Wilmington Trust, National Association v. Carraway
(4:22-cv-02363)
District Court, S.D. Texas, JUDGE ANDREW HANEN
JUL 15, 2022 | REPUBLISHED BY LIT: JUL 18, 2022
No trustee’s deed recorded as at Jun 19, 2024 and nothing to suggest auction did not proceed.
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-02363
| Wilmington Trust, National Association v. Carraway Assigned to: Judge Andrew S Hanen Referred to: Magistrate Judge Sam S Sheldon Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/15/2022 Date Terminated: 03/01/2024 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 12/13/2023 | 28 | Unopposed MOTION Motion to Continue Trial and Pretrial Deadlines by Wilmington Trust, National Association, filed. Motion Docket Date 1/3/2024. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 12/13/2023) |
| 12/16/2023 | 29 | ORDER granting 28 Motion.(Signed by Magistrate Judge Sam S Sheldon) Parties notified.(ShannonJones, 4) (Entered: 12/16/2023) |
| 02/28/2024 | 30 | Unopposed MOTION for Entry of Agreed Final Judgment by Wilmington Trust, National Association, filed. Motion Docket Date 3/20/2024. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 02/28/2024) |
| 03/01/2024 | 31 | AGREED FINAL JUDGMENT. Case terminated on March 1, 2024(Signed by Judge Andrew S Hanen) Parties notified.(JoanDavenport, 4) (Entered: 03/04/2024) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 04/05/2024 16:47:55 |
Wilmington Trust, National Association v. Carraway
(4:22-cv-02363)
District Court, S.D. Texas, JUDGE ANDREW HANEN
JUL 15, 2022 | REPUBLISHED BY LIT: JUL 18, 2022
PLAINTIFF’S ORIGINAL COMPLAINT
Wilmington Trust, National Association, not in its Individual Capacity, but solely as Trustee of Finance of America Structured Securities Acquisition Trust 2017-HB1 (“Plaintiff”), files this its Original Complaint against Wanda Carraway (“Defendant” or “Borrower”), and would respectfully show the Court as follows:
I. PARTIES
1. Plaintiff is appearing through the undersigned counsel.
2. Defendant is an obligor under a loan agreement and may be served with process at her residence, 2701 Westheimer Road, Unit 9F, Houston, TX 77098, or such other place where she may be found. Summons is requested.
II. PROPERTY
3. This proceeding concerns the following real property and improvements commonly known as 2701 Westheimer Road, Unit 9F, Houston, TX 77098, more particularly described as:
UNIT NO. 9-F AND THE SPACE ENCOMPASSED BY THE BOUNDARIES THEREOF LOCATED IN BUILDING A, TOGETHER WITH AN UNDIVIDED 1.1330674% IN AND TO THE COMMON ELEMENTS OF THE REGENCY HOUSE, A CONDOMINIUM PROJECT LOCATED IN THE CITY OF HOUSTON, HARRIS COUNTY, TEXAS ACCORDING TO AND AS DESCRIBED BY THE DECLARATION OF CONDOMINIUM FOR THE REGENCY HOUSE AND EXHIBITS RECORDED IN VOLUME 107, PAGE 101 OF THE CONDOMINIUM RECORDS OF HARRIS COUNTY, TEXAS
(“Property”).
III. DIVERSITY JURISDICTION AND VENUE
4. This Court has jurisdiction over the controversy because there is complete diversity between Plaintiff and Defendant, and the amount in controversy exceeds $75,000.00.
See 28 U.S.C. § 1332.
5. Plaintiff is a national association and trustee of a traditional trust.
When a trustee is the real party in interest to the suit, its citizenship—not the citizenship of the beneficiaries of the trust—controls for purposes of diversity jurisdiction.
Navarro Sav. Assoc. v. Lee, 446 U.S. 458, 464–66 (1980); Mfrs. and Traders Trust Co. v. HSBC Bank USA, N.A., 564 F.Supp.2d 261, 263 (S.D.N.Y. 2008).
When the trustee has the power to sue or be sued in its own name (and does so), it is the real party in interest.
Navarro, 446 U.S. at 464–66; Rivas v. U.S. Bank N.A., No. H-14-3246, 2015 U.S. Dist. LEXIS 74505 **3–4 (S.D. Tex. June 9, 2015).
A national banking association is considered a citizen of the state in which it is located.
28 U.S.C. section 1348.
Its location is determined by the state of its main office, as established in the bank’s articles of association.
Wachovia Bank, NA v. Schmidt, 546 U.S. 303, 318 (2006).
Wilmington has its main office in Delaware. Wilmington is therefore a citizen of Delaware for diversity purposes.
6. Defendant is an individual and citizen of the state of Texas.
7. Due to Defendant’s conduct, as alleged herein, Plaintiff has the right to foreclose upon real property which secures a debt pursuant to a security instrument.
In an action for declaratory or injunctive relief, the amount in controversy for jurisdictional purposes is measured by the “value of the right to be protected or the extent of the injury to be prevented.”
Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).
If unable to foreclose on the Property, Plaintiff stands to lose the value of the Property, plus any associated interest.
Therefore, the value of the Property determines the amount in controversy.
See e.g., McDonald v. Deutsche Bank Nat. Trust Co., 3:11-CV-2691-B, 2011 U.S. Dist. LEXIS 146040, 2011 WL 6396628 (N.D. Tex. Dec. 20,
2011)
(holding that declaratory requests in foreclosure “call into question the right to the property in its entirety and the amount in controversy is equal to the value of the property”).
According to the Harris County Central Appraisal District Website, the Property involved in this matter is valued at $$281,154.00.
Therefore, the amount in controversy is well in excess of $75,000.00.
8. Venue is proper in the Southern District of Texas, Houston Division, because this suit concerns the enforcement of a lien on real property located in Harris County, Texas.
See 28 U.S.C. §§ 124, 1391(b)(2).
Mark Cronenwett Rushes into SDTX With A Premature Motion to Dismiss 48 Hrs After Removal – Then This Happened – https://t.co/Y7cwI9xnNT
Hat tip to Judge Ricardo Hinojosa – He Outshines CA5, who refused to sanction the same behavior by Mark Hopkins. https://t.co/zh8wErEeg8 pic.twitter.com/KKDN5GACef
— lawsinusa (@lawsinusa) July 14, 2022
IV. FACTS
9. The foregoing paragraphs are incorporated by reference for all purposes.
10. On or about June 20, 2011, for value received, Defendant (“Borrower”) executed that certain Fixed Rate Note Closed End (Home Equity Conversion) (the “Note”) payable to Urban Financial Group, Inc., in the principal amount of up to $352,500.00 bearing a fixed interest rate of 5.060% per annum.
A true and correct copy of the Note is attached hereto as Exhibit A.
11. Concurrently with the Note, Defendant executed that certain Fixed Rate Home Equity Conversion Deed of Trust (the “Security Instrument” and together with the Note, the “Loan Agreement”), as grantor, granting Plaintiff a security interest in the Property.
Mortgage Electronic Registration Systems, Inc. (“MERS”), nominee for Plaintiff, was named the beneficiary of the Security Instrument.
On June 28, 2011, the Security Instrument was recorded in the Official Public Records of Harris County, Texas under Document Number 201102633473.
A true and correct copy of the Security Instrument is attached hereto as Exhibit B.
12. Subsequently, MERS as nominee for Plaintiff, assigned the Security Instrument to Reverse Mortgage Solutions, Inc. as evidenced by the Assignment of Deed of Trust dated January 21, 20216 and recorded on February 4, 2016, in the Official Records of Harris County, Texas as Instrument No. RP-2016-48336.
Exhibit C is a true and correct copy of the Assignment of Deed of Trust.
13. Reverse Mortgage Solutions, Inc., then assigned the Security Instrument to Plaintiff, as evidenced by the Assignment of Deed of Trust dated March 25, 2016 and recorded on March 30, 2016, in the Official Records of Harris County, Texas as Instrument No. RP-2016- 130366.
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