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Case 4:13-cv-00706-A Document 9 Filed 09/20/13 Page 1 of 7 PageID 63

IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

U.S. DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FILED

iSEP 20 2Ot3

CLERK, U.S. DISTRICT COURT

By__~~--..

_

KERRY RANSOME AND SHANELL
RANSOME,

Plaintiffs,

VS.

PNC BANK, N.A. ,

Defendant.

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Deputy

NO. 4:13-CV-706-A

MEMORANDUM OPINION

and

ORDER

Now before the court is the amended notice of removal filed

in the above-captioned action by defendant, PNC Bank, N.A.

Defendant has alleged diversity of citizenship under 28 U.S.C.

§

1332 as the sole basis for removal. Having considered the

amended notice of removal and the original state court petition

of plaintiffs, Kerry Ransome and Shanell Ransome,

the court

concludes that defendant has failed to sufficiently allege that

this court has sUbject matter jurisdiction, and that the case

should be remanded to the state court

from which it was removed.

1.

Background

Plaintiffs initiated this action by filing their original

petition in the District Court of Tarrant County, Texas, 48th

Judicial District, as Cause No. 048-267405-13. Defendant

then

Case 4:13-cv-00706-A Document 9 Filed 09/20/13 Page 2 of 7 PageID 64

removed the action to this court.

On September 19, 2013,

pursuant

to this court's order, defendant filed its amended

notice of removal. Defendant alleges that the court has sUbject

matter jurisdiction under 28 U.S.C.

§ 1332 because of complete

diversity of citizenship between plaintiffs and defendant, and an

amount

in controversy exceeding the sum or value of $75,000.00,

exclusive of interest and costs.

In the prayer of their petition, plaintiffs do not state a

specific amount of damages. Nor is there any other statement of

the amount of damages contained elsewhere in the petition.

However, defendant contends that

in the context of foreclosure

proceedings,

the proper measure of the amount

in controversy is

the value of the sUbject property, which defendant asserts is "at

least $121,300.00." Am. Notice of Removal at 4. Defendant

argues that the value of the property satisfies the amount

in

controversy.

In support of its position, defendant cites to

legal authority standing for the proposition that the right,

title, and interest plaintiffs have in the property constitutes

the proper measure of the amount

in controversy in an action such

as this one, where a party could be divested of the property

entirely.

Id. at 2-3.

After having evaluated the amended notice of removal and all

state court documents, and after reviewing applicable legal

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Case 4:13-cv-00706-A Document 9 Filed 09/20/13 Page 3 of 7 PageID 65

authorities,

the court remains unpersuaded that the amount

in

controversy in this action meets or exceeds the required amount.

II.

Basic Principles

The court begins with a statement of basic principles

announced by the Fifth Circuit:

Pursuant

to 28 U.S.C.

§ 1441(a),

a defendant may remove to

federal court any state court action over which the federal

district court would have original

jurisdiction.

"The removing

party bears the burden of showing that federal subject matter

jurisdiction exists and that removal was proper." Manguno v.

Prudential Prop. Cas.

Ins. Co., 276 F.3d 720, 723

(5th Cir.

2001).

"Moreover, because the effect of removal is to deprive

the state court of an action properly before it,

removal raises

significant federalism concerns, which mandate strict

construction of the removal statute." Carpenter v. Wichita Falls

Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995)

(citation

omitted). Any doubts about whether removal

jurisdiction is

proper must

therefore be resolved against

the exercise of federal

jurisdiction. Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th

Cir. 2000).

To determine the amount

in controversy for the purpose of

establishing diversity jurisdiction,

the court ordinarily looks

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Case 4:13-cv-00706-A Document 9 Filed 09/20/13 Page 4 of 7 PageID 66

to the plaintiff's state court petition. Manguno, 276 F.3d at

723.

If it is not facially apparent

from the petition that

the

amount

in controversy is greater than $75,000,

the removing party

must set forth summary jUdgment-type evidence, either in the

notice of removal or in an affidavit,

showing by a preponderance

of the evidence that the amount

in controversy exceeds that

amount.

Id.; Allen v. R & H oil & Gas Co., 63 F.3d 1326, 1335

(5th Cir. 1995).

The amount

in controversy is measured from the perspective

of the plaintiff. Vraney v. Cnty. of Pinellas, 250 F.2d 617, 618

(5th Cir. 1958)

(per curiam).

In an action for declaratory or

injunctive relief,

the amount

in controversy is the "value of the

object of the litigation," or "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).

III.

Analysis

Plaintiffs' petition does not make a demand for a specific

amount of damages, does not specify a dollar amount of recovery

sought that is at

least $75,000.00, and does not define with

specificity the value of the right it seeks to protect or the.

extent of the injury it seeks to prevent. As a result,

the court

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evaluates the true nature of plaintiffs' claims to determine the

amount actually in controversy between the parties.

The true nature of this action is to maintain possession of

residential property plaintiffs used as security for the making

of a loan.

As the petition alleges, plaintiffs pursue this goal

by seeking an order

(1) barring any foreclosure or forcible

detainer proceedings, and (2) awarding unspecified damages and

attorney's fees. Notice of Removal, Ex. A-2 at 14.

Thus,

considering plaintiffs' original petition,

the court has not been

provided with any information from which it can determine that

the value to plaintiffs of such relief is greater than

$75,000.00.

Defendant contends that the fair-market value of the

property should serve as the amount

in controversy because

plaintiffs request equitable relief to enjoin defendant

from

foreclosing on the property.

Am. Notice of Removal at 2-3.

Defendant relies on the oft-cited argument that when equitable

relief is sought,

the amount

in controversy is measured by the

value of the object of the litigation, and when a mortgagor is

attempting to protect his property,

the fair market value of the

property is the amount

in controversy.

In its amended notice of

removal, defendant suggests that the value of the property is "at

least $121,300.00."

Id. at 4.

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The court is not persuaded by the argument that the above

figure supplies the basis for plaintiffs'

interest in the

property, especially given that plaintiffs have not pleaded how

much equity they have in the property. Defendant does not cite

to, nor can the court discern, any such statement

in the petition

to support a finding that

the value of the property is the amount

in controversy.

That is,

for example, defendant's attribution of

the $121,300.00 figure as damages is an act of its own doing--not

plaintiffs'.

To the extent that these statements suggest that

the property value is the proper measure of the amount

in

controversy in this action,

the court rejects that argument. 1

Plainly,

the sole goal of plaintiffs' action is to avoid or

delay a foreclosure sale and to be able to retain possession of

the property. Nothing is alleged that would assign a monetary

value to plaintiffs' accomplishment of that goal. While

plaintiffs appear to request equitable relief based on a claim

that

they are entitled to hold legal title in the property,

they

does not assert that such relief is based on a claim that they

have outright ownership of the property,

free from any

1 The court is familiar with the unpublished Fifth Circuit opinion, Nationstar Mortg. LLC v.

Knox, 351 F. App'x 844 (5th Cir. 2009). The pertinent portion of Nationstar, in turn, relies on Waller v.
Prof1Ins. Corp., 296 F.2d 545,547-48 (5th Cir. 1961). This court has previously explained its reasoning
for finding Waller inapposite to determining the amount in controversy in cases such as the instant
action. See Ballew v. America's Servicing Co., No.4: 11-CV-030-A, 2011 WL 880135 (N.D. Tex. Mar.
14,2011).

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Case 4:13-cv-00706-A Document 9 Filed 09/20/13 Page 7 of 7 PageID 69

indebtedness.

Indeed, plaintiffs make statements to suggest that

their ownership of the property is encumbered by a debt, as the

petition describes a note and deed of trust, and questions

whether defendant has the authority to act under the deed of

trust.

The value to plaintiffs of their right

in the litigation

is, at most,

the value of their interest in the property, not

the

value of the property itself.

Thus, defendant has not

established the value of plaintiffs'

interest in the property.

Defendant has not proven by a preponderance of the evidence

that

the amount actually in controversy in this action exceeds

the sum or value of $75,000.00, excluding interest and costs.

Consequently,

the court is remanding the case to the state court

from which it was removed, because of the failure of defendant

to

persuade the court that sUbject matter jurisdiction exists.

IV.

Order

For the reasons given above,

The court ORDERS that the above-captioned action be, and is

hereby,

remanded to the state court

from which it was removed.

SIGNED September 20, 2013.

/

District ~~dge

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