Richards v NCSLT 2006-3 Private student loan collection suits not removable to federal court - It could cost you

Nat'l Collegiate Student Loan Trust 2006-3 v. Richards, No. 3:16-CV-1936-M, 2016 WL 4533216 (N.D. Tex. Aug. 30, 2016)

STATE COURT COLLECTION ACTION FILED BY NATIONAL COLLEGIATE STUDENT LOAN TRUST DID NOT INVOLVE A FEDERAL QUESTION 

Federal district court in Dallas sent case back to state district court after student loan defendant removed private student loan collection case from state court to federal court. No federal cause of action was involved in collection of student debt on breach of contract theory in Texas, and Texas resident sued in local court would not have been entitled to removal based on diversity jurisdiction even if amount had been above $75,000.00, which was not the case here. Damages less than $100,000.00 under the expedited action/case type pleading rules in Texas state courts doesn't necessarily mean anything for removal threshold purposes. Student loan defendant was ordered to pay attorney's fees to the Trust for causing the improper detour to federal court. 

REMOVAL LAW 

A party may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441 (2012). The party seeking removal bears the burden of establishing federal jurisdiction. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). This statutory right to removal is strictly construed because "removal jurisdiction raises significant federalism concerns." Id. (citations omitted). "[A]ny doubt about the propriety of removal must be resolved in favor of remand." Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007). Ditech and Bank of NY claim that the court has removal jurisdiction based on diversity of citizenship. Dkt. 1 at 4-5. Subject matter jurisdiction premised on diversity requires (1) complete diversity of citizenship between the parties and (2) an amount in controversy in excess of $75,000. 28 U.S.C. § 1332 (2012).

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, a Delaware Statutory Trust, Plaintiff,
v.
ERNEST RICHARDS, Defendent.

Civil Action No. 3:16-CV-1936-M.

United States District Court, N.D. Texas, Dallas Division.

August 30, 2016.

National Collegiate Student Loan Trust 2006-3, Plaintiff, represented by Michael J. Scott, Michael J Scott, P.C., Cynthia Lee Fulton, Fulton Friedman & Gullace, LLP, pro hac vice, Teri Stewart Mace, Emerson Law Firm & Timothy Wells, Scott & Associates. 

Ernest Richards, Defendant, Pro se.

MEMORANDUM OPINION AND ORDER

BARBARA M.G. LYNN, Chief District Judge. 

Before the Court is a Motion for Remand [Docket Entry #6], filed by Plaintiff National Collegiate Student Loan Trust 2006-3 ("NCSLT"). For the reasons explained below, the Motion is GRANTED.

Background

On August 10, 2015, NCSLT, a Delaware statutory trust, filed this lawsuit against Defendant Ernest Richards ("Richards"), a Texas citizen, in the 191st Judicial District Court of Dallas County, Texas, in which NCSLT asserts a single claim against Richards for breach of contract, arising out of Richards's alleged failure to repay a student loan. See Pl. Orig. Pet. (Def. Rem. Not., Ex. 3) at 2, 3. NCSLT alleges that, as of March 25, 2015, Richards owed a principal balance of $42,740.22, plus accrued and unpaid interest in the amount of $4,570.17. Id. at 3, ¶12. On September 28, 2015, Richards filed an Original Answer in state court, asserting a general denial and raising various affirmative defenses. Def. Orig. Ans. (Def. Rem. Not., Ex. 4). On July 1, 2016, Richards filed a Notice of Removal in federal court, asserting that the lawsuit involves a Federal Debt Collection Act claim, complete diversity, and the amount in controversy exceeds $75,000. Def. Rem. Not. at 2, ¶9. NCSLT filed a Motion to Remand on July 14, 2016. The issues have been fully briefed, and the Motion is ripe for determination.

Legal Standards and Analysis

A defendant may remove an action filed in state court to federal court if the action is one that could have originally been filed in federal court. See 28 U.S.C. § 1441(a). A federal court's jurisdiction is limited, and a federal court generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332. The removing party bears the burden of establishing jurisdiction. See Miller v. Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

Richards contends the Court has jurisdiction over this matter on both diversity jurisdiction and federal question grounds. Def. Rem. Not. at 2, ¶9. Federal question jurisdiction, under 28 U.S.C. § 1331, "exists when `a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)). "A civil action filed in a state court may be removed to federal court if the claim is one `arising under' federal law," and, "[t]o determine whether the claim arises under federal law, we examine the `well pleaded' allegations of the complaint and ignore potential defenses: [A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003) (citation and internal quotation marks omitted). Thus, "[a] federal question exists `if there appears on the face of the complaint some substantial, disputed question of federal law.'" In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (quoting Carpenter, 44 F.3d at 366). "[T]here is generally no federal jurisdiction if the plaintiff properly pleads only a state law cause of action." MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002).

NCSLT's Original Petition asserts a single state law claim against Richards for breach of contract. See Pl. Orig. Pet. at 3. Although Richards conclusorily asserts that this lawsuit involves a federal question arising under the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"), NCSLT's claim for breach of contract is not based on the FDCPA and does not depend on the resolution of a substantial question regarding that federal statute. Richards has thus failed to establish that removal is proper based on federal question jurisdiction.

In diversity cases, each plaintiff's citizenship must be different from each defendant's citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. §§ 1332(a), (b). Where a plaintiff alleges a sum certain in its pleading, that amount controls, if made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In this case, it is undisputed that NCSLT and Richards are diverse. However, the amount in controversy does not meet the jurisdictional threshold. NCSLT specifically alleges in its Original Petition that Richards owes a principal balance of $42,740.22, plus accrued and unpaid interest in the amount of $4,570.17. Pl. Orig. Pet. at 3, ¶12. The Court finds that NCSLT made its damages allegations in good faith, as it provided the Court with documentation showing its claim for only $47,310.39 represents the actual amount owing on the loan. See Pl. App. at 15, ¶10 & 45-58. NCSLT also requests an award of "reasonable and necessary attorney's fees of at least $5,000." Id. at 4. The amount in controversy, including attorney's fees, is thus well below the jurisdictional minimum. Id. at 3, ¶15.

Richards appears to rely on a statement on the first page of NCSLT's Original Petition that it "seeks only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, and pre-judgment interest." Pl. Orig. Pet. at 1, ¶2. But, this statement merely conforms to Texas Rule of Civil Procedure 47, which requires plaintiffs to select one of five prescribed statements describing the damages sought. See Tex. R. Civ. P. 47(c)(1). It does not, in the absence of additional facts, establish that the amount in controversy satisfies the jurisdictional minimum. See, e.g., Payton v. Equifax Info. Servs., LLC, 2014 WL 7236066, at *3 (N.D. Tex. Dec. 18, 2014) (Boyle, J.). Richards fails to set forth any facts that support a finding of the requisite amount, either in his removal notice or in support of his response to the Motion to remand. In the absence of such facts, Richards has failed to establish by a preponderance of the evidence that the amount in controversy requirement is met.

Further, under the so-called "forum-defendant rule," an action may not be removed on the basis of diversity jurisdiction if any defendant, properly joined and served, is a citizen of the state where the plaintiff filed suit. See 28 U.S.C. § 1441(b)(2). Removal of a case in violation of the forum-defendant rule renders the removal procedurally defective and provides a basis for remand where the issue timely raised. See In re 1994 Exxon Chem. Fire, 558 F.3d 378, 391 (5th Cir. 2009). Here, Richards admits that he is a citizen of Texas—the same state in which NCSLT filed its original petition. Def. Rem. Not. at 1, ¶4. Although he asserts in his Notice of Removal that he was "never served," Richards filed an Original Answer in state court. Id., Ex. 4. Under Texas law, an answer constitutes an appearance by a defendant and dispenses with the necessity for the issuance or service of citation upon that defendant. Tex. R. Civ. P. 121. Richards is thus considered "properly served" for purposes of effecting removal. Davis v. Cash, 2001 WL 1149355, at *2 (N.D. Tex. Sept. 27, 2001) (Sanders, J.); see also Breitweiser v. Chesapeake Energy Corp.,2015 WL 6322625, at *4-5 (N.D. Tex. Oct. 20, 2015) (recognizing that defendant's answer filed in state court satisfies the requirement derived from the "properly joined and served" language that at least one defendant must be considered served prior to removal). Remand is therefore appropriate on the basis of the forum-defendant rule, which Plaintiff has timely raised.

Finally, NCSLT seeks its attorney fees incurred in connection with the removal.

The Court has discretion to order Richards to pay NCSLT "just costs and any actual expenses, including attorney fees, incurred as a result of" improper removal. 28 U.S.C. § 1447(c). To warrant such an award, Richards must have "lacked an objectively reasonable basis for seeking removal." See Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Richards lacked an objectively reasonable basis to remove this case, because it does not involve a federal question or seek damages in excess of $75,000. Additionally, Richards is a citizen of Texas and not entitled to remove this case to a federal court in Texas. The Court therefore orders Richards to pay NCSLT the reasonable attorneys' fees and costs it incurred as a result of removal. NCSLT shall submit by affidavit documents establishing such fees within twenty-one days of the date of this Order. If Richards disputes the amount sought, he may respond within fourteen days thereafter.

Conclusion

Plaintiff's Motion for Remand is GRANTED, and this case is REMANDED to the 191st Judicial District Court of Dallas County, Texas. 

SO ORDERED.

MORE ON REMOVAL:

DIVERSITY JURISDICTION IN FORECLOSURE CONTEXT 

WILLIAM H. BERRY, JR., Plaintiff,
v.
SETERUS, INC., et al, Defendants.

Civil Action No. 2:17-CV-5.

United States District Court, S.D. Texas, Corpus Christi Division.

March 31, 2017.

ORDER DENYING MOTION TO REMAND

NELVA GONZALES RAMOS, District Judge.

Plaintiff William H. Berry, Jr. (Berry) filed this action on January 2, 2017, to prevent the foreclosure of a lien against his homestead property located at 13702 A La Entrada Calle, Corpus Christi, Nueces County, Texas. In the Nueces County Court at Law No. One, he sued Defendant Seterus, Inc. (Seterus) (the mortgage servicer for his note), the Trustees^[1] named on the Notice of Foreclosure Sale, and the Attorneys^[2] who represented Seterus in its collection efforts. 

He alleges causes of action for (1) negligence, (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) violations of the Texas Deceptive Trade Practices Act (DTPA), (5) wrongful notices of acceleration and trustee's sale, (6) violation of the Texas Fair Debt Collection Act (FDCA), (7) unreasonable debt collection, (8) negligent misrepresentation, (9) accord and satisfaction, (10) fraud, (11) gross negligence and malice, and (12) breach of fiduciary duty. Berry seeks declaratory and injunctive relief, in addition to an accounting and actual and punitive damages, attorney's fees and pre-and post-judgment interest. D.E. 1-1. He also alleges certain affirmative defenses to an anticipated counterclaim to collect on his note.

On January 4, 2017, the County Court issued a temporary restraining order enjoining the planned foreclosure sale. D.E. 1-1. Thereafter, on January 10, 2017, Defendant Seterus removed the case to this Court pursuant to diversity jurisdiction, 28 U.S.C. § 1332. Seterus asserts that the amount in controversy exceeds $75,000. It further asserts that its citizenship is diverse from that of Berry. It disregards the admittedly non-diverse citizenship of all of the other Defendants, arguing that they are improperly joined. More specifically, Seterus contends that the Trustees and Attorneys are merely agents of Seterus whose citizenship is disregarded and/or they should be dismissed from this case based upon immunity from liability for work done on behalf of their principal.

Before the Court is Berry's Motion to Remand (D.E. 16). 

He challenges this Court's diversity jurisdiction on the basis of both the amount in controversy and the argument that the Trustees and Attorneys are improperly joined. The Court agrees with Seterus that the non-diverse parties are improperly joined and that the amount in controversy is sufficient to sustain diversity jurisdiction. 

For the reasons set out below, the Court DENIES the motion to remand.

DISCUSSION

A. Standard of Review.

On a motion to remand, "[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). "Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Id. The strict construction rule arises because of "significant federalism concerns." See generally, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).

"The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper." Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004) (en banc). The removing party proves improper joinder by demonstrating: (1) actual fraud in the pleading of jurisdictional facts; or (2) the inability of the plaintiff to establish a cause of action against the non-diverse defendant in state court. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)); see also Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005). Only the second method is at issue here. The motion to remand must be granted unless "there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the non-diverse defendant in state court." Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999).

B. Amount in Controversy.

Berry contends that the amount in controversy is less than $75,000 because the amount Seterus demanded to pay off the balance owed on the note secured by his residence is only $47,127.40. That is the amount he is fighting in this lawsuit. He allows that his allegations could, at most, involve $55,294.69, if certain escrow funds in dispute were added to the principal amount due. D.E. 16, pp. 10-11. Berry challenges any attempt to use his denial of owing the original principal amount of the note ($183,250) as the amount in controversy because his allegations state that he has paid down the note and he clearly is fighting a lesser amount.

Berry's arguments disregard the two actual amount-in-controversy arguments made in Seterus's removal, echoed in its response to the motion to remand: (1) that Berry's request for declaratory or injunctive relief, affecting Seterus's right to foreclose, places the entire value of the property in controversy, which value greatly exceeds $75,000; and (2) that Berry's request for actual damages, together with additional, exemplary, or punitive damages and attorney's fees reasonably exceeds $75,000 on the face of the petition. The Court agrees with Seterus.

In his state court petition, Berry explains that he purchased the property in 1991, has made monthly payments toward principal and interest since that date, and made extensive improvements to the property, such that he refinanced his mortgage debt in 2003 in the total amount of $183,250. The land alone, he alleges, has a tax appraisal value of $140,000. D.E. 1-1, p. 13. Seterus has offered evidence that the property is worth $250,000: $140,000 for the land and $110,000 for the improvements. D.E. 1-1, p. 108. "`In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.'" Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 341 (5th Cir. 2013) (quoting Hunt v. Wash. StateApple Adver. Comm'n, 432 U.S. 333, 347 (1977) and applying the holding to a foreclosure action). Here, Berry's admission that the value of the property is $140,000 satisfies the $75,000 threshold.

Berry also seeks extensive damages which include actual and exemplary damages, under at least 12 causes of action that include fraud, gross negligence, DTPA, and FDCA claims. He prays for his pecuniary losses, mental anguish, his time and expense addressing this matter in the past and future, and attorney's fees. The number and kind of theories alleged make this case an expensive one to prosecute in terms of attorney's fees. At no time has Berry suggested that he seeks less than $75,000 when all of his categories of damages are aggregated. Thus, it is not a stretch to interpret these damages as totaling more than $75,000, exclusive of interest and costs, on the face of his complaint. E.g., St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (attorney's fees and punitive damages are included in the amount in controversy calculation).

Seterus has satisfied the amount in controversy requirement of diversity jurisdiction to support its removal of the case to this Court.

C. Diversity of Citizenship and Improper Joinder.

Berry's complaints, as detailed in the factual portion of his state court petition, focus on the lender's and servicer's acts: unauthorized force-placed insurance, duplicate payment of property taxes, maintenance of an unauthorized escrow account, improper administration of the escrow account, incorrectly addressing notices to him, assessment of inapplicable fees and penalties, improper application of payments, refusal to provide an accounting, and the unlawful acceleration of the indebtedness, resulting in the notice of foreclosure. All of the conduct complained of has to do with the lender-borrower relationship and the terms of the note and deed of trust.

Berry named the Trustees and Attorneys under the "Parties" section of his complaint. However, the subsequent allegations are made against Seterus or "Defendants," without identifying any wrongful acts of any particular Trustee or Attorney other than that they as a group worked on behalf of Seterus in collecting the alleged indebtedness against Berry. Seterus complained of this pleading defect (failing to state a claim upon which relief could be granted) in the notice of removal, reciting the federal fact pleading standards. D.E. 1, ¶ 10 (citing Iqbal v. Ashcroft, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Berry has failed to cure his pleading defects or identify additional facts that might support his claims in connection with his motion for remand. Instead, he repeats the conclusory and formulaic allegations of his complaint. Thus there is no indication that any particular Trustee or Attorney Defendant engaged in any specific wrongful conduct. This failure applies with respect to all legal theories under Federal Rule of Civil Procedure 8. But it is particularly acute with respect to fraud allegations, governed by Rule 9(b). "`At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.' Put simply, Rule 9(b) requires `the who, what, when, where, and how' to be laid out." Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir.), opinion modified on other grounds on denial of reh'g, 355 F.3d 356 (5th Cir. 2003).

• Because Berry fails to provide any factual basis for his claims against the Trustees and Attorneys, he has failed to meet the Twombly/Iqbal pleading standard as to any of his claims, most particularly those regarding fraud, malice, and misrepresentation.

• Because he complains of the Attorneys as adversaries trying to collect a debt against him, he has identified no factual basis for a relationship— certainly no relationship of trust or confidence—to support any negligence or breach of fiduciary duty theory. Nabors Drilling, U.S.A., Inc. v. Escoto,288 S.W.3d 401, 404 (Tex. 2009) (elements of negligence); Priddy v. Rawson, 282 S.W.3d 588, 599 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (relationship as element of breach of fiduciary duty theory).

• Because the lien against the property has not been foreclosed, none of Berry's complaints state a claim against the Trustees.

Although a trustee under a deed of trust owes neither a fiduciary duty nor a duty of good faith and fair dealing to the mortgagor, the trustee does have "a duty to `act with absolute impartiality and fairness to the grantor in performing the powers vested in him by the deed of trust.'" This duty is breached when the trustee fails to comply strictly with the terms of the deed of trust or the notice and sale provisions of § 51.002 of the Texas Property Code. Breach of the trustee's duty under a deed of trust is not itself an independent tort. Instead, "breach of this duty may be stated under Texas law as a claim for wrongful foreclosure." A claim for wrongful foreclosure requires that the property in question be sold at a foreclosure sale.

Marsh v. Wells Fargo Bank, N.A., 760 F. Supp. 2d 701, 708 (N.D. Tex. 2011) (citations omitted) (applying Texas law).

• Because Berry has failed to set out any specific factual reliance on any alleged misrepresentation, he has not stated a claim for negligent misrepresentation. E.g., McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999).

• Because he has not alleged facts to show that the Trustees or Attorneys had actual, subjective awareness of an extreme degree of risk or a specific intent to cause harm to Berry, he has not stated a claim for gross negligence or malice to support exemplary damages. Tex. Civ. Prac. & Rem. Code §§ 41.001, 41.003.

• Because he has not supplied any factual allegation of any agreement with the Trustees or Attorneys, he has not laid the foundation for a breach of contract, breach of the covenant of good faith and fair dealing, wrongful act in accelerating the note or noticing the property for foreclosure, or accord and satisfaction theory. E.g., Davis v. Texas Farm Bureau Ins., 470 S.W.3d 97, 104 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (breach of contract theory requires a contract); Solar Applications Eng'g v. T.A. Oper. Corp., 327 S.W.3d 104, 108 (Tex. 2010) (breach of covenant requires an agreement); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000) (accord and satisfaction requires an agreement).

• Because he has not alleged facts to show that he sought goods or services from the Trustees or Attorneys, he has not pled that he is a consumer entitled to DTPA protections. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex. 1995).

• Because he complains only of the ordinary demands and notices^[3]associated with debt collection and foreclosure and does not factually address any specific Trustee or Attorney's wrongful conduct, he has not sufficiently pled a violation of the FDCA or an unreasonable debt collection practice. Tex. Fin. Code § 392.001, et seq.

Berry has failed to demonstrate a plausible claim against the Trustees and Attorneys both generally, with respect to pleading claims and specifically, with respect to at least one element of each liability theory. His claims for declaratory and injunctive relief address only remedies without underlying theories of liability. See generally, Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex. 1998) (addressing a constitutional claim as providing standing to seek declaratory relief); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (temporary injunctive relief requires showing an underlying cause of action); Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 (Tex. App. 1982) (permanent injunction requires proof of wrongful act), aff'd, 647 S.W.2d 246 (Tex. 1983).

Seterus has satisfied its burden to show that Berry has not alleged a claim upon which relief may be granted against any of the Trustees or Attorneys. They are thus improperly joined.

CONCLUSION

For the reasons set out above, the Court holds that Defendants Vicki Hammonds; Leslye Evans; Arnold Mendoza; W.D. Larew; Michael W. Zientz; AVT Title Services, LLC; the Law Firm of Mackie Wolf Zientz & Mann, P.C.; Brandon Wolf; L. Keller Mackie; Lori Liane Long; Tracey Midkiff; and Joseph Modric are improperly joined because Plaintiff has failed to state a claim against them upon which relief may be granted. The Court ORDERS that all claims against these Defendants are DISMISSED and the motions to dismiss (D.E. 10 and 13) are terminated as moot. Plaintiff's motion to remand (D.E. 16) is DENIED.

[1] Defendants, Vicki Hammonds, Leslye Evans, Arnold Mendoza, W.D. Larew, Michael W. Zientz, and AVT Title Services, LLC (AVT).

[2] Law Firm of Mackie Wolf Zientz & Mann, P.C., Brandon Wolf, L. Keller Mackie, Lori Liane Long, Tracey Midkiff, and Joseph Modric.

[3] Under the Texas Fair Debt Collection Practices Act, the conduct prohibited must rise to the level of threats or coercion, harassment or abuse, unfair or unconscionable means, or fraudulent, deceptive, or misleading representations as to the debt collector's identity, the lender's identity, the collector's credentials, the amount of debt claimed by the lender and the like. See Tex. Fin. Code § 392.001, et seq.

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, Plaintiff,
v.
ERNEST RICHARDS, Defendant.

Civil Action No. 3:16-CV-001936-M.

United States District Court, N.D. Texas, Dallas Division.

July 14, 2017.

National Collegiate Student Loan Trust 2006-3, Plaintiff, represented by Michael J. Scott, Michael J Scott, P.C..

National Collegiate Student Loan Trust 2006-3, Plaintiff, represented by Cynthia Lee Fulton, Fulton Friedman & Gullace, LLP, pro hac vice, Teri Stewart Mace, Emerson Law Firm & Timothy Wells, Scott & Associates.

Ernest Richards, Defendant, Pro Se.

ORDER ACCEPTING FINDINGS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

BARBARA M.G. LYNN, Chief District Judge.

After reviewing the Findings, Conclusions, and Recommendation of the United States Magistrate Judge for plain error, I am of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.

The defendant's motion to reconsider, if any, is DENIED, and the plaintiff is awarded $2,932.50 in attorneys' fees.

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3 v. Richards, Dist. Court, ND Texas 2017 

WestLaw cite: Nat'l Collegiate Student Loan Trust 2006-3 v. Richards, No. 3:16-CV-1936-M, 2016 WL 4533216 (N.D. Tex. Aug. 30, 2016) 

ANOTHER CAUTIONARY TALE:

REMOVAL NOT TIMELY IN CASE INVOLVING A FEDERAL ISSUE

(DISCHARGEABILITY OF STUDENT LOAN DEBT)

BUT NOT ARISING FROM FEDERAL LAW 

(CREDITOR'S BREACH OF NOTE CLAIM) 

(2006)

Access Group, Inc.
v.
Daniel C. Frederico.

Civil No. 06-cv-275-JD.

United States District Court, D. New Hampshire.

October 5, 2006.

ORDER

JOSEPH DiCLERICO JR., District Judge.

On February 24, 2006, Access Group, Inc., commenced an action against Daniel Frederico in Rochester, New Hampshire, district court by serving him with a summons alleging that he had defaulted on an Access Group student loan. In a subsequent petition to the state court, Access Group requested permission to attach $8,665.90 of Frederico's assets. Frederico filed a motion to dismiss, asserting that Access Group's lawsuit was time-barred and that the state court lacked jurisdiction to hear the case. Following a hearing on April 24, the state court denied the motion to dismiss and granted the petition to attach. On July 25, Frederico, acting pro se,^[1] filed a notice of removal asserting federal question jurisdiction. See 28 U.S.C. § 1331. Access Group now moves to remand to the state court, arguing that Frederico's notice of removal was untimely and fails to specify any "federal question" for this court. Access Group also moves to strike the answer and counterclaim Frederico filed with this court, and requests an award of the attorney fees and costs incurred as a result of the removal of this case.

A defendant may remove a state court civil action to a federal court, sitting in the district and division embracing the place where the state action is pending, so long as the federal court has original jurisdiction. 28 U.S.C. § 1441(a). In cases where diversity of citizenship jurisdiction is lacking, a defendant may remove if one of the plaintiff's claims arises under federal law. Id. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); id. § 1441(b) (providing that state cases involving a federal question may be removed to federal court). A case arises under federal law if the plaintiff's "well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983); see also Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986); Roselló-Gonzáles v. Calderón-Serra, 398 F.3d 1, 10-11 (1st Cir.2004).

To remove such a proceeding, the defendant must file a notice of removal within 30 days of receiving the initial pleading setting forth the federal cause of action. 28 U.S.C. § 1446(b). If the initial pleading does not allege a removable cause of action, the defendant may file a notice of removal within 30 days of receiving "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id.; see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69 (1996) ("In a case not originally removable, a defendant who receives a pleading or other paper indicating the post commencement satisfaction of federal jurisdictional requirements ... may remove the case to federal court within 30 days of receiving such information.").

The obvious federal issue in this case is the question of whether Frederico's debt was discharged in bankruptcy proceedings. According to an affidavit filed by Frederico, a bankruptcy court in Chapter 7 proceedings granted him a full discharge of his debts in 2001. Access Group had anticipated this defense. In its state court summons, Access Group asserted that Frederico had failed to file a dischargeability complaint with the bankruptcy court with respect to the Access Group loan, and, in any event, that the Access Group loan is a non-dischargeable debt. See O'Brien v. First Marblehead Educ. Res., 419 F.3d 104, 106 (2d Cir.2005) (holding that student loan was non-dischargeable because it was funded in part by a governmental or non-profit institution). Had Frederico timely filed a notice of removal upon service of the summons, he could have argued that, although Access Group did not directly allege a cause of action "arising under" federal law, Access Group's right to relief turns on the resolution of a substantial question of federal law — the dischargeability of Frederico's debt under bankruptcy law. See Roselló-Gonzáles, 398 F.3d at 10-13; Templeton Bd. of Sewer Comm'rs v. Am. Tissue Mills of Mass., Inc., 352 F.3d 33, 36 (1st Cir.2003).^[2] But, because Frederico's notice of removal was filed five months after he received the summons, which explicitly put him on notice of the federal issue, that argument is no longer available.

Frederico attempts to maneuver around the lateness of his notice of removal by claiming that he was unaware of any federal question until he was served with the promissory note from which Access Group's lawsuit arises. He claims that the federal question springs, not from the bankruptcy issue, but from the terms of the promissory note itself, providing that "the provisions of this promissory note will be governed by federal laws and the laws of the state of Ohio." He claims that his notice of removal was timely because he was not served with the promissory note until June 25, 2006.

Frederico's argument is frivolous as a matter of both fact and law. As a factual matter, Frederico himself, at the April 24 hearing, cited the promissory note's choice-of-law provision in support of his argument that the state court lacked jurisdiction. Thus, Frederico possessed the promissory note, and was aware of its choice-of-law provision, well before June 25.

Frederico attempts to blunt the force of this logic by arguing that his possession of the promissory note at the April 24 hearing should not be considered a receipt of "other paper," triggering the 30-day removal clock. See 28 U.S.C. § 1446(b). He argues that, at that time, the promissory note was merely Access Group's unsworn exhibit. The case did not become removable, he contends, until he was formally served with Access Group's request for admissions and answers to interrogatories, both of which attached the promissory note.

Although federal courts have found a wide variety of material to constitute "other paper" for the purposes of § 1446(b), see Parker v. County of Oxford, 224 F. Supp. 2d 292, 294 (D. Me. 2002) (collecting examples, including, inter alia, affidavits, correspondence between parties, answers to interrogatories, and documents produced in discovery), the case law does not reveal a categorical bright-line rule. Compare, e.g., Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072, 1078-79 (10th Cir.1999) (plaintiff's "voluntary and unequivocal" deposition testimony constituted "other paper"), with Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 974-75 (9th Cir.1993) (plaintiff's "speculative" deposition answers did not). See also 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3732 at 300 (3d ed. 1998) ("[T]he courts are not always consistent in their treatment of Section 1446(b)."). But the critical question in any case is whether the material, voluntarily produced by the plaintiff, unequivocally establishes federal jurisdiction. See Huffman, 194 F.3d at 1078.

Here, if the court were to accept Frederico's legal premise for federal jurisdiction, which, as explained below, it does not, the promissory note itself would be conclusive. The aim of the removal statute is to make certain "that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists." Id. (quoting Wright, supra at 306). The record here demonstrates that Frederico had "ascertained" his theory for federal jurisdiction no later than the April 24 hearing. 28 U.S.C. § 1446(b) (providing that the defendant's receipt can be accomplished "through service or otherwise"). Thus, his notice of removal was untimely.

Moreover, as a legal matter, while the promissory note's choice-of-law provision refers to federal law, neither the note, nor Frederico's opposition papers, point to any specific federal law or right that requires this court's consideration. See Templeton, 352 F.3d at 37 ("[A] right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action."). The right to a federal forum cannot be created contractually by a choice-of-law provision, cf. Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1504-05 (7th Cir.1991), and principles of federalism prevent this court from interfering in a state proceeding concerning a cause of action traditionally governed by state law. See Merrell Dow, 478 U.S. at 810-11. 

The defendant seeking removal bears the burden of establishing federal jurisdiction. See Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir.1999). Frederico has failed to do so here.

Although Access Group styles its request for attorney fees and costs as a Rule 11 motion for sanctions, see Fed. R. Civ. P. 11, the removal statute also includes a fee-shifting provision. See 28 U.S.C. § 1447(c) ("An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."); Martin v. Franklin Capital Corp., 126 S. Ct. 704, 711 (2005) ("[C]ourts may award attorney's fees under § 1447(c) ... where the removing party lacked an objectively reasonable basis for seeking removal."). 

In light of the court's finding that Frederico's notice of removal was frivolously filed, Access Group is entitled to collect the attorney fees and costs incurred as a result of the removal. See Martin, 126 S. Ct. at 711. To pursue those expenses, Access Group must file a request for costs and fees within twenty days of the date of this order in accordance with Local Rule 54.1. Frederico will then have an opportunity to object. See Local Rule 54.1(c).

Because we grant Access Group's motion to remand, the motion to strike is moot.

Conclusion

For the foregoing reasons, the plaintiff's motion to remand (document no. 5) is granted, and the plaintiff's motion to strike (document no. 9) is denied as moot. The plaintiff's motion for sanctions under Fed. R. Civ. P. 11 (document no. 16) is treated as a motion for attorney fees and costs under 28 U.S.C. § 1447(c), and is granted, provided that Access Group shall file a full accounting of its fees and costs within twenty days of the date of this order. Remand is stayed pending a resolution of the court's order on fees and costs.

SO ORDERED.

[1] Frederico is himself a lawyer practicing in Massachusetts. The student loan at issue in this case was obtained to finance Frederico's law school education.

[2] Because it is unnecessary to the resolution of this case, the court takes no position as to whether Frederico would ultimately have been entitled to a federal forum for consideration of the bankruptcy issue had the issue been raised in a timely notice of removal.