United States District Court, S.D. Texas, Brownsville Division
S. HANEN, UNITED STATES DISTRICT JUDGE
Procedural and Factual Background
matter before the Court in this diversity action is
Defendant's Motion for Summary Judgment. [Doc. No. 14].
This lawsuit concerns the real property known as 1274 Alta
Mesa Blvd, Brownsville, Texas 78526 (“Property”)
located in Cameron County, Texas. The Plaintiff claims to be
the owner of the property after purchasing the property from
a third-party in 2015. At the time this suit was filed,
Plaintiff pleaded that the property had been his residential
homestead since May 11, 2015. The Defendants are Bank of
America, N.A. (“BOA”) and Julie Martin
(“Martin”) in her capacity as substitute trustee.
BOA alleges that non-parties to the suit
(“Borrowers”) obtained a loan to purchase the
Property on August 27, 2002 by virtue of a promissory note in
the original amount of $61, 509 secured by a Deed of Trust
recorded on September 9, 2002. [Ex. A‒3; Ex.
A‒4]. The Borrowers defaulted on their loan, and BOA
sent the Borrowers a Notice of Default and Intent to
Accelerate on September 15, 2015, threatening to initiate
foreclosure proceedings if the borrowers did not cure their
default before October 25, 2015. [Ex. A‒5]. After the
Borrowers defaulted on their loan, BOA sent the Borrowers a
Notice of Foreclosure Sale on June 9, 2016, notifying the
Borrowers that the Property would be sold at a foreclosure
sale scheduled for July 5, 2016. [Ex. A‒6]. On July 4,
2016, BOA sent the Borrowers a Notice of Recession of
Acceleration of Loan Maturity rescinding the acceleration of
the debt and maturity of the note. [Ex. A‒7]. Thus, the
foreclosure sale was cancelled and has not been subsequently
Plaintiff subsequently filed this lawsuit against Defendant
BOA and Defendant Martin on June 29, 2016 in Texas state
court, alleging a wrongful foreclosure claim, an action to
quiet title, and a request for injunctive relief. Per 28
U.S.C. § 1441, Defendant BOA removed this lawsuit from
state court on diversity grounds.
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “The movant bears the burden of
identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material
fact.” Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322-25 (1986)). Once
a movant submits a properly supported motion, the burden
shifts to the non-movant to show that the court should not
grant the motion. Celotex Corp., 477 U.S. at 321-25.
non-movant then must provide specific facts showing that
there is a genuine dispute. Id. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). A dispute about a material fact is
genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The court must draw all reasonable
inferences in the light most favorable to the nonmoving party
in deciding a summary judgment motion. Id. at 255.
The key question on summary judgment is whether a
hypothetical, reasonable factfinder could find in favor of
the nonmoving party. Id. at 248.
Whether Subject Matter Jurisdiction is Proper
courts are duty-bound to examine the basis of subject matter
jurisdiction. Union Planters Bank Nat. Ass'n v.
Salih, 369 F.3d 457, 460 (5th Cir. 2004). Jurisdiction
is a threshold matter, and without jurisdiction the court
cannot proceed in any cause. Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998) (citing Ex
parte McCardle, 74 U.S. 506, 514 (1868)). The Plaintiff
has pleaded that he is a Texas resident and that the amount
in controversy exceeds $75, 000. Bank of America is a
national banking association with its main office in North
Carolina and is therefore a citizen of North Carolina.
See Wachovia v. Schmidt, 546 U.S. 303, 318 (2006)
(holding that pursuant to 28 U.S.C. § 1348, a national
bank is a citizen of the state in which its main office is
located). Defendant Martin is a resident of Texas.
BOA removed this matter from state court based upon diversity
between it and the Plaintiff. Defendant BOA argues that
Defendant Martin is improperly joined. A “district
court is prohibited by statute from exercising jurisdiction
over a suit in which any party, by assignment or otherwise,
has been improperly or collusively joined to manufacture
federal diversity jurisdiction.” Smallwood v. Ill.
Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)
(emphasis deleted). Improper joinder occurs when the
plaintiff is unable to establish a cause of action against
the non-diverse defendant. Id. The court may conduct
a 12(b)(6)-type analysis to determine whether the complaint
states a claim under state law against the in-state
defendant. Id. The court must be satisfied that
there is “no reasonable basis . . . to predict that the
plaintiff might be able to recover against an in-state
defendant.” Id. The citizenship of a defendant
who is improperly joined need not be considered when
determining whether there is complete diversity. Cook v.
Wells Fargo Bank, N.A., 3:10-CV-0592-D, 2010 WL 2772445,
at *4 (N.D. Tex. July 12, 2010).
instant case, the Plaintiff makes no claims against Defendant
Martin, nor does Plaintiff allege any facts that suggest that
any claim is being asserted against Defendant Martin.
Furthermore, under Texas law, a trustee under a deed of trust
is not a necessary party in a suit to prevent a foreclosure.
See Tex. Prop. Code § 51.007. There is no
reasonable basis for predicting that Plaintiff might be able
to recover against this in-state defendant. Defendant Martin
is improperly joined. Finally, Plaintiff has not even
responded to this argument or filed a motion to remand. In
essence, Plaintiff has conceded that Defendant BOA's
position on this argument is correct. ...