Debt Collector

The Connected Investor and Home Flipper James Martzall Files Suit Against Deutsche Bank

The filing of the present suit seeks to stop and has halted a foreclosure attempt on property at 16543 Inwood Cove, San Antonio, Texas.

Martzall v. Deutsche Bank National Trust Company

(5:22-cv-00018)

District Court, W.D. Texas

JAN 10, 2022 | REPUBLISHED BY LIT: JAN 12, 2022

How one video on twitter (shown above) can change foreclosure proceedings involving Texas lawyers and DBNTCO in less than 24 hrs.

On Monday, June 13, the Judge Granted the withdrawal of Martzall’s attorney and gave Martzall 30 days to decide if he’s going to proceed pro se.

Minute Entry for proceedings held before Judge Xavier Rodriguez:

Motion Hearing held on 5/12/2022 re 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction filed by James Martzall

(Minute entry documents are not available electronically.).

Court denies motion for preliminary injunction.

(Court Reporter GiGi Simcox.)(rg) (Entered: 05/13/2022)

U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:22-cv-00018-XR

Create an Alert for This Case on RECAP

Martzall v. Deutsche Bank National Trust Company
Assigned to: Judge Xavier Rodriguez

Case in other court:  131st Judicial District Court, Bexar County, Texas, 2021CI26353

Cause: 28:1441 Petition for Removal – Foreclosure

Date Filed: 01/10/2022
Jury Demand: Defendant
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Federal Question

 

Date Filed # Docket Text
04/19/2022 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction by James Martzall. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Proposed Order Enjoining Deutsche’s Interference with Plaintiff’s Possession)(Jackson, Jeffrey) (Entered: 04/19/2022)
04/20/2022 22 ORDER, that the Defendant is hereby ORDERED to file a response, no later than May 3, 2022. Any reply must be filed no later than May 6, 2022. re 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction filed by James Martzall, ( Motion Hearing set for 5/12/2022 03:30 PM before Judge Xavier Rodriguez,). Signed by Judge Xavier Rodriguez. (wg) (Entered: 04/20/2022)
04/27/2022 23 NOTICE of Partial Nonsuit of Certain Claims by James Martzall (Jackson, Jeffrey) (Entered: 04/27/2022)
05/03/2022 24 Defendant’s Response in Opposition to Motion, filed by Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes, re 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction filed by Plaintiff James Martzall (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Exhibit 1-D, # 6 Exhibit 1-E, # 7 Exhibit 1-F, # 8 Exhibit 1-G, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Proposed Order ORDER)(Hord, Michael) (Entered: 05/03/2022)
05/06/2022 25 REPLY to Response to Motion, filed by James Martzall, re 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction filed by Plaintiff James Martzall (Jackson, Jeffrey) (Entered: 05/06/2022)
05/09/2022 26 SUPPLEMENT to 25 Reply to Response to Motion by James Martzall. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15)(Jackson, Jeffrey) (Entered: 05/09/2022)
05/09/2022 27 Unopposed MOTION for Leave to File Supplement to His Reply in Support of His Motion for Preliminary Injunction by James Martzall. (Attachments: # 1 Proposed Order Granting Plaintiff’s Unopposed Motion for Leave to Supplement His Reply in Support of His Motion for Preliminary Injunction)(Jackson, Jeffrey) (Entered: 05/09/2022)
05/10/2022 28 SUPPLEMENT to 25 Reply to Response to Motion for Preliminary Injunction and Request for Hearing for Preliminary Injunction by James Martzall. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15)(Jackson, Jeffrey) (Entered: 05/10/2022)
05/12/2022 29 Minute Entry for proceedings held before Judge Xavier Rodriguez: Motion Hearing held on 5/12/2022 re 21 MOTION for Preliminary Injunction and Request for Hearing for Preliminary Injunction filed by James Martzall (Minute entry documents are not available electronically.). Court denies motion for preliminary injunction. (Court Reporter GiGi Simcox.)(rg) (Entered: 05/13/2022)

[SPECULATIVE] SCHEDULING ORDER (FEB 10, 2022)

The disposition of this case will be controlled by the following order. If a deadline set in this order falls on a weekend or a holiday, the effective day will be the next business day.

MOTIONS FOR LEAVE TO AMEND PLEADINGS

The deadline for Plaintiff(s) to file a motion seeking leave to amend pleadings; or to join parties is April 1, 2022.

The deadline for Defendant(s) to file a motion (1) to designate responsible third parties, pursuant to Texas Civil Practices & Remedies Code § 33.004(a); (2) seeking leave to amend pleadings; or (3) to join parties is April 15, 2022.

EXPERTS

All parties asserting claims for relief shall file their designation of testifying experts and serve on all parties, but not file, the materials required by FED. R. CIV. P. 26(a)(2)(B) on or before July 1, 2022.

Parties resisting claims for relief shall file their designation of testifying experts and serve on all parties, but not file, the materials required by FED. R. CIV. P. 26(a)(2)(B) on or before July 15, 2022.

All parties shall file all designations of rebuttal experts and serve on all parties the material required by FED. R. CIV. P. 26(a)(2)(B) for such rebuttal experts, to the extent not already served, within fifteen (15) days of receipt of the report of the opposing expert.

An objection to the reliability of an expert’s proposed testimony under Federal Rule of Evidence 702 shall be made by motion, specifically stating the basis for the objection and identifying the objectionable testimony, within eleven (11) days from the receipt of the written report of the expert’s proposed testimony, or within eleven (11) days from obtaining a copy of the expert’s deposition, if a deposition is taken, whichever is later.

The deadline for filing supplemental reports required under FED. R. CIV. P. 26(e) is
September 5, 2022.

WITNESS LIST, EXHIBIT LIST, AND PRETRIAL DISCLOSURES

The deadline for filing Rule 26(a)(3) disclosures is December 9, 2022.

The deadline for filing objections under Rule 26(a)(3) is December 22, 2022. Any objections not made will be deemed waived.
COMPLETION OF DISCOVERY

Written discovery requests are not timely if they are filed so close to this deadline that under the Federal Rules of Civil Procedure the response would not be due until after the deadline.

The deadline for the completion of all discovery is October 3, 2022. ALTERNATIVE DISPUTE RESOLUTION/MEDIATION

The parties must mediate this case on or before October 17, 2022 and file a report in accordance with Rule 88 within seven days after the mediation is completed.

All offers of settlement are to be private, not filed.

The parties are ordered to retain the written offers of settlement and response as the Court will use these in assessing attorneys’ fees and costs at the conclusion of the proceedings.

If a settlement is reached, the parties should immediately notify the Court so the case may be removed from the Court’s trial docket.

PRETRIAL MOTIONS

No motion (other than a motion in limine) may be filed after this date except for good cause. The deadline to file motions (including dispositive motions and Daubert motions) is October 31, 2022.

This deadline is also applicable to the filing of any summary judgment motion under FED. R. CIV. P. 56 and any defense of qualified immunity. Leave of court is automatically given to file motions, responses, and replies not to exceed 30 pages in length. FED. R. CIV. P. 6(d) does not apply to the time limits set forth in Local Rule CV-7 for responses and replies to motions.

JOINT PRETRIAL ORDER AND MOTION IN LIMINE

The deadline to file a Final Joint Pretrial Order and any motion in limine is January 6, 2023.

All attorneys are responsible for preparing the Final Joint Pretrial Order, which must contain the following:

(1) a short statement identifying the Court’s jurisdiction. If there is an unresolved jurisdictional question, state it;

(2) a brief statement of the case, one that the judge could read to the jury panel for an introduction to the facts and parties;

(3) a summary of the remaining claims and defenses of each party;

(4) a list of facts all parties have reached agreement upon;

(5) a list of contested issues of fact;

(6) a list of the legal propositions that are not in dispute;

(7) a list of contested issues of law;

(8) a list of all exhibits expected to be offered. Counsel will make all exhibits available for examination by opposing counsel. All documentary exhibits must be exchanged before the final pre-trial conference.

The exhibit list should clearly reflect whether a particular exhibit is objected to or whether there are no objections to the exhibit;

(9) a list of the names and addresses of witnesses who may be called with a brief statement of the nature of their testimony;

(10) an estimate of the length of trial;

(11) for a jury trial, include (a) proposed questions for the voir dire examination, and (b) a proposed charge, including instructions, definitions, and special interrogatories, with authority;

(12) for a nonjury trial, include (a) proposed findings of fact and (b) proposed conclusions of law, with authority;

(13) the signatures of all attorneys; and

(14) a place for the date and the signature of the presiding judge.

FINAL PRETRIAL CONFERENCE

The Final Pretrial Conference shall be held on January 19, 2023 at 10:30 a.m.

Motions in limine, if any, will be heard on this date. Counsel should confer prior to this hearing on any issues raised in a motion in limine or the Joint Pretrial Order. Any party intending to use a demonstrative exhibit should provide the same to opposing counsel at least 3 days prior to the Final Pretrial conference so that if any objections or issues are raised about the demonstrative exhibit, they can be addressed at the final pretrial conference.

TRIAL

The Bench Trial Date is January 30, 2023 at 10:30 a.m.

It is so ORDERED.

SIGNED this February 10, 2022

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

On Feb. 8 a motion to remand to state court was filed and on Feb. 9th a notice of lis pendens* was filed in federal court.

A “lis pendens notice” is a notice recorded in a real property’s chain of title and is designed to enable interested third parties to discover the existence and scope of pending litigation affecting the title to or asserting a mortgage, lien, security interest, or other interest in real property.

Standing Order Issued on Jan 12 re removal of foreclosure cases.

JAMES MARTZALL

 

DEFENDANT’S NOTICE OF REMOVAL

Defendant, Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Accredited Mortgage Loan Trust 2006-2 Asset Backed Notes (“Trustee” or “Defendant”) through undersigned counsel, hereby removes this case from the 131st Judicial District Court of Bexar County, Texas, (LIT: Obviously that German Bank are not Spurs fans) to the United States District Court for the Western District of Texas, San Antonio Division.

Defendant denies the allegations of the Complaint and the damages contained therein, and files this Notice without waiving any defenses, exceptions, or obligations that may exist in its favor in state or federal court.

I. INTRODUCTION AND STATEMENT OF COMMENCEMENT OF ACTION

1. On or about December 30, 2021, Plaintiff James Martzall (“Plaintiff”) commenced this action by filing a Petition, Cause No. 2021CI26353, in the 131st Judicial District Court of Bexar County, Texas (the “State Court Action”). See Exhibit C-1.

On the same date, Plaintiff obtained an ex parte temporary restraining order. See Exhibit C-2.

Defendant filed an answer on January 6, 2022. See Exhibit C-4.

This action is being removed less than 30 days following service of the Petition filed in the State Court Action and less than 30 days after Defendant appeared in the State Court Action.

Accordingly, removal is timely under 28 U.S.C.§1446(b).1

II. PLEADINGS AND NOTICE TO STATE COURT

2. True and correct copies of all process and pleadings in the State Court Action are being filed along with this Notice of Removal. Pursuant to 28 U.S.C. §1446(d), written notice of this removal is being served on Plaintiff and filed in the State Court Action.

III. STATEMENT OF STATUTORY BASIS FOR JURISDICTION AND VENUE

3. This action is within the original jurisdiction of the United States District Court pursuant to 28 U.S.C. §1332(a)(1). That statute provides, in pertinent part, that “the district courts shall have the original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.”2

Venue is proper in this district under 28 U.S.C. §1441(a) because the state court where the State Court Action has been pending is located in this district. As discussed in detail below, this action satisfies the statutory requirements for diversity of citizenship jurisdiction.

IV. DIVERSITY JURISDICTION

A. Citizenship of the Parties

4. This civil action involves a controversy between citizens of different states.

Plaintiff is a citizen of the State of Texas in that he resides in and is domiciled in the state of Texas.3

1      Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999).

2      28 U.S.C. §1332(a)(1).

3      See Plaintiff’s Original Petition (the “Complaint”) at ¶2.

5. Defendant, Trustee is not a citizen of Texas. When determining citizenship of a trust for purposes of diversity jurisdiction, it is the citizenship of the trustee which controls, not the citizenship of the beneficiaries of the trust.4

6. Deutsche Bank National Trust Company is now and was at the commencement of this action and all intervening times, a national banking association that has its principal office in California, as stated in its charter. Therefore, as a national banking association organized under the laws of the United States, Deutsche Bank and thus Trustee are citizens of California for diversity purposes.5

7. Since Plaintiff is a citizen of Texas and Defendant is a citizen of a state other than Texas, complete diversity of citizenship exists.6

B. Amount in Controversy

8. This case places an amount in controversy that exceeds the $75,000 threshold. A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction.7 Such jurisdiction exists as long as the parties are completely diverse and the amount in controversy exceeds $75,000.00.8

9. When ascertaining the amount in controversy in the context of a motion to remand, district courts query whether a plaintiff’s state court petition, as it existed at the time of removal, alleged damages in excess of the statutory minimum.9

If the petition does not allege a specific amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy requirement is satisfied.10

4      Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L.Ed.2d 425 (1980).

5      28 U.S.C. § 1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006).

6      See 28 U.S.C. § 1332(c)(1).

7      See 28 U.S.C. §1441(a).

8      See 28 U.S.C. §1332(a).

9     See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir.1996).

10 See Lewis v. State Farm Lloyds, 205 F. Supp. 2d 706, 708 (S.D. Tex. 2002) citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993); see also Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (explaining that the removing party bears the burden of showing that federal jurisdiction exists and that removal is proper).

The removing party satisfies this burden if the court finds it “facially apparent” that the plaintiff’s claimed damages likely exceed $75,000.00.11 In this instance, Plaintiff’s Complaint makes it facially apparent that Plaintiff’s claimed damages exceed $75,000.00 given that Plaintiff seeks temporary and permanent injunctive relief that would preclude Defendant from conducting a foreclosure sale on the collateral securing the subject loan and the value of the property exceeds $75,000.00.

10. The filing of the present suit seeks to stop and has halted a foreclosure attempt by Defendant on property located at 16543 Inwood Cove, San Antonio, Texas 78248 (the “Property”).12 The value of the Property according to the Bexar County Appraisal District for 2021 is no less than $456,350.00. See Exhibit D.

11. As Plaintiff references in his Complaint, he seeks injunctive relief precluding Trustee from foreclosing on the Property based on a contention that Trustee is precluded from doing so by the applicable statute of limitations.13

12. Federal jurisdiction can be established by facts alleged in the petition for removal that support a conclusion that the amount in controversy requirement is satisfied.14 “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 litigation.”15 Plaintiff seeks relief which has and will continue to preclude enforcement of the contractual loan obligations or Defendant’s right to foreclose on and take possession of the subject property.

13. “[W]hen the validity of a contract or a right to property is called into question in its entirety, the value of the property controls the amount in controversy.”16

11     Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995).

12     See Plaintiff’s Complaint at ¶ 8.

13     See Complaint at ¶¶ 34-39 and Prayer.

14     Menendez v. Wal-Mart Stores, Inc., 364 Fed. Appx. 62, 66, 2010 WL 445470, 2 (5th Cir. 2010) (unpublished) (citing Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638-39 (5th Cir. 2003)).

15     Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).

16     Waller v. Prof’l Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961).

“[T]he amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extent of the injury to be prevented.”17 Also, where a party seeks to quiet title or undo a foreclosure, the object of the litigation is the property at issue and the amount in controversy is measured by the value of the property.18

The value of the subject property in this instance for diversity purposes is no less than $412,015.00 per the records of the Guadalupe County Appraisal District for 2021. See Exhibit D. The value of the Property in this instance satisfies the jurisdictional amount of $75,000.00 for diversity purposes.

V. JURY DEMAND

14. Plaintiff has not made any known jury demand in the State Court Action.

VI. CONCLUSION

15. For the foregoing reasons, Defendant asks the Court to remove this suit to the United States District Court for the Western District of Texas, Austin Division.

Respectfully submitted,

By: /s/ Michael F. Hord Jr.

Michael F. Hord Jr.

State Bar No. 00784294
Federal I.D. No. 16035
Eric C. Mettenbrink
State Bar No. 24043819
Federal I.D. No. 569887

HIRSCH & WESTHEIMER, P.C.
1415 Louisiana,
36th Floor Houston,
Texas 77002-2772
Tel 713-220-9182 / Fax 713-223-9319
E-mail: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com

ATTORNEYS FOR DEFENDANT

 

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of January, 2022, a true and correct copy of the foregoing Notice of Removal was forwarded as follows:

James Minerve
13276 N Highway 183, Ste. 209
Austin, Texas 78750
(888) 819-1440 (Office)
(210) 336-5867 (Cell)
(888) 230-6397 (Fax)
Email: jgm@minervelaw.com

Attorney for Plaintiff GLORIA JO FLOYD (LIT: Who is Gloria?)
Via Email and US Mail

/s/ Michael F. Hord Jr. Michael F. Hord Jr.

Fifth Circuit Approach the $75K Min. Sum Required for Federal Jurisdiction and Reject Deutsche Bank’s Arguments

Judge Andrew ‘Andy’ Oldham penned the Opinion for the 3-panel known to favor Deutsche Bank, and which included Judge Haynes and Jolly.

James Martzall Dumps Lawyer Jeffrey Jackson And Files Suit Against His Mortgage Servicer, Pro Se

The filing of the present suit seeks to stop and has halted a foreclosure attempt on property at 16543 Inwood Cove, San Antonio, Texas.

Deutsche Mortgage Group Sued by Tenured Foreclosure Defense Lawyer R. Clay Vilt

When did Deutsche Bank National Trust Company become Deutsche Mortgage Group Vilt and Associates? Let us know in the comments section.

The Connected Investor and Home Flipper James Martzall Files Suit Against Deutsche Bank
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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