Debt Collector

The Wolf Lives On After Death as Mark Chases Margaret’s Estate, the Grinch of Christmas

The Fifth Circuit panel of Judges Graves, Haynes and Stewart bemoaned foreclosure appeals, yet it’s lawyers who are removing from State court,

Camero v. Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1

(5:21-cv-01271)

District Court, W.D. Texas

DEC 21, 2021 | REPUBLISHED BY LIT: DEC 24, 2021

LIT COMMENT

It’s refreshing to see a motion to remand is answered by the Federal District Judge in a detailed Order rather than one word  (DENIED), and where the party includes pro se litigant(s).

ORDER ON MOTION TO REMAND

FEB 9, 2022 | REPUBLISHED BY LIT: FEB 9, 2022

ORDER

On this date, the Court considered Plaintiff’s Motion to Remand (ECF No. 6) and Defendant’s Response (ECF No. 7).

After careful consideration, the motion is DENIED.

BACKGROUND

Plaintiff Margaret Camero (“Plaintiff”) filed her original petition on November 30, 2021, in the 407th Judicial District Court, Bexar County, Texas.

ECF No. 1-1 at 6

. Defendant Wilmington Savings Fund Society1 (“Defendant”) removed the case to this Court on December 21, 2021 on the basis of diversity jurisdiction.

ECF No. 1.

Plaintiff is the surviving spouse of Isaac Camero.

ECF No. 1-1 at 6.

Plaintiff owned the property at 463 E. Palfrey, San Antonio, TX 78223 (“the Property”), and during her marriage executed a warranty deed to her husband for the Property. Id.

Mr. Camero subsequently obtained a reverse mortgage with the Defendant.

Id.

Mr. Camero fell behind on the obligations due under

1              Defendant brings this action not individually but solely as trustee for Nationstar HECM Acquisition Trust 2020-I.

the reverse mortgage before his death in 2019.

Id. at 7.

Isaac Camero died intestate, and no probate case has been filed.

Id.

On September 7, 2021, Defendant conducted a foreclosure sale of the Property.

Id.

Plaintiff alleges that Defendant wrongfully foreclosed on the loan and conducted a sale of the Property by failing to provide notices of foreclosure to all heirs to the Estate of Isaac Camero as well as selling the Property at a price disproportionate to its true value.

ECF No. 1-1 at 7.

Plaintiff seeks

(1) declaratory judgment for legal title of the Property;

(2) declaratory judgement setting aside the foreclosure sale of the Property;

and

(3) judgment for the value of the Property.

Id.

Plaintiff filed the instant motion to remand, arguing that this Court lacks jurisdiction because the amount in controversy does not exceed $75,000.

ECF No. 6.

Defendant opposes remand.

ECF No. 7.

DISCUSSION

I. Legal Standard

On a motion to remand, a court must consider whether removal to federal court was proper. Removal is proper in any “civil action brought in a State court of which the district courts of the United States have original jurisdiction.”

28 U.S.C. § 1441(a).

The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.

De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

If the removing party asserts federal jurisdiction on the basis of diversity jurisdiction, it must demonstrate that there is complete diversity among the parties and that the amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1)–(4).

It follows, then, that the removing party has the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.

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

The amount in controversy is determined by the amount sought on the face of the plaintiff’s pleadings, so long as the plaintiff’s claim is made in good faith.

St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); De Aguilar, 47 F.3d at 1408.

Removal is thus proper if it is “facially apparent” from the complaint that the claim or claims asserted exceed the jurisdictional amount.

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

Where it is facially apparent that the amount in controversy exceeds $75,000, remand is not warranted unless the plaintiff establishes “to a legal certainty that the claim is really for less than the jurisdictional amount.”

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

In evaluating a motion to remand, a court must resolve “all factual allegations,” “all contested issues of substantive fact,” and “all ambiguities in the controlling state law” in the plaintiff’s favor.

Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005).

The court must evaluate the removing party’s right to remove “according to the plaintiffs’ pleading at the time of the petition for removal.”

Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939); see also Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)

(“The jurisdictional facts that support removal must be judged at the time of removal.”).

Once diversity jurisdiction is established, “subsequent events that reduce the amount in controversy to less than $75,000 generally do not divest the court of diversity jurisdiction.”

Gebbia, 233 F.3d at 883 (citing St. Paul Mercury Indem. Co., 303 U.S. at 289–90).

Post-removal affidavits, stipulations, and amendments reducing the claim below the requisite “do not oust the district court’s jurisdiction once it has attached.”

St. Paul Mercury Indem. Co., 303 U.S. at 293.

II. Analysis

Plaintiff asserts that this case only concerns the value between the sale price of the Property and the alleged market value of the Property—$29,963.81. ECF No. 6 at 2.

However, in her petition, Plaintiff seeks money damages for “the value of the real property,” which she alleges is $162,000.00. ECF No. 1-1 at 7.

If a plaintiff demands a specific amount of damages in her petition, “[t]he amount stated in the complaint is itself dispositive of jurisdiction if the claim is apparently made in good faith.”

Scarlott v. Nissan N. Am., 771 F.3d 883, 888 (5th Cir. 2014) (quoting Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1069 (5th Cir. 1989)) (alteration in original).

Thus, Plaintiff’s demand for the value of the Property puts the amount in controversy in excess of $75,000.

Furthermore, Plaintiff seeks declaratory judgement for title to the Property and to set aside the foreclosure. ECF No. 1-1 at 7.

“[T]he amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extend of the injury to be prevented.”

Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983).

When a plaintiff seeks to invalidate a foreclosure sale, the amount in controversy can be measured by the value of the real property.

See id.; Funke v. Deutsche Bank Nat’l Tr. Co., No. 5:14-CV-307-DAE, 2014 WL 3778831, at *2 (W.D. Tex. July 31, 2014).

Plaintiff asserts in her petition that the value of the Property is $162,000.

ECF No. 1-1 at 7.

In its removal petition, Defendant provides evidence that the appraised value of the Property is $189,150.

ECF No. 1-1 at 24;

see also Garcia v. Koch Oil of Tex., Inc., 351 F.3d 636, 639 (5th Cir. 2003)

(“[D]efendants ‘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.’”) (quoting Allen, 63 F.3d at 1335) (emphasis in original).

By either measure, in seeking to invalidate the foreclosure sale, Plaintiff puts the amount in controversy in excess of $75,000.

CONCLUSION

For the reasons stated herein, Plaintiff’s Motion to Remand (ECF No. 6) is DENIED. It is so ORDERED.

SIGNED this 9th day of February, 2022.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

Camero v. Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1

(5:21-cv-01271)

District Court, W.D. Texas

DEC 21, 2021 | REPUBLISHED BY LIT: DEC 24, 2021

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO REMAND AND BRIEF IN SUPPORT

Doc. 7, Jan. 26, 2021

Defendant Wilmington Savings Fund Society, FSB, not Individually, but solely as Trustee for Nationstar HECM Acquisition Trust 2020-1 (“WSFS” or “Defendant”) files this Response to the Motion to Remand filed by Plaintiff Margaret Camero, Individually and on Behalf of the Estate of Issac Camero, Deceased (“Plaintiff”) [ECF No. 6], and Brief in Support and respectfully shows as follows:

I.

Plaintiff in her Motion to Remand makes a single argument, namely, that the amount in controversy is not met.

In support of her argument, Plaintiff states that she in her Petition that she is only seeking $29,963.81 in money damages.

Motion to Remand, ¶B. Plaintiff states that she is not seeking to invalidate Defendant’s lien or to enjoin foreclosure. Id., ¶¶D-E.

Plaintiff’s argument, however, is directly contradicted by her Petition.

In her actual pleading, Plaintiff states that she is seeking “[j]udgment against defendants … for the value of the real property”.

ECF No. 1-1, p.7 at Prayer for Relief.

In this same pleading, Plaintiff specifies that the value of the subject property is $162,000.00.

ECF No. 1-1, p.6 at ¶11.

Also in her Prayer, Plaintiff also pleads for a “judgment setting aside the foreclosure sale of the property conducted on 9/7/2021” and for “legal title to the real property”.

ECF No. 1-1, p.7 at Prayer for Relief.

This claim for relief follows Plaintiff’s allegations in her Petition that Defendant failed to provide notice of default, acceleration and sale to her and her siblings; that no order for foreclosure had been entered first; and also that no judicial determination of heirship had been made.

ECF No. 1-1, p.7 at ¶¶9-13.

Plaintiff pleads that the subject property sold at this foreclosure sale for $132,039.19 and that its actual value, as indicated above, was $162,000.00.

ECF No. 1-1, p.6 at ¶11.

Jurisdiction is determined at the time of removal.

Beef Group v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000).

The removing party must show the complete diversity of the parties and that the amount in controversy is more than $75,000.00.

See De Aguilar v. Boeing, Co., 47 F.3d 1404, 1408 (5th Cir. 1995); see also 28 U.S.C. § 1332.

The amount in controversy is determined, among other ways, by the plaintiff “demand[ing] a specific amount of damages” in its complaint.

Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 888 (5th Cir. 2014).

If a specific amount is demanded, the amount stated in the complaint is dispositive when made in good faith.

Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87, 135 S. Ct. 547 (2014); Scarlott, 771 F.3d at 888.

Here, Plaintiff in her Petition very clearly makes two different claims for relief.

The first is for money damages in the amount of the value of the property, which she specifies to be $162,000.00.

ECF No. 1-1, p.6 at ¶11.

This demand alone shows that the amount in controversy exceeds $75,000.00.

Secondly, Plaintiff also clearly in her Petition states that she seeks “[a] judgment setting aside the foreclosure sale of the property” and for “legal title to the real property”.

ECF No. 1-1, p.6 at ¶11.

When a party seeks to invalidate a foreclosure sale, the amount in controversy in the value of the property, which can be determined by the tax-assessed value.

Funke v. Deutsche Bank Nat’l Tr. Co., No. 5:14-CV-307-DAE, 2014 U.S. Dist. LEXIS 104438 *5-6 (W.D. Tex. July 13, 2014).

In an identical situation where a plaintiff filed a suit to declare a foreclosure sale void but then claimed in its motion to remand that it was only seeking money damages for the foreclosure, United States District Judge Keith Ellison held that the allegations in the petition controlled and the amount in controversy for such a claim is the value of the property.

Perkins v. Bank of Am., No. 12-CV-3049, 2013 U.S. Dist. LEXIS 117 *7 (S.D. Tex. Jan. 2, 2013).

Furthermore, to the extent that Plaintiff in her Motion to Remand suggests that she never pled in her Petition that was seeking a judgment for the invalidation of the foreclosure sale, her pleading expressly indicates the contrary.

Not only does she include in her Prayer for Relief a request for a judgment that the sale be set aside and for title, but this request follows after her allegations that foreclosure notices were not properly given, that an order for sale was not first obtained, and that a judicial determination of heirship had not been obtained.

ECF No. 1-1, p.7 at ¶¶9-13.

While Defendant disagrees with these contentions, the language of Plaintiff’s Petition is clear that she includes in her live pleading a claim for the invalidation of the foreclosure sale.1

WHEREFORE, PREMISES CONSIDERED, Defendant asks that Plaintiff’s Motion to Remand be denied and that Defendant receive all other relief to which it may be entitled.

1 Plaintiff in her Motion to Remand actually admits that she includes this claim in her Petition. See Motion to Remand, p.1, ¶1 (where she admits to Paragraph 2 of Defendant’s Notice of Removal).

Respectfully submitted,

By: /s/ Mark D. Cronenwett
MARK D. CRONENWETT
Attorney in Charge Texas Bar No. 00787303
mcronenwett@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, PC
14160 North Dallas Parkway, Ste. 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686
ATTORNEYS FOR DEFENDANT

 

CERTIFICATE OF SERVICE

The undersigned certifies that on January 26, 2022, a true and correct copy of the foregoing document was delivered via regular U.S. mail to the party listed below:

Margaret Camero 463 E. Palfrey
San Antonio, Texas 78223
Pro Se

/s/ Mark D. Cronenwett
MARK D. CRONENWETT

(NEW) STANDING ORDER CONCERNING REMOVED CASES NOTICE TO REMOVING DEFENDANT(S):

Doc. 3, Dec. 28, 2021

(1) FILE THE COMPLETE STATE COURT RECORD. Pursuant to 28 U.S.C. § 1447(b) and the Fact Sheet for Judge Xavier Rodriguez (available at https://www.txwd.uscourts.gov), if not already done, the removing party(ies) shall, within fourteen days of this Order, supplement the record with all state court pleadings. The supplement is to be filed electronically and shall include a copy of the complete file, including the docket sheet, in this cause from the court from which this case was removed.

(2) PROPERLY PLEAD THE CITIZENSHIP OF ALL PARTIES. If this case has been removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332, the removing party has the burden to demonstrate that there is complete diversity by properly pleading the citizenship of all parties. Parties must make “clear, distinct, and precise affirmative jurisdictional allegations.”

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).

The removing party shall ensure that they have properly pled the citizenship of all parties in this case as outlined below, and shall file an amended notice of removal or supplement their original notice of removal within 14 days of this Order if they have not. Failure to file an amended Notice of Removal or to supplement the record with proper citizenship allegations within 14 days may result in remand of this action by the Court without further notice.

(a) Individuals/Natural Persons: For individuals, pleading residence is insufficient; the notice of removal must plead their citizenship.

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019)

(“For individuals, citizenship has the same meaning as domicile, and the place of residence is prima facie the domicile. Nevertheless, citizenship and residence are not synonymous terms. Citizenship requires not only residence in fact but also the purpose to make the place of residence one’s home. Therefore, an allegation of residency alone does not satisfy the requirement of an allegation of citizenship.”) (cleaned up).

(b) LLCs, Partnerships, and Unincorporated Associations: The citizenship of limited liability entities is determined by the citizenship of all their members.

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).

Similarly, the citizenship of a partnership is determined by the citizenship of all its partners.

Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990); Corfield v. Dallas Glen Hills, L.P., 355 F.3d 853, 856 n.3 (5th Cir. 2003).

“A party seeking to establish diversity jurisdiction must specifically allege the citizenship of every member of every LLC or partnership involved in a litigation.”

Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017).

When members or partners are themselves entities or associations, citizenship must be traced through however many layers of members/partners there are until arriving at the entity that is not a limited liability entity or partnership and identifying its citizenship status.

See Mullins v. TestAmerica, Inc., 564 F.3d 386, 397-98 (5th Cir. 2009).1

(c) Corporations: A corporation is a citizen of its state(s) of incorporation and of the state in which its principal place of business is located, as determined by the “nerve center” test. 28 U.S.C. § 1332(c)(1);

Lincoln Property Co. v. Roche, 546U.S. 81 (2005); Hertz Corp. v. Friend, 559 U.S. 77 (2010).

The removing party must allege both a corporation’s state of incorporation and its principal place of business.

MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019).

(3) SUBMIT AN ADVISORY TO THE COURT WITH ANSWERS TO THE FOLLOWING QUESTIONS WITHIN 7 DAYS:

(a) The date on which the removing party was served with a summons and petition. If the Notice of Removal is filed more than thirty days after this date, explain why. If removal is based on “other paper,” identify the paper (provide it if not already provided) and state the date on which it was received.

(b) Identify whether any defendants who had been served prior to the time of removal are citizens of Texas.

(c) Identify any defendant who had been served prior to the time of removal who did not formally join in the notice of removal and the reasons therefor (provide copies of written consents, if any, if not already on file).

1 If the members of an LLC or partners of a partnership are unknown to the removing party even after a diligent investigation, the removing party may allege its citizenship on information and belief. Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99 (3d Cir. 2015). Before doing so, the removing party should consult the sources at its disposal, including court filings and other public records to ensure good faith pleading. Id. at 108.

(d) Was this case removed from one of the following counties: Atascosa, Bandera, Bexar, Comal, Dimmit, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, Real, or Wilson. If no, state what county it was removed from.
NOTICE TO PLAINTIFF(s):

(1) MOTIONS TO REMAND: Plaintiff(s) must file a motion to remand based on any procedural defects in removal within thirty days of the filing of the Notice of Removal. 28  U.S.C. § 1447(c). The Court will not sua sponte remand on the basis of a procedural defect.

(2) SERVICE OF PROCESS: Rule 4 applies to a civil action after it is removed from state court. If any Defendant has not yet been served (including the removing Defendant), Plaintiff must serve them pursuant to Rule 4. Failure to timely serve a defendant may result in dismissal pursuant to Rule 4(m).

NOTICE TO ALL PARTIES: Any motion filed in the state court before removal that still requires resolution in this Court must be re-filed as a new motion in this Court.

SIGNED this December 28, 2021.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

Notice of Removal by Foreclosure Mill Mackie Wolf

DEC 21, 2021 | REPUBLISHED BY LIT: DEC 24, 2021

New foreclosure case. Bookmark for updates. (The Judge hasn’t even been assigned yet).

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. Section 1446(a), Wilmington Savings Fund Society, FSB, not individually, but solely as Trustee for Nationstar HECM Acquisition Trust 2020-1 (“WSFS” or “Defendant”), files this notice of the removal of this action from the 407th Judicial District Court of Bexar County, Texas. Defendant submits this Notice in support of removal. Removal is based on the ground that diversity jurisdiction exists over this action because there is complete diversity among the parties and the amount in controversy exceeds $75,000.00, pursuant to 28 U.S.C. Section 1332. Defendant respectfully shows as follows:

INTRODUCTION

1. On or about November 30, 2021, Plaintiff Margaret Camero (“Plaintiff”) filed Plaintiff’s Original Petition (the “Petition”) bearing Cause No. 2021CI24567 in the 407th Judicial District Court, Bexar County, Texas, styled Margaret Camero, Individually and on behalf of the Estate of Isaac Camero v. Wilmington Savings Fund Society, FSB, not individually, but solely as Trustee for Nationstar HECM Acquisition Trust 2020-1(the “State Court Action”). A true and correct copy of the Docket Sheet from the State Court Action is attached hereto as Exhibit A. In accordance with 28 U.S.C. Section 1446(a), copies of all process, pleadings, and orders served in the State Court Action are attached hereto within the contents of Exhibit B.

2. The allegations in the Petition relate to a deed of trust and foreclosure proceedings on Plaintiff’s real property and improvements located at 463 E. Palfrey, San Antonio, Texas 78223. (the “Property”). (See Petition at ¶6.) Plaintiff alleges Defendant has wrongfully proceeded with foreclosure of the loan and sale of the Property due to a failure to provide notices of foreclosure to all heirs as well as selling the Property at a price dispropionate to its true value. (See, generally, id.) Plaintiff brings causes of action for (1) violation of Section 51.002 of the Texas Property Code; (2) declaratory judgment for legal title; and (3) declaratory judgment setting aside the foreclosure sale of the Property conducted on September 7, 2021. (Id. at ¶¶9-15.) Plaintiff seeks a judgment for legal title, attorney fees, prejudgment and post judgment interest, and cost of suit. (See id. at Prayer.)

3. This Notice of Removal is timely because thirty (30) days have not expired since the State Court Action was filed, making removal proper in accordance with 28 U.S.C. Section 1446(b).

4. This action is removable to federal court pursuant to 28 U.S.C. Section 1441 because it could have been filed originally in this Court pursuant diversity jurisdiction conferred by 28 U.S.C. Section 1332.

BASIS FOR REMOVAL – DIVERSITY JURISDICTION

A. There is diversity between the parties.

5. Removal of the State Court Action to this Court is also proper pursuant to 28 U.S.C. Sections 1332, 1441(a) and (b) because the amount in controversy is well in excess of $75,000.00 exclusive of interest, costs, and attorneys’ fees.

6. Plaintiff is an individual and citizen of the state of Texas (See Petition at ¶ 2.)

7. WSFS is the trustee of a trust. If a trustee possesses “customary powers to hold, manage, and dispose of assets,” then it is the real party in interest to a suit. Navarro Sav. Assoc. v. Lee, 446 U.S. 458, 464 (1980); see U.S. Bank N.A. v. Nesbitt Bellevue Prop. LLC, 859 F. Supp. 2d 602, 606 (S.D.N.Y. 2012). When a trustee is the real party in interest, its citizenship— not the citizenship of the beneficiaries of the trust—controls for purposes of diversity jurisdiction. Navarro, 446 U.S. at 464–66. That is, when the trustee has control of assets for the benefit of another and has the power to sue or be sued in its own name (and does so), the trustee’s citizenship is “all that matters for diversity purposes.” Americold Realty Trust v. ConAgra Foods Inc., 136 S.Ct. 1012, 1016, No. 14-1382, slip op. at 5 (Mar. 7, 2016) (citing Navarro, 446 U.S. at 462– 66). WSFS is a national banking association. A national banking association is considered a citizen of the state in which it is located. 28 U.S.C. § 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). WSFS is, and at all times relevant to this action was, a national association bank with its main office located in Wilmington, Delaware. Thus, Defendant WSFS is a citizen of Delaware, and no other state, for purposes of diversity jurisdiction.

B. The amount in controversy exceeds $75,000.00.

8. The amount in controversy exceeds the sum or value of $75,000.00. In the Fifth Circuit, when injunctive relief is sought, the amount in controversy is measured by the value of the object of the litigation, and the value of that right is measured by the losses that will follow. Webb v. Investacorp, Inc. 89 F.3d 252, 256 (5th Cir. 1996). Stated differently, “the amount in controversy, in an action for declaratory and injunctive relief, is 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); see also Lamar v. Chase Home Finance, LLC, 2008 WL 4057301 (N.D. Miss. 2008) (finding amount in controversy requirement was satisfied where plaintiff sought to set aside foreclosure sale and home appraised for $83,000.00, plus unspecified amount of monetary damages); Bank of America National Trust and Sav. Assoc. v. Reeves, 1995 WL 96617, *1 (E.D. La. 1995) (court held that the amount in controversy was met in action seeking to enjoin foreclosure on property because the suit “puts at issue the entire value of the property on which they attempt to enjoin defendants from foreclosing.”).

9. “Reasonable bases for valuing properties include ‘purchase price, market value, or outstanding principal and interest.’ This court considers market value to be the preferred method.” McPherson v. Bank of Am., N.A., No. H-16-3498, 2016 U.S. Dist. LEXIS 180115, at *6 (S.D. Tex. Dec. 30, 2016) (citations omitted). A defendant who attaches to a notice of removal the local appraisal district’s summary showing the market value of the property exceeds $75,000.00 meets the burden of establishing that diversity jurisdiction exits. See id. at *6; see also Govea v. JPMorgan Chase Bank, N.A., No. H-10-3482, 2010 U.S. Dist. LEXIS 130940, at *11 (S.D. Tex. Dec. 10, 2010); Funke v. Deutsche Bank Nat’l Tr. Co., Civil Action No. 5:14-CV-307, 2014 U.S. Dist. LEXIS 104438, at *5–6 (W.D. Tex. July 31, 2014); Johnson v. Wells Fargo Bank, N.A., No. 4:12CV768, 2013 U.S. Dist. LEXIS 41583, at *7 (E.D. Tex. Feb. 22, 2013). Here, Plaintiff requests, inter alia, a judgment setting aside the foreclosure sale that took place on September 7, 2021. (See Petition at Prayer.) The Petition states that the Property was sold for $132,036.19 and Plaintiff states that its true value is $162,000. (Petition at ¶11). In addition, the Bexar County Appraisal District shows a total assessed value of the Property at $167,532.00. (Exhibits C, C-1).

10. In addition, Plaintiff requests attorney fees. (Petition at Prayer.) Attorney fees claimed under a contractual or statutory provision are included as part of the amount in controversy. See Graham v. Henegar, 640 F.2d 732, 736 (5th Cir. 1981) (citing Missouri State Life Ins. Co. v. Jones, 290 U.S. 199 (1933)); St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (holding attorney fees authorized by statute are considered in determining the amount in controversy); Grant v. Chevron Phillips Chem. Co., 309 F.3d 864 (5th Cir. 2002) (though considering attorney fees in a putative class action, to like effect). Reasonable attorney fees in this case include filing and serving this suit on the Defendants (including service by publication) and litigating it through trial. In the event of a trial, those fees would easily exceed $10,000.00. Similar cases have awarded attorneys’ fees exceeding the jurisdictional minimum. See, e.g., Moreno v. Kleberg First National Bank of Kingsville, 105th District of Kleberg County, Texas (jury verdict included $570,000.00 in attorney fees against bank).

11. Defendant categorically denies Plaintiff is entitled to an award of damages in any amount, but Plaintiff’s requests for injunctive relief and attorney fees far exceeds $75,000.00, exclusive of interest and costs. For the reasons stated above, there can be no dispute that Plaintiff seeks in excess of the minimum amount in controversy.

VENUE

12. Venue for removal is proper in this district and division, the United States District Court for the Western District of Texas, San Antonio Division, under 28 U.S.C. Section 1441(a) because this district and division embrace the 407th Judicial District Court, Bexar County, Texas, the forum in which the removed action was pending.

NOTICE

13. Pursuant to 28 U.S.C. Section 1446(d), a copy of this Notice is being filed with the Clerk of Court for the 407th Judicial District Court, Bexar County, Texas.

14. The contents of Exhibit B constitute the entire file of the State Court Action.

CONCLUSION

For the reasons described above, Defendant respectfully requests this Court take jurisdiction over this matter and proceed as if it had been originally filed herein.

Respectfully submitted,

By: /s/ Mark D. Cronenwett

MARK D. CRONENWETT
Attorney in Charge
Texas Bar No. 00787303
mcronenwett@mwzmlaw.com

MACKIE, WOLF, ZIENTZ & MANN, PC
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

ATTORNEYS FOR DEFENDANT

List of all Counsel of Record

For Plaintiff:

Pro Se
Margaret Camero 463 E. Palfrey
San Antonio, Texas 78223 For Defendant:
Mark D. Cronenwett Texas Bar No. 00787303
Mackie Wolf Zientz & Mann, P. C.
14160 North Dallas Parkway Dallas, TX 75254
(214) 635-2650
(214) 635-2686 – Facsimile
mcronenwett@mwzmlaw.com

INDEX OF DOCUMENTS ATTACHED

Exhibit A Copy of the Docket Sheet for Cause No. 2021CI24567 in the 407th Judicial District Court, Bexar County, Texas;

Exhibit B Pleadings in Cause No. 2021CI24567 in the 407th Judicial District Court, Bexar County, Texas;

B-1 Plaintiff’s Original Petition, November 30, 2021;

B-2 Issued Citation on Wilmington Savings Fund Society, December 2, 2021;

B-3 Defendant’s Original Answer, December 20, 2021; Exhibit C Declaration of Mark D. Cronenwett; and
C-1 Print out from the Bexar Appraisal District web-site, December 21, 2021.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served via regular U.S. mail on December 21, 2021 on the following party:

Margaret Camero
463 E. Palfrey
San Antonio,
Texas 78223

/s/ Mark D. Cronenwett

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U.S. District Court [LIVE]
Western District of Texas (San Antonio)
CIVIL DOCKET FOR CASE #: 5:21-cv-01271

Create an Alert for This Case on RECAP

Camero et al v. Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1
Assigned to:
Cause: 28:1332 Diversity-Petition for Removal
Date Filed: 12/21/2021
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity
Plaintiff
Margaret Camero represented by Margaret Camero
PRO SE
Plaintiff
Margaret Camero on behalf of Estate of Isaac Camero, Deceased represented by Margaret Camero on behalf of Estate of Isaac Camero, Deceased
PRO SE
V.
Defendant
Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1 represented by Mark Douglas Cronenwett
Mackie Wolf Zientz & Mann, P.C.
14160 N. Dallas Parkway, Suite 900
Dallas, TX 75254
214-635-2650
Fax: 214-635-2686
Email: mcronenwett@mwzmlaw.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
12/21/2021 1 NOTICE OF REMOVAL by Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1 (Filing fee $402 receipt number 0542-15557035), filed by Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Supplement)(Cronenwett, Mark) (Entered: 12/21/2021)
12/21/2021 2 Certificate of Interested Parties by Wilmington Savings Fund Society, FSB, Not Individually but Solely as Trustee for Nationstar HECM Acquisition Trust 2020-1. (Cronenwett, Mark) (Entered: 12/21/2021)
The Wolf Lives On After Death as Mark Chases Margaret’s Estate, the Grinch of Christmas
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