Dukes v. NewRez LLC dba Shellpoint Mortgage Servicing
(1:22-cv-00413)
District Court, W.D. Texas (Pitman, R., Democrat)
MAY 2, 2022 | REPUBLISHED BY LIT: MAY 6, 2022
ORDER
Before the Court is Defendant NewRez LLC d/b/a Shellpoint’s (“Shellpoint”) Motion for Summary Judgment.
(Dkt. 18).
Plaintiff Dawna M. Dukes (“Dukes”) has not filed a response. Although the dispositive motion is unopposed, summary judgment is not automatic, and the Court must determine whether Shellpoint has shown entitlement to judgment as a matter of law.
See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006); Fed. R. Civ. P. 56(a).
Having considered Shellpoint’s motion, the record, and the relevant law, the Court finds that the motion should be granted.
I. BACKGROUND
This is an action arising from the nonjudicial foreclosure of Dukes’s residential property by Shellpoint, the current servicer of the mortgage on Dukes’s property.
(Compl., Dkt. 1-2).
Dukes filed her original petition on April 5, 2022, sin the 261st District Court in Travis County, Texas. (Id.).
In her complaint, Dukes alleges that Shellpoint unlawfully posted the property for a trustee’s sale without first satisfying the notice requirements
(a) under §22 of the deed of trust for acceleration and invocation of the power of sale,
and
(b) under Texas Property Code, §52.002(d) to give notice of sale of real property used as the debtor’s residence.
(Id. at 3).
Dukes seeks monetary, injunctive, and declaratory relief. (Id. at 9-10).
Shellpoint filed its motion for summary judgment on March 24, 2023.
(Dkt. 18).
On April 21, 2023, this Court ordered Dukes to file a response to Shellpoint’s motion on or before May 4, 2023.
(Order, Dkt. 19).
As of the date of this order, Dukes has not filed a response.
II. LEGAL STANDARDS
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
“A fact issue is ‘material’ if its resolution could affect the outcome of the action.”
Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
If the burden at trial rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant does so, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial.
Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017).
After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.
Miss. River Basin All. v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000).
The nonmovant must “identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim.”
Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (citation omitted).
In responding to a motion for summary judgment, the nonmoving party cannot rest on the mere allegations of its pleadings.
Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010); see also Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991)
(“Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment evidence.”).
Dukes did not respond to Shellpoint’s motion for summary judgment. Despite her failure to respond, however, the Court may not automatically grant summary judgment without assuring that no material fact issues exist.
Fed. R. Civ. P. 56(e) advisory committee’s note; Eversley v. MBank of Dall., 843 F.2d 172, 174 (5th Cir. 1988).
If the moving party fails to meet its initial burden, the court must deny the motion for summary judgment even if there is no response.
Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).
However, when no response is filed to a motion for summary judgment, the Court may take the movant’s uncontroverted factual assertions as true.
Eversley, 843 F.2d at 174.
III. DISCUSSION
When a party fails to address another’s fact assertions, the Court may give the party another opportunity to do so.
Fed. R. Civ. P. 56(e)(1).
The Court gave Dukes such an opportunity when it gave her additional time to respond to Shellpoint’s motion.
(Order, Dkt. 19).
Accordingly, the Court will consider Shellpoint’s facts to be undisputed.
Fed. R. Civ. P. 56(e)(2).
A. Facts
On December 27, 2002, Dukes borrowed $222,400.00 from Bank of America to refinance her purchase of the property at 1103 Rutgers Drive, Pflugerville, Texas 78660.
(Mot. Summ. J., Dkt. 18-1).
She executed a note promising to repay the loan, plus interest, and a deed of trust granting a lien against the property.
(Id. at 2).
In 2017, Dukes fell into default. (Id.).
The loan servicer at the time, Ditech Financial LLC (“Ditech”), sent Dukes notice of default providing the amount to cure the default and a warning of acceleration and foreclosure if the default was not cured by May 9, 2017. (Id.).
Dukes did not cure the default. (Id.).
In 2019, Shellpoint took over servicing from Ditech as substitute trustee. (Id.).
On February 18, 2022, almost five years after the notice of default was sent, Dukes was served with notice that the loan was accelerated, and the property would be sold at a foreclosure sale on April 5, 2022. (Id.).
On the day of the foreclosure sale, Dukes filed her original petition in the 261st District Court of Travis County, Texas. (Id.).
Shellpoint proceeded with the foreclosure sale as scheduled, and the property was sold to JRMV Property Investments, LLC and MNS Performance Management, LLC. (Id.).
However, after becoming aware of Dukes’s lawsuit, the third-party purchasers requested and received a refund of their purchase funds. (Id.).
No foreclosure deed was recorded, and Shellpoint has presented evidence of the refunded purchase.
B. Mootness
Shellpoint argues that Dukes’s claims are moot because the foreclosure sale was unwound, all funds were returned to the purchasers, and no foreclosure deed was recorded.
(Mot. Summ. J., Dkt. 18, at 4).
To demonstrate Article III standing, a plaintiff must “(1) have suffered an injury in fact, (2) that is fairly traceable to the challenged action of the defendant, and (3) that will likely be redressed by a favorable decision.” Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020) (citing Lujan v. Def’s. of Wildlife, 504 U.S. 555, 560–61 (1992), as revised (Oct. 30, 2020)).
However, if subsequent developments render the court unable to grant the litigant “any effectual relief whatever,” the case is moot.
Dierlam v. Trump, 977 F.3d 471, 476 (5th Cir. 2020), cert. denied sub nom. Dierlam v. Biden, 141 S. Ct. 1392 (2021).
Furthermore, the Court may only rule on controversies that “can presently be litigated and decided and not . . . based upon the possibility of a factual situation that may never develop.”
Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989).
Shellpoint maintains that there is no justiciable controversy because the foreclosure sale was “unwound”; it essentially never occurred.
(Mot. Summ. J., Dkt 18, at 4).
In support of this, Shellpoint presents evidence that the foreclosure purchasers were refunded and that Dukes remains the title owner of the property.
(Morgan Decl., Dkt. 18-1, at 68–69; Return Confirmation, Dkt. 18-1, at 71–73).
Shellpoint believes that this moots Dukes’s action. (Id.).
For the following reasons, the Court agrees.
According to section § 51.002 of the Texas Property Code, a mortgage servicer must serve a debtor in default with written notice by certified mail stating that the debtor is in default under the deed of trust and giving him at least twenty days to cure the default before notice of sale can be given.
Notice of the foreclosure sale must be given at least twenty-one days before the date of sale by serving written notice of the sale by certified mail on each debtor who is obligated to pay the debt. Id.
Neither the Fifth Circuit nor the Texas Supreme Court have decided whether a private cause of action exists under § 51.002, but Courts have generally treated such claims as wrongful foreclosure claims.
Villareal v. Ocwen Loan Servicing, LLC, No. 2:18-CV-10-AM/CW, 2019 WL 4998694, at *5 (W.D. Tex. Sep. 25, 2019).
The Northern District of Texas has found that the lack of a foreclosure sale is fatal to a claim alleging a violation of §51.002 of the Texas Property Code because Texas does not recognize a cause of action for attempted wrongful foreclosure.
(Mot. Summ. J., Dkt. 18, at 5); Adams v. U.S. Bank, N.A., No. 3:17-CV-723-B, 2017 WL 10296307, *4 (N.D. Tex. Dec. 4, 2017), rec. adopted, 2018 WL 4621770 (N.D. Tex. Jan. 3, 2018).
Given Shellpoint’s uncontested evidence that there was no wrongful foreclosure, the Court sees no reason to depart from our sister court’s position.
Accordingly, the Court finds that Dukes’s § 51.002 claim is moot.
For similar reasons, the Court also finds that Duke’s claim under §22 of the deed of trust for acceleration and invocation of the power of sale is moot.
Other courts have found that the alleged failure to provide notice required by deed of trust and property code is moot when no sale has occurred.
See e.g., Johnson v. JPMorgan Chase Bank, N.A., No. 4:12-CV-285, 2013 WL 2554415, *9 (E.D. Tex. June. 7, 2013), aff’d sub nom., 570 Fed. Appx. 404 (5th Cir. 2014).
Given that Shellpoint’s arguments are uncontested, the Court will treat the foreclosure sale as not having occurred, since the sale was “unwound.” Accordingly, Dukes’s deed of trust claim is now moot.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Shellpoint’s Motion for Summary Judgment, (Dkt. 18), is GRANTED.
Dukes’s claims against Shellpoint are DISMISSED AS MOOT.
The Court will enter final judgment in a separate order.
SIGNED on June 30, 2023.
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
The ORDER to show cause gave DUKES until MAY 4, 2023 to file an answer. She hasn’t.
Jan 24, 2023:
Notice of Attorney Appearance, namely Akerman Associate R. Martin Dungan, TX License Date: 11/04/2016 .
AND
another on Jan. 26.
Doin’ Business as a Fraud in Texas (DBF): Anthony Quinn Welch DBA Superior Consulting Group Et Al – Laws In Texas https://t.co/Paz7c4ETAk
— lawsinusa (@lawsinusa) May 8, 2023
The case is still shrouded in secrecy. The pretrial conference ‘minutes’ fail to detail who attended for Dukes and the Mortgage Servicer and runs straight to the scheduling of the case.
When LIT attempted to purchase Doc. 13, PACER ADVISED; “You do not have permission to view this document.”
As stated, we believe Dukes does not have a lawyer and they are proceeding with the case as if she does. Why else would you need to HIDE a standard document from the public?
U.S. District Court [LIVE]
Western District of Texas (Austin)
CIVIL DOCKET FOR CASE #: 1:22-cv-00413-RP
Create an Alert for This Case on RECAP
| Dukes v. NewRez LLC dba Shellpoint Mortgage Servicing Assigned to: Judge Robert Pitman
Cause: 28:1441 Petition for Removal- Breach of Contract |
Date Filed: 05/02/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 09/15/2022 | 10 | ORDER Setting Initial Pretrial Conference for 9/21/2022 09:40 AM before Judge Robert Pitman. Signed by Judge Robert Pitman. (bot2) (Entered: 09/15/2022) |
| 09/21/2022 | 11 | Minute Entry for proceedings held before Judge Robert Pitman: Pretrial Conference held on 9/21/2022. Hearing to be reset. (Minute entry documents are not available electronically.) (Court Reporter Lily Reznik.)(jv2) (Entered: 09/22/2022) |
| 09/22/2022 | 12 | ORDER RESETTING Initial Pretrial Conference by telephone for 9/26/2022 at 10:00 AM before Judge Robert Pitman. Signed by Judge Robert Pitman. (jv2) (Entered: 09/22/2022) |
| 09/26/2022 | 13 | Minute Entry for proceedings held before Judge Robert Pitman: Initial Pretrial Conference held on 9/26/2022. Written order forthcoming. (Minute entry documents are not available electronically.) (Court Reporter Lily Reznik.)(jv2) (Entered: 09/27/2022) |
| 09/27/2022 | 14 | JOINT SCHEDULING ORDER: Bench Trial set for 7/24/2023 at 09:00 AM before Judge Robert Pitman, Consent to Trial by Magistrate due by 9/30/2022, ADR Report Deadline due by 10/31/2022, Amended Pleadings due by 10/31/2022, Discovery due by 2/28/2023, Joinder of Parties due by 10/31/2022, Dispositive Motions due by 3/24/2023. Signed by Judge Robert Pitman. (jv2) (Entered: 09/27/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 10/10/2022 08:30:25 |
LIT thinks that Dukes lawyer ain’t representin’ her in the Federal case…he’s not filed anything, all filings are by the foreclosure mill.
U.S. District Court [LIVE]
Western District of Texas (Austin)
CIVIL DOCKET FOR CASE #: 1:22-cv-00413-RP
Create an Alert for This Case on RECAP
| Dukes v. NewRez LLC dba Shellpoint Mortgage Servicing Assigned to: Judge Robert Pitman
Cause: 28:1441 Petition for Removal- Breach of Contract |
Date Filed: 05/02/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 08/09/2022 | 5 | Order for Scheduling Recommendations/Proposed Scheduling Order. Scheduling recommendations/proposed scheduling order due to the Court within sixty (60) days after the appearance of any defendant. Scheduling Recommendations/Proposed Scheduling Order due by 8/24/2022. Signed by Judge Robert Pitman. (jv2) (Entered: 08/09/2022) |
| 08/24/2022 | 6 | Proposed Scheduling Order by NewRez LLC dba Shellpoint Mortgage Servicing. (McInnis, Walter) (Entered: 08/24/2022) |
| 08/24/2022 | 7 | ATTACHMENT Certificate of Conference to 6 Scheduling Recommendations/Proposed Scheduling Order by NewRez LLC dba Shellpoint Mortgage Servicing. (McInnis, Walter) (Entered: 08/24/2022) |
| 08/25/2022 | 8 | Order to File Joint Proposed Scheduling Order by 9/9/2022. Signed by Judge Robert Pitman. (jv2) (Entered: 08/25/2022) |
| 09/09/2022 | 9 | Proposed Scheduling Order Agreed by NewRez LLC dba Shellpoint Mortgage Servicing. (Townsend, C.) (Entered: 09/09/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 09/14/2022 17:45:14 |
No movement since May and not even an Initial Conference ordered by the Magistrate. Is this preferential treatment to a former legislator by Judge Pitman’s courtroom?
As at May 29, 2022, it’s super quiet.
TWEET TWO OF TWO
When LIT attempted to purchase Doc. 13, PACER ADVISED
“You do not have permission to view this document.”
IT’S ONE BIG COVERUP BY THE FEDERAL JUDICIARY IN TEXAS AGAIN FOLKS.
Your access to public documents is being restricted by Outlaws in Dirty Black Robes pic.twitter.com/2O4Crj3oHa
— lawsinusa (@lawsinusa) October 10, 2022
SHELLPOINT’S REMOVAL NOTICE
NewRez LLC dba Shellpoint Mortgage Servicing (Shellpoint) removes the action Dawnna M. Dukes filed in state court pursuant to 28 USC §§ 1332 and 1441 as follows:
I. STATEMENT OF THE CASE
1. On April 5, 2022, Ms. Dukes filed suit in the 261st district court of Travis County, Texas in the case styled Dawnna M. Dukes v. NewRez LLC dba Shellpoint Mortgage Servicing, et al. and assigned case D-1-GN-22-001577.
(orig. pet., ex. 1.)
She sues to enjoin a scheduled April 5, 2022 trustee sale of the property located at 1103 Rutgers Drive, Pflugerville, Texas 78660.
(Id. at p. 3.)
She claims Shellpoint posted her property for sale without providing her notice of default, an opportunity to cure, and improperly accelerated the note.
(See Id.)
Basing on this allegation, Ms. Dukes claims Shellpoint breached the deed of trust (Id.)
She seeks monetary relief of not more than $250,000, a temporary restraining order, a temporary injunction enjoining Shellpoint from selling the property, and costs of suit.
(Id. at wherefore para. at ¶¶ 1-5.)
II. BASIS FOR DIVERSITY JURISDICTION
2. The court may exercise diversity jurisdiction pursuant to 28 USC § 1332(a) because the real parties in interest are completely diverse and the amount in controversy exceeds $75,000. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005).
A. The real parties in interest are citizens of different states.
(i) Ms. Dukes and Shellpoint are citizens of different states.
3. Ms. Dukes is a Texas citizen.
Individuals are citizens of the state in which they are domiciled.
Preston v. Tenet Healthsystem Mem’l Med. Ctr., 485 F.3d 793, 797-98 (5th Cir. 2007).
Ms. Dukes pleads she resides in Travis County, Texas.
(orig. pet. at p. 2, ex. 1.)
Her petition evidences no intent to leave the state.
See Preston, 485 F.3d at 797-98
(“A person’s state of domicile presumptively continues unless rebutted with sufficient evidence of change.”)
4. Shellpoint is a Delaware and New York citizen. Shellpoint Mortgage Servicing is an assumed name of NewRez LLC, a Delaware limited liability company.
The citizenship of a limited liability company is determined by the citizenship of each of its members.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
NewRez LLC has one member, Shellpoint Partners LLC. Shellpoint Partners LLC has two members, NRM Acquisition LLC and NRM Acquisition II LLC.
NRM Acquisition LLC and NRM Acquisition II LLC each have one member: New Residential Mortgage LLC.
New Residential Mortgage LLC has one member, New Residential Investment Corp.
A corporation is a citizen of the state in which it is incorporated and the state it maintains its principal place of business.
28 USC § 1332(c);
MidCap Media Fin. LLC v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019).
New Residential Investment Corp. is a Delaware corporation with its principal place of business in New York.
White v. NewRez LLC, No. CV RDB- 20-1259, 2020 WL 4748539, at *5 n.3 (D. Md. Aug. 17, 2020).
(ii) The substitute trustees’ citizenships should be disregarded.
5. Ms. Dukes’ petition names a laundry list of substitute trustees identified in a notice setting a April 5, 2022 foreclosure sale:
David Ackel, Travis Kaddatz, Sara Edgington, Colette Mayers, Thomas Gilbraith, C. Jason Spence, Aarti Patel, Dylan Ruiz, Violate Nunez, Shawn Schiller, Ramiro Cuevas, Cary Corenblum, Joshua Sanders, Allena Litton, Matthew Hansen, Auction.com whose address is 1 Mauchly Irving, CA 92618 or Angela Zavala, Michelle Jones, Richard Zavala, Jr. or Sharlet Watts whose address is 14800 Landmark Blvd., Suite 850, Dallas, TX 75254.
(orig. pet. at p. 1-3, ex. 1.)
6. Even if each person identified above were a citizen of Texas, their presence does not destroy diversity jurisdiction because they are nominal parties and improperly joined.
7. A nominal party’s citizenship is disregarded in determining whether complete diversity exists; only real and substantial parties are considered.
Navarro Savs. Ass’n v. Lee, 446 U.S. 458, 460-61 (1980);
see also Corfield v. Dall. Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003)
(“[A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.”)
A party is “nominal” if in its absence, the court could “enter a final judgment consistent with equity and good conscience, which would not be in any way unfair or inequitable.”
Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373, 379 (5th Cir. 2006).
A removing defendant meets its burden to show a non-removing defendant is a nominal party by showing “there is no possibility that the plaintiff would be able to establish a cause of action against the non-removing defendant[] in state court.”
Farias v. Bexar Cty. Bd. of Trs., 925 F.2d 866, 871 (5th Cir. 1991).
8. A “plaintiff’s joinder of formal or unnecessary parties cannot defeat diversity jurisdiction and prevent removal.”
Marsh v. Wells Fargo Bank, N.A., 760 F. Supp. 2d 701, 710 (N.D. Tex. 2011)
(finding no reasonable basis for predicting the plaintiff’s claims against the substitute trustees would be successful in state court because only the rights of the banks were in dispute);
see also Eisenberg v. Deutsche Bank Tr. Co. Ams., No. SA-11-CV-384-XR, 2011 WL 2636135, at *4 (W.D. Tex. July 5, 2011)
(finding substitute trustees named solely in that capacity were nominal parties to a suit to enjoin foreclosure, and noting section 51.007(e) of the Texas Property Code expressly provides dismissal of trustees does not prejudice a plaintiff’s right to seek injunctive relief).
9. The substitute trustees are nominal parties in this case.
Ms. Dukes neither alleges the substitute trustees committed any act or omission upon which a claim of damages may be maintained, nor that the substitute trustees have, or claims to have, any interest in the note, security instrument, or property which will be affected by the injunctive relief she requests.
(orig. pet. at p. 3-10, ex. 1.)
“Texas law recognizes that a trustee named solely in his or her capacity as trustee under a deed of trust or security instrument is not a necessary party in a suit to prevent a foreclosure.”
Zavala v. M & T Tr. Co., No. SA-11-CV-956-XR, 2011 WL 6739614, at *2 (W.D. Tex. Dec. 22, 2011).
Because the substitute trustees are nominal parties, their presence in this suit cannot defeat diversity.
See Corfield, 355 F.3d at 857
(“[A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.”)
10. Even if the court determines the substitute trustees are more than a nominal party, their citizenship should be disregarded because they are improperly joined.
Improper joinder’s analysis is akin to the nominal party test and met where a removing defendant demonstrates the plaintiff’s inability to establish a cause of action against the non-diverse defendant in state court.
Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006).
To make that determination, “[t]he court may conduct a [Federal Rule of Civil Procedure] 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.”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004);
see McDonal v. Abbott Labs., 408 F.3d 177, 183 n.6 (5th Cir. 2005)
(“A district court should ordinarily resolve [claims of] improper joinder by conducting a Rule 12(b)(6)-type analysis”).
11. A defendant establishes improper joinder by showing there is no reasonable basis for predicting the plaintiff might be able to recover against a non-diverse defendant.
Smallwood, 385 F.3d at 573.
This showing is made either when the plaintiff’s recovery against the non-diverse defendant is barred as a matter of law, or when the plaintiff would not produce sufficient evidence to sustain a finding necessary to recover against the non-diverse defendant.
See Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 545 (5th Cir. 2004).
The required “reasonable basis” exists only if there is a “factual fit between the plaintiff[‘s] allegations and the pleaded theory of recovery.”
Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999).
A “reasonable basis” is not a merely hypothetical one. Id.
12. The Property Code provides a substitute trustee qualified immunity for any error made in good faith reliance upon information provided by the mortgagee or the mortgagee’s agents or attorneys.
Tex. Prop. Code § 51.007(f).
To state a claim against the substitute trustees, Ms. Dukes must plead substantive facts alleging a bad faith claim against them.
See Rojas v. Wells Fargo Bank, N.A., 571 F. App’x 274, 277 (5th Cir. 2014) (per curiam)
(holding the plaintiff had no reasonable basis for recovery against the substitute trustee because she did “not provide any allegations that [the substitute trustee] was acting in bad faith.”);
see also R & L Inv. Prop., LLC v. Green, No. 3:12-CV- 4171-O, 2014 WL 1807618, at *8 (N.D. Tex. May 6, 2014)
(“[C]ourts have generally held that Section 51.007(f) imposes a substantive pleading element on a plaintiff that requires a plaintiff to allege bad faith on the part of the trustee.”)
13. Ms. Dukes does not identify any facts capable of supporting a conclusion she might be able to recover against the substitute trustees. (orig. pet. at p. 3-10, ex. 1.) Upon information and belief, Ms. Dukes did not serve the substitute trustees with the original petition and the court’s records reflect no returns to the substitute trustees on file.
(state court docket, ex. 4.)
The only vague and conclusory facts she alleges within the petition fail to attribute any acts, omissions or other wrongful conduct to the substitute trustees to prevail on any cause of action or obtain any relief.
(orig. pet. at p. 3-10, ex. 1.)
There is no plausible basis to conclude Ms. Dukes can recover on any claim against any of the substitute trustees identified in her petition.
B. The amount in controversy exceeds $75,000.
14. To determine the amount in controversy, courts ordinarily look to the plaintiff’s state court petition.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
When a defendant removes on the basis of diversity jurisdiction, the amount in controversy may be established by the specific “good faith” sum demanded by the plaintiff in its state court petition.
28 USC § 1446(c)(2).
If the plaintiff claims a specific amount in the complaint, the amount stated “is itself dispositive of jurisdiction if the claim is apparently made in good faith.”
Rosa Bernal v. All State Vehicle and Property Ins., No. 7:22-cv-00015, 2022 1028086, at *2 (S.D. Tex. Apr. 6, 2022).
In her petition, Ms. Dukes “seeks monetary relief of $250,000 or less and non-monetary relief.” (orig. pet. at p. 2, ex. 1.)
The amount in controversy is satisfied.
15. As an alternative, “[i]n actions seeking declaratory or injunctive relief the amount in controversy is measured by the value of the object of the litigation.”
Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).
Ms. Dukes sues to temporarily and permanently enjoin Shellpoint from exercising its right to foreclose its lien against the property.
(orig. pet. at p. 9-10, ex. 1.)
The object of this litigation is the property at 1103 Rutgers Drive, Pflugerville, Texas 78660 which is valued at $371,372 by the Travis County Appraisal District.
(appraisal dist. report, ex. 7);
see e.g., Hernandez v. Residential Accredit Loans Inc., Mortg. Asset-Backed Pass-Through Certificates, Series 2007- QS3, No. H-18-0724, 2018 WL 4033785, *3 (S.D. Tex. Aug. 23, 2018)
(citing appraisal district report as evidence, held “[b]ecause plaintiffs . . . seek a declaration that the lien is void, and because the current market value of the property is $290,091.19 the amount in controversy exceeds the jurisdictional minimum of $75,000.”).
The amount in controversy exceeds $75,000, and the court may exercise diversity jurisdiction.
III. PROCEDURAL REQUIREMENTS SATISFIED
16. Removal is timely under 28 USC § 1446(b) because it is being filed within thirty days of defendant’s receipt of the petition, through service or otherwise.
The substitute trustees’ consent are not necessary to remove because they are not real parties in interest and, even if they were, they have not been sued.
See Eisenberg, 2011 WL 2636135, at *2
(“Nominal parties are not required to consent to removal under the unanimity rule”) (citing Acosta, 452 F.3d at 379)).
Venue is proper in this court because the United States District Court for the Western District of Texas embraces the place in which the state court action was pending.
28 USC § 1441(a).
Notice has been sent to the state court regarding this removal. Pursuant to section 1446(a), a true and correct copy of all of the process, pleadings, and orders on file in the state court action are attached as exhibits 1-7.
IV. CONCLUSION
The parties are completely diverse and the amount in controversy exceeds $75,000.
This court may exercise diversity jurisdiction over this action.
Date: May 2, 2022
Respectfully submitted,
s/ Walter McInnis
C. Charles Townsend,
SBN: 24028053
So. Dist. Bar No. 1018722
charles.townsend@akerman.com
Walter McInnis,
SBN: 24046394
So. Dist. Bar No. 588724
—
Attorney in charge
walter.mcinnis@akerman.com
AKERMAN LLP
2001 Ross Ave., Ste. 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
ATTORNEYS FOR SHELLPOINT
CERTIFICATE OF SERVICE
A true and correct copy of this document was served on May 2, 2022 as follows:
VIA CM/ECF AND CERTIFIED MAIL / RRR NO. 9414 7266 9904 2186 4865 36
Stephen A. Mitchell,
smitchell@stevemitcehll-law.com
4408 Spicewood Springs Road,
Austin, Texas 78759
Telephone: 512.750.6961,
Facsimile: 512.692.2836
Plaintiff’s Counsel
/s/ Walter McInnis
Walter McInnis
Rep. Dawnna Dukes indicted on 15 charges, booked at county courthouse
MAR 7, 2017 | REPUBLISHED BY LIT: MAY 6, 2022
State Rep. Dawnna Dukes turned herself in at the Travis County courthouse on Wednesday afternoon after a grand jury on Tuesday indicted her on 13 felony corruption charges and two misdemeanors.
Speaking outside the Blackwell-Thurman Criminal Justice Center before going in to stand for a mug shot and give her fingerprints, Dukes, D-Austin, said she would plead not guilty on all charges and will continue serving in the Texas House.
“I have been silent at the advice of my attorneys since February, and I am very relieved that my attorneys … are here today to begin the process of getting out the other side of the story,”
she told reporters.
“I will focus my time and my energy on the people of District 46 and their issues and concerns in the Texas House of Representatives.”
Dukes is charged with 13 felony counts of tampering with public records and two misdemeanor counts of abuse of official capacity.
The charges carry a combined maximum penalty of 28 years behind bars and $138,000 in fines, although defendants rarely receive maximum sentences.
Dukes is out on a $75,000 personal recognizance bond.
The indictments come a week after Dukes reneged on a plan to step down and took the oath of office for a 12th two-year term representing parts of North Austin, East Austin, Pflugerville and Manor.
The tampering with public records charges concern allegations that Dukes collected pay from the state in 2013 and 2014, while the Legislature wasn’t in session, for days that she didn’t travel to the Capitol.
House rules require lawmakers to work at the Capitol to be paid.
The American-Statesman in May reported that a former Dukes staffer had accused the legislator of filing requests for per diem payments for days that she never traveled to the Capitol and might not have worked at all.
Admitting error, prosecutors drop charges against Rep. Dawnna Dukes
Dukes was indicted by a grand jury on 13 felony charges and two misdemeanor charges related to abuse of public office.
OCT 23, 2017 | REPUBLISHED BY LIT: MAY 6, 2022
Travis County prosecutors have dropped their criminal charges against state Rep. Dawnna Dukes, D-Austin, saying Monday that a felony case against the state lawmaker should never have been brought.
The announcement ends a months-long legal saga in which Dukes was accused of abusing public office after a grand jury indicted her on 13 felony charges and two misdemeanor charges earlier this year. But prosecutors have, over recent weeks, been forced to admit that their case against the Austin Democrat was based on flawed evidence.
In a Facebook post Monday night, Dukes thanked her legal team and supporters.
“It has been a long battle, but one in which I never doubted the outcome,” the post read in part.
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“Representative Dukes was innocent from day one,” said Dane Ball, an attorney for Dukes, in a statement. “We’re glad Representative Dukes can get back to serving her constituents without the distraction of these baseless charges.”
The felony case against Dukes claimed she had unlawfully tampered with a government record by falsifying entries on travel vouchers to obtain money for expenses she was not entitled to. But Travis County prosecutors were forced to put their felony case on hold last month after claiming a key witness in the case — who managed the official paperwork for the Texas House of Representatives — had changed his story.
Then, earlier this month, prosecutors were forced to drop one of the felony charges after acknowledging they had misread a date on Dukes’ cellphone, which formed a key piece of the evidence they had gathered against her.
Dukes also faced two misdemeanor charges of abuse of official capacity by a public servant. Those charges alleged that Dukes had used her legislative staff to work on the African American Community Heritage Festival and as a live-in nanny for her daughter.
Margaret Moore, the Travis County district attorney, said Monday she agreed to drop the misdemeanor charges on the condition that Dukes would repay the state $1,340 in order to reimburse the legislative staffer who’d taken care of Dukes’ daughter. Dukes also agreed to pay $500 for an outstanding fine owed to the Texas Ethics Commission and return $5,230 to her campaign account, which prosecutors said had been used for personal expenses.
In a statement, Moore said she would not have filed charges against Dukes had the statements from Texas House officials about travel reimbursement policy been clearer from the start.
“After a thorough examination of the evidence available to us, we have determined that we cannot continue the lawsuit,” Moore said.
Moore said her decision to drop the misdemeanor charges was in part an acknowledgment that prosecutors had bungled the case.
“In deciding how to resolve the two misdemeanors, I have taken into account the fact that the felony charges should not have been pursued,” she said. “Dismissing the misdemeanors for restitution, restoration of the campaign funds, and the paying of a fine to the Ethics Commission is a just result, given the amount of money involved and the nature of the offenses.”
In June, the 12-term lawmaker pleaded not guilty after declining an offer from prosecutors to drop the charges against her if she agreed to resign.
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U.S. District Court [LIVE]
Western District of Texas (Austin)
CIVIL DOCKET FOR CASE #: 1:22-cv-00413-RP
Alerts not yet Supported for this Docket
| Dukes v. NewRez LLC dba Shellpoint Mortgage Servicing Assigned to: Judge Robert Pitman
Cause: 28:1441 Petition for Removal- Breach of Contract |
Date Filed: 05/02/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Dawnna Dukes | represented by | Stephen A. Mitchell Attorney at Law 6003 Upvalley Run Austin, TX 78731 (512) 750-6961 Email: smitchell1@austin.rr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| NewRez LLC dba Shellpoint Mortgage Servicing also known as Shellpoint Mortgage Servicing |
represented by | Walter L. McInnis Akerman LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 (214) 720-4300 Fax: 214/981-9339 Email: walter.mcinnis@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDC. Charles Townsend Akerman LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 (214) 720-4300 Fax: (214) 981-9339 Email: charles.townsend@akerman.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/02/2022 | 1 | NOTICE OF REMOVAL by NewRez LLC dba Shellpoint Mortgage Servicing (Filing fee $402 receipt number 0542-15986443), filed by NewRez LLC dba Shellpoint Mortgage Servicing. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(McInnis, Walter) (Entered: 05/02/2022) |
| 05/02/2022 | 2 | RULE 7 DISCLOSURE STATEMENT filed by NewRez LLC dba Shellpoint Mortgage Servicing. (McInnis, Walter) (Entered: 05/02/2022) |
| 05/03/2022 | 3 | JS44 (Civil Cover Sheet) submitted by NewRez LLC dba Shellpoint Mortgage Servicing. (Attachments: # 1 Attachment)(McInnis, Walter) (Entered: 05/03/2022) |
| 05/04/2022 | 4 | ORDER that the removing party, if it has not already done so, shall within ten (10) days from the date of this order supplement the record with state court pleadings. Signed by Judge Robert Pitman. (dl) (Entered: 05/04/2022) |
