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Boyce v. CitiMortgage, Inc.

United States District Court, W.D. Texas, San Antonio Division

January 22, 2014

ANGELICA REYES BOYCE, Plaintiff,
v.
CITIMORTGAGE, INC., Defendant

Page 710

For Angelica Reyes Boyce, Lawrence Boyce, Plaintiffs: Andrew Eugene Toscano, LEAD ATTORNEY, Gene Toscano, Inc., San Antonio, TX.

For CitiMortgage, Inc., Defendant: Benjamin David Lee Foster, LEAD ATTORNEY, Amanda M. Schaeffer, Locke Lord LLP, Austin, TX; Robert T. Mowrey, Locke Lord LLP, Dallas, TX.

OPINION

Page 711

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

Before the Court are Plaintiff's motions to remand (docket nos. 7 & 27), to which Defendant has responded (docket nos. 17 & 29) and Plaintiff has replied (docket nos. 20 & 32). The Court also considers Plaintiff's first, second, and third amended complaints (docket nos. 9, 16 & 22), and Plaintiff's motion to amend complaint (docket no. 33), which only requests leave for Plaintiff to file her third amended complaint. Additionally, the Court considers Defendant's motion to strike Plaintiff's third amended complaint (docket no. 29), Plaintiff's response to Defendant's motion (docket no. 32), and Defendant's reply (docket no. 36).[1] Finally the Court considers Lawrence Boyce's motion to intervene

Page 712

(docket no. 34), and Defendant's response thereto (docket no. 35).

Factual and Procedural Background

On August 30, 2013, Plaintiff Angelica Reyes Boyce, acting pro se, filed suit in the 224th Judicial District Court of Bexar County, Texas. According to her state-court petition, Ms. Boyce owns a homestead, located at 9710 Dawn Trail, San Antonio, Texas 78258 (the " Property" ). Ms. Boyce alleges that the Property is encumbered by a mortgage, which Defendant CitiMortgage, Inc. (" CitiMortgage" ) either holds or services for the true mortgage holder. Pet., Docket No. 1-1 ¶ 6. According to Ms. Boyce, CitiMortgage allegedly noticed the Property for a foreclosure sale on August 6, 2013.[2] Id. CitiMortgage's notice came despite Ms. Boyce having allegedly received a pending offer for a short sale of the Property, which Ms. Boyce allegedly submitted to CitiMortgage for approval. Id. Ms. Boyce sought a complete accounting of her mortgage loan, a reasonable opportunity to satisfy or reinstate the mortgage, and injunctive relief, enjoining CitiMortgage from conducting a foreclosure sale.

On September 3, 2013, the state court granted Ms. Boyce a temporary restraining order, enjoining CitiMortgage from selling her home and setting a temporary injunction hearing for September 16, 2013. Docket No. 1-1. On September 12, 2013, CitiMortgage removed the action to this Court based on diversity jurisdiction. Docket No. 1. On October 7, 2013, Andrew E. Toscano filed a notice of appearance, and moved, on behalf of Plaintiff, to remand the action back to state court. Docket Nos. 4 & 7. On that date, Ms. Boyce also filed a first amended complaint. Docket No. 9.

Ms. Boyce's first amended complaint clarifies that the Property was sold at a foreclosure sale on August 6, 2013. Id. ¶ 12. Ms. Boyce complains that the sale was improper because it was conducted while a short sale was pending and because Plaintiff was not provided with notice of the foreclosure sale. Id. ¶ 11-12. Ms. Boyce sought to add as a defendant Deborah Martin, who was the substitute trustee who conducted the foreclosure sale. Id ¶ 3. Ms. Martin is allegedly a citizen of the state of Texas. Id. Ms. Boyce alleges causes of action against Ms. Martin and CitiMortgage for negligence, intentional infliction of emotional distress, and violations of the Texas Deceptive Trade Practices Act. She also alleges causes of action solely against CitiMortgage for breach of contract and fraud. Finally, she seeks a declaratory judgment setting aside the foreclosure sale. Since the addition of Ms. Martin purportedly defeated complete diversity, Ms. Boyce moved to remand. Docket No. 7.

On October 11, 2013, four days after filing her first amended complaint, Ms. Boyce filed a second amended complaint. Docket No. 16. By her second amended complaint, Ms. Boyce sought to add her ex-husband, Lawrence Boyce, to the lawsuit. Mr. Boyce allegedly is a party to the mortgage, having signed the promissory note and deed of trust. Id. ¶ 10. The second amended complaint repeats the allegations against CitiMortgage and Ms. Martin regarding an allegedly unlawful foreclosure sale of the Property while a short sale of the Property was pending. The second amended complaint also clarifies

Page 713

that CitiMortgage only sent Ms. Boyce a notice of the scheduled foreclosure sale, and not also Mr. Boyce. Id. ¶ 12, 23. The Boyces repeat their claims for negligence, intentional infliction of emotional distress, violations of the Texas Deceptive Trade Practices Act, breach of contract, and fraud. They also request a declaratory judgment setting aside the foreclosure sale.

Three weeks later, on November 1, 2013, the Boyces filed a third amended complaint. Docket No. 22. By their third amended complaint, the Boyces sought to add CitiMortgage's foreclosure counsel, Buckley Mandole, P.C. (" Buckley" ), as a defendant. Buckley is allegedly a Texas corporation. Id. ¶ 5. The third amended complaint repeats the allegations regarding foreclosure while a short sale was allegedly pending. The complaint also clarifies that by a letter dated March 22, 2013, CitiMortgage notified both Mr. and Ms. Boyce of their alleged default and right to cure. Id. ¶ 24. The complaint further states that, unlike the March 22, 2013 letter, which was addressed to both Mr. and Ms. Boyce, a letter dated July 11, 2013 sent by Buckley notified only Ms. Boyce of the mortgage acceleration and of the scheduled August 6, 2013 foreclosure sale. Id. The Boyces allege claims against all three defendants for violations of the foreclosure sale requirements of the Texas Property Code, negligence, intentional infliction of emotional distress, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Debt Collection Act. The Boyces also alleged breach of contract and fraud solely against CitiMortgage. Finally, the Boyces request declaratory judgment to rescind the foreclosure sale.

On November 11, 2013, Mr. Boyce filed a motion to remand, alleging that complete diversity was destroyed by the addition of Ms. Martin and Buckley to the lawsuit. Docket No. 27. CitiMortgage responded with a motion to strike the Boyces' third amended complaint, alleging that the amendment was filed untimely and did not state viable claims against the non-diverse defendants. Docket No. 29. The Boyces responded that Mr. Boyce filed the third amended complaint as a matter of right. Docket No. 32 ¶ 17. The Boyces also filed a motion for leave to amend their complaint. Docket No. 33. Finally, Mr. Boyce filed a motion to intervene. Docket No. 34. CitiMortgage responded that it was not opposed to Mr. Boyce's intervention. Docket No. 35.

Discussion

Despite the complicated procedural history of this case, the relevant inquiry can be simplified to two questions: (1) whether the initial removal was proper; and (2) whether the Court will allow joinder of a non-diverse party to this lawsuit, thereby defeating the Court's jurisdiction. The Court finds that removal was proper, that Ms. Martin should be joined as a party to this lawsuit, and that because of her joinder, this Court lacks jurisdiction to hear this case. The Court makes these determinations by considering and allowing Ms. Boyce's first amended complaint. Since the Court must grant remand after allowing ...


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