Blake v. GE Money Bank
5:10-cv-00860
W.D. Tex.Mar 2, 2011Background
- Plaintiffs Blake filed suit in Medina County, Texas, later removed to WD Texas, alleging GE Bank loaned $123,173.16 to purchase a horse trailer and sought various damages.
- Plaintiffs allege GE Bank and a dealer manipulated title perfection via a power of attorney, with the dealer failing to secure proper title or plates.
- Trailer was sold for $60,000 in 2009; proceeds were not credited to the loan; the original dealer later filed for bankruptcy; GE Bank was a creditor in that proceeding.
- Original petition asserted Texas FDCPA, Texas DTPA, negligent misrepresentation, breach of contract, conversion, and fraud; Porter was named but later dismissed from claims.
- Amended complaint (Nov 19, 2010) deleted Porter, added facts, removed holder-in-due-course claim, and included affidavits asserting damages under $74,000.
- Defendants removed based on diversity; Plaintiffs argued the amount in controversy did not exceed $75,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand is proper based on amount in controversy | Plaintiffs claim damages under $75,000. | Amount in controversy exceeds $75,000 due to potential DTPA treble damages and other claims. | Remand denied; amount in controversy established. |
| Whether the pre-amended motion to dismiss was moot | Original motion to dismiss rendered moot by amended complaint. | Mootness of the original motion to dismiss noted. | |
| Whether second motion to dismiss raises actionable claims | Twombly/Iqbal standards met; allegations sufficient. | No contractual obligation to perfect security; DTPA/TDCA claims lack sufficiency. | Deny the second motion to dismiss; claims stated. |
| Whether to strike the second amended complaint | Leave to amend should be allowed when no answer yet. | Strike would be appropriate for failure to seek leave. | Leave to file granted; strike denied. |
Key Cases Cited
- Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002) (federal removal jurisdiction strictly construed in favor of remand)
- Knowles Pub. Co. v. Am. Motorists Ins. Co., 248 F.3d 1139 (5th Cir. 2001) (DTPA treble damages may be included in amount in controversy)
- St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250 (5th Cir. 1998) (treble damages included in amount in controversy)
- White v. FCI USA, Inc., 319 F.3d 672 (5th Cir. 2003) (standard for determining amount in controversy in removal cases)
- Sorenson v. Ashmore, 4 F.Supp.2d 669 (E.D. Tex. 1998) (courts assess potential damages to determine facially apparent exceedance)