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Blair v. Deutsche Bank National Trust Co.

United States District Court, Fifth Circuit

December 13, 2013

BRUCE BLAIR, Plaintiff,


SAM SPARKS, District Judge.

BEIT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiff Bruce Blair's Motion to Remand [#6], and Deutsche Bank National Trust Company's Response [#9]; Plaintiff Bruce Blair's Unopposed Motion to Extend Scheduling Order Deadlines [7][1]; Defendant Juanita Strickland's Motion for Judgment on the Pleadings or, in the Alternative, Motion to Dismiss for Failure to State a Claim, or, in the further alternative, Motion to Dismiss [#12], and Plaintiff Bruce Blair's Response [#13]; and Defendants Deutsche Bank National Trust Company and MERSCORP Holdings, Inc.'s Motion for Judgment on the Pleadings [#14], Plaintiff Bruce Blair's Response [#15][2], and Plaintiff's Motion for Extension of Time to File Response [# 17][3]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.


This is a foreclosure suit regarding the property located at 602 Ramble Lane, Austin, Texas 78745 (the Property). The Property was foreclosed upon because Plaintiff Bruce Blair became delinquent on his purchase money residential mortgage loan. Blair filed this action seeking to challenge the authority of Defendant Deutsche Bank National Trust Company, as Trustee for Novastar Mortgage Funding Trust, Series 2006-4 (Deutsche Bank), to enforce the debt through foreclosure of the lien on the Property.

This is not the first time this Court has encountered Blair with respect to the foreclosure of the Property. On March 19, 2013, Blair sued Deutsche Bank and Defendant Juanita Strickland, asserting essentially the same allegations as he does in this suit, in Travis County District Court. The action was removed to this Court on April 15, 2013, and Blair then voluntarily dismissed his action. See Blair v. Deutsche Bank Nat'l Trust Co., No. 1:13-cv-305-SS (W.D. Tex. May 1, 2013).

Blair then filed the instant action in state court on August 27, 2013, and Deutsche Bank again removed the case to this Court on August 30, 2013. In his Original Petition, Blair asserts causes of action for breach of contract, wrongful foreclosure, violations of the Texas Debt Collection Act (TDCA), violations of the Texas Deceptive Trade Practices Act (DTPA), filing fraudulent liens, and a suit to quiet title.


I. Motion to Remand

First, Blair filed a Motion to Remand, arguing Defendant Juanita Strickland, the substitute trustee, is a properly joined, non-diverse defendant. Deutsche Bank opposes the Motion to Remand, arguing Strickland, the only non-diverse Defendant, was improperly joined to defeat diversity. Deutsche Bank contends Blair fails to allege any facts supporting any independent plausible claim against Strickland because the only allegation against Strickland is she conducted the foreclosure sale in her capacity as substitute trustee, which is not a basis for relief and does not make her a necessary party. As an improperly joined defendant, Strickland's citizenship is ignored for diversity analysis, and because complete diversity then exists between Blair and the other Defendants, Deutsche Bank argues this Court has subject matter jurisdiction over Blair's claims pursuant to 28 U.S.C. § 1332(a).

A. Legal Standard

The Fifth Circuit has described the fraudulent or improper joinder doctrine as follows. "The fraudulent joinder doctrine ensures that the presence of an improperly joined, non-diverse defendant does not defeat federal removal jurisdiction premised on diversity.[4] Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). "One way in which a diverse defendant may establish improper joinder is by showing the inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Id. (quotation omitted).

As relevant to this case, the test for fraudulent joinder is "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Smallwood v. Ill. Cent. R. R. Co., 385 F.3d 568, 573 (5th Cir. 2004). However, "the focus of the inquiry must be on the joinder, not the merits of the plaintiff's case, " and the "party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper." Id. at 573, 574. Although "the standard for evaluating a claim of improper joinder is similar to that used in evaluating a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), " the scope of the inquiry is broader, "because the court may pierce the pleadings' and consider summary judgment-type evidence to determine whether the plaintiff has a basis in fact for the claim." Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007).

B. Application

Here, there is no reasonable basis for the Court to predict Blair might prevail against Strickland, the substitute trustee. Substitute trustees have a right to mandatory dismissal from the suit, upon a finding that they are not a necessary party. See TEX. PROP. CODE § 51.007(d). Moreover, trustees are also protected from any liability arising from "good faith error resulting from reliance on any information in law or fact provided by the ...

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