Case 1:15-cv-00002-LY-ML Document 1 Filed 01/05/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
THELL G. PRUEITT,
Plaintiff,
v.
HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE, ON
BEHALF OF ACE SECURITIES CORP.,
HOME EQUITY LOAN TRUST, SERIES
2005-HE4, ASSET BACKED PASSTHROUGH CERTIFICATES, AND
SELECT PORTFOLIO SERVICING, INC.,
Defendants.

CIVIL ACTION NO. 1:15-cv-00002

DEFENDANTS NOTICE OF REMOVAL

Notice is hereby given that, pursuant to 28 U.S.C. 1332, 1441 and 1446, Defendants
HSBC Bank USA, National Association, as Trustee, on Behalf of Ace Securities Corp., Home
Equity Loan Trust, Series 2005-HE4, Asset Backed Pass-Through Certificates (HSBC),
incorrectly named HSBC Bank USA, National Association, as Trustee, in Trust for the
Registered Holders of Ace Securities Corp., Home Equity Loan Trust, Series 2005-HE4, Asset
Backed Pass-through Certificates, and Select Portfolio Servicing, Inc. (SPS), incorrectly
named Select Portfolio Servicing Inc of 3815 S West Temple Salt Lake City Utah 84115,
(HSBC and SPS collectively Defendants) hereby remove this action from the 33rd Judicial
District Court of Llano County, Texas, to the United States District Court for the Western
District of Texas, Austin Division, and state the following as grounds for removal:
I.
1.

STATE COURT ACTION

On November 25, 2014, Plaintiff Thell G. Prueitt filed his Original Petition for

Request for Temporary Injunction (the Petition) in the 33rd Judicial District Court of Llano

DEFENDANTS NOTICE OF REMOVAL

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County, Texas, styled Thell G. Prueitt v. HSBC Bank USA, National Association, as Trustee, in
Trust for the Registered Holders of Ace Securities Corp., Home Equity Loan Trust, Series 2005HE4, Asset Backed Pass-through Certificates, and Select Portfolio Servicing Inc of 3815 S West
Temple Salt Lake City Utah 84115, Cause No. 19147 (the State Court Action).
2.

This is Plaintiffs second attempt to delay foreclosure of the real property located

at 750 Texas Avenue, Kingsland, Texas 78639 (the Property). Plaintiff previously sued HSBC
and other parties for allegations arising from the servicing and foreclosure proceedings
associated with the same loan and underlying property at issue in this dispute. After the case was
removed to this Court, the Court dismissed the case pursuant to Plaintiffs Notice of Voluntary
Dismissal. See Dec. 7, 2010 Final Judgment, Prueitt v. HSBC North America Holdings, Inc.,
et al., No. A-10-CA-887-LY (W.D. Tex. filed Dec. 7, 2010) (ECF No. 11).
3.

In this second lawsuit, Plaintiff again challenges the servicing of the loan. See

Pet. at 1-2. Plaintiff alleges that he has attempted to make payments on his loan but his checks
have been refused and returned by SPS. Pet. at 1. Plaintiff also alleges that he has not received
the requisite pre-foreclosure notices. Pet. at 2. Though the Petition is unclear, it appears that
Plaintiff attempts to assert causes of action for fraud, wrongful foreclosure, and breach of
contract. Id. at 1-2. Plaintiff also requests injunctive relief, and in conjunction with filing his
Petition, Plaintiff obtained an ex parte temporary injunction that enjoins Defendants from
foreclosure proceedings on the subject [P]roperty. Ex. A.
4.

With this Notice of Removal, Defendants remove the State Court Action to this

Court on the basis of diversity of citizenship jurisdiction as more fully described below.

DEFENDANTS NOTICE OF REMOVAL

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II.
5.

PROCEDURAL REQUIREMENTS

This action is properly removed to this Court, as the State Court Action is pending

within this district and division. 28 U.S.C. 124(d)(1), 1441, 1446(a).

6.

The Petition was filed on November 25, 2014. Plaintiff requested that the clerk

issue citation on December 9, 2014, and Defendants filed their original answer on December 23,
2014. See Ex. A. Because Defendants are filing this Notice of Removal within 30 days of
service and/or entering an appearance in this lawsuit, removal is timely under 28 U.S.C.
1446(b).
7.

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 at the time of
removal.
8.

Pursuant to 28 U.S.C. 1446(d), Defendants are also simultaneously filing a copy

of this Notice of Removal in the 33rd Judicial District Court of Llano County, Texas. A copy of
the Notice of Removal filed in the State Court Action is attached hereto as Exhibit B.1
III.
9.

DIVERSITY OF CITIZENSHIP

Where there is complete diversity among parties and the amount in controversy

exceeds $75,000, an action may be removed to federal court. 28 U.S.C. 1332(a), 1441(a).
Complete diversity exists in this case because Plaintiff is not a citizen of the same state as
Defendants. As shown below, the amount in controversy requirement is also satisfied.
A.

Diversity of Citizenship
10.

According to the Petition, Plaintiff is domiciled in Texas. Pet. at 1. Therefore,

Plaintiff is a citizen of Texas. See Margetis v. Ray, No. 3:08-CV-958-L, 2009 WL 464962, *3

Defendant has not included Exhibit 1 to the state court removal notice in Exhibit B because Exhibit 1 is a copy
of the notice of removal filed in this Court.

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(N.D. Tex. Feb. 25, 2009) (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555-56
(5th Cir. 1985)).
11.

As trustee, HSBCs citizenship controls for purposes of diversity jurisdiction. See

Wells Fargo Bank, N.A. v. Am. Gen. Life Ins. Co., 670 F. Supp. 2d 555, 561 (N.D. Tex. 2009)
([T]he citizenship of a trust, for diversity jurisdiction purposes, is determined by the citizenship
of its trustee.) (citing Navarro Sav. Assn v. Lee, 446 U.S. 458, 461 (1980), and Bass v. Intl
Bhd. of Boilermakers, 630 F.2d 1058, 1067 n.17 (5th Cir. 1980)). HSBC is a national banking
association pursuant to federal law. As a national banking association, Defendant HSBCs
citizenship is determined solely by the location of its main office, as designated in its articles of
association. See 28 U.S.C. 1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006). Under
its articles of association, HSBCs main office is located in McLean, Virginia. Therefore, HSBC
is a citizen of Virginia for diversity purposes. 28 U.S.C. 1348; Wachovia Bank v. Schmidt, 546
U.S. 303, 318 (2006).
12.

Defendant SPS is a corporation incorporated under the laws of Utah with its

principal place of business in Salt Lake City, Utah. A corporation is a citizen of the state where
it was incorporated and the state where it has its principal place of business.

28 U.S.C.

1332(c)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 88-89 (2005). Thus, SPS is a citizen of
Utah for purposes of diversity jurisdiction.
13.

Accordingly, there is complete diversity among the parties.

See 28 U.S.C.

1332(a); see also Wis. Dept of Corrections v. Schacht, 524 U.S. 381, 388 (1998).
B.

Amount in Controversy
14.

Although Plaintiffs Petition does not explicitly allege an amount in controversy

(nor does it include a range of the amount of damages Plaintiff seeks as required by Texas Rule

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of Civil Procedure 47), a review of the Petition and the evidence presented by Defendants
demonstrates that the amount at issue more likely than not exceeds $75,000, exclusive of interest
and costs.
15.

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); see also St. Paul Reins. Co. v. Greenberg, 134
F.3d 1250, 1253 n.13 (5th Cir. 1998) (The 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. Greenberg, 134 F.3d at 1253; Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002). The amount in controversy is determined from the
perspective of the plaintiff, and the proper measure is the benefit to the plaintiff, not the cost to
the defendant. Berry v. Chase Home Fin., LLC, 2009 WL 2868224, at *2 (S.D. Tex. Aug. 27,
2009).

To determine the amount in controversy, a court may consider actual damages,

exemplary damages, and attorney fees. White, 319 F.3d at 675-76.

16.

When the right to property is at issue, courts look to the value of the property to

determine whether the minimum amount in controversy has been met for jurisdictional purposes.
Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 341 (5th Cir. 2013); Nationstar Mortg. LLC v.
Knox, 351 F. Appx 844, 848 (5th Cir. 2009) (quoting Waller v. Profl Ins. Corp., 296 F.2d 545,
54748 (5th Cir. 1961)). The true object of the litigation in this case is the Property. According
to the Petition, Plaintiff seeks injunctive relief prohibiting foreclosure. Pet. at 1-2. Because
Plaintiff is seeking equitable relief and the right to property is at issue, the amount in controversy

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is determined by the value of the property. See Farkas, 737 F.3d at 341; Knox, 351 F. Appx at
848; White, 319 F.2d at 67577. The Llano Central Appraisal Districts 2014 tax appraisal
information indicates the assessed value of the Property is $192,400.2 A copy of the Llano
Central Appraisal Districts 2014 tax appraisal is attached hereto as Exhibit C. Moreover,
according to the Petition, Plaintiff acknowledges that the amount owed pursuant to the
underlying loan agreement is at least $150,000. See Pet. at 2. Accordingly, based on the value
of the property at issue, the amount in controversy more likely than not exceeds $75,000.
17.

Because there is complete diversity and the amount in controversy requirement is

satisfied, the Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332, and 1441, and
removal is proper.
IV. PRAYER
WHEREFORE, Defendants HSBC Bank USA, National Association, as Trustee, on
Behalf of Ace Securities Corp., Home Equity Loan Trust, Series 2005-HE4, Asset Backed PassThrough Certificates, and Select Portfolio Servicing, Inc. remove this action from the 33rd
Judicial District Court of Llano County, Texas, to the United States District Court for the
Western District of Texas, Austin Division, so that this Court may assume jurisdiction over the
cause as provided by law.

Pursuant to Rule 201 of the Federal Rules of Evidence, Defendants respectfully request that the Court take
judicial notice of the attached Llano Central Appraisal District online records establishing the 2014
assessed value of the Property.
The appraisal information is available to the public at
https://propaccess.trueautomation.com/clientdb/?cid=11 (search by owner name for Prueitt Thell). Defendants do
not, however, contend or otherwise stipulate that the tax assessed value constitutes the most accurate valuation of the
property at issue. Instead, it is referenced solely for the purpose of establishing a base line value to prove that the
amount in controversy requirement is satisfied.

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Respectfully submitted,
LOCKE LORD LLP

By:
B. David L. Foster
Texas Bar No. 24031555
John W. Ellis
Texas Bar No. 24078473
600 Congress Ave., Suite 2200
Austin, Texas 78701
(512) 305-4700
(512) 305-4800 (Facsimile)
dfoster@lockelord.com
jellis@lockelord.com
Thomas G. Yoxall
Texas Bar No. 00785304
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
(214) 740-8800 (Facsimile)
tyoxall@lockelord.com
ATTORNEYS FOR DEFENDANTS HSBC
BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE, ON BEHALF OF ACE
SECURITIES CORP., HOME EQUITY
LOAN TRUST, SERIES 2005-HE4, ASSET
BACKED PASS-THROUGH
CERTIFICATES and SELECT PORTFOLIO
SERVICING, INC.

DEFENDANTS NOTICE OF REMOVAL

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served as indicated on
this 5th day of January, 2015, to the following:
VIA CERTIFIED MAIL RETURN RECEIPT
REQUESTED NO. 70132630000097648026
AND FIRST CLASS U.S. MAIL
Thell Prueitt
750 Texas Avenue
Kingsland, Texas 78639
Plaintiff Pro Se

John W. Ellis

DEFENDANTS NOTICE OF REMOVAL

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