Citibank, N.A. v. Qualls et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Citibank, N.A., Solely as Owner
Trustee of the New Residential
Mortgage Loan Trust 2019-6,
Plaintiff,
v.
Bennie Lee Qualls, et al.,
Defendants.
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Civil Action H-25-6284
ORDER ON PLAINTIFF’S AMENDED MOTION
TO APPOINT ATTORNEY AD LITEM
Pending before the court is Plaintiff’s Amended Motion to
Appoint Attorney Ad Litem. ECF No. 18. Plaintiff asks the court
to “appoint an attorney ad litem to attempt to determine, locate,
and represent the unknown heirs in this matter.” Id. at 2 (citing
Fed R. Civ. P. 4(e)(1); Tex. Est. Code Ann. § 53.104).
Under Texas Estates Code § 53.104, “the judge of a probate
court may appoint an attorney ad litem in any probate proceeding
to represent the interests of any person,” including unknown or
missing heirs. (emphasis added). Rule 4(e)(1) provides that service
of process may be effectuated by following state law. However, “it
is not at all clear to the Court that Federal Rule 4(e)(1) authorizes
the appointment . . . of an attorney ad litem to represent unknown
heirs to the deceased owners of property.” Ocwen Loan Servicing
LLC v. Lane, No. A-15-CA-244-SS, 2015 WL 7301182, at *1 (W.D.
Tex. Nov. 18, 2015) (involving a case where plaintiff requested that
the federal government pay for the attorney ad litem).
While a federal court may “entertain suits in favor of
creditors . . . and other claimants against a decedent’s estate,” it
lacks subject matter jurisdiction to engage in the purely probate
United States District Court
Southern District of Texas
ENTERED
May 13, 2026
Nathan Ochsner, Clerk
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functions involved in estate administration. Lane, 2015 WL
7301182, at *2 (citing Markham v. Allen, 326 U.S. 490, 494 (1946)).
Appointing an attorney ad litem under these circumstances
appears to be “a purely probate function.” See id. at 2 (“While
Plaintiff contends ‘it does not ask the court to create or oversee the
administration of an estate for [the decedents],’ Plaintiff has thus
far asked the court to [] authorize appointment of an ad litem to
determine whether two intestate decedents have any heirs . . . .
Plaintiff wants what is in essence an administration of the
[decedents’] estates—a purely probate function outside this
Court’s jurisdiction.”).
Plaintiff has not established that the court’s subject matter
jurisdiction under the probate exception extends to appointment of
an attorney ad litem. Accordingly, Plaintiff’s Amended Motion to
Appoint Attorney Ad Litem, ECF No. 18, is DENIED without
prejudice.
By May 29, 2026, Plaintiff shall file a brief explaining
whether, and how, the court has subject matter jurisdiction to
appoint an attorney ad litem in this matter.
The initial conference scheduled for May 14, 2026, is
CANCELED. It will be rescheduled, as needed, pending the
court’s determination on the issue of its subject matter
jurisdiction.
Signed at Houston, Texas, on May 13, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:25-cv-06284 Document 20 Filed 05/13/26 in TXSD Page 2 of 2