Suarez v. U.S. Bank, N.A., as Trustee

Western District of Texas, txwd-5:2019-cv-01339

Exhibit D - Suit2 Removal

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2 EXHIBIT D Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 1 of 2 of 9 42 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FELIX SUAREZ AND JOYCE SUAREZ, § § § Plaintiffs, § § vs. § CIVIL ACTION NO. 5:17-cv-00085 § OCWEN LOAN SERVICING LLC. AND § ROB VALDESPINO ET AL., TRUSTEES, § § Defendants. NOTICE OF REMOVAL Notice is hereby given that pursuant to 28 U.S.C. § 1332, 1441, and 1446, Defendant Ocwen Loan Servicing, LLC ("Ocwen" or "Defendant") removes this action from the 73rd Judicial District of Bexar County, Texas to the United States District Court for the Western District of Texas, San Antonio Division, as follows: I. STATE COURT ACTION 1. On December 30, 2016, Plaintiff Felix Suarez and Joyce Suarez ("Plaintiffs") filed their Original Petition for Injunctive Relief (the "Petition") in the 73rd Judicial District of Bexar County, Texas in an action styled: Felix Suarez and Joyce Suarez v. Ocwen Loan Servicing LLC and Rob Valdespino, et al., Trustees, Cause No. 2016-CI-22165, (the "State Court Action"). 2. This is Plaintiffs second lawsuit in the last year seeking to preclude foreclosure of the property located at 1246 Clower, San Antonio, Texas 78201 (the "Property"). In the first lawsuit, Ocwen filed a motion to dismiss which was granted without prejudice. Plaintiffs again file this lawsuit seeking to preclude foreclosure of their Property. See generally Petition. Plaintiffs claim that Ocwen failed to send notices as required by the Texas Property Code. See NOTICE OF REMOVAL PAGE 1 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 2 of 3 of 9 42 Petition ¶ 4.03. Plaintiffs also contend that Ocwen has agreed to a modification of the loan which was accepted by Plaintiffs. Plaintiffs claim that they made payments in accordance with the terms of the modification beginning in March 2016 until October 2016 when Ocwen improperly returned a payment. See Petition ¶ 4.04. 3. Although unclear, it appears that Plaintiffs might assert claims for violations of the Texas Property Code, breach of contract, and promissory estoppel. See Petition ¶¶ 4.03-4.04. Plaintiffs also seek injunctive relief. See Petition ¶¶ 5.01-9.01. 4. Ocwen has not been properly served with citation and a copy of the Complaint. Because Ocwen has not been properly served, there is currently no deadline to remove the case under 28 U.S.C. § 1446(b). In any event, the Lawsuit was filed less than thirty days ago. Therefore, this Notice of Removal is timely. 5. Rob Valdespino, Brenda Rolon, Olivia Valdespino, Martin Valdespino, Troy Martin, Alexis Martin, Cassie Martin, Terri Martin, Shelby Martin or Deanna Ray, Clarence Oliver, or Bret Allen, Substitute Trustees ("Substitute Trustees") are nominal defendants who have been improperly joined and enjoy attorney immunity from prosecution by Plaintiffs. See Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986); see Getty Oil Corp. v. Ins. Co. of North Am., 841 F.2d 1254, 1261 (5th Cir. 1988) (an acknowledgment of consent is not required of a defendant who is fraudulently joined, or not properly joined and served); HDNet MMA 2008 v. Zuffa, LLC, No. 3:08-CV-0442-G, 2008 WL 958067, at *3 fn. 5 (N.D. Tex. April 9, 2008). Accordingly, Substitute Trustee's consent is not required for this removal because they are nominal defendants that have been improperly joined. 6. Ocwen removes the State Court Action to this Court on the basis of diversity jurisdiction. NOTICE OF REMOVAL PAGE 2 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 3 of 4 of 9 42 II. PROCEDURAL REQUIREMENTS 7. This action is properly removed to this Court, as the State Court Action is pending within this district and division. See 28 U.S.C. § 1441; 28 U.S.C. § 124(a)(2). 8. The United States District Court for the Western District of Texas, San Antonio Division has original jurisdiction over this action based on diversity jurisdiction because Ocwen is now, and was at the time this action commenced, diverse in citizenship from Plaintiffs, and the amount in controversy exceeds the minimum jurisdictional amount. See 28 U.S.C. § 1332(a). 9. Pursuant to 28 U.S.C. § 1446(a), attached hereto as Exhibit A is a true and correct copy of the entire file of record with the court in the State Court Action, including all process, pleadings, and orders served upon Ocwen in this action. II. DIVERSITY JURISDICTION 10. Where there is complete diversity among the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs, an action may be removed to federal court. See 28 U.S.C. §§ 1332(a), 1441(a). Complete diversity exists in this case because Plaintiffs are not citizens of the same state as Ocwen. Additionally, this action involves an amount in controversy that exceeds $75,000, exclusive of interest and costs. A. DIVERSITY OF CITIZENSHIP 11. Plaintiffs are citizens of Texas. Plaintiffs are natural persons, so their citizenship for diversity purposes is determined by "where [they are] domiciled, that is, where [they have] a fixed residence with the intent to remain there indefinitely." Margetis v. Ray, No. 3:08-CV-958- L, 2009 WL 464962, at *3 (N.D. Tex. Feb. 25, 2009) (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985)). Plaintiffs are domiciled in Texas. See Petition, ¶ 2.01. Therefore, Plaintiffs are citizens of Texas for diversity purposes. NOTICE OF REMOVAL PAGE 3 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 4 of 5 of 9 42 12. At the time Plaintiffs filed the Petition and up through the date of removal, Ocwen has been, and is currently, a citizen of the U.S. Virgin Islands for purposes of diversity jurisdiction. Ocwen is a limited liability company incorporated in the State of Delaware with its principal place of business in the State of Florida. The citizenship of a limited liability company is determined by the citizenship of the members of the entity. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079-80 (5th Cir. 2008). Ocwen's sole member is Ocwen Mortgage Servicing, Inc., which is incorporated in the U.S. Virgin Islands, with its principal place of business in Frederiksted, U.S. Virgin Islands. Accordingly, Ocwen is a citizen of the U.S. Virgin Islands for purposes of diversity jurisdiction. 13. Although the Substitute Trustees are believed to be a citizens of Texas, their citizenship should be disregarded for diversity purposes because Plaintiffs improperly joined the Substitute Trustees to this lawsuit. See Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006). A removing party establishes improper joinder by showing that the plaintiff cannot establish a cause of action against the non-diverse defendant under state law. Id. This requires the Court to conduct "a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether, under state law, the complaint states a claim against the in-state defendant." Id. A "mere theoretical possibility" of recovery under state law does not suffice to preclude removal. Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000). 14. Removal is proper if there is "diversity of citizenship among the parties in interest properly joined. 'Parties in interest' do not include formal or unnecessary parties, thus a plaintiff's joinder of such parties. . . cannot prevent the removal of an action to federal court." Pesch v. First City Bank of Dallas, 637 F. Supp. 1530, 1536-37 (N.D. Tex. 1986) (citing Nunn v. Feltinton, 294 F.2d 450, 453 (5th Cir. 1961) (internal citations and quotation marks omitted)). "Whether a party is 'nominal' [i.e., unnecessary] for removal purposes depends on 'whether, in NOTICE OF REMOVAL PAGE 4 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 5 of 6 of 9 42 the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to the plaintiff.'" Acosta v. Master Maint. & Constr., Inc., 452 F.3d 373, 379 (5th Cir. 2006) (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities P.P. & A. Local 349, 427 F.ƒ2d 325, 327 (5th Cir. 1970)). 15. "[C]ourts routinely hold that the mere inclusion of a non-diverse trustee as a nominal party will not defeat diversity jurisdiction." Mendez v. Wells Fargo Bank, N.A., No. SA-14-CV-326-XR, 2014 WL 1923056, at *2 (W.D. Tex. May 13, 2014). Significantly, the Fifth Circuit has expressly held that substitute trustees sued for actions taken to assist their clients with foreclosure proceedings are improperly joined because they enjoy immunity for actions undertaken in the scope of their representation of their clients. See Rojas v. Wells Fargo Bank, N.A., 571 Fed. App'x 274, 278 (5th Cir. 2014); Iqbal v. Bank of America, N.A., 559 Fed. App'x 363, 365 (5th Cir. 2014); see also Lassberg v. Bank of Am., N.A., No. 15-40196, 2016 WL 4446074, at *3 (5th Cir. Aug. 23, 2016). This is because the Texas Property Code expressly states that a substitute trustee is not a necessary party to a lawsuit arising from foreclosure proceedings asserting claims only against the substitute trustee only in their capacity as a substitute trustee. TEX. PROP. CODE § 51.007(a); Wamco XXVII, Ltd. v. Casa Grande Cotton Fin. Co., 314 F. Supp. 2d 655, 657-58 (N.D. Tex. 2004) (pursuant to Texas Property Code section 51.007, court dismissed defendant named solely in his capacity as substitute trustee upon finding there was no "reasonable possibility" of recovery against him under state law). 16. In this case, Plaintiffs have neither asserted any viable causes of action against the Substitute Trustees nor alleged any specific facts that would give rise to a viable claim under Texas law against the Substitute Trustees, including any specific facts independent of their role as substitute trustees. Instead, the only potential allegation in the Petition relating to the Substitute Trustees, which is asserted against "all defendants," is that they violated Texas NOTICE OF REMOVAL PAGE 5 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 6 of 7 of 9 42 Property Code § 51.002 (d) by not sending a notice of default and notice of sale. See Petition ¶ 4.03. However, this claim is moot because no foreclosure sale occurred. Johnson v. Wells Fargo Bank, NA, 999 F. Supp. 2d 919, 932 (N.D. Tex. 2014) (dismissing a claim for violations of the Texas Property Code because no foreclosure sale occurred). Moreover, the fact that Plaintiffs seek injunctive relief does not preclude a finding of fraudulent joinder because injunctive relief is dependent on an underlying cause of action. See Cook v. Wells Fargo Bank, N.A., No. 3:10-CV-0592-D, 2010 WL 2772445, at *4 (N.D. Tex. July 12, 2010). 17. Consequently, Plaintiffs do not even raise the "theoretical possibility" that any causes of action could be maintained against the Substitute Trustees. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259-60 and n.8 (5th Cir. 1995) (citation omitted) (affirming denial of motion to remand, in part, on grounds that the plaintiff's complaint did not contain allegations which could support a claim against the non-diverse defendant); also Hearn v. Deutsche Bank Nat'l Trust Co., 3:13-CV-2417-B, 2013 WL 6079460, at *3 (N.D. Tex. Nov. 18, 2013) (dismissing trustee defendants because the petition made no allegations against them and did not state any theory under which plaintiff could recover). 18. In light of the foregoing, no reasonable basis exists for Plaintiffs' recovery against the Substitute Trustees in this matter. Therefore, the Substitute Trustees are nominal parties that have been improperly joined and their citizenship should be disregarded for removal purposes. Accordingly, this case is properly in federal court. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co, 313 F.3d 305, 313 (5th Cir. 2002) (holding where nondiverse defendant is fraudulently joined, case is properly in federal court). 19. Because Plaintiffs are citizens of Texas, Ocwen is a citizen of the U.S. Virgin Islands, and the Substitute Trustees' citizenship should be disregarded, there is complete diversity among the parties. See 28 U.S.C. § 1332(c)(1). NOTICE OF REMOVAL PAGE 6 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 7 of 8 of 9 42 B. AMOUNT IN CONTROVERSY 20. The amount-in-controversy requirement is satisfied. Where a defendant can show, by a preponderance of the evidence, that the amount in controversy is greater than the jurisdictional amount, removal is proper. See White v. FCI U.S.A., Inc., 319 F.3d 672, 675 (5th Cir. 2003) (affirming district court's conclusion that it was "more probable than not" that damages were over $75,000 where the total amount of relief was not stated in the petition); see also St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250, 1253 n.13 (5th Cir. 1998) ("[t]he test is whether it is more likely than not that the amount of the claim will exceed [the jurisdictional minimum]."). The defendant can meet its burden if it is "facially apparent" from the petition that the claims probably exceed $75,000, or if the defendant introduces other evidence to show that the amount in controversy more likely than not exceeds $75,000. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); Greenberg, 134 F.3d at 1253 n.13. 21. The amount in controversy is readily apparent on the face of the record. Plaintiffs seek to enjoin Ocwen from foreclosing on the Property. See generally Petition. In cases where injunctive relief is sought based on a challenge to the foreclosure of real property, "it is well established that the amount in controversy is measured by the value of the object of the litigation." Farkas v. GMAC Mortgage, LLC, 737 F.3d 338, 341(5th Cir. 2013) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977)); Martinez v. BAC Home Loans Servicing, 777 F. Supp. 2d. 1039, 1044 (W.D. Tex. 2010). Specifically, the Farkas Court held: "[i]n actions enjoining a lender from transferring property and preserving an individual's ownership interest, it is the property itself that is the object of the litigation; the value of that property represents the amount in controversy." Id. (citing Garfinkle v. Wells Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973)). Thus, "'[w]hen. . . a right to property is called into question in its entirety, the value of the property controls the amount in controversy.'" Nationstar Mortgage NOTICE OF REMOVAL PAGE 7 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document 14-4Filed Filed 02/08/17 12/02/19Page Page 8 of 9 of 9 42 LLC v. Knox, No. 08-60887, 351 Fed. App'x 844, 848 (5th Cir. 2009) (quoting Waller v. Prof'l Ins. Corp., 296 F.2d 545, 547-48 (5th Cir. 1961)); see also Alsobrook v. GMAC Mortg., L.L.C., et al., 541 Fed.Appx. 340, 342 at n.2 (5th Cir. July 31, 2013); Copeland v. U.S. Bank Nat'l Ass'n, No. 11-51206, 485 Fed. App'x 8, 9 (5th Cir. 2012) (relying on the value of the property to satisfy the amount in controversy in exercising diversity jurisdiction over appeal of foreclosure-related claims). A tax appraisal of the Property indicates that it is worth $79,180.00.1 A true and correct copy of an appraisal by the Bexar County Appraisal District is attached hereto as Exhibit B. 22. Plaintiffs also seeks to recover attorney's fees. See Petition ¶ 9.01(3). These amounts must also be included in the amount in controversy. White, 319 F.3d at 675-77 (affirming a district court's finding that attorney fees should be included in the amount in controversy); Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 874 (5th Cir. 2002) ("[W]e hold that when there is state statutory authority for the court to award attorney's fees. . . 'such fees may be included in the amount in controversy.'") (quotation omitted); Ray Mart, Inc. v. Stock Bldg. Supply of Tex., L.P., 435 F. Supp. 2d 578, 588 (E.D. Tex. 2006) (including potential award of attorney's fees in calculating the amount in controversy). Therefore, it is apparent from the face of Plaintiffs' Petition that the attorney's fees Plaintiffs seek, together with the value of the Property, exceed the $75,000 jurisdictional minimum. 23. Because there is complete diversity between the parties and the amount in controversy requirement is satisfied, this Court has jurisdiction pursuant to 28 U.S.C. § 1332 and removal is proper. III. CONCLUSION WHEREFORE, Ocwen removes this action from the 73rd Judicial District of Bexar 1 Defendant does not contend that this particular appraisal constitutes the most accurate valuation of the Property. Such appraisal is provided only for the purpose of establishing a base line value to prove that the amount- in-controversy requirement is satisfied. NOTICE OF REMOVAL PAGE 8 AUS:1006335/01588:679159v1 CaseCase 5:19-cv-01339-XR 5:17-cv-00085 Document Document 4-4 1 Filed Filed02/08/17 12/02/19 Page Page9 10 of 9of 42 County, Texas to the United States District Court for the Western District of Texas, San Antonio, so that this Court may assume jurisdiction over the cause as provided by law. Respectfully submitted, LOCKE LORD LLP /s/ Sarah E. Lancaster B. David L. Foster State Bar No. 24031555 dfoster@lockelord.com Sarah E. Lancaster State Bar No. 24092663 slancaster@lockelord.com 600 Congress Avenue, Suite 2200 Austin, Texas 78701 512-305-4700 (Telephone) 512-305-4800 (Facsimile) Robert T. Mowrey State Bar No. 14607500 rmowrey@lockelord.com 2200 Ross Avenue, Suite 2800 Dallas, TX 75201 (214) 740-8000 (Telephone) (214) 740-8800 (Facsimile) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon all counsel of record via certified mail, return receipt requested pursuant to the Federal Rules of Civil Procedure on this 8th day of February 2017. CERTIFIED MAIL, RETURN RECEIPT REQUESTED 9214 7969 0099 9790 1612 9671 94 Henry Grun Law Office of Henry Grun 222 Main Plaza East San Antonio, Texas 78205 /s/ Sarah E. Lancaster NOTICE OF REMOVAL PAGE 9 AUS:1006335/01588:679159v1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page111 of 22 of 42 EXHIBIT A Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page212 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page313 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page414 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page515 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page616 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page717 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page818 of 22 of 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4 Filed Filed02/08/17 12/02/19 Page Page919 of 22 of 42 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1020 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1121 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1222 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1323 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1424 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1525 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1626 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1727 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1828 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page1929 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page2030 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page2131 ofof 2242 Case Case5:19-cv-01339-XR 5:17-cv-00085 Document Document1-1 4-4Filed Filed 02/08/17 12/02/19Page Page2232 ofof 2242 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-2 4-4 Filed Filed02/08/17 12/02/19 Page Page133 ofof 4 42 EXHIBIT B Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-2 4-4 Filed Filed02/08/17 12/02/19 Page Page234 ofof 4 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-2 4-4 Filed Filed02/08/17 12/02/19 Page Page335 ofof 4 42 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-2 4-4 Filed Filed02/08/17 12/02/19 Page Page436 ofof 4 42 JS 44 (Rev. 10/06) Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document CIVIL COVER1-3 4-4 SHEET Filed Filed02/08/17 12/02/19 Page Page137 ofof 2 42 The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September, 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet: (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS Felix Suarez and Joyce Suarez Ocwen Loan Servicing, LLC and Rob Valdespino, et al. (b) County of Residence of First Listed Plaintiff: Bexar County, Texas County of Residence of First Listed Defendant: Frederiksted, U.S. Virgin Islands (EXCEPT IN U.S. PLAINTIFF CASES) (c) Attorneys (Firm Name, Address, And Telephone Number) Attorneys (If Known) Henry Grun Robert T. Mowrey B. David L. Foster Law Office of Henry Grun Sarah E. Lancaster 222 Main Plaza East Locke Lord LLP Locke Lord LLP San Antonio, Texas 78205 2200 Ross Avenue, Suite 2800 600 Congress Ave., Suite 2200 (210) 227-5161 Dallas, Texas 75201 Austin, Texas 78701 (214) 740-8000 (512) 305-4700 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One For Plaintiff (for Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place of 4 4 Business in this State 2 U.S. Government 4 Diversity Defendant Citizen of Another State 2 2 Incorporated and Principal Place of 5 5 (Indicate Citizenship of Parties in Item III) Business in Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reappointment 120 Marine 310 Airplane 362 Personal Injury-- 620 Other Food & Drug 423 Withdrawal 410 Antitrust 130 Miller Act 315 Airplane Product Med Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking 140 Negotiable Instrument Liability 365 Personal Injury-- of Property 21 U.S.C. 450 Commerce 150 Recovery of Overpayment 320 Assault Libel & Product Liability 881 460 Deportation PROPERTY RIGHTS & Enforcement of Judgment Slander 368 Asbestos Personal 630 Liquor Laws 470 Racketeer Influenced and 151 Medicare Act 330 Federal Employers' Injury Product 640 R R & Truck 820 Copyrights Corrupt Organizations 152 Recovery of Defaulted Liability Liability 650 Airline Regs 830 Patent 480 Consumer Credit Student Loans 340 Marine PERSONAL PROPERTY 660 Occupational 840 Trademark 490 Cable/Sat TV (Excl. Veterans) 345 Marine Product 370 Other Fraud Safety/Health 810 Selective Service 153 Recovery of Overpayment Liability 371 Truth in Lending 690 Other 850 Securities/Commodities/ of Veteran's Benefits 350 Motor Vehicle 380 Other Personal Exchange LABOR SOCIAL SECURITY 160 Stockholders' Suits 355 Motor Vehicle Property Damage 875 Customer Challenge 385 Property Damage 710 Fair Labor Standards 861 HIA (1395 ff) 190 Other Contracts Product Liability 12 USC 3410 Product Liability Act 862 Black Lung (923) 195 Contract Product Liability 360 Other Personal 890 Other Statutory Actions 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 196 Franchise Injury 891 Agricultural Acts 730 Labor/Mgmt. 864 SSID Title XVI Reporting & 865 RSI (405(g)) 892 Economic Stabilization Act REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Disclosure Act FEDERAL TAX SUITS 893 Environmental Matters 740 Railway Labor Act 894 Energy Allocation Act 210 Land Condemnation 441 Voting 510 Motions to Vacate 870 Taxes (U.S. Plaintiff 895 Freedom of Information Act 220 Foreclosure 442 Employment Sentence 790 Other Labor Litigation or Defendant) 791 Empl. Ret. Inc. 900 Appeal of Fee Determination 230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus 871 IRS--Third Party Under Equal Access to 240 Torts to Land Accommodations 530 General Security Act 26 U.S.C. 7609 Justice 245 Tort Product Liability 444 Welfare 535 Death Penalty 950 Constitutionality of State 290 All Other Real Property 445 Amer. w/Disabilities 540 Mandamus & Other Statutes – Employment 550 Civil Rights 446 Amer. w/Disabilities 555 Prison Condition - Other 440 Other Civil Rights V. ORIGIN (Place an "X" in One Box Only) 1 Original Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 7 Appeal to District Judge Proceeding State Court Appellate Court reopened another district Litigation from Magistrate (specify) Judgment Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION 28 U.S.C. §§ 1332; 1441(b) (Removal of case with diversity jurisdiction) Brief description of cause: Plaintiffs seek to prevent the foreclosure of real property. VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint UNDER F.R.C.P 23 JURY DEMAND: YES NO COMPLAINT: VIII. RELATED CASE(S) IF ANY (See instructions) JUDGE The Honorable David A. Ezra DOCKET NUMBER 5:15-cv-00040 DATE SIGNATURE OF ATTORNEY OF RECORD February 8, 2017 Sarah E. Lancaster FOR OFFICE USE ONLY Receipt # _______________ Amount ______________ APPLYING IFP ______________ JUDGE __________________ MAG. JUDGE _________________________ JS 44 Reverse(Rev 10/06) Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-3 4-4 Filed Filed02/08/17 12/02/19 Page Page238 ofof 2 42 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority for Civil Cover Sheet The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States, are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS-44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section IV below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a) Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity Example: U.S. Civil statute: 47 USC 553; Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS-44 is used to reference related cases that are related to this filing if any. If a related case exists, whether pending or closed, insert the docket numbers and the corresponding judge names for such cases. A case is "related" to this filing if the case: (1) involves some or all of the same parties and is based on the same or similar claim; (2) involves the same property, transaction, or event; (3) involves substantially similar issues of law and fact; and/or (4) involves the same estate in a bankruptcy appeal. Date and Attorney Signature. Date and sign the civil cover sheet. Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-4 4-4 Filed Filed02/08/17 12/02/19 Page Page139 ofof 3 42 NO. 5:17-cv-00085 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Supplement to JS 44 Civil Cover Sheet Cases Removed From State Court This form must be filed with the Clerk's Office no later than the first business day following the filing of the Notice of Removal. Additional sheets may be used as necessary. The attorney of record for the removing party MUST sign this form. STATE COURT INFORMATION: 1. Please identify the court from which the case is being removed; the case number; and the complete style of the case. Felix Suarez and Joyce Suarez v. Ocwen Loan Servicing LLC and Rob Valdespino, et al., Trustees, Cause No. 2016-CI-22165, in the 73rd Judicial District of Bexar County, Texas. 2. Was jury demand made in State Court: NO If yes, by which party and on what date? N/A STATE COURT INFORMATION: 1. List all plaintiffs, defendants, and intervenors still remaining in the case. Also, please list the attorney(s) of record for each party named and include the attorney's firm name, correct mailing address, telephone number, and fax number (including area codes). Plaintiff: Felix Suarez and Joyce Suarez Attorney for Plaintiffs: Henry Grun State Bar No. 08556100 Law Office of Henry Grun 222 Main Plaza East San Antonio, Texas 78205 (210) 227-5161 Defendant: Ocwen Loan Servicing, LLC ("Ocwen") Attorneys for Ocwen: B. David L. Foster State Bar No. 24031555 dfoster@lockelord.com 1 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-4 4-4 Filed Filed02/08/17 12/02/19 Page Page240 ofof 3 42 Sarah E. Lancaster State Bar No. 24092663 slancaster@lockelord.com 600 Congress Avenue, Suite 2200 Austin, Texas 78701 512-305-4700 (Telephone) 512-305-4800 (Facsimile) Robert T. Mowrey State Bar No. 14607500 rmowrey@lockelord.com 2200 Ross Avenue, Suite 2800 Dallas, TX 75201 (214) 740-8000 (Telephone) (214) 740-8800 (Facsimile) Defendant: Rob Valdespino, et al., Trustees ("Trustees") Attorneys for Trustees: N/A 2. List all parties that have not been served at the time of the removal, and the reason(s) for non-service. Ocwen – unknown. Rob Valdespino, Brenda Rolon, Olivia Valdespino, Martin Valdespino, Troy Martin, Alexis Martin, Cassie Martin, Terri Martin, Shelby Martin or Deanna Ray, Clarence Oliver, or Bret Allen – unknown. 3. List all parties that have been non-suited, dismissal, or terminated, and the reason(s) for their removal from the case. None. 2 Case Case 5:19-cv-01339-XR 5:17-cv-00085 Document Document1-4 4-4 Filed Filed02/08/17 12/02/19 Page Page341 ofof 3 42 COUNTERCLAIMS, CROSS-CLAIMS, and/or THIRD-PARTY CLAIMS: 1. List separately each counterclaim, cross-claim, or third-party claim still remaining in the case and designate the nature of each such claim. For each counterclaim, cross-claim, or third-party claim, include all plaintiffs, defendants, and intervenors still remaining in the case. Also, please list the attorney(s) of record for each party named and include the attorney's firm name, correct mailing address, telephone number, and fax number (including area codes). None. VERIFICATION: Sarah E. Lancaster February 8th, 2017 Attorney for Removing Party Date 3 2