Boyce v. CitiMortgage, No. SA:13-CV-832-XR, slip op. (W.D. Tex. Jan. 22, 2014)(Rodriguez, J.)
The wave of foreclosure cases shows no sign of letting up, suggesting that home mortgages will remain, at least for a time, the new asbestos. Judge Rodriguez, however, made some progress, remanding two in one day:
In Boyce v. CitiMortgage, the lender timely and legitimately removed the case on the basis of diversity jurisdiction; however, the District Court concluded, based on its review of the four Hengens factors—Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)—that the property owner should be afforded leave to add the foreclosure trustee as a non-diverse defendant on the allegation that he was negligent in failing to conduct an impartial sale after all the notice and other foreclosure requirements were satisfied. Slip op. at 6-19. On that basis, the District Court granted the property owner’s motion to remand. Id. at 19.
In Kidwai v. Federal National Mortgage Assn., the property owners filed a state court suit against a non-diverse law firm in addition to the lender and others involved in the mortgage servicing and foreclosure process. Slip op. at 1-6. When the law firm was dismissed on summary judgment in state court, one of the defendants removed with the consent of the others. Id. More than a year had passed, however, meaning removal was barred unless the removing party could show bad faith within the meaning of 28 U.S.C. § 1446(b)(3). The District Court reviewed both sides’ charges against the other and concluded that the record did not adequately support a finding of bad faith; therefore, the District Court remanded the case. Id. at 4-9.