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Cerrillo v. Bank United N.A.

United States District Court, S.D. Texas, Brownsville Division

June 6, 2019

PATRICIA CERRILLO, Plaintiff,
v.
BANK UNITED N.A., et al., Defendants.

          OPINION AND ORDER

          Fernando Rodriguez, Jr. United States District Judge

         Pending before the Court is Plaintiff Patricia Cerillo's Motion to Remand (Doc. 4). Having considered the Motion, the parties' briefing, and the applicable law, the Court finds the Motion not well taken.

         I.

         Allegations and Procedural History

          In 2009, Cerillo purchased a house in Harlingen, Texas. (Original Petition, Doc. 1-2, 3) She executed a promissory note for $127, 645, and via a deed of trust granted the lender a security interest in the property. (Id.) After the purchase, she maintained her sole residence in the home.

         After eleven years of semi-regular payment of her mortgage, Cerillo fell behind on her payments. (Id. at 4) BankUnited refused to accept late payments and instead chose to seek foreclosure. (Id.)

         In February 2019, Cerillo filed her Original Petition and Request for Temporary Restraining Order in a Texas state court, seeking injunctive relief, actual damages for mental anguish and loss of credit, and attorney fees. (Id. at 9).[1] She brought suit against BankUnited, N.A. and its substitute trustee, Connie Cobb.[2] Cerillo alleges that Cobb is a Texas resident, and that BankUnited is licensed to conduct and regularly conducts business in Texas. (Id. at 2-3)

         Although the Original Petition lacks clarity in many respects, it appears that Cerillo alleges causes of action based on BankUnited's alleged failure to waive acceleration of the promissory note and accept her late payments, and on the alleged failure to send a Notice of Default and Intent to Accelerate in compliance with the Texas Property Code. And while Cerillo at times alleges that “Defendants” committed certain acts, her most specific allegations refer to BankUnited as the alleged wrongdoer. Cerillo makes no specific allegation regarding a wrongful act by Cobb.

         In April 2019, BankUnited removed the matter to this Court. (Notice of Removal, Doc. 1). BankUnited contends that it is a national banking association that maintains its main office in Florida. (Id. at 2)

         Cerillo has moved to remand, arguing that the parties are not diverse and that the amount in controversy is less than $75, 000. (Motion, Doc. 4, 2)

         II. Analysis

         A. Legal Standard

         A defendant may remove a case to federal district court only if that court would have had original jurisdiction. 28 U.S.C. § 1441(a). “[D]istrict courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds . . . $75, 000, exclusive of interest and costs, and is between . . . citizens of different states.” 28 U.S.C. § 1332(a)-(a)(1). Complete diversity must exist, which “requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” Vaillancourt v. PNC Bank, Nat'l Assoc., 771 F.3d 843, 847 (5th Cir. 2014). The removal statute is construed narrowly, with any doubt construed against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941); In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007).

         Cerillo contends that neither complete diversity of citizenship nor the requisite amount ...


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