Motion for Attachment Order in GEORGE WILLIAMS, ET AL vs U.S. BANK, N.A.

On April 12, 2021 a Exhibit,Appendix was filed involving a dispute between and for OTHER CIVIL, OTHER in the District Court of Tarrant County.

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Case 4:21-cv-00642-O Document 1 Filed 05/10/21 Page 1 of 6 PageID 1
017-324604-21

IN THE UNITED STATES DISTzuCT COURT EXHIBIT

exhibitsticker.com
FOR THE NORTHERN DISTRICT OF TEXAS
FORT V/ORTH DIVISION A

GEORGE WILLIAMS AND $
LAURIE WILLIAMS, $
Plaintiffs $
$
4:21-cv-00642
VS. $ C.A. NO
$
U.S. BANK, N.A.O SUCCESSOR $
TRUSTEE TO LASALLE BANK $
NATIONAL ASSOCIATION, ON $
BEHALF OF THE HOLDERS OF $
BEAR STEARNS ASSET BACKED $
SECURITIES I TRUST 2OO7 -HE7 , $
ASSET BACKED CERTIFICATES $
SERIES 2OO7.HE7 $
Defendant $

DEFENDANT'S NOTICE OF REMOVAL

Defendant, U.S. Bank, N.4., successor trustee to LaSalle Bank National Association, on

behalf of the holders of Bear Steams Asset Backed Securities I Trust 2007-H87, Asset-Backed

Certificates Series 2007-HE7 ("Trustee" or "Defendant") hereby removes this case from the 17th

District Court of Tarrant County, Texas to the United States District Court for the Northem

District of Texas, Fort Worth Division. Defendant denies the claims and damages alleged in

Plaintiffs' Original Petition and files this Notice without waiving any claims, defenses,

exceptions, or obligations that may exist in its favor in state or federal court.

I. INTRODUCTION

1. On or about April12,202I, Plaintiffs, George and Laurie V/illiams ("Plaintiffs")

commenced this action by filing Plaintiffs' Original Petition (the'oComplaint"), Cause No. 017-

324604-21in the 17th District Court of Tarrant County, Texas (the "State Court Action'o).1 The

See Exhibit C-1
999999.190/4084790.1
Case 4:21-cv-00642-O Document 1 Filed 05/10/21 Page 2 of 6 PageID 2

State Court Action was filed for purposes of delaying foreclosure on real property that serves as

collateral for a first lien mortgage held by Trustee.

2. Pursuant to 28 U.S.C. $1446(b) of the Federal Rules of Civil Procedure, this

Notice of Removal is timely filed within thirty (30) days of Defendant's first receipt of the initial

state court pleading.2

il. PLEADINGS AND NOTICE TO STATE COURT

3. True and ther filings in the

State Court Action are being filed along with this Notice of Removal as required by 28 U.S'C.

glaa6(a). Pursuant to 28 U.S.C. $1446(d), written notice of this removal is being served on

Plaintiffs and filed in the State Court Action.

III. DIVERSITY JURI$DIÇTIQN

A. Citizenshin the Parties

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

plaintifß are domiciled in and reside in Texas and are therefore citizens of the State of Texas for

diversity purposes.3

5. Defendant, Trustee, is the trustee of a trust. 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.a U.S. Bank National Association's articles of

association establish that Ohio is its main offrce. Therefore, Trustee is a citizen of Ohio for

diversity purposes.5

2 Bd. of Regents of Univ. of Tex. Sys.v. Nippon Tel. & Tel. Corp.,478 F.3d 274,278 (5th Cir. 2007).
3 See the Complaint arll2-3.
a Navaruo Søv. Ass'nv. Lee,446 U.S. 458,464,100 S. Ct. 1779,64L.Bd.2d425 (1980)'
s 28 U.S.C.A. $ 134S (West); Wachoviq Bank v. Schmidt,546 U.S. 303,307, 126 S' Ct' 941, 163 L. Ed.2d 797
(2006) (,,[A] national bank, for1348 purposes, isa citizen ofthe State inwhich itsmain office, as set forth in its
is
articles of association, located.").
2
999999.190t4084790.1
Case 4:21-cv-00642-O Document 1 Filed 05/10/21 Page 3 of 6 PageID 3

6. Since Plaintiffs are citizens of Texas for diversity purposes and Trustee is a

citizenof Ohio for diversity purposes, the parties are completely diverse.

7. 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 ifthe action is one over which the

federal court possesses subject matter jurisdiction. See 28 U.S.C. $ laal(a). Such jurisdiction

exists as long as the parties are completely diverse and the amount in controversy exceeds

$75,000.00. See 28 U.S.C. $ 1332(a).

8. When ascertaining the amount in controversy in the context of a motion to

remand, district courts query whether a plaintiffs state court petition, as it existed at the time of

removal, alleged damages in excess of the statutory minimum.6

g. 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.T The removing party satisfies this burden if the court finds it "facially apparent" that

the plaintiffs claimed damages likely exceed $75,000.00.8

10. This action relates to property located at 604 Edgebrook Ave., Keller, Texas

76248 (the "Property").e The value of the Property according to the Tarrant County Appraisal

District for 2020 is no less than $582,582. See Exhibit D. Plaintiffs challenge Trustee's right to

foreclose its first lien on the Property andlor to obtain possession following foreclosure and the

6 See S.W.S. Erectors, Inc. v. Infqx, Inc.,72 F.3d 489, 492 (sth Cfu.1996).
? See Lewis v. State Farm Lloyds,205 F. Supp. 2d706,70S (S.D. Tex.2002) citing De Aguilar v. Boeing Co., ll
F.3d 55,53 (5th Cir. 1993); see also Møngunov. Prudential Prop. andCas. Ins. Co.,276F'3d720,723 (srh
Cir.2002) (explaining that the removing party bears the burden of showing that federal jurisdiction exists and
that removal is proper).
8 Allenv, R& H Oil & Gas Co.,63F.3d1326,1335 (5th Cir.1995).
e See Complaint at'l|f 7.
3
999999.19014084790.\
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filing of the present action suspends Defendant's right to foreclose on the Property until the

conclusion of this matter.lo

1 1. Federal jurisdiction can be established by facts alleged in the petition for removal

that support a conclusion that the amount in controversy requirement is satisfîed.ll "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."l2

12. "[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."l3 "[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."l4 Also, where a par:ty 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.ls The value of the subject property in this instance for

diversity pu{poses is no less than $582,5 82 per the records of the Tarrant County Appraisal District

for 2020. See Exhibit D. The value of the Property in this instance satisfies the jurisdictional

amount of $75,000.00 for diversity purposes and the claim for money damages and attorney's fees

further support the requisite amount in controversy for diversity jurisdiction.

13. The loan in question is Texas Home Equity Loan.16 The filing of this action

precludes enforcement of the contractual loan obligations and Defendant's right to foreclose on

l0 See Complaint generally and736.ll which provides that the frling of this action abates any Rule 736 Expedited
Foreclosure Action of the kind filed against Plaintiffs by Defendant prior to the filing of this action,
1l
Menendezv. l4¡al-Mart Stores, Lnc.,364 Fed.Appx, 62,66,2010 WL 445470,2 (5th Cir' 2010) (unpublished)
(citing Garciav. Koch Oil co. of Texas, Inc.,35l F.3d 636, 638-39 (5th Cir. 2003)).
t2
Huntv. llash. State Apple Adver. Comm'n,432U.5.333,347,97 S. Ct. 2434,53 L. Ed.2d 383 (1977).
l3
Wqller v. Prof'l Ins. Corp.,296 F.2d 545,547-48 (5th Cir' 1961).
t4
Webbv, Inveitacorp, Inc.,89 F.3d252 (5th Cir. 1996), citngLeiningerv. Leininger,T05F'2d727 (sth Ctu. 1983).
15
see Berry v. chase Home Fin., LLC,2009 WL2868224, at *2 (S.D. Tex. August 27,2009).
16
See Complaint atl7.
4
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999999.1 90 I 4084'ì 90.
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and take possession of the subject properfy and is therefore tantamount to injunctive relief.lT

is ooautomatically if
Any proceeding seeking a foreclosure order under Rule 736 stayed a

respondent files a separate, original proceeding in a court of competent jurisdiction that puts in

issue any matter related to the origination, servicing, or enforcement of the loan

agreement." Tex. R. Civ. P. 736.11(a); tlS. Bank N. A. as Tr. of Holders of J.P. Morgan Mortg.

Acquisition Tr. 2006-14¡MC4 Asset Backed Pass-Through Certificates, Series 2006-'WMC4 v.

Morris,No. 1:19-CY-352-LY,2019 WL 5595235, at *5 (V/.D. Tex. Oct. 30,2019); (discussing

736j1and the manner in which it precludes a lender from exercising its contractually granted

power of sale).

14. In fact, this is at least the second lawsuit filed by Plaintiffs to delay foreclosure

while a Rule 736 expedited foreclosure proceeding was pending. Plaintiffs previously filed a

Complaint containing almost identical claims against Defendant that was removed and existed

under C.A. No.4:19-cv-01050-P in the United States District Court for the Northern District of

Texas (Fort Worth Division). Defendant filed and has an Expedited Foreclosure proceeding

pending in state court under Cause No. 141-313259-19 in the 141s Civil District Court of Tarrant

County, Texas, that has now twice been abated by litigation filed by Plaintiffs, including the

present action.

15. Accordingly, the amount in controversy for diversity pu{poses is the value of the

properfy, which far exceeds the jurisdictional amount for diversity jurisdiction.

t'l See Complaint generally and736.ll which provides that the filing of this action abates any Rule 736 Expedited
Foreclosure Action of the kind filed against Plaintiff by Defendant prior to the filing of this action; Cqrter v.

Wells Fargo Home Mortg., No. 3:16-cv-296,2017WL 29992440 (S.D. Tex. li4at.23,2017) (holding that the
lawsuit on a Texas Home Equity Loan suspends
fìling of a collateral non-judicial foreclosure and is tantamount
to injunctive relief precluding foreclosure). The intent and effect of the filingof this lawsuit is to preclude
Defendant from exercising its legal right toforeclose on the Property until atleastthe conclusion of this matter,
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JURY DEMAND

16. Plaintiffs have made no known jury demand in the State Court Action.

CONCLUSION

For the foregoing reasons, Defendant asks the Court to remove this suit to the United

States District Court for the Northern District of Texas, Fort Worth Division.

Respectfully submitted,

By :lsl 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 & V/ESTHEIMER, P.C.
1 4 I 5 Louis iana, 36th Floor
Houston, TX77002-2772
7 13- 220-91 82 Telephone
7 13 -223 -93 1 9 Facsimile
Email : mhord fÐhirschwest. com
Email: emettenbrink@hirschwest.com

ATTORNEYS F'OR DEFENDANT

CERTIFICA OF'SF],RVICE

I hereby certi$r that on this 10th day of }y'ray 2021, a true and correct copy of the
foregoing and/or attached was served on each attorney of record or party in accordance with
Federal Rule of Civil Procedure 5(b) as follows:

Jason A. LeBoeuf
675 Town Square Blvd., Suite 200
Building 1A
Garland, Texas 75040
Via Email and ECF

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

6
999999.190 I 4084'1 90.
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Document Filed Date

May 10, 2021

Case Filing Date

April 12, 2021

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Exhibit,Appendix: GEORGE WILLIAMS, ET AL vs U.S. BANK, N.A.

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