IN THE UNITED STATES DISTRICT COURT

V/ESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ISMAEL MARTINEZ and

MARIA DEL CARMEN MARTINEZ

Plaintiffs

VS. C.A. NO

SELECT PORTFOLIO SERVICING, INC.

Defendant

DEFENDANT'S NOTICE OF REMOVAL

Defendant, Select Portfolio Servicing, Inc. ("SPS" or'oDefsndant") through undersigned

counsel, hereby removes this case from the 73rd Judicial District Court of Bexar County, Texas,

to the United States District Court for the Western District of Texas, San Antonio Division.

Defendant denies the allegations of the Complaint and the damages contained therein, and files

this Notice without waiving any defenses, exceptions, or obligations that may exist in its favor in

state or federal court.

I. INTRODUCTION AND STATEMENT OF COMMENCEMENT OF ACTION

1. On February 28, 2020, Plaintiffs Ismael and Maria Del Carmen Mafünez

("Plaintiffs") commenced this action by filing a Petition, Cause No. 2020-CI-0417I, in the 73rd

Judicial District Court of Bexar County, Texas (the "State Court Action"). See Exhibit C-l.

Defendant filed an answer on March 23,2020. See Exhibit C-5. Defendant has not been

formerly served with the Petition; therefore this action is being removed less than 30 days

following service of the Petition fìled in the State Court Action and less than 30 days after

Defendant appeared in the State Court Action. This action is also being filed within 30 days of

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when the State Court Action was frled. Accordingly, removal is timely under 28 U.S.C.

$1446(b).'

il. PLEADINGS AND NOTICE TO STATE COURT

2. True and ""*, * Court Action are

being filed along with this Notice of Removal. Pursuant to 28 U.S.C. $ 1446(d), written notice

of this removal is being served on Plaintiffs and filed in the State Court Action.

uI. Y BASIS FOR JURISDICTI

3. This action is within the original jurisdiction of the United States District Court

pursuant to 28 U.S.C. $1332(aX1). That statute provides, in pertinent part, that "the district

courts shall have the original jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of

different States." 28 U.S.C. $ 1332(aX1). Venue is proper in this district under 28 U.S.C.

$ 1a41(a) because the state court where the State Court Action has been pending is located in this

district. As discussed in detail below, this action satisfies the statutory requirements for diversity

of citizenship jurisdiction.

IV. DIVERSITY JURISDICTION

A. Citizenship of the Parties

4, This civil action involves a controversy between citizens of different states.

Plaintiffs are citizens of the State of Texas.2

5. Defendant, Select Portfolio Servicing, Inc., is a Utah Corporation and is not a

citizen of Texas for diversity purposes. A corporation is deemed to be a citizen of (1) every state

where it has been incorporated and (2) the state where it has its principal place of business (i,e.

Murphy Bros., Inc, v. Michetti Pipe Stringing, Lnc.,526 U.S. 344,347-48 (1999).

See Plaintifls Original Petition at\\2 and 3 (the "Complaint").

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its'onerve center").3 Defendant is a Utah corporation with its principal place of business in Salt

Lake City, Utah. SPS is not incorporated in Texas, nor is its principal place of business located

in Texas. Therefore, SPS is acitizen of Utah for purposes of diversity jurisdiction.

6. Since Plaintiffs are citizens of Texas and Defendant is acitizen of a state other

than Texas, complete diversity of citizenship exists. See 28 U.S.C. g 332(cX1).

B. Amount in Controversy

7. This case places an amount in controversy that exceeds the $75,000 threshold. A

pafty may remove an action from state court to federal court if the action is one over which the

federal court possesses subject matter jurisdiction. See 28 U.S.C. $ 1aa1(a). Such jurisdiction

exists as long as the parties are completely diverse and the amount in controversy exceeds

$75,000.00. See 28 U.S.C. $ 1332(a).

L When ascertaining the amount in controversy in the context of a motion to

remand, district courts query whether a plaintiffs state court petition, as it existed at the time of

removal, alleged damages in excess of the statutory minimum. See S.W.S. Erectors, Inc. v. Infax,

Inc., 72 F.3d 489, 492 (5th Cir,1996). If the petition does not allege a specific amount of

damages, the removing party must prove by a preponderance of the evidence that the amount in

controversy requirement is satisfied. See Lewis v. Støte Farm Lloyds,205 F. Supp. 2d706,708

(S.D. Tex. 2002) citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir,1993); see also

Manguno v. Prudential Prop. and Cøs, Ins. Co,, 276 F.3d 720,723 (5th Cir.2002) (explaining

that the removing party bears the burden of showing that federal jurisdiction exists and that

removal is proper). The removing party satisfies this burden if the court f,rnds it "facially

apparent" that the plaintiffs claimed damages likely exceed $75,000.00. Allen v. R & H Oil &

Gas Co.,63 F.3d 1326,1335 (5th Cir.1995),

3 28 U.S.C. $1332(cXl).

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9. In this instance, Plaintiffs' Complaint makes it apparent that Plaintiffs' claimed

damages exceed $75,000.00 given that Plaintiffs seek to enjoin Defendant from foreclosing on

ploperty located at7947 Meadow Wind, San Antonio, Texas 78227 (the "Property").4 The value

of the Property exceeds $75,000.00. See Exhibit D.

10. The value of the Property according to the Bexar County Appraisal District is no

less than $159,630 for the taxyear of 2019. See Exhibit D.

1 1. Federal jurisdiction can be established by facts alleged in the petition for removal

that support a conclusion that the amount in controversy requirement is satisfied.s "ln 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."6 Plaintifß seek relief which if successful

would preclude enforcement of the contractual loan obligations and Trustee's right to foreclose

on the Property,

12. "[W]hen the validity of a contract or a right to property is called into question in

its entirety, the value of the property controls the amount in controversy."T "[T]he amount in

controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected

or the extent of the injury to be prevented,"s Also, where a party seeks to quiet title or undo a

foreclosure, the object of the litigation is the properfy at issue and the amount in controversy is

measured by the value of the property.e The value of the subject property in this instance for

diversity purposes is no less than $159,630 per the records of the Bexar County Appraisal District

a See Complaint at'!ft[ 8 and26. Plaintiffs have misidentified the property at issue or there is a fypo in the

Complaint. The actual address of the Property is7947 Meadow V/ind, San Antonio, Texas78227. See Exhibit

D.

s Menendez v. t(al-Mart Stores, \nc.,364 Fed,Appx. 62, 66,2010 WL 445470,2 (5th Cir. 2010) (unpublished)

(citing Garcia v. Koch Oil Co. of Texas, |nc.,351 F.3d 636, 638-39 (5th Cir, 2003). 6 HunÍ v. Ilash. State Apple Adver. Comm'n,432 U,S, 333, 347,97 S. Cr.2434,53 L. Ed, 2d383 (1977). 7 W aller v. Prof'l Ins. Corp. , 296 F .2d 545, 547 -48 (5th Cir. 196 I ). 8 tlebbv.lnvestacorp,lnc.,89F.3d252 (5th Cir. 1996), citing Leiningerv. Leininger,705F.2d727 (sthCir. 1983). e See Berry v. Chase Home Fin., LLC,2009 WL 2868224, at *2 (S.D. Tex. August 27,2009).

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for 2019. See Exhibit D. The value of the Property in this instance satisfies the jurisdictional

amount of $75,000.00 for diversity purposes.

V. JURY DEMAND

13. PlaintifTs have not made any known jury demand in the State Court Action,

VI. CONCLUSION

14. For the foregoing reasons, Defendant asks the Court to remove this suit to the

United States District Court for the'Western District of Texas, San Antonio Division.

Respectfully submitted,

By : /s/ Michael F. Hord Jr.

Michael F. Hord Jr.

State Bar No. 00784294

Federal I.D. No. 16035

Eric C. Mettenbrink

State Bar No. 24043819

Federal I.D. No. 569887

HIRSCH & V/ESTHEIMER, P.C,

141 5 Louisiana, 36th Floor

Houston, Texas 77 002-2772

7 13 -220-9182 Telephone

7 13 -223 -93 1 9 Facsimile

E-mail : mhordlðhirschwest. com

Email: emettenbrink@hirschwest.com

ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE

On this 23r.d day of March, 2020, I hereby certifu that a true and correct copy of the

foregoing Notise of Removal was forwarded as follows:

Ismael and Maria Del Carmen Martinez Pro Se

7947 Meadow Wind

San Antonio, Texas 78227

Mayol956@,vaho.o.com

Via Email and U.S. Regular Mail

/s/ Michael F. Hord Jr.

Michael F. Hord Jr.

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