U.S. Bank National Association et al v. Bilbaeno et al

Filing 6

Order by Hon. Samuel Conti granting 4 Motion to Remand.(sclc2, COURT STAFF) (Filed on 6/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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) Case No. C 13-1748 SC
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U.S. BANK NATIONAL ASSOCIATION, ) ORDER GRANTING MOTION TO REMAND
AS TRUSTEE, ON BEHALF OF THE
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HOLDERS OF HOME EQUITY PASS)
THROUGH CERTIFICATES, SERIES
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2005-08,
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Plaintiff,
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v.
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MODESTO BILBAENO JR., CAROLINA )
G. BILBAENO, JOSEPH CABALICA,
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and DOES 1-10, inclusive,
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Defendants.
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I.

INTRODUCTION

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Now before the Court is Plaintiff U.S. Bank National

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Association's ("Plaintiff") motion to remand this case to state

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court, and for sanctions, fees, and costs associated with

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responding to a frivolous removal.

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filed no response.

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without oral argument per Civil Local Rule 7-1(b).

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explained below, the Court GRANTS the motion to remand and GRANTS

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the motion for fees and costs, but DENIES the motion for sanctions.

ECF No. 4.

Defendants have

Plaintiff's motion is appropriate for decision
For the reasons

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BACKGROUND

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This case arises from an unlawful detainer action under

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California law.

In July 2005, above-captioned Defendants obtained

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a loan secured on a Deed of Trust (the "DOT") for property in South

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San Francisco (the "property").

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assignment in July 2008.

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January 2012.

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property was sold at a non-judicial foreclosure sale and title

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reverted to Plaintiff on October 9, 2012.

Plaintiff obtained the DOT via

Defendants defaulted on their loan in

They failed to cure their default, after which the

Plaintiff served

United States District Court

For the Northern District of California

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Defendants with a Notice to Vacate on October 23, 2012, but

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Defendants did not comply.

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property.

They remain in possession of the

On January 24, 2013, after the Notice to Vacate's expiration,

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Plaintiff filed an action for unlawful detainer in San Mateo County

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Superior Court ("state court").

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entered judgment as to Defendant Cabalica on March 25, 2013.

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entered default judgment against the remaining Defendants and all

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unnamed occupants of the property on April 4, 2013.

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day, the state court issued a Writ of Possession for Real Property

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in Plaintiff's favor.

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action to federal court.

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Sheriff's Department has refused to enforce the Writ of Possession

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and move forward with the lockout.

After trial, the state court
It

On that same

On April 17, 2013, Defendants removed this
Consequently, the San Mateo County

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LEGAL STANDARD

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When a case "of which the district courts of the United States

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have original jurisdiction" is initially brought in state court,

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the defendant may remove it to federal court.

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28 U.S.C. § 1441(a).

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There are two bases for federal subject matter jurisdiction: (1)

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federal question jurisdiction under 28 U.S.C. § 1331, and (2)

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diversity jurisdiction under 28 U.S.C. § 1332.

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has federal question jurisdiction in "all civil actions arising

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under the Constitution, laws, or treaties of the United States."

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28 U.S.C. § 1331.

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face of the plaintiff's properly pleaded complaint."

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Inc. v. Williams, 482 U.S. 386, 392 (1987).

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diversity jurisdiction where the matter in controversy exceeds the

A district court

The federal question must be "presented on the
Caterpillar

A district court has

United States District Court

For the Northern District of California

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sum of $75,000, and is between, among other things, citizens of

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different States, or citizens of a State and citizens or subjects

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of a foreign state.

28 U.S.C. § 1332.

A district court may remand a case to state court either for

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lack of subject matter jurisdiction or for any defect in removal

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procedure.

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sponte or on motion of a party, and the parties who invoked the

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federal court's removal jurisdiction have the burden of

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establishing federal jurisdiction.

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Co., 846 F.2d 1190, 1195 (9th Cir. 1988) (citing Wilson v. Republic

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Iron & Steel Co., 257 U.S. 92, 97 (1921)).

See 28 U.S.C. § 1447c).

The court may remand sua

See Enrich v. Touche Ross &

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DISCUSSION

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A.

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Defendants' Notice of Removal, ECF No. 1 ("Notice"), asserts

Remand

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two grounds for removal to federal court: diversity jurisdiction

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and federal question jurisdiction.

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under 28 U.S.C. § 1332, Defendants assert that Plaintiff and

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Defendants are citizens of different states, and that the amount in

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As to diversity jurisdiction

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controversy exceeds $75,000, exclusive of interest and costs.

Id.

As to federal question jurisdiction, Defendants cite a section

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of the United States Code that grants bankruptcy judges

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jurisdiction over Title 11 cases and "core proceedings," which

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include, among other things, counterclaims by an estate against

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persons filing claims against the state.

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U.S.C. § 157(b)(2)).

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a core proceeding because it "concerns claims and counter-claims to

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the Proof of Claim and matters arising out of the administration of

United States District Court

For the Northern District of California

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this removal case."

Id. at 3 (citing 28

Defendants claim, vaguely, that this case is

Id.

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Neither of Defendants' grounds for removal is sufficient.

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First, the face of the state court complaint states that the action

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involves less than $10,000.

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§ 1332's amount in controversy requirement: "[W]hen a state court

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complaint affirmatively alleges that the amount in controversy is

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less than the jurisdictional threshold, the party seeking removal

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must prove with legal certainty that [the] jurisdiction amount is

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met."

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finds that, based on the amount on the face of the state court

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complaint, the jurisdictional amount has not been met in this case.

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Second, this case is not a bankruptcy case, so 28 U.S.C. § 157

See Notice Ex. B.

Defendants offer no proof of any kind.

This fails to meet

The Court therefore

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does not apply, and no federal claims appear on the face of the

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complaint.

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(federal question grounds for removal must be disclosed on the face

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of the complaint, not in the answer or petition for removal);

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Caterpillar, 482 U.S. at 392.

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lacks federal question jurisdiction.

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See Gully v. First Nat. Bank, 299 U.S. 109, 113 (1936)

Accordingly, the Court finds that it

The Court therefore lacks subject matter jurisdiction over

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this case.

The case must be remanded to state court.

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B.

Sanctions, Fees, and Costs

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If a district court remands a case, it may require payment of

incurred as a result of the removal."

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Assessing costs and fees on remand "reduces the attractiveness of

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removal as a method for delaying litigation and imposing costs on

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the plaintiff," and the appropriate test for awarding fees under §

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1447(c) turns on the reasonableness of the removal.

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United States District Court

"just costs and any actual expenses, including attorney fees,

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For the Northern District of California

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Franklin Capital Corp., 546 U.S. 132, 140-41 (2005).

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courts may award fees under § 1447(c) only if the removing party

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lacked an objectively reasonable basis for seeking removal.

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28 U.S.C. § 1447(c).

Martin v.
Accordingly,

Id.

The Court finds it obvious that a reasonable attorney would

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have seen no reasonable basis for removing this case.

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court had already entered judgment before Defendants removed; the

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thirty-day removal period, beginning from the time when Defendants

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received the initial pleading, had long passed; and as stated

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above, the Court very obviously lacks jurisdiction over this

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matter.

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remove this case was meant to delay the enforcement of the Writ of

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Possession.

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and remand statute's fees and costs provision is meant to deter.

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See id.

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The state

The Court finds it clear that Defendants' decision to

This is exactly the kind of behavior that the removal

Accordingly, the Court finds that Plaintiff is entitled to the

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fees and costs it incurred in filing this Motion.

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the Declaration of Plaintiff's counsel Evan Anderson in support of

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Plaintiff's motion for fees and costs, Mot. at 14, the Court finds

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Mr. Anderson's hours and billing rate reasonable.

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Having reviewed

The Court

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therefore AWARDS Plaintiff $481 for fees and costs incurred in

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preparing and drafting its Motion.

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Plaintiff costs that it anticipated incurring in responding to

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oppositions or attending arguments and hearings.

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costs have been incurred in this case: this Motion is unopposed,

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and the Court has held no hearings or arguments.

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and costs is to be assessed solely against Defendants' counsel,

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Linda Z. Voss.

The Court declines to award

None of those

The $481 in fees

The Court declines to sanction Defendants' counsel in this

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United States District Court

For the Northern District of California

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case.

Sanctions would be duplicative of the costs awarded to

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Plaintiff under the removal statute.

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issue an order precluding future removal of this action.

The Court also declines to

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V.

CONCLUSION
As explained above, the Court GRANTS Plaintiff U.S. Bank

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National Association's motion to remand this case to San Mateo

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County Superior Court.

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attorney's fees totaling $481.

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responsible for paying these fees and costs.

The Court also AWARDS Plaintiff costs and
Defendants' counsel alone is

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IT IS SO ORDERED.

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Dated: June 27, 2013

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UNITED STATES DISTRICT JUDGE

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