Herrera et al v. Union Fidelity Mortgage, Inc. et al

Filing 26

ORDER by Judge Samuel Conti granting in part and denying in part 10 Motion to Remand (sclc1, COURT STAFF) (Filed on 8/31/2011)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6
7
8
9

For the Northern District of California

United States District Court

10
11
12
13
14
15
16

JOSE R. HERRERA and MARIE L.
HERRERA,

) Case No. C-11-1497 SC
)
) ORDER GRANTING PLAINTIFFS'
Plaintiffs,
) MOTION TO REMAND
)
v.
)
)
UNION FIDELITY MORTGAGE, INC.; CAL )
WIDE MORTGAGE; CAL WESTERN
)
RECONVEYANCE CORPORATION;
)
CITIBANK, N.A.; MORTGAGE
)
ELECTRONIC REGISTRATION SYSTEMS,
)
INC.; and EMC MORTGAGE
)
CORPORATION;
)
)
Defendants.
)
)

17
18

I.

19

INTRODUCTION
Before the Court is a motion to remand this action to state

20

court filed by Plaintiffs Jose R. Herrera and Marie L. Herrera

21

("Plaintiffs").

22

Services, LLC ("Aurora") filed an Opposition, which no other

23

Defendants joined.

24

reasons, the Court GRANTS Plaintiffs' Motion.

ECF No. 10 ("Mot.").

Former Defendant Aurora Loan

ECF No. 13 ("Opp'n").

For the following

25
26
27
28

II.

BACKGROUND
On February 17, 2011, Plaintiffs commenced this action in the

Superior Court of California for the County of Alameda, bringing

1

nineteen state law claims relating to the origination and servicing

2

of a mortgage on their Hayward, California home and the subsequent

3

attempts to foreclose upon this home.

4

Removal") Ex. A ("Compl.").

5

defendants was Aurora, although the body of Plaintiffs' Complaint

6

included no specific references to Aurora.

ECF No. 1 ("Notice of

Named in the Complaint as one of eight

Id.

On March 28, 2011, Aurora removed the action to federal court,

7
8

citing 28 U.S.C. § 1331 as the basis for removal.

9

Removal.

See Notice of

Specifically, Aurora alleged that Plaintiffs' claims of

United States District Court

For the Northern District of California

10

negligence and violation of section 17200 of California's Business

11

and Professions Code ("section 17200 claim") are partially premised

12

on violations of federal law.

13

their negligence claim, they allege violation of the Truth-in-

14

Lending Act ("TILA") and 12 C.F.R. § 226.34 ("Regulation Z"); in

15

Plaintiffs' pleading of their section 17200 claim, they allege

16

violations of TILA, the Real Estate Settlement Procedures Act

17

("RESPA"), and sections 1916.7 and 1921 of the California Civil

18

Code.

19

Id.

In Plaintiffs' pleading of

Compl. ¶¶ 164, 167.
On April 4, 2011, Aurora moved to dismiss the action, alleging

20

that Aurora did not service Plaintiffs' loan and noting that

21

Plaintiffs failed to make any specific allegations against Aurora,

22

let alone mention the name "Aurora," in the body of their

23

Complaint.

24

instant Motion to remand this action to state court; in it,

25

Plaintiffs seek an award of attorneys' fees and costs under 28

26

U.S.C. § 1447(c).

27

Opposition, which no other Defendant joined.

28

26, 2011, Plaintiffs voluntarily dismissed Aurora from this action;

ECF No. 4.

On May 3, 2011, Plaintiffs filed the

See Mot.

On May 13, 2011, Aurora filed its

2

See Opp'n.

On May

1

the Clerk of the Court subsequently terminated Aurora as a party.

2

ECF No. 14.

3

filed a motion to dismiss Plaintiffs' action, which is now fully

4

briefed.

5

On June 9, 2011, Defendants Citibank, N.A., et al.

ECF Nos. 19, 23, 24.

In their Motion, Plaintiffs argue that remand is proper

6

because the Court lacks subject matter jurisdiction over this

7

action.

8

their section 17200 claim is an artfully pleaded federal claim and

9

that neither claim necessarily requires a determination of a

United States District Court

For the Northern District of California

10

Mot at 1.

federal question.

They contend that neither their negligence nor

Id.

11
12
13

III. LEGAL STANDARD
"[A]ny civil action brought in a State court of which the

14

district courts of the United States have original jurisdiction,

15

may be removed by the defendant or the defendants, to the district

16

court of the United States for the district and division embracing

17

the place where such action is pending."

18

District courts have original jurisdiction over "federal question"

19

cases -- those cases "arising under the Constitution, laws, or

20

treaties of the United States."

21

must remand actions where subject matter jurisdiction is lacking.

22

28 U.S.C. § 1447(c).

23

construe the removal statute, "and any doubt about the right of

24

removal requires resolution in favor of remand."

25

Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)

26

(citation omitted).

27

the defendant always has the burden of establishing that removal is

28

proper."

28 U.S.C. § 1441(a).

28 U.S.C. § 1331.

District courts

As a general rule, the court must strictly

Moore–Thomas v.

"The presumption against removal means that

Id. (internal quotations omitted).

3

1
2

IV.

DISCUSSION
The Court GRANTS Plaintiffs' Motion.

Because Aurora is no

3

longer a party to this action and no other Defendants filed an

4

opposition or joined in Aurora's Motion, Plaintiffs' Motion is

5

effectively unopposed.

6

joined in Aurora's Opposition, the Court would rule in Plaintiffs'

7

favor.

However, even if another Defendant had

argued in its Opposition that Plaintiffs' section 17200 claim is

10

United States District Court

Plaintiffs bring no federal claims in their Complaint.

9

For the Northern District of California

8

"primarily based on the allegation that the Yield Spread Premium

11

(YSP) Plaintiffs paid on their loan violated the reasonableness of

12

fees standard under RESPA."

13

that Plaintiffs' negligence claim is premised partially on

14

Defendants' violation of TILA and Regulation Z.

15

Id. at 3.

Aurora

Similarly, Aurora argued

Id. at 4.

Federal courts have subject matter jurisdiction over a state

16

law claim under 28 U.S.C. § 1331 if it "necessarily raise[s] a

17

stated federal issue, actually disputed and substantial, which a

18

federal forum may entertain without disturbing any congressionally-

19

approved balance of federal and state judicial responsibilities."

20

Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S.

21

308, 314 (2005).

22

section 17200 and negligence claims are partially premised on

23

violations of federal law, the Complaint pleads "alternative and

24

independent theories" supporting them.

25

Plaintiffs could prevail on both claims without addressing a

26

question of federal law.

27

establish that any federal question imbedded in Plaintiffs' claims

28

is both necessary and substantial under Grable.

Plaintiffs correctly note that while their

Mot. at 9.

Put simply,

As such, Defendants have failed to

4

1

Plaintiffs seek attorneys' fees under 28 U.S.C. § 1447(c),

2

which provides: "An order remanding the case may require payment of

3

just costs and any actual expenses, including attorney fees,

4

incurred as a result of the

5

that "[a]bsent unusual circumstances, courts may award attorney's

6

fees under § 1447(c) only where the removing party lacked an

7

objectively reasonable basis for seeking removal."

8

Franklin Capital Corp., 546 U.S. 132, 141 (2005) (citations

9

omitted).

removal."

The Supreme Court has held

Martin v.

"Conversely, when an objectively reasonable basis

United States District Court

For the Northern District of California

Id.

The Court finds that Aurora's

10

exists, fees should be denied."

11

stated basis for removal was not objectively unreasonable;

12

accordingly, it DENIES Plaintiffs' request for attorneys' fees.
Because the Court lacks subject matter jurisdiction over this

13
14

action, it does not rule on the motion to dismiss filed by

15

Defendants Citibank N.A., et al.

16
17

V.

CONCLUSION

18

For the foregoing reasons, the Court GRANTS the Motion to

19

remand this action filed by Plaintiffs Jose R. Herrera and Marie L.

20

Herrera, and REMANDS this action to Superior Court of California

21

for the County of Alameda.

22

is DENIED.

Plaintiffs' request for attorneys' fees

23
24

IT IS SO ORDERED.

25
26
27

Dated: August 31, 2011
UNITED STATES DISTRICT JUDGE

28

5