Zivanic v. Washington Mutual Bank, F.A. et al

Filing 17

ORDER by Judge Samuel Conti denying 9 Motion to Remand and Denying Request for Attorney's Fees (sclc2, COURT STAFF) (Filed on 5/7/2010)

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1 2 3 4 5 6 7 8 9 10 YVONNE ZIVANIC, ) Case No. 10-737 SC ) Plaintiff, ) ORDER DENYING MOTION TO v. ) REMAND ) WASHINGTON MUTUAL BANK, F.A.; ERIC ) DIPPEL; LISA DIPPEL; JPMORGAN ) CHASE BANK, N.A.; DEUTSCHE BANK ) NATIONAL TRUST COMPANY; QUALITY ) LOAN SERVICE CORPORATION; and DOES ) 1-50, inclusive, ) ) Defendants. ) ) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Now before the Court is a Motion to Remand and Request for Attorney's Fees and Costs ("Motion to Remand") filed by Plaintiff Yvonne Zivanic ("Plaintiff" or "Zivanic"). Docket No. 8.1 Defendants JPMorgan Chase Bank, N.A. ("JPMorgan"), and Deutsche Bank ("Deutsche") filed an Opposition. did not file a Reply. Docket No. 14. Plaintiff For the reasons described below, the Court DENIES Plaintiff's Motion to Remand and DENIES Plaintiff's request 1 Zivanic submitted the Motion to Remand twice. Docket Nos. 8, 9. Because the second docket entry appears to contain only a new cover page (appending the word "AMENDED" to the title of the motion, and listing a different hearing date), and a handful of seemingly random pages from the earlier docket entry, the Court will refer only to the first docket entry (Docket No. 8) in this Order. 1 2 3 4 5 6 7 8 9 10 For the Northern District of California for attorney's fees. II. BACKGROUND By this action, Zivanic challenges alleged misconduct that took place during the origination of a housing loan that she used to purchase her current home, during her subsequent efforts to modify that loan, and during the procedures that lead to the recent foreclosure of her home. Ex. 1 ("Compl."). Zivanic claims that in late 2004, she and her husband began working with Defendants Eric Dippel and Lisa Dippel, who were allegedly employed as brokers/salespersons by Defendant Washington Mutual Bank, F.A. ("WaMu"). Id. 4-5, 16-17. The Dippels were See Docket No. 1 ("Notice of Removal") United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 assisting Zivanic in securing finance for the purchase of her current house, which is located in Santa Clara County, California. Id. 1, 3. Zivanic and her husband received a loan for $885,000 Id. 19-20. According to the pursuant to a Deed of Trust. Complaint, the Dippels "led Plaintiff and her husband to believe that she would be approved for a loan with certain terms. However, the NOTE contained a higher interest rate than what had been originally represented to Plaintiff, wrapped unearned fees into Plaintiff's monthly mortgage payment, and contained other less favorable terms." Id. 22. Zivanic also complains that she and her husband should have never been approved for the loan, because they would be unable to afford the fully amortized payment rates. Id. 23. The Deed of Trust originally named WaMu as the lender and beneficiary, and California Reconveyance Company was named as the trustee. Id. Ex. A ("DoT") at 1. 2 1 2 3 4 5 6 7 8 9 10 For the Northern District of California In early 2008, Zivanic and her husband began experiencing difficulties making their monthly loan payments, and "they began to talk to WAMU representatives regarding forbearance." Compl. 29. However, Defendants began taking measures to foreclose upon Plaintiff's residence. By an "Assignment of Deed of Trust" dated July 1, 2008 (and recorded on August 15, 2008), WaMu assigned the Deed of Trust to "DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR WAMU 05-AR6 G2." Id. Ex. E ("DoT Assignment") at 1. By a "Substitution of Trustee" dated July 1, 2008 (and recorded on August 27, 2008), Deutsche then designated Defendant Quality Loan Services Corporation ("Quality") as the trustee. ("Substitution of Trustee") at 5-6. Compl. Ex. F United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On the following day, July 2, 2008, Quality filed a Notice of Default and Election to Sell Under Deed of Trust ("Notice of Default") with the recorder for the County of Santa Clara. Compl. 30, Ex. D. Plaintiff claims that Defendant JPMorgan assumed the WaMu's assets and liability when WaMu went bankrupt in September of 2008. Compl. 33. In October of 2008, Zivanic and her husband contracted with Amerivest "to assist in negotiating a forbearance plan with WAMU," and on November 19, 2008, she was informed by Gwendolyn Smith "of WMU's Loss Mitigation Department" that they had been approved for a "Special Forbearance Agreement" ("SFA"). 37, Ex. H. Zivanic and her husband signed the SFA, which Id. required a program entrance fee as well as three debt reduction payments scheduled to take place in late 2008 and early 2009. Compl. 37-38. Zivanic made these payments. Id. 39. Zivanic and her husband received a letter from WaMu on December 18, 2008, which informed them that their payments would be 3 1 2 3 4 5 6 7 8 9 10 For the Northern District of California set at $3938.64 per month, starting in February of 2009. Id. 41. However, "[w]hen Mr. Zivanic attempted to make the first payment, he was advised that the letter was sent in error," and after calling his contact at WaMu, he "was told not to pay anything because they had not determined the final loan modification payment." Id. 41-42. Zivanic and her husband continued to work with WaMu to modify their loan, and continued to provide information as requested. Id. 43-44. Nevertheless, on August 6, 2009, Quality sold Zivanic's residence to Deutsche at public auction. Id. 45, Ex. J. Deutsche then filed an unlawful United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detainer action against Zivanic and her husband on September 21, 2009. Compl. 48. Zivanic apparently still possesses the property, and filed this action in an attempt to retain possession. See id. 51. III. LEGAL STANDARD "Federal Courts are courts of limited jurisdiction," and a cause of action is presumed to lie outside of this limited jurisdiction until the party asserting jurisdiction establishes the contrary. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, An action that might have originally been brought in 377 (1994). federal court is removable to federal court. 28 U.S.C. 1441(a). A plaintiff may bring a motion to remand to challenge whether the removal procedures were proper. Id. 1447(c). "The removal statute is strictly construed, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. The defendants bear the burden of proving the propriety of Simpson v. Union Pac. R.R. Co., 282 F. Supp. 2d 1151, removal." 4 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 1153 (N.D. Cal. 2003) (citation omitted). IV. DISCUSSION None of the Complaint's thirteen causes of action are explicitly framed as federal claims. However, in their Notice of Removal, Defendants refer to the fact that the Complaint makes references to Defendants' alleged violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2601 et seq., the Truth in Lending Act ("TILA"), 15 U.S.C. 1601 et seq., and the Equal Credit Opportunity Act ("ECOA"), id. 1691 et seq. Notice of Removal 4. Plaintiff claims that she does not list these statutes as grounds for independent causes of action; rather, she argues that they are only included to support her contention that Defendants have violated California's Unfair Competition Law ("UCL"), codified in section 17200 et seq. of the California Business & Professions Code. The UCL forbids "unfair competition" which "include[s] any See United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unlawful, unfair or fraudulent business act or practice . . . ." Cal. Bus. & Prof Code 17200, 17203. Plaintiff argues that she is the "master of her complaint" and "has patently declined to state causes of action based on those [TILA, RESPA, and ECOA] violations. Instead, Plaintiff simply Mot. to Remand at 6. This mentions those violations in passing." argument ignores the explicit language of the Complaint itself. Immediately after Plaintiff sets out the basis for her UCL claim, including alleged violations of TILA, RESPA, and ECOA, the Complaint states a demand "for actual, compensatory, statutory, consequential, and punitive damages (in an amount to be proven at 5 1 2 3 4 5 6 7 8 9 10 For the Northern District of California trial) in favor of Plaintiff." Compl. 94-97. However, "[a] UCL In re action is equitable in nature; damages cannot be recovered." Tobacco II Cases, 46 Cal. 4th 298, 312 (2009). As Defendants point out, Plaintiff's broad request for damages goes well beyond the scope of remedies authorized by the UCL. Opp'n at 6. While it is true that "there is no 'basic' or 'pivotal' federal question that impinges on [plaintiff's] right to relief" under the UCL, Lippitt v. Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1046 (9th Cir. 2003), Plaintiff is not simply bringing a UCL claim that is partially predicated on federal law. Instead, she is United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seeking remedies that are clearly beyond those authorized by the UCL, and the Complaint is explicitly demanding relief based on several federal statutes. Although Plaintiff's federal claims are not clearly labeled, she is unambiguously requesting remedies that are only available to her under federal law, and she has thereby conferred jurisdiction upon this Court. See Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001) (affirming denial of motion to remand where plaintiff sought remedies authorized by federal law but not available under state law). Although Plaintiff had an opportunity to disclaim any intent to recover under federal law, she failed to take advantage of that opportunity by failing to file a Reply brief. /// /// /// /// /// /// 6 1 2 3 4 5 6 7 8 9 10 For the Northern District of California V. CONCLUSION For the reasons stated above, Plaintiff's Motion to Remand is DENIED. Plaintiff's request for attorney's fees is DENIED. IT IS SO ORDERED. Dated: May 7, 2010 UNITED STATES DISTRICT JUDGE United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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