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CAUSE NO. 21-01-01311
PATRICK DE HAAN IN THE DISTRICT COURT
and CLAUDIA DE HAAN
Plaintiff s
VS. MONTGOMERY COUNTY, TEXAS
SELECT PORTFOLIO SERVICING, INC. §
Defendant § 457 JUDICIAL DISTRICT
DEFENDANT NOTICE OF FILING REMOVAL
On February ll, 2021, Defendant, Select Portfolio Servicing, Inc. (“SPS” 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 Southern District of Texas, Houston Division. See attached Exhibit “A”.
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: _/s/ Michael F. HordJr.
Michael F. Hord Jr.
State Bar No. 00784294
Eric C. Mettenbrink
State Bar No. 24043819
1415 Louisiana, 36 Floor
Houston, Texas 77002-2772
713-220-9182 Telephone
713-223-9319 Facsimile
Email: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT
20060161.20210204/3951170.1
CERTIFICATE SERVICE
I hereby certify that on this ay of February 2021, a true and correct copy of the
foregoing Notice of Filing Removal was forwarded as follows:
Ricardo Guerra, Eric Days and Brent Smith
Guerra Days Law Group, PLLC
505 N. Sam Houston Parkway E., Suite 350
Houston, Texas 77060
Via File
/s/ Michael F. Hord Jr.
Michael F. Hord Jr.
20060161.20210204/3951170.1
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS EXHIBIT
HOUSTONDIVISION
A
ATRICK DE HAAN
and CLAUDIA DE HAAN
Plaintiff s
VS. C.A. NO.
SELECT PORTFOLIO SERVICING, INC. §
Defendant
DEFENDANT NOTICE OF REMOVAL
efendant, Select Portfolio Servicing, Inc. (“SPS” or “Defendant”) through undersigned
counsel, hereby removes this case from the 457th Judicial District Court of Montgomery County,
Texas, to the United States District Court for the Southern District of Texas, Houston 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 favor in
state or federal court.
INTRODUCTION AND STATEMENT OF COMMENCEMENT OF ACTION
Plaintiffs, Patrick and Claudia De Haan (“Plaintiff ”) commenced this action by
filing a Petition, Cause No. 21-01-01311, in the h Judicial District Court of Montgomery
County, Texas January 27, 2021 (the “State Court Action”)See Exhibit C-1. Plaintiffs
obtained an ex parte temporary restraining order on January 29, 2021. See Exhibit C-2.
Defendant filed an answer on February in the State Court Action. See Exhibit C-6.
his action is being removed less than 30 days following service of the Petition filed in the State
Court Action, if any, and less than 30 days after Defendant appeared in the State Court Action
Accordingly, removal is timely under 28 U.S.C. §1446(b).
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 48 (1999).
20060161.20210204/3942763.1
PLEADINGS AND NOTICE TO STATE COURT
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.
STATEMENT OF STATUTORY BASIS FOR JURISDICTIONAND VENUE
This action is within the original jurisdiction of the United States District Court
ursuant 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.” 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
Citizenship ofthe Parties
This civil action involves a controversy between citizens of different states.
Plaintiff are itizen of the State of Texas
Defendant, Select Portfolio Servicing, Inc., is a Utah Corporation and is not a
citizen of Texas for diversity purposes. A corporation is deemed to be a citizen of (1) every state
where it has been incorporated and (2) the state where it has its principal place of business (i.e.
its “nerve center’). Defendant is a Utah corporation with its principal place of business in Salt
28 U.S.C. § 1332(a)(1).
See Plaintiff Original Petition (the “Complaint at
28 U.S.C. §1332(c)(1).
20060161.20210204/3942763.1
Lake City, Utah. SPS is not incorporated in Texas, nor is its principal place of business located
in Texas. Therefore, SPS is a citizen of Utah for purposes of diversity jurisdiction.
Since Plaintiff are citizen of Texas and Defendant is a citizen of state other
than Texas, complete diversity of citizenship exists.
Amount in Controversy
This case places an amount in controversy that exceeds the $75,000 threshold.
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. Such jurisdiction exists as long as the parties
are completely diverse and the amount in controversy exceeds $75,000.00.
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. 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. The removing party satisfies this
burden if the court finds it “facially apparent” that the plaintiff's claimed damages likely exceed
10
Plaintiff hallenged Trustee’s right to foreclose property located at
Cranberry Bend, Spring, Texas 77381 (the “Property”) and value of the roperty exceeds
See 28 U.S.C. § 332(c)(1).
See 28 U.S.C. § 1441(a).
See 28 U.S.C. § 1332(a).
See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (Sth Cir.1996).
See Lewis v. State Farm Lloyds, 205 F. Supp. 2d 706, 708 (S.D. Tex. 2002) citing De Aguilar v. Boeing Co.,
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).
Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (Sth Cir.1995).
20060161.20210204/3942763.1
"In their Complaint, Plaintiff seek injunctive relief seeking to preclude foreclosure
on the Property by Defendant !*
The value of the Property according to the MontgomeryCounty Appraisal District
for 20is no less than See Exhibit D.
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.!*“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 relief which if successful
would preclude enforcement of the contractual loan obligations and the mortgagee’s right to
foreclose on and take possession of the roperty
“TW]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. 9 15¢q [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 per the records of the Montgomery County
Appraisal District for 20 See Exhibit D.The value of the Property in this instance satisfies the
jurisdictional amount of $75,000.00 for diversity purposes. Plaintiffs also seek attorney’s fees and
See Complaint at § 9 and 50
Id.
Menendez v. Wal Mart Stores, Inc., 364 Fed.Appx. 62, 66, 2010 WL 445470, 2 (Sth Cir. 2010) (unpublished)
citing Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638 39 (Sth Cir. 2003)).
Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).
aller v. Prof’l Ins. Corp., 296 F.2d 545, 547 48 (5th Cir. 1961
Webb v. Investacorp, Inc., 89 F.3d 252 (Sth Cir. 1996), citing Leininger v. Leininger, 705 F.2d 727 (Sth Cir. 1983).
See Berry v. Chase Home Fin., LLC, 2009 WL 2868224, at *2 (S.D. Tex. August 27, 2009).
20060161.20210204/3942763.1
unliquidated damages which further contribute to the amount in controversy under a diversity
jurisdiction analysis.
JURY DEMAND
Plaintiffs havenot made any knownjury demand inthe State Court Action
CONCLUSION
For the foregoing reasons, Defenda ask the Court to remove this suit to the
United States District Court for the SouthernDistrict of Texas, HoustonDivision.
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.
Louisiana, Floor
Houston, Texas 77002 2772
Telephone
Facsimile
Email: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT
20060161.20210204/3942763.1
CERTIFICATE SERVICE
I hereby certify that on this 11 day of February 2021, a true and correct copy of the
foregoing Notice of Removal was forwarded as follows:
Ricardo Guerra, Eric Days and Brent Smith
Guerra Days Law Group, PLLC
505 N. Sam Houston Parkway E., Suite 350
Houston, Texas 77060
Via Email and U.S. Regular Mail
/s/ Michael F. Hord Jr.
Michael F. Hord Jr.
20060161.20210204/3942763.1
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CAUSE NO. 21-01-01311 PATRICK DE HAAN IN THE DISTRICT COURT and CLAUDIA DE HAAN Plaintiff s VS. MONTGOMERY COUNTY, TEXAS SELECT PORTFOLIO SERVICING, INC. § Defendant § 457 JUDICIAL DISTRICT DEFENDANT NOTICE OF FILING REMOVAL On February ll, 2021, Defendant, Select Portfolio Servicing, Inc. (“SPS” 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 Southern District of Texas, Houston Division. See attached Exhibit “A”. Respectfully submitted, HIRSCH & WESTHEIMER, P.C. By: _/s/ Michael F. HordJr. Michael F. Hord Jr. State Bar No. 00784294 Eric C. Mettenbrink State Bar No. 24043819 1415 Louisiana, 36 Floor Houston, Texas 77002-2772 713-220-9182 Telephone 713-223-9319 Facsimile Email: mhord@hirschwest.com Email: emettenbrink@hirschwest.com ATTORNEYS FOR DEFENDANT 20060161.20210204/3951170.1 CERTIFICATE SERVICE I hereby certify that on this ay of February 2021, a true and correct copy of the foregoing Notice of Filing Removal was forwarded as follows: Ricardo Guerra, Eric Days and Brent Smith Guerra Days Law Group, PLLC 505 N. Sam Houston Parkway E., Suite 350 Houston, Texas 77060 Via File /s/ Michael F. Hord Jr. Michael F. Hord Jr. 20060161.20210204/3951170.1 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS EXHIBIT HOUSTONDIVISION A ATRICK DE HAAN and CLAUDIA DE HAAN Plaintiff s VS. C.A. NO. SELECT PORTFOLIO SERVICING, INC. § Defendant DEFENDANT NOTICE OF REMOVAL efendant, Select Portfolio Servicing, Inc. (“SPS” or “Defendant”) through undersigned counsel, hereby removes this case from the 457th Judicial District Court of Montgomery County, Texas, to the United States District Court for the Southern District of Texas, Houston 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 favor in state or federal court. INTRODUCTION AND STATEMENT OF COMMENCEMENT OF ACTION Plaintiffs, Patrick and Claudia De Haan (“Plaintiff ”) commenced this action by filing a Petition, Cause No. 21-01-01311, in the h Judicial District Court of Montgomery County, Texas January 27, 2021 (the “State Court Action”)See Exhibit C-1. Plaintiffs obtained an ex parte temporary restraining order on January 29, 2021. See Exhibit C-2. Defendant filed an answer on February in the State Court Action. See Exhibit C-6. his action is being removed less than 30 days following service of the Petition filed in the State Court Action, if any, and less than 30 days after Defendant appeared in the State Court Action Accordingly, removal is timely under 28 U.S.C. §1446(b). Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 48 (1999). 20060161.20210204/3942763.1 PLEADINGS AND NOTICE TO STATE COURT 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. STATEMENT OF STATUTORY BASIS FOR JURISDICTIONAND VENUE This action is within the original jurisdiction of the United States District Court ursuant 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.” 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 Citizenship ofthe Parties This civil action involves a controversy between citizens of different states. Plaintiff are itizen of the State of Texas Defendant, Select Portfolio Servicing, Inc., is a Utah Corporation and is not a citizen of Texas for diversity purposes. A corporation is deemed to be a citizen of (1) every state where it has been incorporated and (2) the state where it has its principal place of business (i.e. its “nerve center’). Defendant is a Utah corporation with its principal place of business in Salt 28 U.S.C. § 1332(a)(1). See Plaintiff Original Petition (the “Complaint at 28 U.S.C. §1332(c)(1). 20060161.20210204/3942763.1 Lake City, Utah. SPS is not incorporated in Texas, nor is its principal place of business located in Texas. Therefore, SPS is a citizen of Utah for purposes of diversity jurisdiction. Since Plaintiff are citizen of Texas and Defendant is a citizen of state other than Texas, complete diversity of citizenship exists. Amount in Controversy This case places an amount in controversy that exceeds the $75,000 threshold. 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. Such jurisdiction exists as long as the parties are completely diverse and the amount in controversy exceeds $75,000.00. 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. 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. The removing party satisfies this burden if the court finds it “facially apparent” that the plaintiff's claimed damages likely exceed 10 Plaintiff hallenged Trustee’s right to foreclose property located at Cranberry Bend, Spring, Texas 77381 (the “Property”) and value of the roperty exceeds See 28 U.S.C. § 332(c)(1). See 28 U.S.C. § 1441(a). See 28 U.S.C. § 1332(a). See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (Sth Cir.1996). See Lewis v. State Farm Lloyds, 205 F. Supp. 2d 706, 708 (S.D. Tex. 2002) citing De Aguilar v. Boeing Co., 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). Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (Sth Cir.1995). 20060161.20210204/3942763.1 "In their Complaint, Plaintiff seek injunctive relief seeking to preclude foreclosure on the Property by Defendant !* The value of the Property according to the MontgomeryCounty Appraisal District for 20is no less than See Exhibit D. 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.!*“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 relief which if successful would preclude enforcement of the contractual loan obligations and the mortgagee’s right to foreclose on and take possession of the roperty “TW]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. 9 15¢q [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 per the records of the Montgomery County Appraisal District for 20 See Exhibit D.The value of the Property in this instance satisfies the jurisdictional amount of $75,000.00 for diversity purposes. Plaintiffs also seek attorney’s fees and See Complaint at § 9 and 50 Id. Menendez v. Wal Mart Stores, Inc., 364 Fed.Appx. 62, 66, 2010 WL 445470, 2 (Sth Cir. 2010) (unpublished) citing Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638 39 (Sth Cir. 2003)). Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). aller v. Prof’l Ins. Corp., 296 F.2d 545, 547 48 (5th Cir. 1961 Webb v. Investacorp, Inc., 89 F.3d 252 (Sth Cir. 1996), citing Leininger v. Leininger, 705 F.2d 727 (Sth Cir. 1983). See Berry v. Chase Home Fin., LLC, 2009 WL 2868224, at *2 (S.D. Tex. August 27, 2009). 20060161.20210204/3942763.1 unliquidated damages which further contribute to the amount in controversy under a diversity jurisdiction analysis. JURY DEMAND Plaintiffs havenot made any knownjury demand inthe State Court Action CONCLUSION For the foregoing reasons, Defenda ask the Court to remove this suit to the United States District Court for the SouthernDistrict of Texas, HoustonDivision. 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. Louisiana, Floor Houston, Texas 77002 2772 Telephone Facsimile Email: mhord@hirschwest.com Email: emettenbrink@hirschwest.com ATTORNEYS FOR DEFENDANT 20060161.20210204/3942763.1 CERTIFICATE SERVICE I hereby certify that on this 11 day of February 2021, a true and correct copy of the foregoing Notice of Removal was forwarded as follows: Ricardo Guerra, Eric Days and Brent Smith Guerra Days Law Group, PLLC 505 N. Sam Houston Parkway E., Suite 350 Houston, Texas 77060 Via Email and U.S. Regular Mail /s/ Michael F. Hord Jr. Michael F. Hord Jr. 20060161.20210204/3942763.1