Marcel B Velasco v. Nationstar Mortgage LLC et al
Filing
8
MINUTE ORDER IN CHAMBERS ORDER TO SHOW CAUSE RE: SUBJECT MATTER JURISDICTION by Judge Virginia A. Phillips.(Response to Order to Show Cause due by 2/9/2015.) (mrgo)
PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. EDCV 15-00089-VAP (DTBx)
Date: January 29, 2015
Title:
MARCEL B. VELASCO -v- NATIONSTAR MORTGAGE, LLC; et al.
===============================================================
PRESENT:
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard
Courtroom Deputy
ATTORNEYS PRESENT FOR
PLAINTIFFS:
None Present
Court Reporter
ATTORNEYS PRESENT FOR
DEFENDANTS:
None
PROCEEDINGS:
None
ORDER TO SHOW CAUSE RE: SUBJECT MATTER
JURISDICTION (IN CHAMBERS)
On January 15, 2015, Plaintiff Marcel B. Velasco ("Plaintiff") filed a Complaint
against Defendants Nationstar Mortgage, LLC, Recon Corp.; and Mortgage
Electronic Registration Systems, Inc. ("Defendants").1 (Doc. No. 1.) From the
Complaint, it is unclear whether the Court has subject-matter jurisdiction in this
action. For the reasons set forth below, the Court orders Plaintiff to show cause why
this matter should not be dismissed for lack of subject-matter jurisdiction.
1
Plaintiff previously filed a similar action in Marcel B Velasco v. Nationstar
Mortgage, LLC, et al., 5:14-cv-00017-VAP-DTB (C.D. Cal Jan 1, 2014). Plaintiff
voluntarily dismissed that action on January 30, 2014 after the Court issued an order
to show cause why that action should not be dismissed for lack of subject-matter
jurisdiction.
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EDCV 15-00089-VAP (DTBx)
MARCEL B. VELASCO v. NATIONSTAR MORTGAGE, LLC, et al.
MINUTE ORDER of January 29, 2015
"In civil cases, subject matter jurisdiction is generally conferred upon federal
district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or federal
question jurisdiction, 28 U.S.C. § 1331." Peralta v. Hispanic Bus., Inc., 419 F.3d
1064, 1069 (9th Cir. 2005). The burden of establishing jurisdiction rests on the
Plaintiff as the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). The Court has an independent obligation to ensure
that its subject-matter jurisdiction has been invoked properly. Fed. R. Civ. P.
12(h)(3).
A party may invoke the Court's diversity jurisdiction, under 28 U.S.C. § 1332,
in "all civil actions where the matter in controversy exceeds . . . $75,000 . . . and is
between [c]itizens of different States." 28 U.S.C. § 1332(a)(1). Where subjectmatter jurisdiction is based on 28 U.S.C. § 1332, complete diversity of citizenship is
required. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). In other
words, a court lacks subject-matter jurisdiction "unless each defendant is a citizen of
a different State from each plaintiff." Id. For the purpose of establishing diversity
jurisdiction, a corporation is a citizen of both the state in which it is incorporated and
the state in which it maintains its principal place of business. See 28 U.S.C. §
1332(c)(1).
Under 28 U.S.C. § 1331, the Court has also jurisdiction over civil actions
"arising under" federal law. "The presence or absence of federal-question
jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is presented on the face of
the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386,
392 (1987). The only exception to this rule is where the plaintiff's federal claim has
been disguised by "artful pleading," such as where the only claim is a state claim
preempted by federal law. Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1372
(9th Cir. 1987).
Here, the Complaint contains no allegations concerning Plaintiff's citizenship,
the citizenship of the Defendants, or the amount in controversy. Therefore, there
can be no diversity jurisdiction.
With respect to federal question jurisdiction, the Complaint mentions a number
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EDCV 15-00089-VAP (DTBx)
MARCEL B. VELASCO v. NATIONSTAR MORTGAGE, LLC, et al.
MINUTE ORDER of January 29, 2015
of federal statutes and regulations in passing, for example, 42 U.S.C. §§ 1981, 1983,
1985, and 1986, and 12 C.F.R. § 226.39. (Compl. ¶¶ 2, 112.) Passing references to
federal statutes do not create a substantial federal question, however. Lippitt v.
Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040-41 (9th Cir. 2003). While
the Complaint states that "[t]he purpose of this action is to clarify who the real party
in interest is," the only federal claims alleged in the Complaint are various violations
of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (See
Compl. at ¶¶ 81-113.) Although the Ninth Circuit has not addressed whether
foreclosure proceedings constitute debt collection as defined in the FDCPA, district
courts in this circuit have routinely held that nonjudicial foreclosures are not debt
collection activities.2 See Rockridge Trust v. Wells Fargo, 2013 WL 5428722, at *13
(N.D. Cal. Sept. 25, 2013); see also Ligon v. JP Morgan Chase Bank, 2011 WL
2550836, at *3 (N.D. Cal. June 27, 2011) (collecting cases).
Any non-frivolous assertion of a federal claim can establish federal question
jurisdiction. Cement Masons Health & Welfare Trust Fund for N. Cal. v. Stone, 197
F.3d 1003, 1008 (9th Cir.1999). "There is federal question jurisdiction unless the
federal claim is 'so insubstantial, implausible, foreclosed by prior decisions of [the
Supreme] Court, or otherwise completely devoid of merit as not to involve a federal
controversy.'" Cook Inlet Region, Inc. v. Rude, 690 F.3d 1127, 1131 (9th Cir. 2012)
cert. denied, 133 S. Ct. 1814 (2013) (quoting Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 98 (1998) (internal quotations omitted).
2
Moreover, violations of the FDCPA only entitle the injured party to
statutory damages, and cannot be used as a vehicle to obtain equitable relief. See
Knippling v. Saxon Mortgage, Inc., 2012 WL 1142355, at *1 (E.D. Cal. Mar. 22,
2012) (citing Palmer v. Stassinos, 233 F.R.D. 546 (N.D. Cal. 2006).
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EDCV 15-00089-VAP (DTBx)
MARCEL B. VELASCO v. NATIONSTAR MORTGAGE, LLC, et al.
MINUTE ORDER of January 29, 2015
Here, Plaintiff prays for a declaration that the deed of trust encumbering his
property be declared null and void as a result of Defendants' alleged FDCPA
violations. As Plaintiff is attempting to assert FDCPA claims in the nonjudicial
foreclosure context, and because Plaintiff is improperly using the FDCPA as a
vehicle to obtain equitable relief, the it appears as if these claims are so "completely
devoid of merit as not to involve a federal controversy."
Finding that the basis of the Court's jurisdiction is unclear, the Court ORDERS
Plaintiff to show cause why this action should not be dismissed for lack of subjectmatter jurisdiction. Plaintiff shall file a response in writing no later than Friday,
February 9, 2015. Failure to respond shall result in dismissal of this action.
IT IS SO ORDERED.
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