PNC Bank NA v. Branch et al

Filing 12

ORDER remanding this case to Maricopa County Superior Court. That Plaintiff's request for attorneys' fees is denied. Signed by Judge James A Teilborg on 7/21/11. (Attachments: # 1 Remand letter)(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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David Branch; John Doe Occupant 1)
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(whose real name is John Moreau),
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Defendants.
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PNC Bank, National Association,

No. CV 11-596-PHX-JAT
ORDER

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The Court has reviewed the amended notice of removal, the response, and the reply,

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all of which were filed in response to this Court’s orders which questioned this Court

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jurisdiction to hear this case. The Court’s questions arose based on the fact that removing

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party, Moreau, alleged jurisdiction based on his defense to the state court Forcible Detainer

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action brought by Plaintiff. Specifically, Moreau argues that the Protecting Tenants at

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Foreclosure Act of 2009 (12 U.S.C. § 5220 (notes)) is the basis for his defense to his

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eviction.

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As the Court previously noted: jurisdiction must be based on the allegations of the

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complaint. See Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, n. 9 (9th Cir. 1985)

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(“[U]nder the present statutory scheme as it has existed since 1887, a defendant may not

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remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises

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under’ federal law.”) (quoting Franchise Tax Board v. Construction Laborers Vacation

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Trust, 463 U.S. 1, 10 (1983)).

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In his amended notice of removal, Moreau argued two bases for jurisdiction: 1) the

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Real Estate Settlement Procedures Act; and 2) complete preemption by the Protecting

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Tenants at Foreclosure Act of 2009. The Court required Plaintiff to respond to these

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arguments. Plaintiff asserts that none of its claims, nor any of Moreau’s defenses, are based

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on the Real Estate Settlement Procedures Act. The Court agrees and finds that the Real

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Estate Settlement Procedures Act does not provide a basis for subject matter jurisdiction.

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Additionally, the Court agrees with Plaintiff that the Protecting Tenants at Foreclosure

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Act of 2009 did not completely preempt the jurisdiction of state courts whenever a foreclosed

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property is occupied by a tenant. In fact, as Plaintiff notes, the Act specifically allows State

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laws that are more favorable to the tenant. See 42 U.S.C. 1437f (2009 Amendments).

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Therefore, the Court finds that there is not complete preemption.

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Thus, the Court concludes that there is no basis for federal subject matter jurisdiction
in the case. Accordingly,

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IT IS ORDERED remanding this case to Maricopa County Superior Court.

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IT IS FURTHER ORDERED that Plaintiff’s request for attorneys’ fees is denied.

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DATED this 21st day of July, 2011.

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