Debt Collector

LIT’s Foreclosure Tracker is Now Following ‘Vanie’ Before Judge Eskridge, S.D. Tex., Houston

Vanie’s modest home is under threat of a writ of possession and she’s strugglin’ to defend the federal court action as a pro se.

Patel v. Houston

(4:21-cv-01838)

District Court, S.D. Texas

JUN 7, 2021 | REPUBLISHED BY LIT: SEP 20, 2021

MINUTE ENTRY ORDER:

The Court conducted the initial conference on August 26, 2021. Defendant is pro se but attempted to have her Attorney-Agent, Gunny Thompson appear on her behalf. The Court instructed Defendant she can only be represented by a licensed attorney admitted to practice in the Southern District of Texas.

The Court admonished Defendant to timely file a response to Plaintiff’s motion to remand (Dkt. No. 6). Defendant acknowledged the Court’s admonishment. Defendant has now filed a one-sentence Emergency Motion (Dkt. No. 15) asserting that: Due to unforseen event occuring to disrupt the active pursuit of Houston claim, a thirty-day stay is requested to present a positive defense. Defendant provided no further explanation.

Defendant’s motion is GRANTED IN PART and DENIED IN PART. It is ORDERED that Defendant shall have until September 28, 2021 to file a response to Plaintiff’s motion to remand (Dkt. No. 6). NO FURTHER EXTENSIONS SHALL BE GRANTED.

(Signed by Magistrate Judge Sam S Sheldon) Parties notified.(sjones, 4) (Main Document 16 replaced on 9/7/2021) (sjones, 4). (Entered: 09/07/2021)

LIT UPDATE: DEC 3, 2021

Homeowner Vanie Houston submitted the following letter (image screenshot) to the court, as docketed on Dec. 3, 2021, claiming her “attorney” was Gunny Thompson and he was taking money from her for legal representation when in fact he is not a Texas lawyer. See the case from 2015 in WDTX (transcribed below) where Thompsons’ decade long unauthorized practice of law is detailed. It appears that any ‘permanent injunction’ is not stopping him from this unlawful behavior.

GUNNY THOMPSON, UNAUTHORIZED PRACTICE OF LAW SINCE AT LEAST 2011

08-31-2015

UNAUTHORIZED PRACTICE OF LAW COMMITTEE v. JAMES LEE THOMPSON

ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE

GUNNY THOMPSON, AFRICAN-AMERICAN LEGAL DEFENSE GROUP

Before the Court are: James Lee Thompson’s Motion to Proceed without the Payment of Costs (Dkt. No. 2); Thompson’s Motion for Permission to Electronically File (Dkt. No. 3); Thompson’s Motion for Protective Order (Dkt. No. 4); and the Unauthorized Practice of Law Committee’s Motion to Remand and for Sanctions (Dkt. No. 9).

The Magistrate Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

I. GENERAL BACKGROUND

After receiving numerous complaints concerning the unauthorized practice of law by James Lee Thompson a/k/a Jim Thompson a/k/a Gunny Thompson a/k/a African American Legal Defense Group (“Thompson”), on March 21, 2011, the Unauthorized Practice of Law Committee (“Committee”) filed suit in state court in Harris County, Texas, against Thompson individually, and d/b/a African American Defense League, accusing Thompson of the unauthorized practice of law on multiple occasions.

See Unauthorized Practice of Law Committee v. Thompson, No. 988, 308 (Co. Ct. at Law No. 4, Harris County, Tex. Mar. 21, 2011). Because Thompson failed to appear and answer, on July 8, 2011, the court entered a Default Judgment and Permanent Injunction against Thompson prohibiting him from engaging in certain specified activities that constitute the unauthorized practice of law.

See Permanent Injunction (Exh. A to Dkt. No. 9).

Despite entry of the Permanent Injunction, the Committee continued to receive complaints alleging that Thompson was still engaging in the unauthorized practice of law.

Therefore, on December 12, 2012, the Committee filed a Contempt Proceeding in the state court that originally issued the Permanent Injunction against Thompson, seeking to hold Thompson in contempt for violating the Permanent Injunction by continuing to engage in the unauthorized practice of law.

Exh. C to Dkt. No. 9.

Instead of responding to the Contempt Proceeding, Thompson filed his first Notice of Removal seeking to have the Contempt Proceeding removed to the Southern District of Texas, Houston Division. Notice of Removal in 4:13-cv-00311(Exh. E to Dkt. No. 9).

On March 8, 2013, the District Court for the Southern District of Texas, Houston Division, granted the Committee’s Motion to Remand and remanded the case to state court.

Exh. G to Dkt. No. 9.

After the case was remanded, the Committee filed a Motion to Hold Defendant in Contempt for Violation of Permanent Injunction, Motion to Show Cause, and Motion to Enforce Permanent Injunction.

Exh. I to Dkt. No. 9.

After Thompson failed to appear at the Show Cause Hearing, the state court signed an Amended Order of Attachment holding Thompson in contempt of court for failing to comply with the court’s Order to Show Cause, ordering that an Order of Attachment be issued for Thompson to appear before the court on August 5, 2015, and setting an appearance bond in the amount of $1,000.

Rather than appear at the Show Cause Hearing, on July 27, 2015, Thompson filed his second Notice of Removal removing the case to this Court pursuant to 28 U.S.C. § 1441(a), alleging that the Contempt Proceeding includes claims arising under the First, Fourth and Fourteenth Amendments to the United States Constitution.

In response, the Committee filed the instant Motion to Remand and for Sanctions requesting that the Court remand the case to state court and sanction Thompson for the improper removal.

II. ANALYSIS
A. Motion for In Forma Pauperis

On the same day he removed this case to Federal Court, Thompson filed a Motion to Proceed In forma Pauperis.

Dkt. No. 2.

Because Thompson failed to submit a financial affidavit in support of his Motion for In Forma Pauperis, on July 29, 2015, the Court ordered Thompson to complete a financial affidavit in full and file it with the Court by August 10, 2015.

See Dkt. No. 7.

Thompson failed to comply with the Court’s order and has failed to pay the required filing fee in this case.

Accordingly, Thompson’s Motion to Proceed In Forma Pauperis (Dkt. No. 2) and Motion for Permission to Electronically File (Dkt. No. 3) are DENIED.

B. Motion to Remand

The Committee argues that this case should be remanded to state court because

(1)Thompson failed to file his Notice of Removal within the 30-day time limit contained in 28 U.S.C. § 1446(b)(1);

(2) Thompson failed to file the Notice of Removal in the proper United States District Court as is required by 28 U.S.C. § 1446(a);

and

(3) removal was improper because the underlying Contempt Proceeding does not contain a federal cause of action.

The Court agrees.

28 U.S.C. § 1446(b)(1) requires that a notice of removal to be “filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . .” 28 U.S.C. § 1446(b)(1). Thompson was served with the Contempt Proceeding on January 3, 2013.

Exh. D to Dkt. No. 9.

However, Thompson did not file the instant Notice of Removal until July 27, 2015, more than two years after the statutory deadline. Accordingly, removal in this case was improper.

See Medina v. JIK Cayman Bay Exchange LLC, 2014 WL 923962, at *8 (N.D. Tex. 2014) (“Defendants’ subsequent removal of this suit to federal court more than 30 days after service was improper and this case should therefore be remanded to state court”).

Thompson’s Notice of Removal is also improper because it was not filed in the United States District Court where the underlying state court action is pending. A defendant desiring to remove a state court action to federal court must “file in the district court of the United States for the district and division within which such action is pending.” 28 U.S.C. § 1446(a);

see also, 28 U.S.C. § 1441(a) (providing that “any 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 . . . to the district court of the United States for the district and division embracing the place where such action is pending.”) (emphasis added).

The underlying Contempt Proceeding in this case is pending in Harris County, Texas, which is located in the Southern District of Texas. Thompson incorrectly filed the Notice of Removal in the Western District of Texas.

Thompson’s removal is also improper because once a case is remanded to state court, a defendant is precluded “from a second removal on the same ground.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996) (citing St. Paul &C. Ry. Co. v. McLean, 108 U.S. 212, 216-17 (1883)) (emphasis in original).

“The prohibition against removal “on the same ground” does not concern the theory on which federal jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather the pleading or event that made the case removable.” Id. Thus, a second removal is permitted only when a new pleading or event provides a new factual basis for removal. Id. at 493-44.

As noted, Thompson previously removed this Contempt Proceeding to the Southern District of Texas, which promptly remanded it to state court. Since the last remand of this action, no new pleading or event has changed the facts regarding the removableness of this case. Accordingly, Thompson’s second removal is improper.

See Washington v. Riley, 2014 WL 993515, at *3-5 (W.D. La. Mar. 13, 2104) (finding that removal was improper where case had been previously removed and remanded); Caughran v. Strauss, 1999 WL 33290610, at * 4 (W.D. Tex. Oct. 29, 1999) (same).

Based upon the foregoing, Thompson’s removal of this case was clearly improper and it must be remanded to state court.

C. Sanctions

Pursuant to 28 U.S.C. § 1447(c), the Committee requests that the Court sanction Thompson by awarding attorneys’ fees in this case. Section 1447(c) provides that, “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). A court “may award attorney’s fees when the removing party lacks an objectively reasonable basis for removal.” Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir.) (per curiam) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (holding that “[a]bsent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal”)), cert. denied, 562 U.S. 1044 (2010).

The Supreme Court in Martin explained, “[t]he appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied.” 546 U.S. at 140.

As discussed above, there was no objectively reasonable basis for the removal of this case. Thompson’s removal was untimely, filed in the wrong district, and filed after the case was previously remanded to state court by the Southern District of Texas. In addition, it appears that Thompson filed the Notice of Removal for the improper purpose of avoiding the contempt proceedings against him and specifically, the state court hearing set for August 5, 2015.

Based upon the above-actions, the Court recommends that the District Court award the Committee its reasonable and necessary attorneys’ fees and costs incurred in filing the instant Motion to Remand. The Court further recommends that the District Court bar Thompson from removing the underlying state court action to any federal district court.

III. RECOMMENDATION

Based upon the foregoing, the Court RECOMMENDS that the District Court GRANT the Unauthorized Practice of Law Committee’s Motion to Remand and for Sanctions (Dkt. No. 9) and REMAND this case to County Court of Law No. 4 of Harris County, Texas.

The Court FURTHER RECOMMENDS that the District Court DENY Thompson’s Motion for Protective Order (Dkt. No. 4).

Lastly, the Court RECOMMENDS that the District Court SANCTION James Lee Thompson by (1) awarding the Unauthorized Practice of Law Committee’s reasonable and necessary attorney’s fees and costs incurred in filing the instant Motion to Remand and for Sanctions; and (2) barring Thompson from any further removals of the state court action to any federal district court.

The Committee must file an affidavit with the District Court detailing their attorneys’ fees and costs before the District Court can issue an Order awarding such fees. ——–

IV. WARNINGS

The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report, and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

To the extent that a party has not been served by the Clerk with this Report & Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is directed to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested.

SIGNED this 31st day of August, 2015.

/s/_________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

 LIT is tracking the case. Please bookmark for further updates as the lawsuit develops. We’ll be updating this article accordingly.

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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-01838

Patel v. Houston
Assigned to: Judge Charles Eskridge
Referred to: Magistrate Judge Sam S Sheldon

Case in other court:  Justice of the Peace Court, Precinct 1, Place 2, 211200116942

Cause: 28:1441 Notice of Removal

Date Filed: 06/07/2021
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Federal Question
Plaintiff
Mahesh Patel represented by John Vincent Burger
Burger Law Firm
4151 Southwest Frwy
Ste 680
Houston, TX 77027
713-960-9696
Fax: 713-961-4403
Email: burgerlawfirm@aol.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDKeith Allen Wolfshohl
Barry & Sewart, PLLC
4151 Southwest Freeway
Suite 680
Houston, TX 77027
713-722-0281
Fax: 713-722-9786
Email: keithw@barryandsewart.com
ATTORNEY TO BE NOTICED
V.
Defendant
Vanie D Houston represented by Vanie D Houston
1319 Wichman St
Houston, TX 77002
713-880-8357
PRO SE

 

Date Filed # Docket Text
06/07/2021 1 NOTICE OF REMOVAL from Justice of Peace, Precinct 1, Pl 2, case number 211200116942 ( Filing fee $ 402) filed by Vanie D Houston.(thanniable, 4) (Entered: 06/07/2021)
07/07/2021 2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 8/17/2021 at 10:45 AM in by video before Magistrate Judge Sam S Sheldon. (Signed by Judge Charles Eskridge) Parties notified.(ClaudiaGutierrezadi, 4) (Entered: 07/07/2021)
07/07/2021 3 SCHEDULING AND DOCKET CONTROL ORDER. Amended Pleadings due by 10/19/2021. Joinder of Parties due by 9/16/2021 Pltf Expert Witness List due by 4/19/2022. Pltf Expert Report due by 4/19/2022. Deft Expert Witness List due by 5/19/2022. Deft Expert Report due by 5/19/2022. Discovery due by 7/6/2022. Mediation due by 9/20/2022. Dispositive Motion Filing due by 8/5/2022. Non-Dispositive Motion Filing due by 8/5/2022. Joint Pretrial Order due by 10/20/2022. Docket Call set for 11/21/2022 at 09:30 AM in Courtroom 8B before Judge Charles Eskridge(Signed by Judge Charles Eskridge) Parties notified.(jguajardo, 4) (Entered: 07/07/2021)
07/07/2021 4 ORDER REFERRING CASE to Magistrate Judge Sam S Sheldon(Signed by Judge Charles Eskridge) Parties notified.(jguajardo, 4) (Entered: 07/07/2021)
08/16/2021 5 NOTICE of Appearance by John V. Burger on behalf of Mahesh Patel, filed. (Wolfshohl, Keith) (Entered: 08/16/2021)
08/17/2021 6 MOTION to Remand by Mahesh Patel, filed. Motion Docket Date 9/7/2021. (Attachments: # 1 Proposed Order)(Burger, John) (Entered: 08/17/2021)
08/17/2021 8 MOTION for a 30 day stay of proceedings by Vanie D Houston, filed. Motion Docket Date 9/7/2021. (ckrus, 4) (Entered: 08/18/2021)
08/17/2021 9 INITIAL DISCLOSURES by Vanie D Houston, filed.(ckrus, 4) (Entered: 08/18/2021)
08/17/2021 10 NOTICE of Appearance by Attorney-Agent Gunny Thompson on behalf of Vanie D Houston, filed. (ckrus, 4) (Entered: 08/18/2021)
08/18/2021 7 ORDER: On July 7, 2021, Judge Eskridge issued an Order setting the Initial Conference at 10:45 a.m. on August 17, 2021. (Dkt. No. 2.) He further ordered the parties: At least 14 days before the initial pretrial conference, counsel and all parties appearing pro se must complete and file the Joint Discovery/Case Management Plan using the form attached to the Court’s procedures. See FRCP 26(f). (Id. at 2.) The parties have failed to comply with this order. The parties are ORDERED to immediately submit a Joint/Discovery/Case Management Plan. It is further ORDERED that the Initial Conference set for 10:15 a.m. on August 18, 2021 is continued to 9:00 a.m. on August 26, 2021 by Zoom. (Signed by Magistrate Judge Sam S Sheldon) Parties notified.(sjones, 4) (Entered: 08/18/2021)
08/18/2021 11 INITIAL DISCLOSURES by Mahesh Patel, filed.(Burger, John) (Entered: 08/18/2021)
08/19/2021 12 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Mahesh Patel, filed. (Attachments: # 1 Supplement PLAINTIFFS STATEMENT REGARDING COMPLAINCE WITH COURTS ORDER TO PREPARE DISCOVERY CONTROL PLAN WITH DEFENDANT)(Burger, John) (Entered: 08/19/2021)
08/26/2021 13 CORRECTIVE MINUTE ENTRY: The Court conducted the initial conference. Defendant is pro se but attempted to have her Attorney-Agent, Gunny Thompson appear on her behalf. The Court instructed Defendant she can only be represented by a licensed attorney admitted to practice in the Southern District of Texas. The Court admonished Defendant to timely file a response to Plaintiff’s motion to remand (Dkt. No. 6). Defendant acknowledged the Court’s admonishment. Appearances: Vanie Houston, pro se; John Vincent Burger. Ct Reporter: ERO. Digital Number: 9:00-9:14AM.(Signed by Magistrate Judge Sam S Sheldon) Parties notified.(sjones, 4) (Entered: 08/26/2021)
09/07/2021 14 Preliminary Statement by Vanie D Houston, filed.(MelissaMorgan, 4) (Entered: 09/07/2021)
09/07/2021 15 EMERGENCY MOTION( Motion Docket Date 9/28/2021.), MOTION for a 30 Day Stay of Proceedings by Vanie D Houston, filed. (MelissaMorgan, 4) (Entered: 09/07/2021)
09/07/2021 16 MINUTE ENTRY ORDER: The Court conducted the initial conference on August 26, 2021. Defendant is pro se but attempted to have her Attorney-Agent, Gunny Thompson appear on her behalf. The Court instructed Defendant she can only be represented by a licensed attorney admitted to practice in the Southern District of Texas. The Court admonished Defendant to timely file a response to Plaintiff’s motion to remand (Dkt. No. 6). Defendant acknowledged the Court’s admonishment. Defendant has now filed a one-sentence Emergency Motion (Dkt. No. 15) asserting that: Due to unforseen event occuring to disrupt the active pursuit of Houston claim, a thirty-day stay is requested to present a positive defense. Defendant provided no further explanation. Defendant’s motion is GRANTED IN PART and DENIED IN PART. It is ORDERED that Defendant shall have until September 28, 2021 to file a response to Plaintiff’s motion to remand (Dkt. No. 6). NO FURTHER EXTENSIONS SHALL BE GRANTED.(Signed by Magistrate Judge Sam S Sheldon) Parties notified.(sjones, 4) (Main Document 16 replaced on 9/7/2021) (sjones, 4). (Entered: 09/07/2021)
LIT’s Foreclosure Tracker is Now Following ‘Vanie’ Before Judge Eskridge, S.D. Tex., Houston
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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