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Barrett v. BSI Financial Services Inc.

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

September 6, 2017

BILL BARRETT AND JOAN BARRETT Plaintiffs,
v.
BSI FINANCIAL SERVICES INC. AND MARTY LACOUTURE Defendants.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         On this date, the Court considered Plaintiff's Motion to Remand (Docket no. 7). After careful consideration, the Court DENIES the motion and DISMISSES Defendant Marty LaCouture as improperly joined.

         BACKGROUND

         Plaintiffs Bill and Joan Barrett allege that in or about June 2015, Defendants stopped accepting Plaintiffs' payments on their mortgage secured by the property at 8410 Pericles Dr., Universal City, Texas. Docket no. 1-1 at 7. Defendants BSI Financial allege that Plaintiffs failed to pay at least twenty-four scheduled monthly payments through December 2014. Id.; Docket no. 4 at 5-6. Plaintiffs allege they attempted to contact Defendants about the alleged amount owed on multiple occasions, but that they were unsuccessful and heard nothing from Defendants for months. Docket 1-1 at 7.

         Plaintiffs allege they attempted to pay their 2016 taxes, but were told this would not be approved because their escrow was negative. Docket no 1-1 at 8. Plaintiffs state they still proceeded to pay their 2016 taxes and allege they sent Defendants bank statements and other documentation to attempt to correct the mistake. Id. Plaintiffs allege that Defendants continued to charge them for taxes already paid for in full and never returned their calls, but that Defendants did return a payment of $13, 383.58. Id. Plaintiffs allege Defendants posted the property for foreclosure on May 7, 2017, without proper notice to cure or intent to accelerate. Id. Plaintiffs allege that Defendants were contractually obligated to notify Plaintiffs of their default and with notice to cure prior to paying any delinquent taxes. Id. at 8-9. There has been no actual foreclosure of the property in this case. Docket no. 3 at 5.

         Plaintiffs then brought this action in the 150th Judicial District Court of Bexar County, Texas, on March 3, 2017, naming as defendants BSI Financial and Marty LaCouture. Docket no. 1-1 at 6. Plaintiff asserted claims for breach of contract, violation of the Deceptive Trade Practices Act, breach of warranty, fraud, violation of the Texas Fair Debt Collection Practices Act, and declaratory judgment against all Defendants. Id. at 10-13. Plaintiffs also asserted a claim for negligence against Defendant LaCouture. Id. at 13-14.

         On March 29, 2017, Defendants BSI Financial removed the action to this Court on the basis of diversity jurisdiction. Docket no. 3. The notice of removal states that Plaintiffs are residents of Texas. Id. at 3. The notice of removal also states that Defendant BSI Financial is a citizen of Delaware for purposes of diversity jurisdiction because it is a corporation incorporated in Delaware with its principal place of businesses in Delaware. Id. The notice of removal further states that Defendant LaCouture is a resident of Texas whose citizenship can be disregarded for purposes of diversity jurisdiction because he has been improperly joined. Id. The notice of removal states that the amount in controversy exceeds $75, 000. Id. at 6-7.

         On April 27, 2017, Plaintiffs moved to remand the case to state court due to a lack of diversity jurisdiction. Docket no. 7. Plaintiffs assert they are citizens of Texas and that LaCouture is a properly joined citizen of Texas. Id.

         DISCUSSION

         If LaCouture is properly joined, then his citizenship must be considered and there is no diversity jurisdiction. Defendant BSI Financial argues that Plaintiffs' complaint fails to meet proper pleading standards with respect to LaCouture because Plaintiffs cannot maintain a wrongful foreclosure cause of action against LaCouture, and any breach of LaCouture's duty does not constitute an independent tort. Docket no. 3 at 5-6. As a result, Defendant BSI argues that LaCouture was improperly joined, which means that diversity jurisdiction exists. Plaintiffs argue LaCouture can be held individually liable for violation of his duty to treat the parties fairly, and this Court cannot say that Plaintiffs have no reasonable basis to recover against LaCouture in state court. Docket no. 7 at 2. As a result, Plaintiffs argue LaCouture was properly joined, which means that there is no diversity of citizenship. This Court agrees with Defendant BSI and finds that LaCouture was improperly joined.

         I. Legal Standard

         “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). On a motion to remand, the court must consider whether removal was proper. In order for removal to be proper, a district court must have original jurisdiction over the removed action. See id.

         Federal district courts have original jurisdiction over civil actions if the parties are diverse and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a). There is no dispute regarding the amount in controversy, which is alleged to be in excess of $75, 000. Docket no. 3. Further, there are no disputes regarding the states of citizenship of any of the parties.

         A defendant may remove a case with a non-diverse defendant to a federal forum if the non-diverse defendant is improperly joined. Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004). There are two ways to establish improper joinder: “(1) the plaintiff has stated a claim against a diverse defendant that he fraudulently alleges is non[-]diverse, or (2) the plaintiff has not stated a claim against a defendant that he properly alleges is non[-]diverse.” Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 199 (5th Cir. 2016) (citing Smallwood, 385 F.3d at 573) (emphasis in original). Because ...


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