Martzall v. Deutsche Bank National Trust Company,
as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes
(5:24-cv-00042)
District Court, W.D. Texas
JAN 9, 2024 | REPUBLISHED BY LIT: FEB 7, 2024
Defendant, Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes (“Trustee” or “Defendant”) through undersigned counsel, hereby removes this case from the 438th Judicial District Court of Bexar County, Texas, to the United States District Court for the Western District of Texas, San Antonio Division.
Defendant denies the allegations of the Complaint and the damages contained therein, and files this Notice without waiving any defenses, exceptions, or obligations that may exist in its favor in state or federal court.
I. INTRODUCTION AND STATEMENT OF COMMENCEMENT OF ACTION
1. On or about December 28, 2023, Plaintiff James Martzall (“Plaintiff”) commenced this action by filing a Petition, Cause No. 2023CI27115, in the 438th Judicial District Court of Bexar County, Texas (the “State Court Action”).
See Exhibit C-1.
On the same date, Plaintiff obtained an ex parte temporary restraining order seeking to preclude foreclosure by Defendant.
See Exhibit C-2.
Defendant filed an answer on January 9, 2024.
See Exhibit C-7.
This action is being removed less than 30 days following service of the Petition filed in the State Court Action
EXHIBIT
20060161.20240106/5266829.1
A
and less than 30 days after Defendant appeared in the State Court Action. Accordingly, removal is timely under 28 U.S.C. §1446(b).1
II. PLEADINGS AND NOTICE TO STATE COURT
2. True and correct copies of all process and pleadings in the State Court Action are being filed along with this Notice of Removal. Pursuant to 28 U.S.C. §1446(d), written notice of this removal is being served on Plaintiff and filed in the State Court Action.
III. STATEMENT OF STATUTORY BASIS FOR JURISDICTION AND VENUE
3. This action is within the original jurisdiction of the United States District Court pursuant to 28 U.S.C. §1332(a)(1). That statute provides, in pertinent part, that “the district courts shall have the original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.”2 Venue is proper in this district under 28 U.S.C. §1441(a) because the state court where the State Court Action has been pending is located in this district. As discussed in detail below, this action satisfies the statutory requirements for diversity of citizenship jurisdiction.
IV. DIVERSITY JURISDICTION
A. Citizenship of the Parties
4. This civil action involves a controversy between citizens of different states.
Plaintiff is a citizen of the State of Texas in that he resides in and is domiciled in the state of Texas.3
5. Defendant, Trustee is not a citizen of Texas. When determining citizenship of a trust for purposes of diversity jurisdiction, it is the citizenship of the trustee which controls, not the citizenship of the beneficiaries of the trust.4
6. Deutsche Bank National Trust Company is now and was at the commencement of
1 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999).
2 28 U.S.C. §1332(a)(1).
3 See Plaintiff’s Original Petition (the “Complaint”) at ¶2.
4 Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L.Ed.2d 425 (1980).
this action and all intervening times, a national banking association that has its principal office in California, as stated in its charter. Therefore, as a national banking association organized under the laws of the United States, Deutsche Bank and thus Trustee are citizens of California for diversity purposes.5
7. Since Plaintiff is a citizen of Texas and Defendant is a citizen of a state other than Texas, complete diversity of citizenship exists.6
B. Amount in Controversy
8. This case places an amount in controversy that exceeds the $75,000 threshold.
A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction.7
Such jurisdiction exists as long as the parties are completely diverse and the amount in controversy exceeds $75,000.00.8
9. When ascertaining the amount in controversy in the context of a motion to remand, district courts query whether a plaintiff’s state court petition, as it existed at the time of removal, alleged damages in excess of the statutory minimum.9
If the petition does not allege a specific amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy requirement is satisfied.10
The removing party satisfies this burden if the court finds it “facially apparent” that the plaintiff’s claimed damages likely exceed $75,000.00.11 In this instance, Plaintiff’s Complaint makes it facially apparent that Plaintiff’s claimed damages exceed $75,000.00 given that Plaintiff seeks temporary and permanent injunctive relief that would
5 28 U.S.C. § 1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006).
6 See 28 U.S.C. § 1332(c)(1).
7 See 28 U.S.C. §1441(a).
8 See 28 U.S.C. §1332(a).
9 See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir.1996).
10 See Lewis v. State Farm Lloyds, 205 F. Supp. 2d 706, 708 (S.D. Tex. 2002) citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993); see also Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (explaining that the removing party bears the burden of showing that federal jurisdiction exists and that removal is proper).
11 Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995).
preclude Defendant from conducting a foreclosure sale on the collateral securing the subject loan and the value of the property exceeds $75,000.00.
10. The filing of the present suit seeks to stop and has halted a foreclosure attempt by Defendant on property located at 16543 Inwood Cove, San Antonio, Texas 78248 (the “Property”).12 The value of the Property according to the Bexar County Appraisal District for 2023 is no less than $552.184.00. See Exhibit D.
11. As Plaintiff references in his Complaint, he seeks injunctive relief precluding Trustee from foreclosing on the Property.13
12. Federal jurisdiction can be established by facts alleged in the petition for removal that support a conclusion that the amount in controversy requirement is satisfied.14 “In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.”15 Plaintiff seeks relief which has and will continue to preclude enforcement of the contractual loan obligations or Defendant’s right to foreclose on and take possession of the subject property.
13. “[W]hen the validity of a contract or a right to property is called into question in its entirety, the value of the property controls the amount in controversy.”16 “[T]he amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extent of the injury to be prevented.”17 Also, where a party seeks to quiet title or undo a foreclosure, the object of the litigation is the property at issue and the amount in controversy is measured by the value of the property.18 The value of the subject property in this instance for diversity
12 See Plaintiff’s Complaint at ¶ 8.
13 See Complaint at ¶¶ 35-40 and Prayer.
14 Menendez v. Wal-Mart Stores, Inc., 364 Fed. Appx. 62, 66, 2010 WL 445470, 2 (5th Cir. 2010) (unpublished) (citing Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638-39 (5th Cir. 2003)).
15 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).
16 Waller v. Prof’l Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961).
17 Webb v. Investacorp, Inc., 89 F.3d 252 (5th Cir. 1996), citing Leininger v. Leininger, 705 F. 2d 727 (5th Cir. 1983).
18 See Berry v. Chase Home Fin., LLC, 2009 WL 2868224, at *2 (S.D. Tex. August 27, 2009)
purposes is no less than $552.184.00 per the records of the Bexar County Appraisal District for 2023.
See Exhibit D. The value of the Property in this instance satisfies the jurisdictional amount of $75,000.00 for diversity purposes.
V. JURY DEMAND
14. Plaintiff has not made any known jury demand in the State Court Action.
VI. CONCLUSION
15. For the foregoing reasons, Defendant asks the Court to remove this suit to the United States District Court for the Western District of Texas, Austin Division.
Respectfully submitted,
By: /s/ Michael F. Hord Jr.
Michael F. Hord Jr.
State Bar No. 00784294
Federal I.D. No. 16035
Eric C. Mettenbrink
State Bar No. 24043819
Federal I.D. No. 569887
HIRSCH & WESTHEIMER, P.C.
1415 Louisiana, 36th Floor
Houston, Texas 77002-2772
Tel 713-220-9182 / Fax 713-223-9319
E-mail: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of January, 2024, a true and correct copy of the foregoing Notice of Removal was forwarded as follows:
James Martzall
Pro Se
16543 Inwood Cove
San Antonio, Texas 78248
Via ECF and Regular Mail
/s/ Michael F. Hord Jr. Michael F. Hord Jr.
Response due: Friday, February 2, 2024 (excl. postal allowance)
ORDER
On this date the Court considered the status of the above styled and numbered case.
It has come to the Court’s attention that a previously filed suit by Plaintiff against Defendant relates to the same mortgage loan on 16543 Inwood Cove, San Antonio, Texas 78248.
See Martzall v. Deutsche Bank National Trust Company, No. 5:22-CV-00018-XR (W.D. Tex. January 10, 2022).
There, the case was dismissed with prejudice.
Id. at Dkt. No. 39.
The court may raise res judicata sua sponte in the interest of judicial economy where both actions were brought before the same court and claims are nearly identical to claims previously litigated before the same court.
McIntryre v. Ben E. Keith Co., 754 F. App’x 262, 264 (5th Cir. 2018);
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.
Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005) (citing Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir. 2004).
The test for res judicata has four elements:
(1) the parties are identical or in privity;
(2) the judgment in the prior action was rendered by a court of competent jurisdiction;
(3) the prior action was concluded by a final judgment on the merits;
and
(4) the same claim or cause of action was involved in both actions.
Id. (citation omitted).
Generally, a “federal court’s dismissal with prejudice is a final judgment on the merits for res judicata purposes.”
Stevens v. Bank of America, N.A., 587 F.App’x 130, 133 (5th Cir. 2014).
If the four elements of res judicata exist, all claims arising from the “common nucleus of operative facts” are barred by res judicata.
P&G v. Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004)
(citing Agilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663 (5th Cir. 1994)).
Accordingly, it is hereby ORDERED that Plaintiff shall SHOW CAUSE within fourteen (14) days of the entry of this Order why the claims against Defendant should not be dismissed with prejudice based upon res judicata.
It is so ORDERED.
SIGNED this 19th day of January, 2024.
ORLANDO L. GARCIA
United States District Judge
Not having any luck with pacer this afternoon when trying to download the docket for this latest case. We’ll swing back around later.
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:24-cv-00042-OLG
| Martzall v. Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes Assigned to: Judge Orlando L. Garcia
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 01/09/2024 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| James Martzall | represented by | James Martzall 16543 Inwood Cove San Antonio, TX 78248 PRO SE |
| V. | ||
| Defendant | ||
| Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes | represented by | Eric C. Mettenbrink Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 220-9141 Fax: (713) 223-9319 Email: emettenbrink@hirschwest.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDMichael F. Hord , Jr. Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 223-5181 Fax: (713) 223-9319 Email: mhord@hirschwest.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/09/2024 | 1 | NOTICE OF REMOVAL by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes (Filing fee $405 receipt number ATXWDC-18284990), filed by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C-1, # 5 Exhibit C-2, # 6 Exhibit C-3, # 7 Exhibit C-4, # 8 Exhibit C-5, # 9 Exhibit C-6, # 10 Exhibit C-7, # 11 Exhibit D, # 12 Civil Cover Sheet, # 13 Supplement)(Hord, Michael) (Entered: 01/09/2024) |
| 01/12/2024 | 2 | Certificate of Interested Parties by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes. (Hord, Michael) (Entered: 01/12/2024) |
| 01/19/2024 | 4 | ORDER TO SHOW CAUSE –Accordingly, it is hereby ORDERED that Plaintiff shall SHOW CAUSE within fourteen (14) days of the entry of this Order why the claims against Defendant should not be dismissed with prejudice based upon res judicata. as to James Martzall.. Signed by Judge Orlando L. Garcia. (mgr) (Entered: 01/19/2024) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 02/09/2024 08:16:09 |
Judges Want to Throw You In Jail if You Share Any Personal Information About Them https://t.co/5Q8nExk2Ik
— lawsinusa (@lawsinusa) February 9, 2024
Martzall v. Select Portfolio Servicing, Inc.
(5:23-cv-00010)
District Court, W.D. Texas
JAN 4, 2023 | REPUBLISHED BY LIT: JAN 5, 2023
Oh, well, game back on…
Judge shoppin’ by creditor rights lawyer Hord includes leavin’ out the Magistrates:
NON-CONSENT to Trial by US Magistrate Judge by Select Portfolio Servicing, Inc.. (Hord, Michael) (Entered: 01/12/2023)
The R&R issued Dec. 12, 2023 recommends a prefiling injunction in federal court, but denies Hord’s “overbroad” request to extend that to state court. This would be affirmed by District Judge Garcia on Jan. 25, 2024.
Summary Judgment
Summary Judgment
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:23-cv-00010-OLG
| Martzall v. Select Portfolio Servicing, Inc. Assigned to: Judge Orlando L. Garcia
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 01/04/2023 Date Terminated: 01/25/2024 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| James Martzall | represented by | James Martzall 16543 Inwood Cove San Antonio, TX 78248 PRO SE |
| V. | ||
| Defendant | ||
| Select Portfolio Servicing, Inc. | represented by | Eric C. Mettenbrink Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 220-9141 Fax: (713) 223-9319 Email: emettenbrink@hirschwest.com ATTORNEY TO BE NOTICEDMichael F. Hord , Jr. Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 223-5181 Fax: (713) 223-9319 Email: mhord@hirschwest.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/04/2023 | 1 | NOTICE OF REMOVAL by Select Portfolio Servicing, Inc. (Filing fee $402 receipt number ATXWDC-16918788), filed by Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C-1, # 5 Exhibit C-2, # 6 Exhibit C-3, # 7 Exhibit D, # 8 Civil Cover Sheet, # 9 Supplement)(Hord, Michael) (Entered: 01/04/2023) |
| 01/06/2023 | 2 | Certificate of Interested Parties by Select Portfolio Servicing, Inc.. (Hord, Michael) (Entered: 01/06/2023) |
| 01/09/2023 | 3 | ORDER AND ADVISORY–It is ORDERED that the Plaintiff(s) confer with the Defendant(s) as required by Fed.R.Civ.P 26(f) and Local Court Rule CV-16(c) to submit a proposed scheduling order for the Court’s consideration within forty-five (45) days of the filing of this Order. The parties are hereby ORDERED to notify the Court whether or not they consent, under 28 U.S.C. Section 636(c), to Magistrate Judge jurisdiction within thirty (30) days of the date of the filing of this Order. Signed by Judge Orlando L. Garcia. (nm) (Entered: 01/09/2023) |
| 01/12/2023 | 4 | NON-CONSENT to Trial by US Magistrate Judge by Select Portfolio Servicing, Inc.. (Hord, Michael) (Entered: 01/12/2023) |
| 02/27/2023 | 5 | Proposed Scheduling Order by Select Portfolio Servicing, Inc.. (Hord, Michael) (Entered: 02/27/2023) |
| 03/10/2023 | 6 | SCHEDULING ORDER: Bench Trial set for 12/18/2023 9:30 AM before Judge Orlando L. Garcia, Pretrial Conference set for 12/13/2023 9:30 AM before Judge Orlando L. Garcia, ADR Report Deadline due by 5/9/2023, ADR Mediation Completed by 8/29/2023, Amended Pleadings due by 5/10/2023, Discovery due by 7/24/2023, Joinder of Parties due by 5/10/2023, Dispositive Motions due by 8/8/2023,. Signed by Judge Orlando L. Garcia. (nm) (Entered: 03/10/2023) |
| 08/01/2023 | 7 | MOTION for Summary Judgment and Brief in Support by Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Exhibit 1-D, # 6 Exhibit 1-E, # 7 Exhibit 1-F, # 8 Exhibit 1-G, # 9 Exhibit 1-H, # 10 Exhibit 2, # 11 Exhibit 2-A, # 12 Exhibit 2-B, # 13 Proposed Order)(Hord, Michael) (Entered: 08/01/2023) |
| 08/16/2023 | 8 | MOTION for Sanctions by Select Portfolio Servicing, Inc.. (Attachments: # 1 Proposed Order)(Hord, Michael) (Entered: 08/16/2023) |
| 08/24/2023 | 9 | ORDER REFERRING CASE to Magistrate Judge Henry J. Bemporad and Judge Henry J. Bemporad. Signed by Judge Orlando L. Garcia.. Referral Magistrate Judge: Henry J. Bemporad. (mgr) (Entered: 08/24/2023) |
| 08/29/2023 | 10 | ORDER TO SHOW CAUSE as to James Martzall–Plaintiff must respond to Defendant’s Motion for Summary Judgment. Show Cause Response due by 9/20/2023,. Signed by Judge Henry J. Bemporad. (nm) (Entered: 08/29/2023) |
| 12/07/2023 | 11 | ORDER RESETTING TRIAL AND PRETRIAL CONFERENCE, (Bench Trial reset for 2/26/2024 9:30AM before Judge Orlando L. Garcia, Pretrial Conference set for 2/21/2024 10:30 AM before Judge Orlando L. Garcia,). Signed by Judge Orlando L. Garcia. (mgr) Modified on 12/8/2023 (tm2). (Entered: 12/07/2023) |
| 12/12/2023 | 12 | REPORT AND RECOMMENDATIONS re 7 Motion for Summary Judgment, filed by Select Portfolio Servicing, Inc., 8 Motion for Sanctions filed by Select Portfolio Servicing, Inc.. Signed by Judge Henry J. Bemporad. (mgr) (Entered: 12/12/2023) |
| 12/12/2023 | 13 | Certified Mail Receipt of 12 Report and Recommendations (mgr) (Entered: 12/12/2023) |
| 12/12/2023 | 14 | ORDER RETURNING CASE TO DISTRICT COURT, CASE NO LONGER REFERRED to Magistrate Judge Henry J. Bemporad. Signed by Judge Henry J. Bemporad. (mgr) (Entered: 12/12/2023) |
| 12/20/2023 | 15 | Certified Mail Receipt returned as delivered of 13 Certified Mail Receipt (mgr) (Entered: 01/02/2024) |
| 01/02/2024 | 16 | MOTION for Extension of Time to File Response/Reply as to 12 Report and Recommendations by James Martzall. (Attachments: # 1 Declaration)(mgr) (Entered: 01/04/2024) |
| 01/02/2024 | 17 | OBJECTION to 12 Report and Recommendations by Select Portfolio Servicing, Inc… (Attachments: # 1 Declaration)(mgr) (Entered: 01/04/2024) |
| 01/04/2024 | 18 | RESPONSE to 17 Objection to Report and Recommendations by Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hord, Michael) (Entered: 01/04/2024) |
| 01/12/2024 | 19 | MOTION to Dismiss by James Martzall. (mgr) (Entered: 01/16/2024) |
| 01/25/2024 | 20 |
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Report and Recommendations. ATTENTION: The Clerk of Court is directed not to docket any Martzall’s other filings until leave to proceed has been granted. Until such leave is granted, any other motions or documents that Martzall serves on the defendant(s) shall be nullities. Martzall’s failure to strickly comply with these requirements will result in prompt dismissal of his case. Signed by Judge Orlando L. Garcia. (mgr) (Entered: 01/29/2024) |
| 01/25/2024 | 21 | CLERK’S JUDGMENT (mgr) (Entered: 01/29/2024) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 02/10/2024 02:26:27 |
LIT COMMENTARY (2023)
JAN 1, 2023
The property was for sale between Jun and Sep 2022, but was removed. Martzall still homeowner per records.
James Martzall v. Select Portfolio Servicing, Inc.
(5:22-cv-00018)
District Court, W.D. Texas
JUN 9, 2022 | REPUBLISHED BY LIT: JUN 10, 2022
A BANK (TRUSTEE) IS NOT LIABLE FOR SERVICERS OBLIGATIONS, THE LAWSUITS SHOULD BE SEPARATE (IN RE RIDDLE, 5TH CIR.)
ORDER OF DISMISSAL, The Court construes Plaintiff’s Advisory as a Notice of Dismissal. 38 Advisory to the Court filed by James Martzall
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:22-cv-00018-XR
| Martzall v. Deutsche Bank National Trust Company Assigned to: Judge Xavier Rodriguez
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 01/10/2022 Date Terminated: 10/05/2022 Jury Demand: Defendant Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question |
| Date Filed | # | Docket Text |
|---|---|---|
| 08/31/2022 | 36 | MOTION for Summary Judgment by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes, Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Exhibit 1-D, # 6 Exhibit 1-E, # 7 Exhibit 1-F, # 8 Exhibit 1-G, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Proposed Order)(Hord, Michael) (Entered: 08/31/2022) |
| 09/01/2022 | 37 | MOTION for Sanctions by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes, Select Portfolio Servicing, Inc.. (Attachments: # 1 Proposed Order)(Hord, Michael) (Entered: 09/01/2022) |
| 10/03/2022 | 38 | ADVISORY TO THE COURT by James Martzall. (wg) (Entered: 10/03/2022) |
| 10/05/2022 | 39 | ORDER OF DISMISSAL, The Court construes Plaintiff’s Advisory as a Notice of Dismissal. 38 Advisory to the Court filed by James Martzall, DENIED 37 MOTION for Sanctions filed by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes, Select Portfolio Servicing, Inc., The Clerk is DIRECTED to send this Order to James Martzall 16543 Inwood Cove, San Antonio, Texas 78248. Signed by Judge Xavier Rodriguez. (wg) (Entered: 10/05/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 10/05/2022 19:15:17 |
ORDER, that Plaintiff shall no later than September 16, 2022, Plaintiff must file a notice advising the Court whether he intends to proceed pro se or whether he has secured counsel, who must also enter a notice of appearance no later than September 16, 2022.
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:22-cv-00018-XR
| Martzall v. Deutsche Bank National Trust Company Assigned to: Judge Xavier Rodriguez
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 01/10/2022 Jury Demand: Defendant Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question |
| Date Filed | # | Docket Text |
|---|---|---|
| 08/19/2022 | 34 | ORDER, that Plaintiff shall no later than September 16, 2022, Plaintiff must file a notice advising the Court whether he intends to proceed pro se or whether he has secured counsel, who must also enter a notice of appearance no later than September 16, 2022. Failure to do so may subject Plaintiffsclaims to dismissal for failure to prosecute re 32 Order, Terminate Motions. Signed by Judge Xavier Rodriguez. (wg) (Entered: 08/19/2022) |
| 08/19/2022 | 35 | AMENDED SCHEDULING ORDER, ( ADR Mediation Completed by 10/17/2022,, Discovery due by 10/3/2022,, Dispositive Motions due by 10/31/2022,, Jury Selection set for 2/6/2023 10:30AM before Judge Xavier Rodriguez,, Jury Trial set for 2/6/2023 10:30 AM before Judge Xavier Rodriguez,, Pretrial Conference set for 1/19/2023 10:30 AM before Judge Xavier Rodriguez,). Signed by Judge Xavier Rodriguez. (wg) (Entered: 08/19/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 08/24/2022 07:50:29 |
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:22-cv-00608-XR
| James Martzall v. Select Portfolio Servicing, Inc. Assigned to: Judge Xavier Rodriguez Lead case: 5:22-cv-00018-XR Member case: (View Member Case)
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 06/09/2022 Date Terminated: 06/28/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 06/13/2022 | 4 | MOTION to Consolidate Cases by Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order). Motions referred to Judge Elizabeth S. Chestney. (Hord, Michael) (Entered: 06/13/2022) |
| 06/13/2022 | 5 | ORDER WITHDRAWING ORDER OF REFERRAL re 3 Order Referring Case to Magistrate Judge, CASE NO LONGER REFERRED to Magistrate Judge Elizabeth S. Chestney. Signed by Judge Fred Biery. (wg) (Entered: 06/13/2022) |
| 06/13/2022 | 6 | ORDER OF TRANSFER & REASSIGNING CASE, related case SA22CV0018-XR. Case has been directly reassigned to Judge Xavier Rodriguez for all proceedings. Signed by Judge Fred Biery. (wg) (Entered: 06/13/2022) |
| 06/28/2022 | 7 | ORDER GRANTING CONSOLIDATION re 4 MOTION to Consolidate Cases filed by Select Portfolio Servicing, Inc., The Court hereby ORDERS that SA-22-CV-00608-XR be consolidated into SA-22-CV-00018-XR. It is FURTHER ORDERED that all future filings be filed in SA-22-CV-00018-XR. The Clerks Office is therefore DIRECTED to administratively close SA-22-CV-00608-XR pending further order of the Court. Signed by Judge Xavier Rodriguez. (wg) (Entered: 06/28/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 07/14/2022 20:50:16 |
ORDER
On this date, the Court considered Defendant Deutsche Bank’s Motion to Consolidate in SA-22-CV-00018-XR (ECF No. 31) and Defendant Select Portfolio Servicing, Inc.’s Motion to Consolidate in SA-22-CV-00608-XR (ECF No. 4).
After careful consideration, the Court issues the following order.
BACKGROUND
Plaintiff James Martzall (“Martzall”) owns real property located at 16543 Inwood Cove, San Antonio, Texas 78248.
ECF No. 16 ¶ 5.1
Martzall purchased the property for $234,320 on February 28, 2006, with a mortgage loan from Accredited Home Lenders, Inc. secured by a deed of trust that was later assigned to Defendant Deutsche Bank (“Deutsche Bank”) as trustee on behalf of the Accredited Mortgage Loan Trust 2006-2 (“2006-2 Trust”).
Id. ¶¶ 2, 7–8.
Martzall alleges that Select Portfolio Servicing, Inc. (“SPS”) is the agent and mortgage servicer of the mortgage note and deed of trust on behalf of Deutsche Bank, and that both SPS and Deutsche Bank claim the power of sale under the deed of trust.
Id. ¶¶ 9–10.
On July 21, 2014, SPS sent Martzall a notice of intent to accelerate the loan.
Id. ¶ 11.
Between May 2015 and January 2022, SPS and Deutsche Bank filed with the Bexar County Clerk and sent Martzall nine notices of nonjudicial foreclosure.
Id. ¶ 12.
However, none of these scheduled sales took place.
Id. ¶ 13.
According to Martzall, “All of the notices of sale that were filed . . . stated that the amount of the Loan debt was ‘wholly due.’”
Id. ¶ 14.
On December 30, 2021, Martzall filed a lawsuit in the 131st Judicial District Court of Bexar County, naming “Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes” as the defendant.
ECF No. 1-4 at 1.
On January 10, 2022, Deutsche Bank timely removed the case to this Court on the basis of diversity jurisdiction.2
ECF No. 1 ¶ 1.
On March 1, 2022, Martzall filed an amended complaint, seeking a permanent injunction preventing Deutsche Bank from interfering with his ownership of the property and a declaratory judgment specifying that any future foreclosure sale is time-barred and that Deutsche Bank’s deed of trust is void.
See ECF No. 16 at 6.
On April 19, 2022, Martzall filed a motion for a preliminary injunction.
ECF No. 21.
SPS and Deutsche Bank had sent Martzall a notice of nonjudicial foreclosure to take place on June 7, 2022.
ECF No. 21-6.
Martzall, therefore, sought a court order enjoining SPS and Deutsche Bank from interfering with his property.3
ECF No. 21 at 8.
After hearing oral argument, the Court denied Martzall’s motion for a preliminary injunction, finding that Martzall had not shown a likelihood of success on the merits.
Text Order, May 13, 2022.
Thereafter, on June 3, 2022, Martzall, proceeding pro se, filed a second lawsuit in the 225th Judicial District Court of Bexar County against SPS, seeking a court order preventing foreclosure of the same property.4
See Pet., Martzall v. Select Portfolio Servicing, Inc., No. 5:22-CV-00608- XR (W.D. Tex. June 9, 2022), ECF No. 1-4.
He obtained a temporary ex parte restraining order temporarily preventing foreclosure of his property.
See Order, Select Portfolio Servicing, No. 5:22- CV-00608-XR, ECF No. 1-5.
On June 9, 2022, SPS removed that action to this Court.
Not. of Removal, Select Portfolio Servicing, No. 5:22-CV-00608-XR, ECF No. 1.
On June 13, 2022, Deutsche Bank and SPS filed motions to consolidate in the removed actions.
See ECF No. 31; see also Mot. to Consol., Select Portfolio Servicing, No. 5-22-CV-00608- XR, ECF No. 4.
DISCUSSION
I. Legal Standard
Federal Rule of Civil Procedure 42 provides that a federal district court may consolidate actions that involves common questions of law or fact. FED. R. CIV. P. 42(a).
The purpose of consolidation is to “avoid unnecessary costs or delay.”
Id.; Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1531 (5th Cir.1993).
A district court has very broad discretion in deciding whether to consolidate.
Frazier, 980 F.2d at 1531–32.
In determining whether consolidation is appropriate, the district court examines factors that include the following:
(1) whether the actions are pending before the same court,
(2) whether common parties are involved in the cases,
(3) whether there are common questions of law and/or fact,
(4) whether there is risk of prejudice or confusion if the cases are consolidated, and if so, is the risk outweighed by the risk of inconsistent adjudications of factual and legal issues if the cases are tried separately,
(5) whether consolidation will conserve judicial resources,
(6) whether consolidation will result in an unfair advantage,
(7) whether consolidation will reduce the time for resolving the cases,
and
(8) whether consolidation will reduce the cost of trying the cases separately.
See Harris v. Bexar County, No. SA–08–CV–728–XR, 2009 WL 4059092, at *1 (W.D. Tex. Nov. 23, 2009)
(quoting Zolezzi v. Celadon Trucking Servs. Inc., No. H–08–3508, 2009 WL 736057, at *1 (S.D. Tex. March 16, 2009));
Russo v. Alamosa Holdings, Inc., No. Civ. A. 5:03–CV–312–C, 2004 WL 579378, at *1 (N.D. Tex. Feb. 27, 2004).
II. Analysis
The Court finds that consolidation is proper.
The actions are pending before the same court.
The cases involve common questions of law and fact.
Indeed, both cases involve the same property, transactions, and occurrences.
The only difference is that the second lawsuit identifies SPS as the defendant.
But it is undisputed that SPS is the mortgage servicer for the same loan secured by Martzall’s property.
There is also no risk of prejudice or confusion if the cases are consolidated.
Further, no unfair advantage will result if the cases are consolidated.
Moreover, the interests of judicial economy dictate that the matters be consolidated.
CONCLUSION
Accordingly, Defendant Deutsche Bank’s Motion to Consolidate in SA-22-CV-00018-XR (ECF No. 31) and Defendant Select Servicing Portfolio, Inc.’s Motion to Consolidate in SA-22- CV-00608-XR (ECF No. 4) are hereby GRANTED.
The Court hereby ORDERS that SA-22-CV-00608-XR be consolidated into SA-22-CV- 00018-XR. It is FURTHER ORDERED that all future filings be filed in SA-22-CV-00018-XR.
Given these circumstances, the Court concludes that SA-22-CV-00608-XR is appropriate for administrative closure.
See Mire v. Full Spectrum Lending, Inc., 389 F.3d 163, 167 (5th Cir. 2014).
The Clerk’s Office is therefore DIRECTED to administratively close SA-22-CV-00608- XR pending further order of the Court.
It is so ORDERED. SIGNED this June 28, 2022.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
No movement since the court decided who’s the hand-picked judge on 13th of June, takin’ it back from the magistrate judge.
Catch up with Jim Martzall’s prior case against Deutsche Bank here, where he was represented by “the best foreclosure defense law firms in Texas for stealin’ your dosh to defend you” – as none of these losers ever win a foreclosure for a homeowner, especially against that German-Russian Bank.
So James Martzall has finally made the move to non-prisoner, pro se status.
Follow LIT as we track Jim’s case.
U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:22-cv-00608-FB
Create an Alert for This Case on RECAP
| James Martzall v. Select Portfolio Servicing, Inc. Assigned to: Judge Fred Biery
Cause: 28:1441 Petition for Removal – Foreclosure |
Date Filed: 06/09/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| James Martzall | represented by | James Martzall 16543 Inwood Cove San Antonio, TX 78248 PRO SE |
| V. | ||
| Defendant | ||
| Select Portfolio Servicing, Inc. | represented by | Eric C. Mettenbrink Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 220-9141 Fax: (713) 223-9319 Email: emettenbrink@hirschwest.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDMichael F. Hord , Jr. Hirsch & Westheimer, PC 1415 Louisiana 36th Floor Houston, TX 77002 (713) 223-5181 Fax: (713) 223-9319 Email: mhord@hirschwest.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 06/09/2022 | 1 | NOTICE OF REMOVAL by Select Portfolio Servicing, Inc. (Filing fee $402 receipt number 0542-16125224), filed by Select Portfolio Servicing, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C-1, # 5 Exhibit C-2, # 6 Exhibit C-3, # 7 Exhibit D, # 8 Civil Cover Sheet Civil Cover Sheet)(Hord, Michael) (Entered: 06/09/2022) |
| 06/09/2022 | 2 | JS44 (Civil Cover Sheet) submitted by Select Portfolio Servicing, Inc.. (Hord, Michael) (Entered: 06/09/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 06/10/2022 15:01:54 |
Another District Judge That’s Corrupt and Doesn’t Follow 5th Circuit Precedent.
Judge Rodriguez quoted a 5th Cir case from 2014, but Riddle was 2018, and a very significant published opinion.
The consolidation order should be contested by Martzall.https://t.co/mm0JQiEH9J
— lawsinusa (@lawsinusa) June 28, 2022
Against All Odds: Elizabeth Callan Received a Mortgage-Free Home from Deutsche Bank
Eventually, Every Outlaw Agreed Deutsche Bank Didn’t Universally Abandon Acceleration, Except Deutsche Bank, who Released the Original Loan.
Ten Buck Bandit: Lawyer Silvia Mintz Files Fraudulent Legal Docs in Harris County Real Property Records
This article will be updated once the foreclosure trustee deed is (or isn’t) posted in real property records.
Eva Morales Sued by DBNTCO and Endures Bottom Feeder Foreclosure Mill Legal Shenanigans
LIT let this latest case percolate in the draft section and what happened on May 2, 2024 was expected, the case would be nonsuited by DBNTCO.
