HSBC Bank USA v. Valencia et al

Filing 11

ORDER after Scheduling Conference signed by Judge Oliver W. Wanger on 11/19/2009. (Kusamura, W)

1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiff, 14 v. 15 ERIC VALENCIA, HILDA VALENCIA, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 III. II. I. Date of Scheduling Conference. November 18, 2009. Appearances Of Counsel. Houser & Allison by Joshua H. Abel, Esq., appeared on behalf of Plaintiff. Hilda Valencia appeared in pro se. Also present is Antonio Machuca. Summary of Pleadings. 1. This Court does not have jurisdiction over this matter 1 HSBC BANK USA, NA, AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAP1 ASSET BACKED PASS-THROUGH CERTIFICATES, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-1260 OWW BAK ORDER AFTER SCHEDULING CONFERENCE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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because there is no subject matter jurisdiction.

The instant

case was an unlawful detainer which was tried in May 2009 and for which Plaintiff obtained judgment. Under 28 U.S.C. § 1447(c), Plaintiff's

this case should be remanded to the State Court.

claims did not and do not arise under the laws of the United States. A case arises under federal law where federal law

"creates the cause of action" or "the vindication of a right under state law necessarily turn[s] on some construction of federal law." Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 9 (1983) (internal citations omitted). In addition, where a Plaintiff claims to rely on a

state remedy, but the rights she possesses are actually based on federal law, federal question jurisdiction exists. Fristoe v.

Reynolds Metals Co., 615 F.2d 1209, 1211-1212 (9th Cir. 1980). 2. Here, the Complaint filed was an unlawful detainer There were no

action for the possession of real property.

additional claims and there is neither federal question jurisdiction nor diversity jurisdiction, nor is any alleged in the Notice of Removal filed by Defendants. 3. Plaintiff filed an unlawful detainer complaint in the

Superior Court of California, for the County of Kern on March 19, 2009, case number S-1500-CL-236845. A true and correct copy of

the Kern County Superior Court website docket is attached as Exhibit 1 to the Report of the Parties' for Mandatory Scheduling conference pursuant to Rule 26(f) filed herein ("Report"). On

May 28, 2009, this matter proceeded to trial and judgment was rendered for Plaintiff. See Exhibit 1 attached to the Report.

Subsequently, judgment was entered and a writ of possession 2

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issued.

Months later, on July 21, 2009, Defendants Eric Valencia

and Hilda Valencia ("Defendants") filed a notice of removal bringing this action to this Court. Two days after that,

Defendants filed a Chapter 13 Bankruptcy action, which was dismissed approximately a month later. See Exhibit 2 attached to

the Report, which is a true and correct copy of the Bankruptcy Court's docket for the Defendants' Bankruptcy case. Defendants

had no grounds to remove an unlawful detainer action to this Court and have not filed any documents since filing their Notice of Removal. 4. All claims and defenses in the instant matter were

dealt with in the eviction trial in May 2009. 5. The Defendant, Hilda Valencia, has presented the Court

with an "affidavit of non-response" and related documents filed with the Court on November 17, 2009. IV. Further Scheduling Conference. 1. Plaintiff disputes jurisdiction in this removed

case and intends to file a notice for remand of the case to the State Court on or before November 26, 2009. 2. By virtue of the question concerning the

jurisdiction of the United States Court and the propriety of removal to this Court, a Rurther Scheduling Conference shall be held following the hearing and decision on Plaintiff's Motion for Remand. 3. Following disposition of the removal and remand motion,

a Further Scheduling Conference, if necessary, will be set. 4. The Correct address, 5524 Apple Tree Lane, Bakersfield,

CA 93309 is shown in the docket and that is where the Valencias 3

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are to be served.

IT IS SO ORDERED. Dated: November 19, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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