issues broadly speaking procedural issues the first two are issues regarding diversity of citizenship and the other three are essentially issues relative to pleading  a party who is not before the court today but who is a party in the case below who was a party at the time of removal and that was one mr david goostman who made twenty ninth there have been that the court below never really fully considered the these this apparent conflict in the versity although the the issues were were on the record  court merely said well when the case was originally filed i had some evidence that mr guzman was the proper party or what was a texas it was not a texas citizen but rather an indiana citizen and therefore i find there is complete diversity what has has overtaken us all is a decision by the texas first court of appeals in euston a finding that in fact during this this relative all times relevant to the issue of diversity here goodman was not a real party in interest he had dated his ownership in the property to a gentleman named preston julian his name does appear in various places in the record that are cited in our our brief the court found that the real party in interest was actually mr julian this means looking back that determining testing diversity at the time the filing of the of the removal of mr guzman was a nominal party only and the law is pretty clear that the citizenship and of a novel party needs to be disregarded and the court needs to take into account the citizenship of the real party in interest i submit your honors that has been decisively concluded by the first court of appeals in houston the real party in interest was in fact one preston julian and  but once he named and you're a lawsuit he was not named in the original texas case that was removed but regardless of that fact is that if he needs to be considered  there's i cite the law on this as well to a circuit law in d c circuit law that a real party in interest needs to be considered and he was not considered of the so there is evidence in the record of different places  the the harris county appraisal district record is in there showing he's the owner there are the fact is mr julian has now commenced proceedings that were service was made the day after the  supplemental letter brief was filed so there's there's nothing in the record but he is now in texas claiming he's the owner in fairness judges it's much more confused than that there was a  in a texas proceeding mr julian said well i haven't recorded deed back to mr goodman it's on record but but but here it is then there's a a trust issue floating out there where the three of mr guzman the real estate broker mrs marsh marcia clark mr julian entered into some kind of a trust to reman dividing up ownership in the property this was all documented before the trial court but no resolution was made before the the judge administratively close the case the case was administrative leave closed because the texas court of appeals case was pending that as i pointed out resulted in a finding that as i put it mr julian was the real party and interest  guzman was only a nominal party and also the appeal here before this court so the case is currently administratively closed we have been reporting faithfully to the trial judge every three months and status  as of mid may we reported on the decision of the texas first court of appeals which became finally final when a mandate was issued on june second riginal decision was in march but mandate was in issued permitting times for appeal and reconsideration and that sort of thing on june second but there has been no further word of the the judge in the southern district on this  sufficient evidence in the record but but i wouldn't presume to suggest that the case should be reversed and grander down on that basis i think the fairness it ought to go back to the the trial court now where do we draw the line you said mr jordan was not mentioned in your lawsuit but you know what obligation to the court have to go beyond a complaint and kay who possibly else could have been included in here when we look at jurisdiction it's right to be considered at any time even for the first time on appeal clearly this kind of thing has happened before mr julian's identity as i as i indicated to the court it has been revealed in the court below but the judge took no action having said well there was she didn't have the benefit of the texas first court decision at the time but she said literally i'm we had a hearing back a kind of in a pretrial conference texas resident or an indiana resident rather that he our position was he was a texas resident and there was there was a robust argument over that but she found well i had some some evidence but the fact is this evidence was all in front of the court we're raising it on appeal right now with with the weight of the texas first court having resolved the issue of who in effect is the real party in interest and i think mr boozman was a of that proceeding and he is going to be collaterally stopped from from denying the findings of the texas first court which now the trial judge ought to have an opportunity can to consider since no one was really aware of who the real party in interest was because this information came out in discovery actually pretty far into the case but it's now before the c it's clear to me and i strongly suggest that there is no diversity jurisdiction because mr julian is pretty clearly a texas resident and and frankly i think it needs to go back on that basis did you bring this to the attention of  briefing but i tried to go back to square one and it was pointed in my my search by nine hundred ninety arro and of course some twenty seven years previous to today reaffirmed a proposition dating to eight hundred eighty nine in the chapman case of the supreme court which was the seminal case on citizenship for diversity purposes unincorporated association the court at the time it was a joint stock company that was in front of the court not an incorporated entity and the court view the joint stock company as merely a partnership and therefore the citizenship of the members applied card chad and was followed by united steel workers of a rather great great southern fire a limited partnership before the supreme court in one thousand nine hundred same proposition nope no rule has been applied to partnership associations away although they may have some characteristics of corporate corporations instead when a partnership is a party to the court must look to the citizenship of the several persons composing the partnership association that on behalf of the trust sued in their own names on a promissory note the defense was of the jurisdictional issue raised was well it membership is really the membership of the citizenship is really your your member status it was a real party in interest case it was not a diversity jurisdictional case for the citizenship of the unincorporated association you hear me counsel i'm sorry ok you coming a lot of ground you don't have much time to carden case itself not just america vote in our decision and justice says when a trustee has been sued or filed suit in her own name the only question a court must answer on issues of diversity jurisdiction or jurisdiction generally is whether that party is an active trustee whose control of the assets set or so so how do you make sense of that for us when you dealing with all these cases that  in i was just getting to the point that in carden at i think it's page ten sixteen parties there anticipated in the viral argument and just  mr justice scalia responded directly to it and in essence he said  that was a case where the individual trustees were were pursuing the claim in their own right as plaintiffs the challenge was that oh you're in the court you ought to consider the membership citizenship status but the real question here is when the trust is a party not just the trustees but when the trust is a party then the cardinal rule applies we submit respectively or that's the the their original texas suit these are all texas causes of action i know but have set aside crossed are the individual trustees you intel are not individual people and members of the trust it is the trust is t you have to name the trustee but we made it clear you're suing the trust and the the claims are are to quiet title and i gave your honour's a a glimpse of wise has his shoe is so confusing regarding the substantial partying dispute he claims between mr guzman who was a named defendant in the case and this julian preston who was not a named defendant in the case there is no authority for the proposition that the court is required to consider the citizenship of a nonparty to a case for purposes of diversity and fact twenty eight u s c section thirteen thirty two m clear that only the citizenship of parties is relevant to the it to this in fairy this is confirmed by this court's decision and corfield which state that the real party to the controversy test does not require a federal court to consider the citizenship of a nonparty who may have an interest in the case here mr preston he has he ultimately purchased the property from m happened was bank of new york mellon as trustee for the trust sold the property at foreclosure to mr mom at the time that mister binding filed his lawsuit he named mr guzman in addition add mr julian or any of these other phantom third parties two the case as defendants so his proposition that mr julian is somehow a real party in interest and ways into the diversity  question is not supported by any case law or statute or anything else it's a red herring and just for the courts background my clients are not parties to the state court proceeding between mr guzman and mr binding but i believe that was a forcible detainer action filed by mr go out those mom to remove mr binding from the property that was filed years ago and by the time the case finished on appeal mr guzman no longer owned the property he had  and sold it to mr preston that's how the court of appeals the texas court of appeals arrived at the conclusion that for that particular dispute who's going to forcibly remove mr by name from the property the real party in to the second theory we're dealing with the american issue that has propped up the texas district courts are kind of all over the place since the american decision came out we've had several ponty orders from different district court judges asking for further briefing we had one in this case by judge out list that was post grant of our motion to dismiss judge outlets to reopen t case and asked for a briefing on the issue of whether america hold disturbed the court subject matter jurisdiction the parties brief to the issue and ultimately judge atlas concluded that the american decision did not disturb the court subject matter jurisdiction because under navarro a trustee such as bank of new york mellon in this case who possess a certain customary powers to hold to manage and dispose of assets for the benefit of the others is the real party the real and substantial party to the controversy therefore only the citizenship of the trustee and not the citizenship of the members of the trust for sure to stick it holders or whatever the term is in the particular pulling and servicing agreement that is not relevant here in our case that this court's decision and justice which came out a few months ago is directly on point we have language in the pulling and servicing agreement in this case that is virtually identical to the provisions that were reliant upon by the court in justice those include section two point zero one which states that the depositor conveys all right title and interest in that the trustee has the power to manage and control the assets and there are several other provisions that we set out for the court in our supplemental letter brief that was filed about a week ago and so are our situation here bank of new york mellon as the trustee is essentially in the same shoes as wells fargo was in the justice case and we believe that the court correctly determined and in the justice case comes up a lot any time you have a trustee in the relationship you know as as the trustee for a real estate mortgage investment conduit a remick often times we get a and the judges are all over the place and you know you have judge atlas in our case who found yes it's the trustee is a trustee has the real and substantial control then you have judge gray miller and the oem who issued this opinion that went in my opinion off the reservation and went into an analysis of issues that departed way from america all the navarro he got into other issues  and kind of set the bar so to speak very high in terms of what you have to show if for purposes of removal to to prove diversity is a trustee is implicated in a case inquiry and stare you don't need to go look at these other peripheral provisions and the pulling and servicing agreements that dictate the various duties and responsibilities of the other parties to the pulling  that one of the questions factual seems to me in this case is how much control the trustee does have over the mortgages for example and i understand it back to new york mellon holds the documents for each mortgage and the pool ensures all necessary documents are present some clarity that litigation can be brought in some respects by the bank how much of that list of everything that could be controlled on a pool of mortgages versus what the bank of new york may not be an identity between those lists so how much control i mean where we're going to to look at section two two point zero one and ten point zero eight which are dispositive and the same and the same provisions that were in the justice case that show that it is the intent of the pulling and servicing agreement that all right title and interest in the trust assets goes to the trustee also you know that two point zero one states all right title and interest is transferred to the trustee so in terms of the ownership of the assets themselves that is in the name of the trustee for the benefit of their certificate holders of the trust which is a fiduciary relationship your traditional type i hate to get into this trying to traditional versus business trust dichotomy here but that's in the traditional sense what you think of when you're looking at a trust so here there are other parties to the pulling and servicing agreement for example a master service or the master service turner is the one that collects opinions you know bills the homeowners collects payments handles you know checks to make sure that proper property taxes and things of that sort are paid so that there is a lien held by the rusty remains in first position that sort of thing at minister ing administering a collection type of duties at the master service or is working at the direction and under the control of the trustee and i believe that section three point zero one that we cited in our letter priest so there are other party is and as a result there are provisions in the pulling and servicing agreement that kind of give the other parties the opportunity to to kind of make sure everybody's doing their job you know it's not like this person can overrule this person or or you know situation like that but it's kind of you know like in the situation where in mr service or is not doing its job the either the trustee or the certificate certificate holders can take steps to address that so i mean there are other provisions regarding the management of how the trust itself operates but the management and control over the disposition of the assets that are in the trust that is all the job of the trustee i don't know if that answers your question i'm just concerned about the magination of the creators of such a document judge king's imagination used to create documents like this i think in their private practice days and could go well beyond the sorts of things that you're talking about in the relative role of the trustee versus the relative role who knows who else have some sort of out occasion it's one thing to say as a supreme court has to be really substantial control what that means and make sure whatever we write doesn't step on the important than the trustee and we stayed in our letter brief that if the master service or was that important he should have named the master servicer is a defendant he didn't he only named the texas a you have to see the trash day no matter how the traffickers might vary from the usual dress well it does but also he makes no allegations against the trust it self all of the allegations go against the trustee so there are some cases in the district at the district court level where plaintiffs have made allegations specifically against a trust they name the trustee sometimes they also name the trust and then they make allegations against both the trust and the trustee going to cover themselves in view of this issue and we have encountered that situation and there have been several trust itself then the removing party has to address the real and substantial interest issue and you know if i was defending against that i would say the substantial party had real and substantial control over the assets and there was no reason and no requirement to provide the membership of the citizen the citizenship of the members or certificate holders of the being on the panel what was stated there but it was very perfunctory when it came to this issue of traditional trust versus business trust and by the way we we still strongly urge you know go back to the seminal decisions and the finding was the trustee wheel's a very sort of real and substantial control over the assets and its name was long ago contemplated by the supreme court navarro again i suggest there is a distinction to be made and mr justice scalia makes it far unlimited power over over the trust it was shared not just with the master service or but as we point out in our brief sarah shared with the certificate holders as well i think this is even under the navarro kind of analysis this is a crucial distinction and military strongly in a finding that this is a business trust trustee for example holding title well held title and strep resented of capacity not  kind of individual capacity porton distinction had no ability to invest the trust assets of the languages is really kind of fuzzy but it's questionable about the the t sue as trustee there are some limitations about the remaster service or having the rights to lead to protect the trust in the same same manner then there's a sharing of  in there or as trusting as trustee for the trust but clearly we're going to drop the action against the trust and trust is the party here not that not bank of new york mellon in its individual capacity but there is such a holders majority must approve any amendments they have significant powers really regarding amending the pooling service agreement one thought just came to mind i understand that this this kind of real estate apparatus is known as a remick real estate mortgage investing conduit and just as a footnote for your honour's and hearkening back to the chapman analysis in the card analysis certificate holders are treated under the internal revenue code as partners and they and income flows through to them much much like maybe an l l c but also more like other non