Samuels v. PHH Mortgage Corporation
(4:23-cv-04687)
District Court, S.D. Texas
VERIFIED EMERGENCY MOTION TO RETAIN JURISDICTION WITH EXHIBITS BY INTERVENOR-PLAINTIFF JOANNA BURKE
DEC 17, 2023 | REPUBLISHED BY LIT: DEC 17, 2023
MACKIE WOLF AND THE CATHOLIC BANDITS
Two years ago, SDTX BK Judge Isgur labeled the bandits at the Foreclosure Wolves as despicable for a proof of claim which was late, false and despicable. Despite this, Mackie Wolf’s still free to commit these abhorrent crimes and abuses. #TWO pic.twitter.com/IoinFhRmB9— lawsinusa (@lawsinusa) December 24, 2023
Intervenor-Plaintiff (“Intervenor”) Joanna Burke filed the Petition in Intervention and Third-Party Petition against Defendants listed below in a case styled as 202359141 – SAMUELS, JEFF vs. AVT TITLE SERVICES (Court 234).
Parties
Intervenor, Joanna Burke (“Joanna”), is an individual resident of Kingwood, Harris County, Texas.
Plaintiff, Jeff Samuels (“Jeff”) is an individual resident of Houston, Harris County, Texas.
Defendant, AVT Title Services (“AVT”) is a company doing business in the State of Texas. AVT has already appeared in this lawsuit and no further service is required. Counsel includes Mark Cronenwett of Mackie Wolf.
Defendant, DEUTSCHE BANK NATIONAL TRUST CO, (“DBNTCO”) is a company doing business in the State of Texas. DBNTCO has already appeared in this lawsuit and no further service is required. Counsel includes Emily Stroope of Baker Donelson.
Defendant, PHH MORTGAGE CORP., (“PHH”) is a company doing business in the State of Texas. PHH has already appeared in this lawsuit and no further service is required. Counsel includes Emily Stroope of Baker Donelson.
Defendant, POWER DEFAULT SERVICES INC., (“POWER”) is a company doing business in the State of Texas and has already appeared in this lawsuit and no further service is required. Counsel includes Emily Stroope of Baker Donelson.
JOANNA CHALLENGES FRAUDULENT REMOVAL TO FEDERAL COURT BY DEFENDANTS
In the labyrinth of legal proceedings surrounding Joanna Burke’s homestead, the jurisdiction, venue, and intervention play a pivotal role.
The court’s jurisdiction is firmly established as the actions in question transpired in Harris County, Texas, where the subject property is located.
The venue and intervention, likewise, find their roots in Harris County, Texas, as proper and fitting for the ongoing legal battle.
Despite Intervenor-Plaintiff Joanna Burke’s automatic inclusion upon filing her petition, the Defendants have improvidently removed this case in its entirety to S.D. Texas Federal Court, Houston Division late on Friday evening, Dec. 15, 2023.
Relevant to Joanna and this motion, a review of the NOTICE OF REMOVAL[1] sheds more disturbing legal malfeasance by Defendants against the Intervenor Joanna Burke.
Specifically, the content of the Supplemental Civil Cover Sheet (Exhibit F1), which excludes Joanna Burke as a party at number 2, and at number 6, where Defendants falsely state that Joanna Burke’s claims are either nonsuited, dismissed or is a terminated party, and one assumes as a result of the entry in number 6, does not list her in number 7, “Claims of the Parties”.
Legal Authority in Support of Joanna’s Motion
In Cliff v Bonner, the Appellant challenged a post-answer default judgment by a point of error claiming the trial court lost jurisdiction when he removed the cause to federal court which the Texas appellate court rejected, as removal statutes are strictly construed.
The same applies in the removal by Defendants to S.D. Texas federal court in these proceedings and based on the irrefutable evidence, exhibits and authorities.
Cliff v. Bonner, 770 S.W.2d 97, 99 (Tex. App. 1989) (“the petition for removal does not meet the requirement of 28 U.S.C.S. § 1446(b)…
Removal statutes are strictly construed.
Richmond, Fredericksburg Potomac Railroad Co. v. Intermodal Services, Inc., 508 F. Supp. 804, 806 (E.D.Va. 1981).
The same statute governs removal of diversity cases and of bankruptcy matters from state courts.
In re Watson-Mahaney, Inc., 70 B.R. 578, 580-81 (Bankr.N.D.Ill. 1987); Allen County Bank Trust v. Valvmatic International Corp., 51 B.R. 578, 581 (Bankr.N.D.Ind. 1985)…
Failure to comply …. deprives the federal court of jurisdiction, and summary dismissal is thus appropriate.
United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1027 (9th Cir. 1975), cert. denied, 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975); Padden v. Gallagher, 513 F. Supp. 770, 771 (E.D.Wis. 1981).”).
Contrary to this, the Defendants audacious removal was characterized by a brief, conclusory, and unsubstantiated paragraph that meandered around the notion of Joanna Burke being a “stranger.”
This paragraph (No. 4), failed to provide any legal foundation or citations addressing the intervenors state court pleadings, rendering it devoid of any substantive legal support. In short, the removal is void, not voidable.
Previous Pleading Highlights
Joanna Burke, as Intervenor, articulates a justiciable interest rooted in the impact of the litigation on her rights.
The alignment of Defendants with Joanna’s interests becomes evident as the notice of foreclosure sale emerges, setting the stage for a legal clash.
Despite active litigation in federal court, the Defendants brazenly schedule Joanna’s home for auction on January 2, 2024, challenging the rule of law.
A recent Texas Supreme Court case underscores the illegality of such proceedings until appellate remedies are exhausted.
Deficiencies in Foreclosure Proceedings
The introduction of the new pleading delves into the defects surrounding the Notice of Foreclosure Sale.
(Exhibit F2).
The admitted zero dollars indebtedness raises questions about the legitimacy of the scheduled sale which is not signed or dated.
Inconsistencies in the identification of mortgagee entities and a deficient order by Judge David Hittner further muddy the waters
(Exhibit F3).
Fraudulent Snap Removal and Sabotage
A calculated snap removal by the Defendants, claiming diversity jurisdiction and which falsely asserts Intervenor’s claims have been terminated, nonsuited or dismissed, aims to sabotage a scheduled TRO hearing and potentially delay proceedings until an illegal foreclosure sale on January 2, 2024.
The narrative unfolds as a tale of sabotage, deceit, and deception, with the Defendants resorting to fraudulent measures to achieve their objectives.
Unlawful Sale and Consumer Law Violations
The Defendants relentless pursuit of an unlawful sale continues despite Joanna’s objections and ongoing legal battles. Violations of consumer laws, as highlighted in Tex. Fin. Code § 392.301(3), become apparent as PHH willfully instructs AVT to proceed with the sale, disregarding Joanna’s ongoing legal dispute.
Foreclosure prevention letters, emails, and text messages intensify the intrusion, a stark daily reminder of the brazen illegal acts as described, and categorically defined as criminal. It is without doubt, elder abuse.
Legal Remedies Sought
Joanna Burke, in her pursuit of justice, seeks declaratory judgment and injunctive relief to prevent the illegal foreclosure sale.
The motion for summary judgment, grounded in legal standards, asserts Joanna’s entitlement to a traditional summary judgment and a no-evidence judgment.
See; Verified Motion for Summary Judgment by Intervenor Joanna Burke, Exhibit 1A, Proposed Order as docketed on Dec. 11, 2023.
As the legal saga unfolds, Joanna Burke stands resilient against a barrage of lawless, unethical, and malicious challenges to protect her homestead.
The motion, supported by comprehensive exhibits, seeks to expedite relief, and prevent further violations by the Defendants, emphasizing the urgency in the face of an imminent foreclosure sale.
NEW FACTS
TRO Hearing and Motion for Summary Judgment
In a legal move to protect her rights, Intervenor Joanna Burke diligently pursued court dates for her motion for summary judgment and an emergency TRO hearing.
The court responded, resulting in Joanna setting the motion for summary judgment on Monday, Jan. 22, 2024, at 8 am and scheduling an emergency TRO hearing for Thursday, Dec. 21, 2023, at 10 am via remote hearing in conjunction with the court.
This proactive approach underscores Joanna’s commitment to swift legal action in the face of an imminent foreclosure sale.
Contemptible Removal to Federal Court Defeated
However, a plot twist emerges as a contemptible removal to federal court is noticed around 6 pm on Friday, Dec. 15, 2023.
The Defendants, in a brief paragraph, seek to undermine Joanna Burke’s intervention, dismissing her as a “stranger” to the mortgage loan and property while materially disregarding her pleadings.
On the federal court docket’s supplemental cover sheet, the Defendants further perpetuate their deceit by falsely asserting that the Intervenor’s claims have been nonsuited, dismissed, or terminated.
Lawyer Emily Stroope’s perjurious statement as the signatory on the Civil Cover Sheet, a federal document (Exhibit F4), is a wholly fabricated assertion lacking any factual basis.
Despite this dismissive tone, Texas law unequivocally defines Joanna’s legal interest as instant upon intervention[2].
The court’s acknowledgment of her intervention establishes her as a party to the suit for all purposes[3].
The Defendants attempt to downplay Joanna’s legal standing faces a legal rebuttal. Texas Rule of Civil Procedure 60 and legal precedents emphasize the intervenor’s right to be heard.
Additionally, the court can retain jurisdiction over a pending claim for affirmative relief[4].
“The purposeful exclusion of the petition in intervention from the order strongly disfavors finality.” [or in these proceedings, snap removal]
– In re J.D, 304 S.W.3d 522, 527 (Tex. App. 2009).
Joanna’s intervention is not only legally recognized but crucial in preventing any prejudice to her rights, including Defendants contemptible snap removal.
The schemed legal trick of removal to federal court with outrageous statements dismissing her as a party adds another layer of the deceit in the ongoing legal saga, but Joanna’s legal standing remains firmly grounded in Texas law.
This includes a legal holding cited many times, confirming that a trial court retains jurisdiction over intervenor’s claims for affirmative relief :
“A claim for affirmative relief is a pleading that states facts showing a cause of action independent of the plaintiff’s claim.”
Baca v. Hoover, Bax Shearer, 823 S.W.2d 734, 737 (Tex.App.- Houston [14th Dist.] 1992, writ denied).
The intervenor’s affirmative claims allow the intervenor to recover the relief requested in her pleadings, rejecting the unenforceable removal, and relying on this court’s plenary powers – noting nothing prohibits a constitutional district court of general jurisdiction from exercising its broad, equitable powers when real property interests are at stake, and which will result in imminent harm to Joanna.
See; Trinity Water Reserve, Inc. v. Evans, 829 S.W.2d 851, 865-66 (Tex. App.—Beaumont 1992, no writ) (upholding injunction necessary to prevent party from being forced into bankruptcy).
The forthcoming TRO hearing and summary judgment motion should remain before this court, which represents a key battleground where Joanna aims to secure the protection of her homestead, prevent illegal eviction, and unravel the Defendants legal ruse.
Unraveling the Defendants Sabotage, Deceit and Deception
The plot thickens as the Defendants resort to fraudulent measures, executing a snap removal of the intervenor’s case with the sinister intent of sabotaging the scheduled TRO (Temporary Restraining Order) hearing.
The timing is meticulously calculated, taking advantage of the upcoming Christmas and New Year holidays, which, in the State of Texas, lead to court closures.
The Defendants exploit this knowledge, engaging in a premeditated scheme, claiming diversity in a move designed to throw a wrench into the gears of justice.
This calculated maneuver serves a dual purpose: first, to thwart the Intervenor’s imminent TRO hearing, and second, to create a pretext for delaying any subsequent TRO hearings.
The ultimate goal becomes chillingly clear—an illegal foreclosure sale set for January 2, 2024.
The Defendants actions are not merely legal maneuvers; they are a concerted effort to undermine due process, relying on sabotage and deception to achieve their aims.
The orchestration of these deceptive tactics raises serious questions about the integrity of the legal process.
The Defendants, fully aware of the impending holidays, exploit the system to their advantage, casting a shadow over the principles of fairness and justice.
This egregious act of sabotage is not only an attack on the intervenor’s rights but a challenge to the very foundations of the legal system.
As the web of deceit tightens, it becomes imperative to scrutinize the Defendants motivations.
The manipulation of legal proceedings and the attempt to circumvent the scheduled TRO hearing suggest a desperate bid to fast-track an illegal foreclosure sale.
The urgency in their actions implies a conscious effort to capitalize on a moment of vulnerability, exploiting the holiday season to achieve their objectives.
In this saga of sabotage, deceit, and deception, the stakes are high, and the intervenor finds herself caught in a relentless struggle for justice against adversaries determined to bend the rules.
As the narrative unfolds, it becomes apparent that this is not just a legal battle; it’s a battle for the very essence of fairness and the protection of individual rights.
Dissecting the Fraudulent Removal Scheme
Amidst the convoluted legal drama, the simplicity of the facts cannot be ignored.
Joanna’s intervention seeks a declaratory judgment, modest court costs of approximately $200, and specified injunctive relief, notably the Temporary Restraining Order (TRO).
Notably, Joanna refrains from pursuing damages, debunking any notion of a premature ‘wrongful foreclosure’ damages suit.[5]
As established in legal precedent, such claims require the actual sale of the property in question, a criterion that remains unmet in this case, as clarified in Anderson v. Baxter, Schwartz & Shapiro LLP, No. 14-11-00021-CV, at *5 (Tex. App. Jan. 10, 2012).
Crucially, Joanna’s claim doesn’t hinge on property values, as she refrains from seeking damages.
The Defendants, however, dismissively discount the intervenor’s valuation, focusing solely on Jeff’s claims while deeming the intervenor “a stranger” without providing any legal authority to support this stance, or as the federal court filing asserts, she has been dismissed from the case.
This raises a red flag, exposing the removal as patently fraudulent.
In the advent that the Defendants seek to contest the Intervenor’s current status and for the sake of clarity, the total amount claimed by the intervenor is a nominal sum—court costs amounting to around two hundred dollars.
This modest figure further emphasizes the disproportionate nature of the Defendants actions.
The fraudulent removal, premised on diversity jurisdiction, is exposed as an attempt to inflate the perceived value of the case, a ploy to justify the unwarranted removal.
In the intricate dance of legal proceedings, the intervention remains grounded in seeking justice rather than financial gain.
Joanna’s claim, devoid of wrongful foreclosure damages, challenges the Defendants narrative and underscores the fraudulent nature of their removal.
As the spotlight turns to the details, it becomes evident that the relief requested does not, by any measure, approach the threshold of $75,000.
Furthermore, the Intervenor-Plaintiff is an active and ongoing participant in these proceedings, with no nonsuit, dismissal or termination evident.
The narrative unfolds as a meticulous dissection of deception, revealing a scheme that jeopardizes the integrity of the legal process with devastating consequences for Joanna on the horizon, should this foreclosure sale proceed.
TRAITORS AND TURNCOATS RUN THE COUNTRY
And here’s the support team, the American lawyers who’ll help to ensure Camp Auschwitz will prevail. They’ll also ensure Wall St., who runs the US Treasury and the Gov. are shielded from Citizens who dare question their authority. #TWO #NMA pic.twitter.com/5Dan8cZQjl— lawsinusa (@lawsinusa) December 13, 2023
Is the Real Party in Interest Deutsche Bank as Trustee?
10. Deutsche Bank is a national banking association and trustee of a mortgage-securitization trust. When a trustee is the real party in interest to the suit, its citizenship controls for purposes of diversity jurisdiction… Deutsche Bank’s main office as designated in its articles of association is in California. Accordingly, Deutsche Bank is a citizen of California.
Additionally, the Defendants argument raises material issues.
The “real party in interest” is a legal term that refers to the individual or entity that possesses the substantive right being asserted in a legal action.
This concept ensures that the party bringing a lawsuit is the one with a direct stake in the outcome of the case, and that party is the one whose rights or interests would be affected by the court’s decision.
Key points about the “real party in interest” include:
Direct Interest: The real party in interest is the party that stands to gain or lose based on the resolution of the legal matter. They have a direct, substantial interest in the subject matter of the litigation.
Ownership of Rights: The term is often used in the context of civil procedure to determine whether the plaintiff has the legal standing to bring a lawsuit.
The real party in interest is the one who owns or holds the legal rights being asserted in the case.
Unveiling Deficiencies in the Foreclosure Proceedings
The Notice of Foreclosure Sale, a critical document in the scheduled January 2, 2024 auction, stands on shaky ground, rendering the entire sale void and defective.
Zero Dollars Indebtedness: At the core of the defects lies the admission by Defendants themselves. Point no. 5 of the Notice explicitly states the indebtedness as $0 (zero dollars), revealing that Joanna owes nothing to the Defendants. Joanna agrees.
This critical revelation aligns with legal precedent, as highlighted in Harwath v. Hudson, 654 S.W.2d 851, 852 (Tex. App. 1983), which emphasizes the importance of compliance with notice provisions.
A foreclosure sale lacking validity due to non-compliance becomes evident, especially when the claimed debt is nonexistent.
PHH’s Confidential Settlement Offer: Furthermore, the inconsistencies multiply. Despite asserting Deutsche Bank National Trust Company (DBNTCO) as the “real party in interest” and current mortgagee, recent correspondence from PHH Mortgage Corporation and counsel Shelley Hopkins to the “stranger” described in these proceedings, presents a confidential settlement offer
(Exhibit F5).
This offer stands in stark contrast to the foreclosure proceedings, raising questions about the true entities involved and the validity of the claims against Joanna.
Judge David Hittner’s Deficient Order: The deficiencies continue with point no. 6 – Order to Foreclosure, referencing the order by United States District Court Judge David Hittner.
On remand from the Fifth Circuit, attempts were made to inject new arguments about indebtedness and proposed orders.
The Burke’s objection was grounded in the fact that these arguments were introduced for the first time on appeal, and Hopkins was requesting the appellate court to perform a judicial act beyond its authority and jurisdiction.
Judge Hittner’s order, while addressing the remanded issues, falls short of meeting Texas law standards required for inducing a sale of Joanna’s homestead.
The deficiency extends to crucial details such as the value of alleged indebtedness and the legal description of the property subject to foreclosure.
Drawing parallels with Gutierrez v. City of Laredo, No. 07-14-00270-CV, at *7 (Tex. App. Aug. 3, 2015), it becomes evident that a deficient property description renders the judgment void.
As the layers of deficiency unravel, the foreclosure proceedings appear as a house of cards, built on shaky ground.
The critical examination of both the Notice and Judge Hittner’s order reveals not only legal inadequacies but raises serious doubts about the entire process’s legitimacy.
In the face of these revelations, Joanna’s fight for her homestead gains a new dimension—one that questions the very foundations of the foreclosure proceedings and demands a closer scrutiny of the entities involved.
Removal of Intervenor’s Claims Procedurally Barred
Procedurally, the case should never have been removed.
The intervention is recognized instantly in Texas law and the third-party claims are not removable.
These include the original petition’s requests for declaratory and injunctive relief,[6] subsequently followed-up with the motion for summary judgment.
Thus, the correct legal procedure is to seek to strike the intervention[7], which Defendants did not initiate.
Defendants Removal is a Sham
The Defendants snap removed intervenor’s case fraudulently to sabotage the Intervenor’s scheduled TRO hearing on Thursday.
The Substitute Trustee is not a Nominal Party
As far back as 1885, Texas courts have opined
“The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust.”
In Thayer v. Life Association, 112 U.S. 717, 719 (1885).
As discussed above and in Harwath v. Hudson, Texas case law provides many strict compliance authorities, such as the “court further noted that [strict] compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale”.
Here, the substitute trustee did not strictly comply as the indebtedness marked on the notice of foreclosure sale is zero dollars, as well as the other arguments presented herein.
The Malicious Targeting of Joanna and Her Homestead
At the forefront of this legal labyrinth is Mark Cronenwett, lead counsel and defender of creditor rights.
His extensive resume in real estate law and his prominent role in cases before state and federal courts underscore his significance.
However, a paradox emerges as fallacious claims and erroneous acts persist, seemingly driven by undisclosed incentives.
The intricate dance between these foreclosure mills, substitute trustees, mortgage servicers, and bank trustees, despite conflicts of interest and aged Texas laws, raises questions of organized collusion.
The narrative takes a dark turn as Joanna’s 85-year-old vulnerability is exploited, marked by attempts to seize her retirement home.
Mark Cronenwett and his law firm stand accused, put on notice for elder abuse, a felony under Texas law.
Joanna’s poignant letter serves as a legal battleground, exposing the criminal intent behind the attempt to wrest her homestead away.
The footnote becomes a testament to the gravity of the situation, citing elder abuse as both a criminal act and a felony.
Amidst ongoing legal battles, the Defendants frustration reaches a tipping point, leading to scandalous and unlawful acts. In their desperate pursuit, the risk to Joanna is not only theft but will also cause the infliction of irreparable harm and emotional distress post foreclosure sale.[8]
The narrative suggests a sinister motive—silencing Joanna permanently through the weight of emotional and physical stresses.
As justice unravels, the struggle for Joanna’s home becomes a broader tale of legal complexity, abuse, and the resilience of one woman against an unjust system.
Joanna’s Resilience Against Lender and Litigation Abuse
Joanna’s situation unravels a harrowing tale, a genuine account of the most significant theft in American history – the robbery of citizens’ homes.
This isn’t just a tale of property loss; it’s a chilling portrayal of a corrupt legal crime syndicate.
Operating within the realms of government, legal, and financial services, the Defendants orchestrate a malevolent symphony, leaving a trail of despair in their wake.
In this appalling state of affairs, the Defendants, their agents, and counsel reveal themselves as key players in an organized crime network.
Strikingly absent are Christian values and a moral compass, as they callously exploit an elder, law-abiding citizen in the State of Texas.
The cruelty and despicability of their actions cast a dark shadow over any semblance of justice or decency.
Amidst this darkness, Joanna emerges as a symbol of resilience, triumphing over Deutsche Bank’s unjust foreclosure in not just one, but two decisive legal battles – first at a bench trial and then on remand.
These landmark victories have garnered unwavering support from prominent figures in the legal realm, establishing a strong precedent.
The legal luminaries backing Joanna unanimously denounce the 5th Circuit’s stance in overturning the judgments, labeling it as both inexcusable and legally flawed.
This consensus is echoed through successive appeals, initiated by Austin-based attorney Mark Hopkins.
In a surprising revelation during recorded court proceedings, Hopkins openly admitted to withholding the alleged mortgage loan file from the Burkes, further highlighting the questionable ethics surrounding the case.
Hopkins’ admission becomes a focal point, shedding light on a series of legal malpractices committed during the litigation process.
Notably, these transgressions extend beyond Hopkins himself, involving his lawyer spouse in the web of misconduct.
That stated, Joanna faces this onslaught with unwavering faith and integrity, refusing to let the malevolence of the Defendants shake her core beliefs.
Her message rings true and honest, a beacon of light in the face of corruption.
The fortunate absence of doubt in Joanna’s faith and integrity becomes a testament to her strength of character.
Joanna’s story is not just a personal narrative; it’s a clarion call to the citizens.
It serves as a stark reminder that the truth must be unveiled, and the citizens must remain vigilant.
Joanna’s unwavering commitment to exposing the voracity of her story ensures that the citizens are not left in the dark.
As long as her voice persists, the truth will echo, and the citizens will be alerted to the insidious reality unfolding within their midst in courts across Texas and the United States of America.
“The difficulty with the dual capacity theory as an Erie guess is that no Texas court at any level has ever adopted it.” – Hon. Stephen Wm. Smith who challenged 5th Circuit Opinion as corrupt in re @DeutscheBank https://t.co/nlXeWHa47P pic.twitter.com/a9peueieMe
— lawsinusa (@lawsinusa) December 13, 2023
The Emergency Motions and Hearings
The TRO hearing is scheduled for Thursday at 10 am by zoom (remote hearing).
Intervenor, Joanna Burke respectfully requests the court considers this emergency motion in advance of the scheduled TRO hearing.
The Intervenor is aware this court prefers in-person hearings, but Joanna is hard of hearing and would respectfully request the court invoke constitutional due process by allowing the emergency hearing to be remote, as zoom allows for real-time closed captioning which complies with ADA guidelines.
Verification, Prayer & Relief
In closing, I, Joanna Burke, as Intervenor with due authority and competency, resident of Kingwood in the livable forest of Harris County, Texas, born on November 25, 1938 (85 years old), in Lenzie, Scotland, United Kingdom, and currently holding U.S. Citizenship, a valid State of Texas Driver License (last 3 digits are 738), and a Social Security Card (last 3 digits are 874), do solemnly declare under penalty of perjury that the foregoing statements are true and correct. This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).
Accordingly, Joanna Burke respectfully requests that by emergency order of the court, on this motion, before or after Joanna’s requested and scheduled hearings, it retains jurisdiction in these proceedings; confirms the notice of removal by Defendants pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 is void; she receives declaratory judgment in her favor; a temporary restraining order and/or injunction; and other relief requested above; that she recovers recover costs as allowed by this court and in law; and that Joanna Burke have and recover all other and further relief to which she may be entitled to prevent defendants from unlawfully selling her homestead, in violation of Texas laws.
RESPECTFULLY submitted this 17th day of December, 2023.
[1] NOTICE OF REMOVAL from 234th Judicial District, Harris County, Texas, case number 2023-59141 (Filing fee $ 405 receipt number ATXSDC-30945566) filed by Power Default Services, Inc., Deutsche Bank National Trust Company, PHH Mortgage Corporation. (Attachments: # 1 Exhibit A – State Court File, # 2 Exhibit B – Harris County CAD, # 3 Civil Cover Sheet, # 4 Supplement Civil Cover Sheet)(Stroope, Emily) (Entered Samuels v. PHH Mortgage Corporation (4:23-cv-04687) District Court, S.D. Texas: 12/15/2023) in the federal case styled; Samuels v. PHH Mortgage Corporation (4:23-cv-04687) District Court, S.D. Texas.
[2] Citing Texas Law: “Any party may intervene in a suit by filing a pleading…” In re O’Quinn, 355 S.W.3d 857, 862 (Tex. App. 2011) (“Texas Rule of Civil Procedure 60 authorizes a party with a justiciable interest in a pending suit to intervene as a matter of right. Tex.R. Civ. P. 60 (“Any party may intervene by filing a pleading”).
[3] Citing Texas Law: “Upon filing of the petition, an intervenor becomes a party to the suit for all purposes.” In the Interest of D.D.M, 116 S.W.3d 224, 231 (Tex. App. 2003) (“Upon filing of the petition, an intervenor becomes a party to the suit for all purposes. Brook , 865 S.W.2d at 172.”).
[4] Citing Texas Rule of Civil Procedure 60 and legal precedent: “The trial court retains jurisdiction over a pending claim for affirmative relief…” – In the Interest of D.D.M, 116 S.W.3d 224, 231-32 (Tex. App. 2003); In re Ford Motor Co., 442 S.W.3d 265, 295 (Tex. 2014) (“ we treated the intervenors as plaintiffs because they sought affirmative relief, and no affirmative relief was sought against them.”).
[5] In Gulf Coast Inv. Corp. v. Brown, 821 S.W.2d 159 (Tex. 1991), a property owner sued a creditor for wrongful foreclosure, alleging the foreclosure sale conducted by the creditor was invalid because the foreclosure notice was improper. After the wrongful foreclosure suit was settled.
[6] See; VERIFIED PETITION IN INTERVENTION SEEKING DECLARATORY JUDGMENT WITH APPLICATION FOR INJUNCTIVE [RELIEF], EXHIBIT 1, EXHIBIT 2, EXHIBIT 3, AND TEMPORARY RESTRAINING ORDER AND SHOW CAUSE ORDER, docketed Dec. 5, 2023.
[7] See; 202366239 – IDEA 247 INC vs. EPPS, RAYMOND (A/K/A RAY EPPS) (Court 189), Plaintiff’s Motion to Strike Intervention, image no. 111423799, Nov. 17, 2023.
[8] See; EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 876 (Tex. App. 2008) (“Taken as a whole, the evidence is sufficient for a jury to reasonably form a firm belief or conviction that EMC acted with specific intent to cause the Joneses substantial harm. Because we conclude the evidence was sufficient to support a finding of malice, we need not consider whether the collection efforts also resulted from gross negligence.”).
TWO YEARS LATER:
THE CATHOLIC BANDIT STRIKES AGAINDEC 4, 2023: THE SHACK failed to timely file a response to THE CATHOLIC BANDIT’s Motion for Summary Judgment. (Decision Percolatin’).
DEC 3, 2021: JUDGE HANKS: Motion to Strike THE SHACK filed by THE CATHOLIC BANDIT is DENIED. pic.twitter.com/QWsADXeA4c
— lawsinusa (@lawsinusa) December 15, 2023
PLEASE TAKE NOTICE THAT, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446,
Defendants PHH Mortgage Corporation (“PHH”), Deutsche Bank National Trust Company, as Trustee for FFMLT TRUST 2004-FF3, Mortgage Pass-Through Certificates, Series 2004-FF3 (“Deutsche Bank”), and Power Default Services, Inc. (“Power Default”) filed removal papers with the Clerk of the United States District Court for the Southern District of Texas, Houston Division, regarding the above-styled action.
A copy of the Notice of Removal to Federal Court (without its accompanying exhibits) is attached hereto as Exhibit A and incorporated by reference.
Respectfully submitted,
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ
A Professional Corporation
By: /s/ Emily Stroope
Emily Stroope
State Bar No. 24070692
Alexis del Rio
State Bar No. 24120796 5956
Sherry Lane, 20th Floor Dallas, Texas 75225
Telephone: (713) 650-9700
Facsimile: (713) 650-9701
estroope@bakerdonelson.com
adelrio@bakerdonelson.com
Attorneys for Defendant PHH Mortgage Corporation, Power Default Services Inc. and Deutsche Bank National Trust Company, as Trustee for FFMLT TRUST 2004-FF3, Mortgage Pass-Through Certificates, Series 2004-FF3
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing has been forwarded in accordance with the Texas Rules of Civil Procedure on December 15, 2023, as follows:
Via e-mail Jeff.uben@gmail.com
and CMRRR No. 7022 3330 0000 7770 3774
Jeff Samuels, pro-se
14810 Winding Waters Drive
Cypress, TX 77429
Pro Se Plaintiff
Via e-mail joanna@2dobermans.com
and CMRRR No. 7022 3330 0000 7770 3798
Joanna Burke,
46 Kingwood Greens Dr
Kingwood, Texas 77339
Pro Se Intervenor
Via eFileTX
Mark D. Cronenwett
mcronenwett@mwzmlaw.com
Mackie Wolf Zientz & Mann, P.C.
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
Attorneys For Defendant
AVT Title Services, LLC
/s/ Emily Stroope
Emily Stroope
EXHIBIT “A”
CIVIL ACTION NO. 4:23-cv-4687
SD TEX.
DEFENDANTS’ NOTICE OF REMOVAL
Defendants PHH Mortgage Corporation (“PHH”), Deutsche Bank National Trust Company, as Trustee for FFMLT TRUST 2004-FF3, Mortgage Pass-Through Certificates, Series 2004-FF3 (“Deutsche Bank”), and Power Default Services, Inc. (“Power Default”) hereby give notice of the removal of the state court civil action described below on the basis of diversity jurisdiction. As grounds for the removal, PHH, Deutsche Bank, and Power Default respectfully state as follows:
I. INTRODUCTION
1. On June 1, 2023, Plaintiff Jeff Samuels (“Plaintiff”) filed his Application for Temporary Restraining Order and Injunctive Relief (“Complaint”) in the 234th Judicial District, Harris County, Texas numbered and styled as Cause No. 2023-59141, Jeff Samuels v. AVT Title Services LLC, Deutsche Bank National Trust Co., PHH Mortgage Corp., and Power Default Services, Inc.
2. In his Complaint, Plaintiff seeks injunctive relief to prevent foreclosure of the real property commonly known as 14810 Winding Waters Drive, Cypress, Texas 77429 (the “Property”).
Plaintiff also seeks actual damages and attorney’s fees and costs.
3. Defendant AVT Title Services, LLC filed its Original Answer and Verified Denial pursuant to Section 51.007 of the Texas Property Code on November 15, 2023.
4. An individual named Joanna Burke, a stranger to this mortgage loan and property, then filed a “Verified Petition in Intervention Seeking Declaratory Judgment with Application for Injunctive Relief.”
In this pleading, Ms. Burke states that she lives at 46 Kingwood Greens Drive, Kingwood, Texas 77339.
All of Ms. Burke’s exhibits reference the same property.
This is not the real property secured by the mortgage loan in this lawsuit.
Ms. Burke is not a borrower on the mortgage loan at issue in this case and does not allege that she has any connection to Plaintiff’s property or the subject mortgage loan.
In her pleading, Ms. Burke references a federal case in Minnesota in which she is the plaintiff.
5. PHH, Deutsche Bank, and Power Default filed their Original Answer on December 15, 2023.
Power Default included a Verified Denial pursuant to Section 51.007 of the Texas Property Code.
6. In accordance with 28 U.S.C. § 1446(a), copies of all process, pleadings, orders, and other papers filed in the state court action and obtained Defendants are attached hereto, marked as composite Exhibit “A,” and incorporated herein by reference.
II. TIMELINESS OF NOTICE OF REMOVAL
7. PHH, Deutsche Bank, and Power Default have not been formally served with process as such this removal is timely pursuant to 28 U.S.C. § 1446(b)(1).1
III. BASIS FOR REMOVAL: DIVERSITY JURISDICTION
8. This Court has original jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332 because it is between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs, as discussed more fully below.
A. Complete Diversity Exists.
9. Plaintiff is a resident and citizen of Harris County, Texas.2
10. Deutsche Bank is a national banking association and trustee of a mortgage- securitization trust. When a trustee is the real party in interest to the suit, its citizenship controls for purposes of diversity jurisdiction.
A national banking association is considered a citizen of the state in which it is located, as determined by the state of its main office as set forth in its articles of association.3
Deutsche Bank’s main office as designated in its articles of association is in California. Accordingly, Deutsche Bank is a citizen of California.
11. PHH is a New Jersey Corporation with its principal place of business located at 1 Mortgage Way, Mt. Laurel, New Jersey 08054. A corporation is a citizen of the state where it is
1 See 28 U.S.C. § 1446(b)(1). See also Thompson v. Deutsche Bank Nat’l Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed. 448 (1999) (the federal removal and jurisdiction statutes “clearly provide that a defendant’s right to removal runs from the date on which it is formally served with process.”).
2 See Plaintiff’s Complaint; see also Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011)
(For purposes of determining citizenship, “[e]vidence of a person’s place of residence [] is prima facie proof of his domicile.”).
3 Wachovia Bank, NA v. Schmidt, 546 U.S. 303, 318 (2006) (citing 28 U.S.C. § 1348).
incorporated and the state where it has its principal place of business.4
Therefore, for diversity purposes, PHH is a citizen of New Jersey.
12. Because Plaintiff is a citizen of Texas and Deutsche Bank and PHH are not citizens of Texas, complete diversity exists between Plaintiff, Deutsche Bank, and PHH.
B. AVT Title Services, LLC and Power Default Services, Inc. are improperly joined parties and should be disregarded for diversity jurisdiction.
13. Under Section 1441 (b), while complete diversity of citizenship must exist between plaintiff and all defendants to establish federal subject matter jurisdiction, only the citizenship of properly joined parties can establish federal subject matter jurisdiction.5
The doctrine of improper joinder “prevents defeat of federal removal jurisdiction premised on diversity jurisdiction by an improperly joined, non-diverse defendant.”6
Citizenship of an improperly joined defendant is disregarded entirely in determining whether complete diversity exists.7
“Normally, a court reviewing allegations of fraudulent joinder should refrain from conducting an evidentiary hearing but may utilize a summary judgment-like procedure.”8
The court may consider affidavits and deposition testimony filed with a defendant’s removal petition.9
14. Improper joinder is established when the removing party meets the burden of showing either (1) there was actual fraud in pleading the jurisdictional facts or (2) the plaintiff is
4 28 U.S.C. § 1332(c)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 88-90 (2005).
5 28 U.S.C. § 1441(b); Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004).
6 Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009).
7 Smallwood, 385 F.3d at 572.
8 Delgado v. Shell Oil Co., 231 F.3d 165, 179 (5th Cir. 2000) (citing Burchett v. Cargill, 48 F.3d 173, 176 (5th Cir. 1995)).
9 TAJ Properties, LLC v. GAB Robins North America, Inc., H-10-4134, 2011 WL 2162321, at *2 (S.D. Tex. 2011) (citing Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)).
unable to establish a cause of action against the non-diverse defendant under state law.10
In order to establish the second ground for improper joinder, the removing party bears the burden of proving that there is “no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.”11
The potential recovery “must be reasonable, not merely theoretical.”12
“[W]hether the plaintiff has stated a valid state law cause of action depends upon and is tied to the factual fit between the Plaintiff’s allegations and the pleaded theory of recovery.”13
15. As the Fifth Circuit held in Int’l Energy Ventures Management, LLC v. United Energy Group, LTD., federal courts should use the federal pleading standard when conducting the rule 12(b)(6)-type analysis for an improper joinder claim to determine if the plaintiff has stated a claim against a non-diverse defendant.14
A plaintiff fails to state a claim on which relief may be granted as required under rule 12(b)(6) when a plaintiff’s factual allegations do not show a right to relief that is plausible and rises above mere speculation.15
“[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”16
To do so, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”17 This plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”18
10 Smallwood, 385 F.3d at 572; Cantor v. Wachovia Mortg., FSB, 641 F.Supp.2d 602, 606 (N.D. Tex. 2009); Rodriguez v. Casa Chapa S.A. de C.V., 394 F.Supp.2d 901, 905 (W.D. Tex. 2005).
11 Smallwood, 385 F.3d at 572.
12 Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002).
13 Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999).
14 Smallwood, 385 f.3d at 572.
15 Ashcroft v. Iqbal, 556 u.s. 662, 677 (2009).
16 Id.
17 Id. at 678.
18 Id.
16. Here, Plaintiff’s Complaint is entirely void of specific facts or actions taken by either AVT Title or Power Default which would create a basis for any claims against them.
Both AVT Title and Power Default filed Verified Denials pursuant to Tex. Prop. Code Sec. 51.007.
In those Verified Denials, both AVT Title and Power Default declared that they were not necessary parties to this case by reason of their reasonable belief that they were named as parties solely in their capacity as substitute trustee under the Deed of Trust.
AVT Title is the Substitute Trustee appointed by the mortgagee in the Notice of Sale attached to the Complaint.19 Power Default sent Notice of Acceleration to Plaintiff on behalf of the mortgagee, also attached as an exhibit to the Complaint.20
This is the extent of the involvement of AVT Title and Power Default with the mortgage loan at issue in this case.
As such, they are improperly joined defendants and their citizenship should be disregarded for diversity jurisdiction analysis.
C. The amount in controversy exceeds $75,000.00.
17. Diversity jurisdiction is proper if “‘it is facially apparent’ from the plaintiffs’ complaint that their ‘claims are likely above [$75,000]’ . . .
If the value of the claims is not apparent, then the defendants ‘may support federal jurisdiction by setting forth the facts—[either] in the removal petition [or] by affidavit—that support a finding of the requisite amount.’”21
Diversity jurisdiction exists where a removing defendant establishes by a preponderance of the evidence that the amount in controversy exceeds $75,000.22
18. The Fifth Circuit has held that “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
19 See Notice of Trustee Sale, Exhibit C to Complaint.
20 See Notice of Acceleration of Loan Maturity, Exhibit E to Complaint.
21 Govea v. JPMorgan Chase Bank, N.A., No. CIV.A. H-10-3482, 2010 WL 5140064, at *2 (S.D. Tex. Dec. 10, 2010)
(quoting Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 639 (5th Cir. 2003) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995))).
22 Garcia, 351 F.3d at 638-39 (quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)).
litigation.”23
When “a right to property is called into question in its entirety, the value of the Property controls the amount in controversy.”24
And, where the “object of the mortgagor’s litigation [is] the protection of his entire property,” the fair market value of the property is the proper measure of the amount in controversy.25
19. When a plaintiff seeks a declaration that the mortgagee is barred from foreclosing on its interest in the property, it calls into question a right to the property in its entirety and the amount in controversy is equal to the value of the property.26
Additionally, the Fifth Circuit held that [i]n actions enjoying a lender from transferring property and preserving an individual’s ownership interest, it is the property itself that is the object of the litigation; the value of that property represents the amount in controversy.”27
20. Here, Plaintiff seeks injunctive relief to prevent Deutsche Bank and PHH from selling the subject real property at foreclosure.
Therefore, the fair market value of the property is the proper measure of the amount in controversy. The property has a value of $476,358.28 As such, the amount is controversy is $476,358.
23 Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 341 (5th Cir. 2013) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977)).
24 McDonald v. Deutsche Bank Nat’l Trust Co., as trustee, No. 3:11-cv-2691, 2011 WL 6396628 at *2 (N.D. Tex. Dec. 20, 2011) (quoting Waller v. Prof’l Ins. Corp., 296 F.2d 545,547-48 (5th Cir. 1961)); see also Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir., 1983) (“In actions seeking declaratory or injunctive relief, the amount in controversy is measured by the value of the object of the litigation.”).
25 Martinez v. BAC Home Loans Servicing, L.P., No. SA-09-CA-951, 2010 WL 6511713, at *7 (W.D. Tex. Sep. 24, 2010).
26 Bardwell v. BAC Home Loans Servicing, LP, No. 3:11-cv-1002-B, 2011 WL-4346328, at *2 (N.D. Tex. Sept. 16, 011) (holding the amount in controversy is equal to the value of the property when plaintiff was seeking a declaration that defendant was barred from foreclosing on its interest the property); see also Hayward v. Chase Home Finance, LLC, 2011 WL 2881298, *4–5 (N.D. Tex. July 8, 2011).
27 Id.
28 See Harris County Appraisal District Summary attached as Exhibit “B”. It is appropriate for the court to take judicial notice of this document because it is a public record and the information it provides is readily ascertainable and the source—the Harris County Appraisal District—cannot reasonably be questioned. See Funk v. Stryker, 631 F.3d 777, 783 (5th Cir. 2011).
IV. VENUE
21. Venue for this removal is proper in the United States District Court for the Southern District of Texas, Houston Division, because this district and division includes Harris County, Texas—the location of the pending state court action.29
V. ADDITIONAL REQUIREMENTS
22. Written Notice of Removal will be provided to Plaintiff and filed with the District Clerk of Hidalgo County, Texas.
23. In the event that Plaintiff seeks to remand this case, or the Court considers remand sua sponte, PHH, Deutsche Bank, and Power Default respectfully request the opportunity to submit such additional argument or evidence in support of removal as may be necessary.
24. Plaintiff did not make jury demand in the Complaint.
25. WHEREFORE, having satisfied the requirements for removal, PHH, Deutsche Bank, and Power Default give notice that Cause No. 2023-59141 originally filed in Harris County District Court styled Jeff Samuels v. AVT Title Services, LLC, Deutsche Bank National Trust Co., PHH Mortgage Corp., and Power Default Services, Inc. is effectively removed to this Court.
29 See 28 U.S.C. § 1441(a); 28 U.S.C. § 124(b) (stating that the Houston Division of the Southern District includes Harris County).
Respectfully submitted,
By: /s/ Emily Stroope
Emily Stroope
State Bar No. 24070692
Alexis del Rio
State Bar No. 24120796
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
5956 Sherry Lane, 20th Floor Dallas, Texas 75225
Telephone: (713) 650-9700
Facsimile: (713) 650-9701
estroope@bakerdonelson.com
adelrio@bakerdonelson.com
Attorneys for Defendants PHH Mortgage Corporation, Power Default Services, Inc., and Deutsche Bank National Trust Company, as Trustee for FFMLT TRUST 2004-FF3, Mortgage Pass-Through Certificates, Series 2004-FF3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served upon counsel of record pursuant to the Federal Rules of Civil Procedure on December 15, 2023, as indicated below:
/s/ Emily Stroope
Emily Stroope
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-04687
| Samuels et al v. PHH Mortgage Corporation et al Assigned to:
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 12/15/2023 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Jeff Samuels | represented by | Jeff Samuels 14810 Winding Waters Drive Cypress, TX 77429 PRO SE |
| V. | ||
| Defendant | ||
| PHH Mortgage Corporation | represented by | Emily G Stroope Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC 1301 McKinney Street Suite 3700 Houston, TX 77010 713-650-9700 Email: estroope@bakerdonelson.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| Deutsche Bank National Trust Company | represented by | Emily G Stroope (See above for address) ATTORNEY TO BE NOTICED |
| Defendant | ||
| Power Default Services, Inc. | represented by | Emily G Stroope (See above for address) ATTORNEY TO BE NOTICED |
| Defendant | ||
| AVT Title Services, LLC | ||
| Intervenor Plaintiff | ||
| Joanna Burke | represented by | Joanna Burke 46 Kingwood Greens Dr Kingwood, TX 77339 281-812-9591 PRO SE |
| Date Filed | # | Docket Text |
|---|---|---|
| 12/15/2023 | 1 | NOTICE OF REMOVAL from 234th Judicial District, Harris County, Texas, case number 2023-59141 (Filing fee $ 405 receipt number ATXSDC-30945566) filed by Power Default Services, Inc., Deutsche Bank National Trust Company, PHH Mortgage Corporation. (Attachments: # 1 Exhibit A – State Court File, # 2 Exhibit B – Harris County CAD, # 3 Civil Cover Sheet, # 4 Supplement Civil Cover Sheet)(Stroope, Emily) (Entered: 12/15/2023) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 12/17/2023 10:57:07 |
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-04687
| Samuels et al v. PHH Mortgage Corporation et al Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 12/15/2023 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 12/15/2023 | 1 | NOTICE OF REMOVAL from 234th Judicial District, Harris County, Texas, case number 2023-59141 (Filing fee $ 405 receipt number ATXSDC-30945566) filed by Power Default Services, Inc., Deutsche Bank National Trust Company, PHH Mortgage Corporation. (Attachments: # 1 Exhibit A – State Court File, # 2 Exhibit B – Harris County CAD, # 3 Civil Cover Sheet, # 4 Supplement Civil Cover Sheet)(Stroope, Emily) (Entered: 12/15/2023) |
| 12/19/2023 | 2 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 4/26/2024 at 09:30 AM in Courtroom 9A before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(RebeccaBecknal, 4) (Entered: 12/19/2023) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 12/19/2023 21:21:54 |
STOP ELDER ABUSE IN OUR COURTS AND BY CATHOLIC LAWYERS: Texas Judges and Lawyers Pray Together at St. Thomas More Society of the Diocese of Dallas https://t.co/qdm3SAzQSB
— lawsinusa (@lawsinusa) December 2, 2023
202359141 –
85-YEAR OLD JOANNA BURKE’S INTERVENTION
DEC 5, 2023 | REPUBLISHED BY LIT: DEC 5, 2023
SEP 6, 19, OCT 18, NOV 1, DEC. 5, 2023
JAN 24, 2024
Above is the date LIT Last updated this article.
Are ECF/Pacer filings going on the wrong docket for a reason….?
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-04687
| Samuels et al v. PHH Mortgage Corporation et al Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-(Citizenship) |
Date Filed: 12/15/2023 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 12/21/2023 | 3 | NOTICE of Appearance by Cheyenne D. Haley on behalf of AVT Title Services, LLC, filed. (Haley, Cheyenne) (Entered: 12/21/2023) |
| 12/26/2023 | 4 | CERTIFICATE OF INTERESTED PARTIES by AVT Title Services, LLC, filed.(Cronenwett, Mark) (Entered: 12/26/2023) |
| 12/26/2023 | 5 | MOTION to Dismiss Plaintiff Jeff Samuels’ Claims by AVT Title Services, LLC, filed. Motion Docket Date 1/16/2024. (Attachments: # 1 Proposed Order)(Cronenwett, Mark) (Entered: 12/26/2023) |
| 12/26/2023 | 6 | MOTION to Dismiss Intervenor-Plaintiff Joanna Burke’s Claims by AVT Title Services, LLC, filed. Motion Docket Date 1/16/2024. (Attachments: # 1 Proposed Order)(Cronenwett, Mark) (Entered: 12/26/2023) |
| 12/27/2023 | 7 | SUPPLEMENT to 1 Notice of Removal, by AVT Title Services, LLC, filed. (Attachments: # 1 Exhibit)(Haley, Cheyenne) (Entered: 12/27/2023) |
| 01/16/2024 | 8 | MOTION to Remand by Jeff Samuels, filed. Motion Docket Date 2/6/2024. (HortenciaLerma, 4) (Entered: 01/16/2024) |
| 02/06/2024 | 9 | RESPONSE to 8 MOTION to Remand , filed by Deutsche Bank National Trust Company, PHH Mortgage Corporation, Power Default Services, Inc.. (Attachments: # 1 Proposed Order)(Stroope, Emily) (Entered: 02/06/2024) |
| 02/09/2024 | 10 | NOTICE of Bankruptcy Filing, Automatic Stay and Request for ECF-Pacer Filing Permissions by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/09/2024) |
| 02/09/2024 | 11 | FIRST Motion for Extension of Time to file initial lists, schedules, statments and other required documents by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/12/2024) |
| 02/09/2024 | 12 | MOTION to Reinstate Case by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/12/2024) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 02/21/2024 14:02:35 |
Note; This must be a templated order as the fee was paid in full at time of filing and Burke’s motion for extension of time arrived Jan. 15 at SDTX, yet it’s not showing on docket prior to this order.
Correction – as at Jan. 24, the package is still with USPS. It has not been delivered to the court.
Correction - it is still in transit (Jan 24 update)
NOTICE OF SUBMISSION
You are hereby noticed that Intervenor Joanna Burke’s first Motion for Summary Judgment will be set for submission hearing docket on Monday, January 22, 2024 at 8:00 am.
RESPECTFULLY submitted this 15th day of December, 2023.
Joanna Burke, Harris County
VERIFIED PETITION IN INTERVENTION SEEKING DECLARATORY JUDGMENT WITH APPLICATION FOR INJUNCTIVE RELIEF BY JOANNA BURKE
Intervenor Joanna Burke, individually, files this Petition in Intervention and Third-Party Petition against Defendants.
Parties
Intervenor, Joanna Burke (“Joanna”), is an individual resident of Kingwood, Harris County, Texas.
Plaintiff, Jeff Samuels (“Jeff”) is an individual resident of Houston, Harris County, Texas.
Defendant, AVT Title Services (“AVT”) is a company doing business in the State of Texas. AVT has already appeared in this lawsuit and no further service is required.
Defendant, DEUTSCHE BANK NATIONAL TRUST CO, (“DBNTCO”) is a company doing business in the State of Texas. DBNTCO has already appeared in this lawsuit and no further service is required.
Defendant, PHH MORTGAGE CORP., (“PHH”) is a company doing business in the State of Texas. PHH has already appeared in this lawsuit and no further service is required.
Defendant, POWER DEFAULT SERVICES INC., (“POWER”) is a company doing business in the State of Texas and has already appeared in this lawsuit and no further service is required.
Jurisdiction, Venue & Intervention
The Court has jurisdiction over the Defendants because the actions complained of herein all occurred in Harris County, Texas. Also, the real property which is the subject of this lawsuit is located in Harris County, Texas. Venue is proper in Harris County, Texas. Intervention is also proper as the property is subject to sale in Harris County, Texas.
Rule 47 Statement
For the statements and arguments provided herein, Intervenor, Joanna Burke only seeks a declaratory judgment and injunctive relief to prevent the scheduled sale while related litigation is ongoing, as well as court costs, as determined and allowed by this court. See; Tex. Civ. Prac. & Rem. Code § 65.011.
Discovery Control Plan
Plaintiff respectfully requests this case be governed by Level 2, Texas Rules of Civil Procedure.
Facts
The Intervenors’ Interest in this Lawsuit
A party has a justiciable interest in a lawsuit when its interest will be affected by the litigation.
See In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008).
A party may intervene in a suit if it could have brought all or part of the same suit in its own name.
See Nghiem v. Sajib, 567 S.W.3d 718, 721 n. 16 (Tex. 2019).
A party has a justiciable interest in a lawsuit, and thus a right to intervene in the suit, when its interests will be affected by the litigation, see;
Mass. Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 602 (Tex. App. 2020).
For the reasons provided herein and the related case, which is incorporated here, there is no question Joanna has a justiciable interest in this case:-
The Defendants Align with Intervenor
On November 25, 2023 Joanna became aware of Defendants PHH notice of foreclosure sale, set for January 2, 2024.
PHH is the servicer for the alleged mortgage on Joanna’s homestead and DBNTCO is the alleged trustee.
The notice of sale indicates that AVT Title Services have been assigned as substitute trustee for the unlawfully scheduled sale.
The defendants perfectly align with the requirements for Intervention in this proceeding.
An Active Dispute and Litigation Prevents Foreclosure
Joanna Burke is litigating an active civil suit against PHH Mortgage Corporation in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, currently under appeal to the 8th Circuit. Despite this effectively tolling any foreclosure notice or sale, the same defendants listed here have collectively defied the rule of law.
Brazenly, they have scheduled Joanna’s home for auction on January 2, 2024, disregarding the ongoing legal proceedings. See; Tex. Civ. Prac. & Rem. Code § 65.011.
The Scheduled Sale Violates the Law
As recently as Friday last week, a Texas Supreme Court case confirmed this in Sanders v. The Boeing Co., No. 23-0388, at *18 (Tex. Dec. 1, 2023)
(“when a party appeals a dismissal order, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends. We agree.”).
See; Tex. Civ. Prac. & Rem. Code § 65.011.
Unlawful Sale Proceedings Despite Notice and Acknowledgement
Tex. Fin. Code § 392.301(3) states; “representing or threatening to represent to any person other than the consumer that a consumer is willfully refusing to pay a non disputed consumer debt when the debt is in dispute and the consumer has notified in writing the debt collector of the dispute”.
PHH has willfully and maliciously instructed AVT to conduct the sale, a person other than the consumer, claiming erroneously that Joanna is willfully refusing to pay.
Furthermore, Joanna is receiving letters, emails and text messages stating her home is slated for auction at a foreclosure sale in January by cold-calling marketers, real estate investors and bankruptcy lawyers, to name a few. (Exhibit 1).
On December 3, 2023 Joanna Burke sent a letter to PHH’s counsel advising them they were unlawfully scheduling the sale and requested a timely cancellation of the foreclosure sale. Joanna provided this letter with a notice of lis pendens via email on December 4, 2023 to counsel for PHH (Exhibit 2).
Mark responded for Mackie Wolf late in the evening of the same day, stating that the sale will proceed, despite being notified of the ongoing dispute and litigation in federal court as discussed above, in violation of consumer laws. (Exhibit 3).
Causes of Action
Declaratory Judgment
Purpose: The purpose of a declaratory judgment is to clarify legal rights and relationships before any actual harm occurs. It allows parties to seek a binding determination from the court on the interpretation of a contract, statute, or other legal document.
Statutory Basis: Texas law provides for declaratory judgments under the Texas Declaratory Judgments Act (Chapter 37 of the Texas Civil Practice and Remedies Code). This statute allows a party to seek a declaration of their rights and legal relations.
Requirements: To seek a declaratory judgment in Texas, Joanna must demonstrate that there is an actual controversy or uncertainty that needs resolution. As discussed, Joanna meets this requirement.
Discretion of the Court: The court may consider factors such as whether the judgment would effectively and conclusively settle the legal issues at hand. Here, the judgment would settle the issue, the unlawful foreclosure sale.
Scope of Relief: Joanna seeks a declaratory judgment which states; (i) when a party appeals a dismissal order as Joanna Burke has timely initiated in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends,
and
(ii) that Joanna Burke’s current and active appeal at the Court of Appeals for the Eighth Circuit, case no. 23-3593, prevents defendants from conducting the scheduled foreclosure sale of her home at 46 Kingwood Greens Drive, Kingwood, Texas, 77339 on January 2, 2024,
and
(iii) a Temporary Restraining Order (“TRO”) and/or Temporary Injunction is granted to prevent defendants from proceeding with the scheduled sale on January 2, 2024, which shall remain in effect until such times as the current litigation in the District of Minnesota and at the Court of Appeals for the Eighth Circuit is at a formal end.
Injunctive Relief
Application for Temporary Restraining Order and Temporary Injunction
For the reasons provided, Intervenor, Joanna Burke is seeking a temporary restraining order and a temporary injunction preventing the Defendants from foreclosing on the property and evicting Joanna Burke from the property which is the subject of this lawsuit.
Plaintiff has received similar relief for the payment of a one hundred dollar bond from this court.
It is in the event this Court does not grant Joanna Burke’s Application for a Temporary Restraining Order, she will suffer irreparable harm because the real estate which is the subject of this lawsuit is unique in character and cannot be replaced with money damages only. Plaintiff has no other adequate remedy at law.
Verification, Prayer & Relief
In closing, I, Joanna Burke, as Intervenor with due authority and competency, resident of Kingwood in the livable forest of Harris County, Texas, born on November 25, 1938 (85 years old), in Lenzie, Scotland, United Kingdom, and currently holding U.S. Citizenship, a valid State of Texas Driver License (last 3 digits are 738), and a Social Security Card (last 3 digits are 874), do solemnly declare under penalty of perjury that the foregoing statements are true and correct.
This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).
Accordingly, Joanna Burke respectfully requests that she receives declaratory judgment in her favor, a temporary injunction and other relief requested above, that she recover costs as allowed by this court and in law, and that Joanna Burke have and recover all other and further relief to which she may be entitled to prevent defendants from unlawfully selling her homestead, in violation of Texas laws.
RESPECTFULLY submitted this 5th day of December, 2023.
Discover the truth on LIT.
How post-2008, the US Gov. joined Wall St.’s insatiable greed leading to the pilfering of millions of homes via foreclosures, and the harsh realities faced by people as their homes were swept away.
Today, the Gov. pivots: Pandemic Murder for Profit. pic.twitter.com/IZsxBohPW1
— lawsinusa (@lawsinusa) August 26, 2023
