Akerman

No Free Home: Judge Marcia A. Crone Recused. Reassigned to Judge Michael J. Truncale

Did Judge Crone recuse because of (a) BONYM or (b) Because George P. Bush is the Texas General Land Office Commissioner?

Cooper v. The Bank of New York Mellon

(1:22-cv-00232)

District Court, E.D. Texas

MAY 31, 2022 | REPUBLISHED BY LIT: JUN 2, 2022

AGREED FINAL JUDGMENT

On this day came on for consideration the unopposed motion to enter this agreed final judgment filed by The Bank of New York Mellon, as indenture trustee for Mid-State Capital Corporation 2010-1 Trust (BoNYM).

Upon consideration of BoNYM’s unopposed motion and Evelyn Cooper and Anthony Cooper’s agreement to this judgment as evidenced by the signature of their counsel below, this court is of the opinion judgment should be entered as follows:

IT IS ORDERED, ADJUDGED and DECREED that Evelyn Cooper and Anthony Cooper take nothing on their claims against BoNYM and same are dismissed with prejudice.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that BoNYM is entitled to judgment against Evelyn Cooper and Anthony Cooper, as well as all other occupants, for immediate possession of the real property and improvements located at 220 CR 1082, Wiergate, Texas 75977, and more particularly described as:

BEING all that certain tract or parcel of land lying and situated in Newton County, Texas, out of the J. McGUIRE SURVEY, ABSTRACT NO. 708 and being all that certain called 54/100 acre tract (first tract described in document) and being all that certain called ½ acre tract (second tract), both conveyed to Evelyn Cooper in the document recorded in Volume 532 on Page 832 of the official public records of Newton County, Texas, to which reference is hereby made for all purposes and being more particularly described by metes and bounds as follows, to wit:

BEGINNING at a 28″ pine (reported to be the Southwest corner of the aforesaid referred 54/100 acre tract and the Southeast corner of the said ½ acre tract by third party in field),

THENCE, along the reported and recognized South boundary line of the said ½ acre tract (reported to be North of waterline and water meters by third party in field), West at 166.00 feet (called East 60 vrs.) a ½” iron pin found in a dirt path (used as a connecting route between CR 1081 and CR 1082) for the Southwest corner of said ½ acre tract,

THENCE, along the reported and recognized West boundary line of the said ½ acre tract and along the said dirt path, N 03º 04′ 24″ E at 127.20 feet (distance used to calculate ½ acre tract) (called S 34º W 39 vrs.) a ½” iron pin set for the Northwest corner of the said ½ acre tract being 20.18 feet South of the approximate centerline of the said CR 1081,

THENCE, along the North boundary line of the said ½ acre tract and the said 54/100 acre tract and being 20.18 feet South of and parallel to the said CR 1081, S 88º 47′ 10″ E at 333.34 feet (called West no distance for ½ acre tract and East 60 vrs. for 54/100 acre tract) a ½” iron pin set for the Northeast corner of the said 54/100 acre tract,

THENCE, along the East boundary line of the said 54/100 acre tract, S 21º 09′ 08″ E at 128.62 feet (bearing and distance used to calculate 54/100 acre) (called South 45 vrs.) a point for the Southeast corner of the said 54/100 ace tract, from which a
½” iron pin found for reference bears East 9.50 feet,

THENCE, along the reported and recognized South boundary line of the said 54/100 acre tract, West at 220.50 feet (distance used to calculate 54/100 acre) (called West no distance) the POINT AND PLACE OF BEGINNING and containing 1.019 acre of land, more or less, of which 0.037 acre lies within CR 1081.

The bearings for this tract are based on the South boundary line of the said 54/100 acre tract.(property).

IT IS FURTHER ORDERED, ADJUDGED and DECREED that BoNYM is entitled to all writs or further orders necessary to enforce this judgment and the clerk is hereby ordered to issue a writ of possession in favor of BoNYM for the property and BoNYM shall be entitled to immediately execute the writ of possession against Evelyn Cooper and Anthony Cooper and all other occupants without delay.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Evelyn Cooper and Anthony Cooper are permanently enjoined from contesting, challenging or interfering in any way with BoNYM’s right to possession of the property, including through an appeal of this judgment.
This judgment disposes of all claims against all parties and is, and is intended to be, a final judgment for all purposes, including appeal.

SIGNED on the day of , 2022.

Hon. Michael J. Truncale United States District Judge

AGREED AS TO FORM AND SUBSTANCE:

/s/ Gary H. Gatlin
Gary H. Gatlin
Attorney for Evelyn Cooper and Anthony Cooper

/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
Attorney for BoNYM

U.S. District Court
Eastern District of TEXAS [LIVE] (Beaumont)
CIVIL DOCKET FOR CASE #: 1:22-cv-00232-MJT

Cooper et al v. The Bank of New York Mellon
Assigned to: District Judge Michael J. Truncale

Case in other court:  Newton County, TX, CV22-14955

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 05/31/2022
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity

 

Date Filed # Docket Text
07/16/2022 8 SCHEDULING ORDER: Final Pretrial Conference set for 3/30/2023 09:00 AM in Ctrm 2 (Beaumont) before District Judge Michael J. Truncale. Bench trial set for 4/3/2023 at 9:00 a.m. in Courtroom 2, Jack Brooks Federal Courthouse, 300 Willow Street, Bmt, Tx. Signed by District Judge Michael J. Truncale on 7/16/2022. (bjc, ) (Entered: 07/18/2022)

 


 

PACER Service Center
Transaction Receipt
10/09/2022 19:11:06

Status report and proposed scheduling order filed WEEKS LATE (July 8) – No problem, y’all are lawyers.

“ORDERED that Rule 26(f) attorney conference must occur by June 24, 2022.”

CIP still not filed.

See;

U.S. District Court
Eastern District of TEXAS [LIVE] (Beaumont)
CIVIL DOCKET FOR CASE #: 1:22-cv-00232-MJT

Cooper et al v. The Bank of New York Mellon
Assigned to: District Judge Michael J. Truncale

Case in other court:  Newton County, TX, CV22-14955

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 05/31/2022
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity
Plaintiff
Evelyn Cooper represented by Gary Harold Gatlin
Attorney At Law
PO Box 1985
Jasper, TX 75951
Jasper
409/384-7433
Fax: 14093844217
Email: ghgatlin@att.net
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
Anthony Cooper represented by Gary Harold Gatlin
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
The Bank of New York Mellon
as Indenture Trustee for Mid-State Capital Corporation 2010-1 Trust
represented by Michael John McKleroy , Jr
Akerman LLP – Dallas
2001 Ross Avenue
Suite 3600
Dallas, TX 75201
2147204300
Fax: 2149819339
Email: michael.mckleroy@akerman.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDAlfredo Ramos
Akerman LLP – Houston
1300 Post Oak Blvd, Suite 2500
Houston, TX 77056
713-623-0887
Fax: 713-960-1527
Email: fred.ramos@akerman.com
ATTORNEY TO BE NOTICEDChristopher Charles Townsend
Akerman LLP – Dallas
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
07/08/2022 6 Joint Conference Report by The Bank of New York Mellon. (Townsend, Christopher) (Entered: 07/08/2022)
07/08/2022 7 Submission of Proposed Agreed Docket Control/Scheduling order by The Bank of New York Mellon . (Townsend, Christopher) (Entered: 07/08/2022)
07/16/2022 8 SCHEDULING ORDER: Final Pretrial Conference set for 3/30/2023 09:00 AM in Ctrm 2 (Beaumont) before District Judge Michael J. Truncale. Bench trial set for 4/3/2023 at 9:00 a.m. in Courtroom 2, Jack Brooks Federal Courthouse, 300 Willow Street, Bmt, Tx. Signed by District Judge Michael J. Truncale on 7/16/2022. (bjc, ) (Entered: 07/18/2022)

 


 

PACER Service Center
Transaction Receipt
08/02/2022 08:06:49

Joint Rule 26(f) deadline was Friday, 24 June. Nothing filed.

CIP should have been filed by defendants counsel – Gary Harold ‘Gary’ Gatlin – on or before June 18. Nothing filed.

U.S. District Court
Eastern District of TEXAS [LIVE] (Beaumont)
CIVIL DOCKET FOR CASE #: 1:22-cv-00232-MJT

Create an Alert for This Case on RECAP

Cooper et al v. The Bank of New York Mellon
Assigned to: District Judge Michael J. Truncale

Case in other court:  Newton County, TX, CV22-14955

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 05/31/2022
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity

 

Date Filed # Docket Text
06/01/2022 4 ORDER OF RECUSAL. District Judge Marcia A. Crone recused. Case reassigned to District Judge Michael J. Truncale for all further proceedings. Signed by District Judge Marcia A. Crone on 6/1/2022. (bjc, ) (Entered: 06/01/2022)
06/03/2022 5 ORDERED that Rule 26(f) attorney conference must occur by June 24, 2022. Rule 16 Case Management/Scheduling Conference set for 7/15/2022 11:00 AM in Room 221 (Beaumont) before District Judge Michael J. Truncale. Signed by District Judge Michael J. Truncale on 6/3/2022. (bjc, ) (Entered: 06/03/2022)

 


 

PACER Service Center
Transaction Receipt
06/26/2022 06:20:08

THE BANK OF NEW YORK MELLON’S REMOVAL NOTICE

The Bank of New York Mellon, as indenture trustee for Mid-State Capital Corporation 2010- 1 Trust (BoNYM), removes Evelyn and Anthony Coopers’ state court action to this court pursuant to 28 USC §§ 1332 and 1441.

I. STATEMENT OF THE CASE

1. On February 11, 2022, the Coopers sued BoNYM in the case styled Evenlyn Cooper, et vir v. The Bank of New York Mellon, as indenture trustee for Mid-State Capital Corporation 2010- 1 Trust and assigned case CV-22-14955 in the 1st district court of Newton County, Texas.

(orig. pet., ex. 1.)

They sue to enjoin BoNYM from conducting “any legal proceedings wherein plaintiffs would be removed from their GLO home constructed on their land in Newton County, Texas.”

(Id. at p. 4- 5, ex. 1.)

The Coopers allege their home was severely damaged in 2017 by a storm.

(Id. at p. 2, ex. 1.)

As a result of the storm, the home was condemned and demolished and a new home was rebuilt in 2019-2020 by the Texas general land office.

(Id., ex. 1.)

2. The Coopers claim Ms. Cooper contacted their lender, Shellpoint, to inform it the home was condemned and demolished and inquire about the balance due on the loan.

(Id. at p. 2-3, ex. 1.)

They allege Shellpoint told her “not to worry” and “someone would be getting back with her.”

(Id. at p. 3, ex. 1.)

The Coopers contend no one ever got back to them about the property or the loan.

(Id., ex. 1.)

They claim they learned the property was no longer in their names after they did not receive the 2021 tax statements and inquired with the tax office.

(Id., ex. 1.)

3. The Coopers allege the foreclosure sale was “was not conducted under the proper procedure of the laws of the State of Texas.”

(Id. at p. 3-5, ex. 1.)

They seek a declaration the sale was void, injunctive relief and court costs.

(Id. at 4-5, ex. 1.)

II. DIVERSITY JURISDICTION

4. The court may exercise diversity jurisdiction pursuant to 28 USC § 1332(a) because the parties are completely diverse and the amount in controversy exceeds $75,000.

A. The parties are citizens of different states.

5. The Coopers are citizens of Texas, where they reside. (Id. at p. 1, ex. 1.); Preston v. Tenet Healthsystem Mem’l Med. Ctr., 485 F.3d 793, 797–98 (5th Cir. 2007).

6. BoNYM is a Delaware and New York citizen. BoNYM is sued in its capacity as indenture trustee for the Mid-State Capital Corporation 2010-1 Trust.

The trust is a traditional trust and BoNYM is an active trustee whose control over the assets held in its name is real and substantial.

As trustee, BoNYM’s citizenship controls for diversity purposes.

Wells Fargo Bank, N.A. v. Am. Gen. Life Ins. Co., 670 F. Supp. 2d 555, 561 (N.D. Tex. 2009)

(“The citizenship of a trust, for diversity jurisdiction purposes, is determined by the citizenship of its trustee.”)

(citing Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980); Bass v. Int’l Bhd. of Boilermakers, 630 F.2d 1058, 1067 n.17 (5th Cir. 1980)).

BoNYM is a corporation organized under the laws of Delaware with its principal place of business in New York.

A corporation is a citizen both of the state in which it is incorporated and the state in which it maintains its principal place of business. 28 USC § 1332(c);

Hertz Corp. v. Friend, 59 U.S. 77, 78 (2010)

(“The phrase ‘principal place of business’ in §1332(c)(1) refers to the place where a corporation’s high-level officers direct, control, and coordinate the corporation’s actions i.e. its ‘nerve center’ which will typically be found at its corporate headquarters.”)

B. The amount in controversy exceeds $75,000.

7. 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 does not state the amount of damages it seeks, the burden falls on the defendant to prove the value of the plaintiff’s claims.

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).

The removing defendant must “establish by a preponderance of the evidence that the amount in controversy exceeds $75,000.”

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

This requirement can be satisfied if “(1) it is apparent from the face of the petition that the claims are likely to exceed $75,000, or, alternatively, (2) the defendant sets forth ‘summary judgment type evidence’ of facts in controversy that support a finding of the requisite amount.”

Id. (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).

8. “In 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);

Farkas v. GMAC Mortg., LLC, 737 F.3d 338, 341 (5th Cir. 2013) (per curiam);

see also Nationstar Mortg., LLC v. Knox, 351 Fed. App’x 844, 848 (5th Cir. 2009) (“when … a right to property is called into question in its entirety, the value of the property controls the amount in controversy”) (quoting Waller v. Prof’l Ins. Corp., 296 F.2d 545, 547–48 (5th Cir. 1961)).

9. The object of this litigation—220 CR 1082 Wiergate, Texas 75977—is valued at $109,614 by the Newton Central Appraisal District. (Newton appraisal dist. report, ex. 15.) See e.g., Anderson v. Wells Fargo Bank, N.A., No. 4:12-cv-764, 2013 WL 1196535, at *3 (E.D. Tex. Feb. 22, 2013)

(“The property at issue in this lawsuit has a current fair market value of $114,000, according to the Denton County Central Appraisal District. Therefore, Defendant has met its burden of establishing that the amount in controversy exceeds $75,000.”)

The amount in controversy exceeds $75,000, and the court may exercise diversity jurisdiction.

III. PROCEDURAL REQUIREMENTS SATISFIED

10. Removal is timely under 28 USC § 1446(b) if it is filed within thirty days of the defendant’s receipt of the complaint and summons.

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–48 (1999) (requiring formal service of process to trigger removal deadline).

BoNYM has not been formally served with a summons and the Coopers’ petition, so this removal is timely.

Venue is proper in this court because the United States District Court for the Eastern 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.

11. Pursuant to 28 USC § 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 1-12.

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 31, 2022

Respectfully submitted,

/s/ Michael J. McKleroy, Jr.

Michael J. McKleroy, Jr.
SBN: 24000095, FBN: 576095
michael.mckleroy@akerman.com

–Attorney in Charge

C. Charles Townsend
SBN: 24028053, FBN: 1018722
charles.townsend@akerman.com

Alfredo Ramos
SBN: 24110251, FBN: 3687680
fred.ramos@akerman.com

AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339

ATTORNEYS FOR THE BANK OF NEW YORK MELLON, as indenture trustee for Mid-State Capital Corporation 2010-1 Trust

CERTIFICATE OF SERVICE

A true and correct copy of this document was served on May 31, 2022 as follows:

Gary H. Gatlin
P.O. Box 1985
Jasper, Texas
75951
Telephone: 409.384.7433
Facsimile: 409.384.9899
ghgatlin@att.net
Attorney for Plaintiffs

VIA CM/ECF AND

VIA CERTIFIED MAIL RECEIPT NO. 9414 7266 9904 2186 4866

/s/Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
THE BANK OF NEW YORK MELLON’S REMOVAL NOTICE

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