsche Bank, and Power Default removed the case to this Court on the basis of diversity jurisdiction.

Doc. #1.

On December 26, 2023, AVT filed its Motions to Dismiss Plaintiffs Claims and Intervenor-Plaintiffs Claims
pursuant to Federal Rule of Civil Procedure 12(b)(6).

Doc, #5; Doc. #6.

On January 16, 2024, Plaintiff moved to remand this case to state court, arguing that this Court lacks subject matter jurisdiction.

Doc. #8.

In their Response, PHH, Deutsche Bank, and Power Default argue that this Court has diversity jurisdiction because Power Default and AVT, which are nondiverse entities, are improperly joined.

Doc. #9.

In this Order, the Court first resolves the jurisdictional issues presented in the Motion to Remand.

As discussed in the Court’s evaluation of the Motion to Remand, AVT is improperly joined and therefore Plaintiffs claims and Intervenor-Plaintiffs claims against it must be dismissed.

Thus, AVT’ s Motion to Dismiss Plaintiffs claims and Motion to Dismiss Intervenor-Plaintiffs claims are moot, and the Court need not evaluate the merits of the arguments presented therein.

II. Plaintiff’s Motion to Remand

a. Legal Standard

“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants.”

28 U.S.C. § 1441(a).

Federal district courts have original jurisdiction in

(1) cases that present a federal
question,

and

(2) cases where there is complete diversity of citizenship among the patiies and the
amount in controversy exceeds $75,000.

28 U.S.C. §§ 1331, 1332(a).

“The party seeking to invoke the jurisdiction of the federal court has the burden of proving that jurisdiction exists.”

Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 775 (5th Cir. 1986).

A removed action must be remanded “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.”

28 U.S.C. § 1447(c).

b. Analysis

PHH, Deutsche Bank, and Power Default assert that this Comi has diversity jurisdiction and thus Plaintiffs Motion to Remand should be denied.

Doc. #9.

The amount in controversy, which is not in dispute, exceeds the $75,000 threshold.

See Doc. #1 at 7 (noting the value of the Property has a value of $476,358).

There is also no dispute that Plaintiff and Intervenor-Plaintiff are citizens of Texas for diversity purposes, whereas PHH is a citizen of New Jersey and Deutsche Bank is a citizen of California.

Id. at 3—4.

Additionally, PHH and Deutsche Bank argue that the Court can exercise diversity jurisdiction in this case because A VT and Power Default, while 11011-diverse, are improperly joined parties.

Id at 4-6.

Where diversity is the basis of a district court’s subject-matter jurisdiction, the parties must be completely diverse.

However, if there is a nondiverse party, a district court may exercise jurisdiction if the nondiverse party was improperly joined.

Smallwood v. Ill. Cent. R. Co., 385 F.3d 568,573 (5th Cir. 2004).

To establish that an in-state defendant was improperly joined, “the removing party must
either show that

(1) there is no possibility that the plaintiff would be able to establish a cause of
action against the in-state defendant in state court,

or

(2) that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts.”

Id

To determine if there is a possibility that plaintiff will be able to establish a cause of action, a court conducts “a Rule 12(b )( 6) type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.”

Id

To survive a Rule 12(b)(6) challenge, “a complaint must have contained enough facts to state a claim to relief that is plausible on its face.”

Bell At/. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

“[I]f a plaintiff can survive a Rule 12(b)(6)
challenge, there is no improperjoinder.”

Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd, 818 F.3d 193,213 (5th Cir. 2016).

Defendant bears the burden of proving improper joinder.

Smallwood, 385 F.3d at 574.

1. Improper Joinder: AVT and Power Default

PHH, Deutsche Bank, and Power Default argue that Plaintiffs Complaint is void of specific facts or actions taken by either AVT or Power Default.

Doc. #9 at 4.

Here, AVT was the Substitute Trustee appointed by the mortgagee in the Notice of Sale, and Power Default sent Notice of Acceleration to Plaintiff on behalf of the mortgagee

Id.

The Court’s determination regarding improper joinder is solely based on the facts as alleged in Plaintiffs Original Petition2.

See Louisiana v. Am. Nat’l Prop. Cas. Co., 746 F.3d 633, 636 (5th Cir. 2014)

(“[J]urisdictional facts are determined at the time of removal, and consequently post-removal events do not affect that

properly established jurisdiction.”).

In reviewing Plaintiff’s Original Complaint, there are no factual allegations concerning AVT.

See Doc. #I, Ex. I at 6-14.

Additionally, the only factual allegation before the Court regarding Power Default is that “Defendant Deutsche Bank National Trust Company, through Defendant Power Default Services, continued foreclosure proceedings and alleged that the Plaintiff owed a balance of$754,944.”

Id. at 8.

The Court finds this statement, without more, is insufficient to state a claim for relief.

As such, Plaintiffs claims against AVT and Power Default would not survive a 12(b)(6) challenge.

Therefore, Plaintiff’s claims against AVT and Power Default are dismissed without prejudice, and their citizenship is not considered for diversity purposes.

See Int’I Energy Ventures Mgmt., L.L. C. v. United Energy Grp., Ltd., 818 F.3d 193,209 (5th Cir. 2016)

(“When, as here, a court determines that a nondiverse patiy has been improperly joined to defeat diversity, that party must be dismissed without prejudice.”).

III. Conclusion

In conclusion, the Court finds that A VT and Power Default have been improperly joined.

As such, the Comi has subject matter jurisdiction, and Plaintiff’s Motion to Remand (Doc. #8) is hereby DENIED.

Plaintiff’s claims against AVT and Power Default are DISMISSED WITHOUT PREJUDICE.

Because AVT has been dismissed, its Motion to Dismiss Plaintiff’s Claims (Doc. #5) and Intervenor-Plaintiff’s Claims (Doc. #6) are DENIED as MOOT.

Finally, Intervenor-Plaintiff’s Motions to Stay Case Pending Resolution of Bankruptcy Proceedings (Doc. Nos. 10, 11) and Motions to Reinstate Case (Doc. Nos. 12, 13) are DENIED as MOOT.

It is so ORDERED.