United States District Court, S.D. Texas, Brownsville Division
OPINION AND ORDER
Fernando Rodriguez, Jr. United States District Judge
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.
and Procedural History
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
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
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). She brought suit against BankUnited, N.A.
and its substitute trustee, Connie Cobb. 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)
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.
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)
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)
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).
contends that neither complete diversity of citizenship nor
the requisite amount ...