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FILED
9/16/20212:13 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-21-1 1928
ANTONIO GIBSON IN THE DISTRICT COURT
§§§§§§§§§§§
Plaintiffs
VS.
19IST JUDICIAL DISTRICT
U.S. BANK TRUST NATIONAL,
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE OF LSF9
MASTER PARTICIPATION TRUST
Defendant DALLAS COUNTY, TEXAS
DEFENDANT’S NOTICE OF FILING REMOVAL
On September 16, 2021, Defendant, U.S. Bank Trust N.A. as Trustee of LSF9 Trust
(“Trustee” or “Defendant”) filed the attached Notice of Removal (without exhibits — documents
previously filed in the above-styled case) in the Office of the Clerk of the United States District
Court for the Northern District of Texas, Dallas Division. See attached Exhibit “A”.
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael F. Hord Jr.
Michael F. Hord Jr.
State Bar No. 00784294
Eric C. Mettenbrink
State Bar No. 24043819
1415 Louisiana, 36th Floor
Houston, Texas 77002-2772
713-220-9182 Telephone
713-223-9319 Facsimile
Email: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT
20 170194.202 10566/4 173 344.1
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of September, 2021, a true and correct copy of the
foregoing was served on each attorney of record or party as follows:
John G. Helstowski
5209 Heritage Avenue, Suite 510
Colleyville, Texas 76034
Telephone: (817) 382-3125
Facsimile: (817) 382-1799
Email: j gh@jghfirm.com
Attorney for Plaintiff Antonio Gibson
Via E-Service
/s/ Michael F. Hord Jr.
Michael F. Hord Jr.
20 170194.202 10566/4 173 344.1
Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 1 of 6 PagelD 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANTONIO GBSON §
Plaintiff §
§
VS. § C.A. NO. 0
§
U.S. BANK TRUST NATIONAL §
ASSOCIATION, NOT IN ITS INDIVIDUAL §
CAPACITY BUT SOLELY AS TRUSTEE OF §
LSF9 MASTER PARTICIPATION TRUST §
Defendant §
§
DEFENDANT’S NOTICE OF REMOVAL
U.S. Bank Trust National Association, not in its individual capacity but solely as Trustee
of LSF9 Master Participation Trust (“Defendant” or “Trustee”) hereby removes this case from
the 191st District Court, Dallas County, Texas to the United States District Court for the
Northern District of Texas, Dallas Division. Defendant denies the claims and damages alleged in
Plaintiff’s Original Petition and files this Notice of Removal 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 September 1, 2021, Plaintiff, Antonio Gibson (“Plaintiff”)
commenced this action by filing Plaintiff s Original Verified Petition and Application for
Temporary Restraining Order and Temporary Injunction (the “Complaint”), Cause No. DC-21-
11928; In the 19lst District Court, Dallas County, Texas (the “State Court Action”).1 The
State Court Action was filed for purposes of preventing a foreclosure sale on real property that
serves as collateral for a loan secured by real property?
EXHIBIT E
O
u
._
a;
1
See Exhibit C-l. x
u
‘5
u:
2
See Complaint generally and at 111143-45 requesting injunctive relief. 3:
-E
a;
20l70194.20210566/4173475.l
Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 2 of 6 PagelD 2
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.3
II. PLEADINGS AND NOTICE TO STATE COURT
3. True and correct copies of all pleadings, process, orders and other filings in the
State Court Action are being filed along with this Notice of Removal as required by 28 U.S.C.
§1446(a). 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. BASIS FOR REMOVAL
4. This action is within the original jurisdiction of the United States District Court
based on both federal question and diversity jurisdiction. Furthermore, venue is proper in the
Northern District of Texas, Dallas Division, under 28 U.S.C. §1441(a) because the state court
where the State Court Action has been pending is located in this district.
IV. DIVERSITY JURISDICTION
A. Citizenship of the Parties.
5. This civil action involves a controversy between citizens of different states.
Plaintiff resides in and is domiciled in of the State of Texas and is therefore a citizen of Texas for
Diversity Purposes.4
3
Bd. ofRegents of Univ. of Texas Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007).
4
See Complaint at 112; Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985).
2
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Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 3 of 6 PagelD 3
6. Defendant is not a citizen of Texas for diversity purposes. The mofigagee for the
subject loan, 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.5 U.S. Bank Trust, N.A.’s main office is in Delaware.
Therefore, Trustee is a citizen of Delaware for diversity purposesé
B. Amount in Controversv.
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 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
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.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. 1° The removing party satisfies this
burden if the court finds it “facially apparent” that the plaintiff‘s claimed damages likely exceed
$75,000.00.“
9. In this instance, Plaintiff‘s Complaint makes it apparent that Plaintiff’s claimed
damages exceed $75,000.00 given that Plaintiff seeks to stop Defendant from foreclosing on
5
Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980).
6
28 U.S.C. §1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A] national bank, for 1348 purposes,
is a citizen of the State in which its main office, as set forth in its articles of association, is located”).
7
See 28 U.S.C.A. § 1441(a).
8
See 28 U.S.C.A. § 1332(a).
9
See S. W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996).
1°
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. & 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).
11
Allen v. R & HOil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
3
20l70194.20210566/4173475.l
Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 1 of 6 PagelD 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANTONIO GBSON §
Plaintiff §
§
VS. § C.A. NO. 0
§
U.S. BANK TRUST NATIONAL §
ASSOCIATION, NOT IN ITS INDIVIDUAL §
CAPACITY BUT SOLELY AS TRUSTEE OF §
LSF9 MASTER PARTICIPATION TRUST §
Defendant §
§
DEFENDANT’S NOTICE OF REMOVAL
U.S. Bank Trust National Association, not in its individual capacity but solely as Trustee
of LSF9 Master Participation Trust (“Defendant” or “Trustee”) hereby removes this case from
the 191st District Court, Dallas County, Texas to the United States District Court for the
Northern District of Texas, Dallas Division. Defendant denies the claims and damages alleged in
Plaintiff’s Original Petition and files this Notice of Removal 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 September 1, 2021, Plaintiff, Antonio Gibson (“Plaintiff”)
commenced this action by filing Plaintiff s Original Verified Petition and Application for
Temporary Restraining Order and Temporary Injunction (the “Complaint”), Cause No. DC-21-
11928; In the 19lst District Court, Dallas County, Texas (the “State Court Action”).1 The
State Court Action was filed for purposes of preventing a foreclosure sale on real property that
serves as collateral for a loan secured by real property?
1
See Exhibit C-l.
2
See Complaint generally and at 111143-45 requesting injunctive relief.
20l70194.20210566/4173475.l
Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 2 of 6 PagelD 2
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.3
II. PLEADINGS AND NOTICE TO STATE COURT
3. True and correct copies of all pleadings, process, orders and other filings in the
State Court Action are being filed along with this Notice of Removal as required by 28 U.S.C.
§1446(a). 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. BASIS FOR REMOVAL
4. This action is within the original jurisdiction of the United States District Court
based on both federal question and diversity jurisdiction. Furthermore, venue is proper in the
Northern District of Texas, Dallas Division, under 28 U.S.C. §1441(a) because the state court
where the State Court Action has been pending is located in this district.
IV. DIVERSITY JURISDICTION
A. Citizenship of the Parties.
5. This civil action involves a controversy between citizens of different states.
Plaintiff resides in and is domiciled in of the State of Texas and is therefore a citizen of Texas for
Diversity Purposes.4
3
Bd. ofRegents of Univ. of Texas Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007).
4
See Complaint at 112; Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985).
2
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Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 3 of 6 PagelD 3
6. Defendant is not a citizen of Texas for diversity purposes. The mofigagee for the
subject loan, 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.5 U.S. Bank Trust, N.A.’s main office is in Delaware.
Therefore, Trustee is a citizen of Delaware for diversity purposesé
B. Amount in Controversv.
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 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
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.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. 1° The removing party satisfies this
burden if the court finds it “facially apparent” that the plaintiff‘s claimed damages likely exceed
$75,000.00.“
9. In this instance, Plaintiff‘s Complaint makes it apparent that Plaintiff’s claimed
damages exceed $75,000.00 given that Plaintiff seeks to stop Defendant from foreclosing on
5
Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980).
6
28 U.S.C. §1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A] national bank, for 1348 purposes,
is a citizen of the State in which its main office, as set forth in its articles of association, is located”).
7
See 28 U.S.C.A. § 1441(a).
8
See 28 U.S.C.A. § 1332(a).
9
See S. W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996).
1°
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. & 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).
11
Allen v. R & HOil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
3
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Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 4 of 6 PagelD 4
property located at 2842 Singletree Cove, Cedar Hills, Texas 75104 (the “Property”).12 The
value of the Property exceeds $75,000.00. See Exhibit D. The value of the Property according
to the Dallas County Appraisal District is no less than $309,710.00 for the tax year of 2021 . 13
10. 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?” Plaintiff seeks relief which if successful
would preclude enforcement of the contractual loan obligations and the right to foreclose on the
Property.”
11. “[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.”17 “[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?“ 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.” The value of the subject property in this instance for
diversity purposes is no less than $309,710.00 per the records of the Dallas County Appraisal
District for 2021.20 The value of the Property in this instance satisfies the jurisdictional amount of
$75,000.00 for diversity purposes.
See Complaint at 119.
13
See Exhibit D.
14
Menendez v. Wal—Mart Stores, Ina, 364 F. App'x 62, 66 (5th Cir. 2010) (unpublished) (citing Garcia v. Koch
Oil C0. of Texas Ina, 351 F.3d 636, 638—39 (5th Cir. 2003)).
15
Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (U.S.
1977).
16
See Complaint at 1143-45.
17
Waller v. Prof] Ins. Corp., 296 F.2d 545, 547—48 (5th Cir. 1961).
18
Webb v. Investacorp, Inc., 89 F.3d 252 (5th Cir. 1996), citing Leininger v. Leininger, 705 F.2d 727 (5th Cir. 1983).
19
F
See Berry v. Chase Home in., LLC, No. CIV.A. C-09-1 l6, 2009 WL 2868224, at *2 (S.D. Tex. Aug. 27, 2009).
2°
See Exhibit D.
4
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Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 5 of 6 PagelD 5
V. FEDERAL QUESTION JURISDICTION
12. Removal is also proper because Plaintiff’s suit involves a federal question.“ A
case arises under 28 U.S.C. §1331 if “a well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution
of a substantial question of federal law.”22 Further, the Fifth Circuit Court of Appeals has held
that “[t]he assertion of a claim under a federal statute alone is sufficient to empower the District
Court to assume jurisdiction over the case and determine Whether, in fact, the Act does provide
the claimed rights.”23
13. Among other claims, Plaintiff has alleged Violations of Regulations X and Z of
the Real Estate Settlement Procedures Act as codified in 12 CFR § 1024.41 et. seq.“ Since
Plaintiff’ s claims arise under the laws of the United States of America, the United States District
Court has original jurisdiction and removal is appropriate.
14. This Court should also exercise supplemental jurisdiction over all claims because
they are so related to the federal claims that they form part of the same case or controversy.” As
noted by the Supreme Court, “Section 1367(a) is a broad grant of supplement jurisdiction over
other claims Within the same case or controversy, as long as the action is one in which the district
courts would have had original jurisdiction?” Accordingly, this Court also has jurisdiction
based on Federal Question jurisdiction.
VI. JURY DEMAND
15. Plaintiff made a jury demand in the State Court Action.
21
28 U.S.C. §§1331, 1441(b); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg, 545 U.S. 308, 312
(2005).
22
See Empire Healthchoice Assurance, Ina, v. McVeigh, 547 U.S. 677, 689-90 (2006).
23
Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 988 (5th Circ. 1988).
24
See Complaint at 1111 49-52.
25
See 28 U.s.c. § 1367(a).
26
Exxon Mobil Corp. v. Allpattah Servs., Inc., 545, 558 (2005).
5
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Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 6 of 6 PagelD 6
VII. CONCLUSION
16. For the foregoing reasons, Defendant asks the Court to remove this suit to the
United States District Court, Northern District of Texas, Dallas Division.
Respectfully submitted,
By: /s/ Michael F. Hord Jr.
Michael F. Hord, Jr.
Texas Bar No. 00784294
Federal I.D. No. 16035
Eric C. Mettenbrink
Texas Bar No. 24043819
Federal I.D. No. 569887
HIRSCH & WESTHEIMER, P.C.
1415 Louisiana, 36th Floor
Houston, Texas 77002-2772
Telephone 713-220-9182
Facsimile 713-223-9319
E-mail: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of September, 2021, a true and correct copy of
Defendant’s Notice of Removal was forwarded as follows:
John G. Helstowski
J. Gannon Helstowski Law Firm
5209 Heritage Avenue, Suite 510
Colleyville, Texas 76034
Via Regular Mail and Email
/s/ Michael F. Hord Jr.
Michael F. Hord Jr.
20l70194.20210566/4173475.l
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 57321331
Status as of 9/16/2021 2:36 PM CST
Associated Case Party: ANTONIO GIBSON
Name BarNumber Email TimestampSubmitted Status
John Helstowski 24078653 jgh@jghfirm.com 9/16/2021 2:13:54 PM SENT
Associated Case Party: U.S. BANK TRUST NATIONAL ASSOCIATION
Name BarNumber Email TimestampSubmitted Status
Eric Mettenbrink emettenbrink@hirschwest.com 9/16/2021 2:13:54 PM SENT
Michael F.Hord mhord@hirschwest.com 9/16/2021 2:13:54 PM SENT
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FILED 9/16/20212:13 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-21-1 1928 ANTONIO GIBSON IN THE DISTRICT COURT §§§§§§§§§§§ Plaintiffs VS. 19IST JUDICIAL DISTRICT U.S. BANK TRUST NATIONAL, ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF LSF9 MASTER PARTICIPATION TRUST Defendant DALLAS COUNTY, TEXAS DEFENDANT’S NOTICE OF FILING REMOVAL On September 16, 2021, Defendant, U.S. Bank Trust N.A. as Trustee of LSF9 Trust (“Trustee” or “Defendant”) filed the attached Notice of Removal (without exhibits — documents previously filed in the above-styled case) in the Office of the Clerk of the United States District Court for the Northern District of Texas, Dallas Division. See attached Exhibit “A”. Respectfully submitted, HIRSCH & WESTHEIMER, P.C. By: /s/ Michael F. Hord Jr. Michael F. Hord Jr. State Bar No. 00784294 Eric C. Mettenbrink State Bar No. 24043819 1415 Louisiana, 36th Floor Houston, Texas 77002-2772 713-220-9182 Telephone 713-223-9319 Facsimile Email: mhord@hirschwest.com Email: emettenbrink@hirschwest.com ATTORNEYS FOR DEFENDANT 20 170194.202 10566/4 173 344.1 CERTIFICATE OF SERVICE I hereby certify that on this 16th day of September, 2021, a true and correct copy of the foregoing was served on each attorney of record or party as follows: John G. Helstowski 5209 Heritage Avenue, Suite 510 Colleyville, Texas 76034 Telephone: (817) 382-3125 Facsimile: (817) 382-1799 Email: j gh@jghfirm.com Attorney for Plaintiff Antonio Gibson Via E-Service /s/ Michael F. Hord Jr. Michael F. Hord Jr. 20 170194.202 10566/4 173 344.1 Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 1 of 6 PagelD 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ANTONIO GBSON § Plaintiff § § VS. § C.A. NO. 0 § U.S. BANK TRUST NATIONAL § ASSOCIATION, NOT IN ITS INDIVIDUAL § CAPACITY BUT SOLELY AS TRUSTEE OF § LSF9 MASTER PARTICIPATION TRUST § Defendant § § DEFENDANT’S NOTICE OF REMOVAL U.S. Bank Trust National Association, not in its individual capacity but solely as Trustee of LSF9 Master Participation Trust (“Defendant” or “Trustee”) hereby removes this case from the 191st District Court, Dallas County, Texas to the United States District Court for the Northern District of Texas, Dallas Division. Defendant denies the claims and damages alleged in Plaintiff’s Original Petition and files this Notice of Removal 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 September 1, 2021, Plaintiff, Antonio Gibson (“Plaintiff”) commenced this action by filing Plaintiff s Original Verified Petition and Application for Temporary Restraining Order and Temporary Injunction (the “Complaint”), Cause No. DC-21- 11928; In the 19lst District Court, Dallas County, Texas (the “State Court Action”).1 The State Court Action was filed for purposes of preventing a foreclosure sale on real property that serves as collateral for a loan secured by real property? EXHIBIT E O u ._ a; 1 See Exhibit C-l. x u ‘5 u: 2 See Complaint generally and at 111143-45 requesting injunctive relief. 3: -E a; 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 2 of 6 PagelD 2 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.3 II. PLEADINGS AND NOTICE TO STATE COURT 3. True and correct copies of all pleadings, process, orders and other filings in the State Court Action are being filed along with this Notice of Removal as required by 28 U.S.C. §1446(a). 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. BASIS FOR REMOVAL 4. This action is within the original jurisdiction of the United States District Court based on both federal question and diversity jurisdiction. Furthermore, venue is proper in the Northern District of Texas, Dallas Division, under 28 U.S.C. §1441(a) because the state court where the State Court Action has been pending is located in this district. IV. DIVERSITY JURISDICTION A. Citizenship of the Parties. 5. This civil action involves a controversy between citizens of different states. Plaintiff resides in and is domiciled in of the State of Texas and is therefore a citizen of Texas for Diversity Purposes.4 3 Bd. ofRegents of Univ. of Texas Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007). 4 See Complaint at 112; Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985). 2 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 3 of 6 PagelD 3 6. Defendant is not a citizen of Texas for diversity purposes. The mofigagee for the subject loan, 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.5 U.S. Bank Trust, N.A.’s main office is in Delaware. Therefore, Trustee is a citizen of Delaware for diversity purposesé B. Amount in Controversv. 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 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 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.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. 1° The removing party satisfies this burden if the court finds it “facially apparent” that the plaintiff‘s claimed damages likely exceed $75,000.00.“ 9. In this instance, Plaintiff‘s Complaint makes it apparent that Plaintiff’s claimed damages exceed $75,000.00 given that Plaintiff seeks to stop Defendant from foreclosing on 5 Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980). 6 28 U.S.C. §1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A] national bank, for 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located”). 7 See 28 U.S.C.A. § 1441(a). 8 See 28 U.S.C.A. § 1332(a). 9 See S. W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). 1° 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. & 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). 11 Allen v. R & HOil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). 3 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 1 of 6 PagelD 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ANTONIO GBSON § Plaintiff § § VS. § C.A. NO. 0 § U.S. BANK TRUST NATIONAL § ASSOCIATION, NOT IN ITS INDIVIDUAL § CAPACITY BUT SOLELY AS TRUSTEE OF § LSF9 MASTER PARTICIPATION TRUST § Defendant § § DEFENDANT’S NOTICE OF REMOVAL U.S. Bank Trust National Association, not in its individual capacity but solely as Trustee of LSF9 Master Participation Trust (“Defendant” or “Trustee”) hereby removes this case from the 191st District Court, Dallas County, Texas to the United States District Court for the Northern District of Texas, Dallas Division. Defendant denies the claims and damages alleged in Plaintiff’s Original Petition and files this Notice of Removal 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 September 1, 2021, Plaintiff, Antonio Gibson (“Plaintiff”) commenced this action by filing Plaintiff s Original Verified Petition and Application for Temporary Restraining Order and Temporary Injunction (the “Complaint”), Cause No. DC-21- 11928; In the 19lst District Court, Dallas County, Texas (the “State Court Action”).1 The State Court Action was filed for purposes of preventing a foreclosure sale on real property that serves as collateral for a loan secured by real property? 1 See Exhibit C-l. 2 See Complaint generally and at 111143-45 requesting injunctive relief. 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 2 of 6 PagelD 2 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.3 II. PLEADINGS AND NOTICE TO STATE COURT 3. True and correct copies of all pleadings, process, orders and other filings in the State Court Action are being filed along with this Notice of Removal as required by 28 U.S.C. §1446(a). 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. BASIS FOR REMOVAL 4. This action is within the original jurisdiction of the United States District Court based on both federal question and diversity jurisdiction. Furthermore, venue is proper in the Northern District of Texas, Dallas Division, under 28 U.S.C. §1441(a) because the state court where the State Court Action has been pending is located in this district. IV. DIVERSITY JURISDICTION A. Citizenship of the Parties. 5. This civil action involves a controversy between citizens of different states. Plaintiff resides in and is domiciled in of the State of Texas and is therefore a citizen of Texas for Diversity Purposes.4 3 Bd. ofRegents of Univ. of Texas Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007). 4 See Complaint at 112; Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985). 2 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 3 of 6 PagelD 3 6. Defendant is not a citizen of Texas for diversity purposes. The mofigagee for the subject loan, 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.5 U.S. Bank Trust, N.A.’s main office is in Delaware. Therefore, Trustee is a citizen of Delaware for diversity purposesé B. Amount in Controversv. 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 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 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.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. 1° The removing party satisfies this burden if the court finds it “facially apparent” that the plaintiff‘s claimed damages likely exceed $75,000.00.“ 9. In this instance, Plaintiff‘s Complaint makes it apparent that Plaintiff’s claimed damages exceed $75,000.00 given that Plaintiff seeks to stop Defendant from foreclosing on 5 Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980). 6 28 U.S.C. §1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A] national bank, for 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located”). 7 See 28 U.S.C.A. § 1441(a). 8 See 28 U.S.C.A. § 1332(a). 9 See S. W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). 1° 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. & 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). 11 Allen v. R & HOil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). 3 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 4 of 6 PagelD 4 property located at 2842 Singletree Cove, Cedar Hills, Texas 75104 (the “Property”).12 The value of the Property exceeds $75,000.00. See Exhibit D. The value of the Property according to the Dallas County Appraisal District is no less than $309,710.00 for the tax year of 2021 . 13 10. 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?” Plaintiff seeks relief which if successful would preclude enforcement of the contractual loan obligations and the right to foreclose on the Property.” 11. “[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.”17 “[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?“ 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.” The value of the subject property in this instance for diversity purposes is no less than $309,710.00 per the records of the Dallas County Appraisal District for 2021.20 The value of the Property in this instance satisfies the jurisdictional amount of $75,000.00 for diversity purposes. See Complaint at 119. 13 See Exhibit D. 14 Menendez v. Wal—Mart Stores, Ina, 364 F. App'x 62, 66 (5th Cir. 2010) (unpublished) (citing Garcia v. Koch Oil C0. of Texas Ina, 351 F.3d 636, 638—39 (5th Cir. 2003)). 15 Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (U.S. 1977). 16 See Complaint at 1143-45. 17 Waller v. Prof] Ins. Corp., 296 F.2d 545, 547—48 (5th Cir. 1961). 18 Webb v. Investacorp, Inc., 89 F.3d 252 (5th Cir. 1996), citing Leininger v. Leininger, 705 F.2d 727 (5th Cir. 1983). 19 F See Berry v. Chase Home in., LLC, No. CIV.A. C-09-1 l6, 2009 WL 2868224, at *2 (S.D. Tex. Aug. 27, 2009). 2° See Exhibit D. 4 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 5 of 6 PagelD 5 V. FEDERAL QUESTION JURISDICTION 12. Removal is also proper because Plaintiff’s suit involves a federal question.“ A case arises under 28 U.S.C. §1331 if “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.”22 Further, the Fifth Circuit Court of Appeals has held that “[t]he assertion of a claim under a federal statute alone is sufficient to empower the District Court to assume jurisdiction over the case and determine Whether, in fact, the Act does provide the claimed rights.”23 13. Among other claims, Plaintiff has alleged Violations of Regulations X and Z of the Real Estate Settlement Procedures Act as codified in 12 CFR § 1024.41 et. seq.“ Since Plaintiff’ s claims arise under the laws of the United States of America, the United States District Court has original jurisdiction and removal is appropriate. 14. This Court should also exercise supplemental jurisdiction over all claims because they are so related to the federal claims that they form part of the same case or controversy.” As noted by the Supreme Court, “Section 1367(a) is a broad grant of supplement jurisdiction over other claims Within the same case or controversy, as long as the action is one in which the district courts would have had original jurisdiction?” Accordingly, this Court also has jurisdiction based on Federal Question jurisdiction. VI. JURY DEMAND 15. Plaintiff made a jury demand in the State Court Action. 21 28 U.S.C. §§1331, 1441(b); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg, 545 U.S. 308, 312 (2005). 22 See Empire Healthchoice Assurance, Ina, v. McVeigh, 547 U.S. 677, 689-90 (2006). 23 Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 988 (5th Circ. 1988). 24 See Complaint at 1111 49-52. 25 See 28 U.s.c. § 1367(a). 26 Exxon Mobil Corp. v. Allpattah Servs., Inc., 545, 558 (2005). 5 20l70194.20210566/4173475.l Case 3:21-cv-02210-G Document 1 Filed 09/16/21 Page 6 of 6 PagelD 6 VII. CONCLUSION 16. For the foregoing reasons, Defendant asks the Court to remove this suit to the United States District Court, Northern District of Texas, Dallas Division. Respectfully submitted, By: /s/ Michael F. Hord Jr. Michael F. Hord, Jr. Texas Bar No. 00784294 Federal I.D. No. 16035 Eric C. Mettenbrink Texas Bar No. 24043819 Federal I.D. No. 569887 HIRSCH & WESTHEIMER, P.C. 1415 Louisiana, 36th Floor Houston, Texas 77002-2772 Telephone 713-220-9182 Facsimile 713-223-9319 E-mail: mhord@hirschwest.com Email: emettenbrink@hirschwest.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on this 16th day of September, 2021, a true and correct copy of Defendant’s Notice of Removal was forwarded as follows: John G. Helstowski J. Gannon Helstowski Law Firm 5209 Heritage Avenue, Suite 510 Colleyville, Texas 76034 Via Regular Mail and Email /s/ Michael F. Hord Jr. Michael F. Hord Jr. 20l70194.20210566/4173475.l Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Envelope ID: 57321331 Status as of 9/16/2021 2:36 PM CST Associated Case Party: ANTONIO GIBSON Name BarNumber Email TimestampSubmitted Status John Helstowski 24078653 jgh@jghfirm.com 9/16/2021 2:13:54 PM SENT Associated Case Party: U.S. BANK TRUST NATIONAL ASSOCIATION Name BarNumber Email TimestampSubmitted Status Eric Mettenbrink emettenbrink@hirschwest.com 9/16/2021 2:13:54 PM SENT Michael F.Hord mhord@hirschwest.com 9/16/2021 2:13:54 PM SENT