Jean Lombardi v. Bank of America, N.A.

Case: 17-10323 Document: 00514590116 Page: 1 Date Filed: 08/07/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10323 United States Court of Appeals
Fifth Circuit
FILED
August 7, 2018
JEAN LOMBARDI,
Lyle W. Cayce
Plaintiff–Appellant, Clerk
v.
BANK OF AMERICA, N.A.; BANK OF NEW YORK MELLON, formerly
known as Bank of New York as Trustee for the Certificate holders of CWABS,
Inc., Asset-Backed Certificates, Series 2004-12,
Defendants–Appellees,
EMI & WICK, L.L.C.,
Intervenor–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-1464
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
This case concerns a foreclosure on Plaintiff–Appellant Jean Lombardi’s
home. Lombardi argues the following on appeal:
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10323 Document: 00514590116 Page: 2 Date Filed: 08/07/2018
No. 17-10323
1. The district court lacked supplemental jurisdiction over EMI &
WICK, LLC (“EMI”) and its counterclaim.
2. The district court awarded EMI lost-rents damages beyond
what was authorized by the relevant Texas trespass-to-try-title
statute.
3. The district court erred in dismissing her argument that
Defendants–Appellees Bank of America and Bank of New York
Mellon waived acceleration and foreclosure.
4. Summary judgment was improper on her two claims under the
Texas Debt Collection Practices Act.
5. Summary judgment was improper on her claim under Texas
Property Code § 51.002(d).
As to Lombardi’s jurisdictional claim, we hold that the district court
properly exercised supplemental jurisdiction over EMI’s counterclaim.
Lombardi suggests that the district court erred by not assessing whether EMI’s
LLC membership destroyed diversity jurisdiction. Lombardi is correct to point
out that Bank of America and Bank of New York Mellon removed the original
action on the basis of diversity jurisdiction. But the more germane
development is that Lombardi amended her complaint voluntarily—after
removal but before EMI intervened—to add a federal claim. Lombardi must be
held to the jurisdictional consequences of her voluntary addition of a federal
question. 1 Because the district court exercised federal-question jurisdiction
over the matter when EMI sought to intervene, the court had supplemental
jurisdiction over EMI under 28 U.S.C. § 1367(a) irrespective of EMI’s LLC
membership.
1 Cf. Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985) (finding federal
jurisdiction wanting after the plaintiff dropped the only federal claim from the complaint,
reasoning “that the plaintiff must be held to the jurisdictional consequences of a voluntary
abandonment of claims that would otherwise provide federal jurisdiction”).
2
Case: 17-10323 Document: 00514590116 Page: 3 Date Filed: 08/07/2018
No. 17-10323
Having satisfied ourselves of the court’s jurisdiction over the matter, and
after having carefully considered Lombardi’s remaining claims in light of the
briefs, oral argument, and pertinent portions of the record, we find no error of
law or reversible error of fact. We thus AFFIRM the district court’s rulings and
judgments for essentially the same reasons articulated by that court in the
relevant orders.
3