Otero v. U.S. Bank Trust National Association
(4:21-cv-03295)
District Court, S.D. Texas
OCT 8, 2021 | REPUBLISHED BY LIT: OCT 20, 2021
Correction to prior updates
The civil case, where Otero was represented by foreclosure defense lawyer Delarue, was ‘administratively closed’ during the bankruptcy. Instead, the Bank’s removed it to the BK case in Dec., which we missed. (the Banks creditor rights (and foreclosure defense lawyer) Richard Anderson of Anderson Vela Law Firm).
Subsequently, it appears this foreclosure has been dismissed, subject to confirmation of the BK plan, which is still ongoing at this time when the Ch. 13 was opened, in Dec. 2021.
It’s 4 months since the Bankruptcy case ended.
The civil case, where Otero was represented by foreclosure defense lawyer Delarue, was ‘administratively closed’ during the bankruptcy but that has never been reopened by the Banks creditor rights (and foreclosure defense lawyer) Richard Anderson of Anderson Vela Law Firm.
LIT has questions.
In the Bankruptcy case on Apr 5, 2022: Close Adversary Case. No change noted in Federal Court foreclosure case as at May 16, 2022.
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03295
| Otero v. U.S. Bank Trust National Association Assigned to: Judge George C Hanks, Jr
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 10/08/2021 Date Terminated: 01/06/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
There are proceedings for case 4:21-cv-03295 but none satisfy the selection criteria.
| PACER Service Center | |||
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| Transaction Receipt | |||
| 04/24/2022 17:46:24 |
ORDER STAYING AND ADMINISTRATIVELY CLOSING CASE
The plaintiff in this wrongful foreclosure case has filed for Chapter 13 bankruptcy protection. See Southern District of Texas bankruptcy case number 21-33905.
Accordingly, this case is STAYED AND ADMINISTRATIVELY CLOSED.
The parties may request a referral to the bankruptcy court under subsection (1)(A) of Southern District of Texas General Order 2012-6.
SIGNED at Houston, Texas, this 6th day of January, 2022.
NOTICE OF REMOVAL
Defendant US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE OF THE CABANA SERIES IV TRUST, improperly named as U.S. BANK, N.A. (“US BANK”) respectfully notifies the Court pursuant to 28 U.S.C. §§ 157, 1334 and 1452(a), In Re: Order of Reference to Bankruptcy Judges, General Order 2012-6 (S.D. Tex. May 24, 2012) and Rule 9027 of the Federal Rules of Bankruptcy Procedure that it has this day removed this action from the United States District for the Southern District of Texas, Houston Division.
In support of such removal, Defendant states as follows:
THE DISTRICT COURT ACTION AND FACTS SUPPORTING REMOVAL
1. On or about October 4, 2021, Plaintiff filed his Plaintiff’s Original Petition, Application for Injunctive Relief and Request for Disclosures (the “Petition”) in the 164th Judicial District Court of Harris County, Texas in Cause No. 2021-64265 and styled Felix Otero v. U.S. Bank, N.A. (the “State Court Action) related to claims involving real property commonly known as 306 Plaza Del Sol Park, Houston, Texas 77020 (the “Property”) (improperly listed as 306 Plaza Sol Park, Houston, Texas 77020 in plaintiff’s state court petition).
Plaintiff identified the Property as his property to be included in the bankruptcy estate.
The State Court Action was filed to stop US Bank’s duly noticed foreclosure sale on the Property. Although Defendant was never served in the State Court Action, Defendant filed its Answer in state court on October 6, 2021 and on October 8, 2021, Defendant removed the State Court Action to the United States District Court of the Southern District of Texas, Houston Division, pursuant to the district court’s diversity jurisdiction, wherein it was assigned Case No. 4:21-cv-03295 (“the Federal District Court Action”).
2. Plaintiff filed his Title 11, Chapter 13 bankruptcy proceeding on December 6, 2021.1 The allegations pending in the Federal District Court Action are related claims or matters under Title 11 and include related bankruptcy claims arising under 28 U.S.C. § 157, including but not limited to 28 U.S.C. §§ 157(b)(1) & (b)(2) (A) (“matters concerning the administration of the estate”); (C) (“counter claims by the estate against persons filing claims against the estate”);
(G) (“motions to terminate, annual, or modify the automatic stay”); (H) (“proceedings to determine, avoid, or recover fraudulent conveyances”); (K)(“determinations of the validity, extend, or priority of liens”) and (O)(“other proceedings affecting the liquidation of the assets of the estate or the adjustment of debtor-creditor or the equity security holder relationship…”) and such claims are removable under 28 U.S.C. §§ 1334 and 1452(a).
3. This case is removable under 28 U.S. C. §§ 1334 & 1452(a) since the Federal District Court Action is a civil proceeding arising under Title 11 or arising in or related to cases under Title 11.
1 It is requested that the Court take judicial note of the Bankruptcy Docket for 21-33905, including the claims register, if any.
PROCEDURAL REQUIREMENTS
4. In compliance with the venue provisions of Fed. R. Bankr. P. 9027(a)(l), this Court, the United States Bankruptcy Court of the Southern District of Texas, is the court of the district and division within which the Federal District Court Action was pending at the time of this removal.
5. In compliance with S.D. Bankruptcy Local Rule 9027-2 this is a core proceeding. See 28 U.S.C.A. §§ 157(b)(2)(C), (K) & (O).
See In Re: Order of Reference to Bankruptcy Judges, General Order 2012-6 (S.D. Tex. May 24, 2012).
The Defendant, the party removing the Federal District Court Action, consent to the entry of final orders or judgment by the bankruptcy judge.
6. Plaintiff’s State Court Action was filed on October 4, 2021 and removed to the Federal District Court on October 8, 2021.
Defendant was never served in the State Court Action, but it filed its Answer in the State Court Action on October 6, 2021.
Plaintiff filed his bankruptcy action on December 6, 2021.
The State Court Action/Removal to Federal Court was commenced prior to the filing of the bankruptcy action.
This notice of removal is timely pursuant to Federal Rule of Bankruptcy Procedure 9027(a)(2)(A) because the notice of removal is filed within 90 days after the order for relief.2
7. A copy of this Notice of Removal has been served on all parties to the removed action as required by Rule 9027(b) of the Federal Rule of Bankruptcy Procedure.
8. Pursuant to 28 U.S.C. § 1446(a) and Bankruptcy Court Local Rule 9027-1 this Notice of Removal is accompanied by copies of the following materials:
Exhibit “A” Adversary Cover Sheet
2 “The commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter.” 11 U.S.C. § 301(b).
Exhibit “B” Index of matters being filed
Exhibit “C” The federal district court docket sheet
Exhibit “D” All papers filed in federal court
Exhibit “E” A list of all counsel of record, including addresses, telephone numbers and parties represented
9. In Compliance with Fed. R. Bank. P. 9027(a)(l), promptly after filing this notice of removal the Defendant will file a copy of this Notice, excluding the exhibits, with the clerk of the federal district court from which the claim or cause of action is removed.
WHEREFORE, Defendant removes this action from the United States District Court of the Southern District of Texas to the United States Bankruptcy Court for the Southern District of Texas, Houston Division, so that this Federal Bankruptcy Court may assume jurisdiction over the case as provided by law.
Respectfully submitted,
ORDER ENJOINING FORECLOSURE SALE
Pending before the Court is a motion for a temporary restraining order filed by Plaintiff Felix Otero (“Otero”). (Dkt. 7). Defendant U.S. Bank Trust National Association (“U.S. Bank”) has filed a response (Dkt. 10), and Otero has filed a reply. (Dkt. 11).
The Court has considered the record, the parties’ briefing, and the applicable law. Otero’s motion (Dkt. 7) is GRANTED. Because U.S. Bank had notice of Otero’s motion and filed a response, the Court will not limit the length of the injunction to the 14 -day period set out in Federal Rule of Civil Procedure 65(b)(2).
This matter is set for a preliminary injunction hearing on January 6, 2022 at 1:30 p.m.
The purpose of a preliminary injunction is to preserve the status quo and prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits. City of Dallas v. Delta Air Lines, Inc., 847 F.3d 279, 285 (5th Cir. 2017).
In the Fifth Circuit, the following well-established framework generally governs the determination of whether to grant a preliminary injunction:
To be entitled to a preliminary injunction, the movant must satisfy each of the following equitable factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) the threatened injury to the movant outweighs the threatened harm to the party sought to be enjoined; and (4) granting the injunctive relief will not disserve the public interest.
Because a preliminary injunction is an extraordinary remedy, it should not be granted unless the movant has clearly carried the burden of persuasion on all four requirements. Failure to sufficiently establish any one of the four factors requires this Court to deny the movant’s request for a preliminary injunction.
Id.
Otero has presented sufficient evidence at this time to warrant an injunction until an evidentiary hearing can be held. Otero will lose his home if the foreclosure sale goes forward, and he alleges that U.S. Bank has sent “multiple fraudulent reports to [his] credit bureau which, in addition to being fraudulent, are in contention with each other.” (Dkt. 7 at p. 1).
Otero further alleges that “[t]hese misrepresentations have prevented [him] from being able to refinance his home and pay off [U.S. Bank].” (Dkt. 7 at p. 1).
Otero has attached copies of the allegedly fraudulent credit reports to his application for injunctive relief.
Accordingly, the Court ORDERS U.S. Bank and its agents, employees, directors, shareholders, and legal counsel to immediately cease and desist from taking any further action in pursuit of selling the property that is the subject matter of this lawsuit and is commonly known as 306 Plaza Sol Park, Houston, Texas 77020 (“the Property”) at a foreclosure sale.
The foreclosure sale regarding the Property that is scheduled for December 7, 2021 may not go forward.
This matter is set for a preliminary injunction hearing on January 6, 2022 at 1:30 p.m.
The injunction against foreclosure on the Property will remain in force until lifted by this Court. The Court will not require Otero to post a bond under Federal Rule of Civil Procedure 65(c) at this time.
SIGNED at Houston, Texas, this 6th day of December, 2021.
___________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE
ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 3/23/2022 at 09:00 AM in Courtroom 600 in Houston before Magistrate Judge Andrew M Edison. (Signed by Judge George C Hanks, Jr) Parties notified.(BrandisIsom, 4) (Entered: 10/12/2021)
See Doc. 4 ; Standing Protective Order
“Standing orders are a type of temporary restraining order (TRO). Standing orders and TROs often cover the same things. But standing orders are not requested by a party. They are imposed on all parties by the judges without anyone requesting it.”
Judge Hanks is now issuing automatic protective orders in foreclosure cases since LIT started highlighting these cases. That’s transparency for you in SDTX federal courts. And he’s still on a five plus month turnaround for a pre-trial conference scheduling date.
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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03295
| Otero v. U.S. Bank Trust National Association Assigned to: Judge George C Hanks, Jr
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 10/08/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Felix Otero | represented by | Erick Joseph DeLaRue Law Office of Erick DeLaRue, PLLC 2800 Post Oak Boulevard Suite 4100 Houston, TX 77056 713-899-6727 Email: erick.delarue@delaruelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| U.S. Bank Trust National Association As Trustee of the Cabana Series IV Trust |
represented by | Richard E Anderson Anderson Vela LLP 4920 Westport Dr The Colony, TX 75056 214-276-1545 Email: randerson@andersonvela.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 10/08/2021 | 1 | NOTICE OF REMOVAL from 164th Judicial District Court, Harris County, Texas, case number 2021-64265 (Filing fee $ 402 receipt number 0541-27169368) filed by U.S. Bank Trust National Association as Trustee of the Cabana Series IV Trust. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Anderson, Richard) (Entered: 10/08/2021) |
| 10/12/2021 | 2 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 3/23/2022 at 09:00 AM in Courtroom 600 in Houston before Magistrate Judge Andrew M Edison. (Signed by Judge George C Hanks, Jr) Parties notified.(BrandisIsom, 4) (Entered: 10/12/2021) |
| 10/18/2021 | 3 | ORDER on Initial Discovery Protocols for Residential Mortgage Cases.(Signed by Judge George C Hanks, Jr) Parties notified.(jguajardo, 4) (Entered: 10/18/2021) |
| 10/18/2021 | 4 | STANDING PROTECTIVE ORDER. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 10/18/2021) |
