Forbes et al v. Bank of America NA et al

Filing 20

ORDER denying 9 Motion to Remand to State Court. See attached Order for details. Signed by Judge G Murray Snow on 11/30/2017.(KFZ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andrew K. Forbes, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-17-03295-PHX-GMS Bank of America NA, et al., 13 Defendants. 14 15 Pending before the Court is the Motion to Remand of Plaintiffs Andrew and Julia 16 Forbes. (Doc. 9). For the following reasons, the Court denies the motion. 17 Background 18 On August 22, 2017, Plaintiffs Andrew and Julia Forbes of Arizona filed a 19 Complaint, pro se, in Maricopa County Superior Court against Defendants Bank of 20 America, N.A. (BANA) and Leonard J. McDonald. (Doc. 1-1). In 2006, Plaintiffs 21 executed a promissory note with BANA in the amount of $399,900.00 in order to 22 purchase real property in Wittmann, Arizona. This note was secured by a deed of trust on 23 the land, with BANA as the beneficiary. Plaintiffs defaulted on the loan in 2009, and 24 were unable to agree on loan modification programs with BANA. After default, the 25 trustee sent notice to Plaintiffs of a sale of the property. Plaintiffs realized that BANA 26 was foreclosing on the wrong property and informed the trustee of this mistake. Plaintiffs 27 received no further correspondence from BANA or the trustee, causing them to believe 28 the property has been foreclosed. 1 A Notice of Substitution of Trustee was recorded on May 31, 2017 and Mr. 2 McDonald was appointed the successor trustee. Plaintiffs then received a notice of 3 trustee’s sale referencing a renewed effort to foreclose on the property. Plaintiffs’ 4 Complaint asserts wrongful foreclosure, claiming that the statute of limitations has 5 expired. Additionally, Plaintiffs allege that BANA breached their fiduciary duties of good 6 faith and fair dealing. Plaintiff’s Complaint seeks injunctive relief to stop the foreclosure 7 and alleges injuries in excess of $150,000. 8 Defendant BANA removed the action to federal court on September 22, 2017. 9 BANA, a citizen of North Carolina, alleges that Defendant McDonald, a citizen of 10 Arizona, has been fraudulently joined to the lawsuit. BANA asserts that Arizona law and 11 the Complaint provide no basis for relief against Defendant McDonald as Trustee. BANA 12 also states that the amount in controversy exceeds $75,000. Plaintiffs filed a Motion to 13 Remand on October 17, 2017. 14 Discussion 15 I. Legal Standard 16 “[A]ny civil action brought in a State court of which the district courts of the 17 United States have original jurisdiction, may be removed by the defendant or the 18 defendants, to the district court of the United States for the district and division 19 embracing the place where such action is pending.” 28 U.S.C. § 1441(a). A party may 20 remove an action from state court only if the action could have been brought in the 21 district court originally. Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 747 (9th 22 Cir. 1993). The party asserting federal jurisdiction has the burden of proof on a motion to 23 remand to state court, and the removal statute is strictly construed against removal 24 jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (noting a “strong 25 presumption” against removal jurisdiction, and stating that “[f]ederal jurisdiction must be 26 rejected if there is any doubt as to the right of removal in the first instance”). 27 II. 28 Analysis Federal jurisdiction is proper in all cases that present a federal question on the face -2- 1 of the complaint. 28 U.S.C. § 1331. In addition, the Court has subject-matter jurisdiction 2 to rule on cases in which defendants and plaintiffs are citizens of different states and the 3 amount in controversy is greater than $75,000. 28 U.S.C. § 1332. The Supreme Court has 4 interpreted § 1332 to require complete diversity between parties, such that “the 5 citizenship of each plaintiff is diverse from the citizenship of each defendant.” 6 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). However, if a plaintiff “fails to state a 7 cause of action against a resident defendant, and the failure is obvious according to the 8 settled rules of the state,” the district court may claim that the party is fraudulently joined, 9 and assert jurisdiction. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 10 11 12 1987). A. Diversity Jurisdiction 1. Diversity of Citizenship 13 Plaintiffs, Arizona citizens, have filed suit against BANA, a citizen of North 14 Carolina, and Mr. McDonald, a citizen of Arizona. On its face, the presence of Mr. 15 McDonald destroys diversity between the parties. However, if the “settled rules of the 16 state” prevent Plaintiffs from “stat[ing] a cause of action” against Mr. McDonald, then 17 Mr. McDonald is considered fraudulently joined and his presence would not preclude 18 removal on diversity grounds. McCabe, 811 F.2d at 1339. Under Arizona law, the 19 “trustee need only be joined as a party in legal actions pertaining to a breach of the 20 trustee’s obligation.” A.R.S. § 33-807(E). A court order “entered against the beneficiary 21 [BANA] is binding upon the trustee with respect to any actions that the trustee is 22 authorized to take by the trust deed or by this chapter. Id. A trustee joined in an action “is 23 entitled to be immediately dismissed.” Id. Three elements must be established for a 24 trustee to fall under § 33-807(E)’s protections: the trustee is a defendant in the action, the 25 claim “relates to the authority of the trustee to act,” and the claims “do not allege that the 26 trust breached any of his or her obligations that arise under either the deed of trust” or 27 statutes that regulate deeds of trust. Puzz v. Chase Home Finance, LLC, 763 F.Supp.2d 28 1116, 1125 (D. Ariz. 2011). -3- 1 The first two elements of § 33-807 are met here. The trustee, Mr. McDonald, is 2 named as a party in the complaint. The complaint deals with whether the Plaintiffs’ 3 property may be foreclosed, an issue that relates to the authority of the trustee’s ability to 4 act with regards to a deed of trust sale. As to the third element, in their Motion to Remand 5 Plaintiffs assert that “Defendant Leonard J. McDonald breached his fiduciary duty to 6 Plaintiffs.” (Doc. 9, pg. 4). Plaintiffs argue that this fiduciary duty was breached by Mr. 7 McDonald continuing to proceed with the foreclosure after Plaintiffs informed him of 8 their claim that the foreclosure is barred by the statute of limitations. Plaintiffs state an 9 intent to “provide further clarification to these allegations against Defendant Leonard J. 10 McDonald by filing an amended complaint upon remand.” (Doc. 9, pg. 5). This Court 11 cannot engage in speculation as to what Plaintiffs may allege in an amended complaint. 12 The Complaint filed in Superior Court only mentions Mr. McDonald twice: once to state 13 that he is a resident of Arizona, and once to state that he was appointed as a Successor 14 Trustee. (Doc. 1-1, pgs. 3, 6, ¶¶ 3, 17). The Complaint, therefore, makes neither factual 15 allegations that would support an independent claim against Mr. McDonald nor actually 16 brings a claim against Mr. McDonald for a breach of duties. Any order this Court might 17 issue against BANA about the foreclosure would apply to Mr. McDonald under A.R.S. § 18 33-807(E). Thus, Mr. McDonald has been fraudulently joined to the suit and his presence 19 does not destroy the diversity requirement. See Webb v. CitiMortgage, Inc., No. CV-10- 20 2455-PHX-SRB, 2011 WL 13142488, at *4–5 (D. Ariz. July 13, 2011) Tietjen v. Wells 21 Fargo Home Mortg., No. CV-10-06122-PHX-GMS, 2011 WL 379306, at *2 & n. 2 (D. 22 Ariz. Feb. 3, 2011); Dumont v. HSBC Mortg. Corp., USA, No. CV-10-1106-PHX-MHM, 23 2010 WL 3023885, at *2 (D. Ariz. Aug. 2, 2010); Cervantes v. Countrywide Home 24 Loans, Inc., No. CV-09-517-PHX-JAT, 2009 WL 3157160, at *12–13 (D. Ariz. Sept. 24, 25 2009). 26 2. Amount in Controversy 27 Plaintiffs contend that the amount-in-controversy requirement has not been met. 28 They state that they are seeking only an injunction. When the relief sought is injunctive in -4- 1 nature, and not monetary, “the amount in controversy is measured by the value of the 2 object of the litigation.” Hunt v. Washington State Apple Advertising Com’n, 432 U.S. 3 333, 347 (1977). Plaintiffs assert that the value of the object of the litigation is properly 4 measured using the value of the property to be foreclosed on: $14,100. (Doc. 9, Ex. B). 5 Defendants, however, would use the balance of the loan secured by the property: 6 $173,231.20. The Court need not resolve this dispute. Plaintiffs’ Complaint does not seek 7 only injunctive relief. The Complaint states twice that “Plaintiffs have suffered and will 8 continue to suffer if the trustee’s sale is conducted in excess of $150,000.00.” (Doc. 1-1, 9 pgs. 6, 7 ¶¶ 22, 26). Plaintiffs do later seek injunctive relief, but that is in addition to their 10 claims of wrongful foreclosure and breach of good faith and fair dealing where Plaintiffs 11 assert damages in excess of $150,000. This exceeds the amount-in-controversy 12 requirement of $75,000. 13 B. Federal Question Jurisdiction 14 Federal courts have federal question jurisdiction “only when a federal question is 15 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 16 Williams, 519 U.S. 386, 392 (1987). In this way, “the plaintiff [is] the master of the 17 claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id. 18 Plaintiffs’ Complaint alleges that “Defendant [BANA] engaged in unfair and deceptive 19 practices in violation of the Federal Fair Debt Practices Act.” (Doc. 1-1, pg. 7, ¶ 24). This 20 is seemingly a reference to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 21 1692 et seq. Without making any determination as to the merits of Plaintiff’s suit, the 22 FDCPA does contain prohibitions on various unfair practices and deceptive actions. See 23 15 U.S.C. § § 1692f, 1692g. To the extent Plaintiffs are raising claims under the FDCPA, 24 this Court has jurisdiction to hear those claims. The Court also has supplemental 25 jurisdiction to hear the remaining state law claims under 28 U.S.C. § 1367(a). 26 Conclusion 27 Plaintiff’s Motion to Remand is denied because this Court has diversity 28 jurisdiction. Defendant McDonald is not a proper party under Arizona law, and his -5- 1 presence in the suit constitutes fraudulent joinder. Without Mr. McDonald, there is 2 complete diversity between the parties: the Plaintiffs are Arizona citizens and Defendant 3 BANA is a North Carolina citizen. Although Plaintiffs claim to only be seeking 4 injunctive relief, their Complaint contains causes of action where they assert damages in 5 excess of $150,000, surpassing the required amount in controversy. Plaintiffs’ Complaint 6 also raises a federal question related to the FDCPA, giving this Court federal question 7 jurisdiction over that claim and supplemental jurisdiction over the remaining state law 8 claims. 9 IT IS THEREFORE ORDERED that the Motion to Remand of Plaintiffs 10 Andrew and Julia Forbes (Doc. 9) is DENIED. 11 Dated this 30th day of November, 2017. 12 13 14 15 Honorable G. Murray Snow United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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