Bank of New York Mellon v. Tanski et al

Filing 15

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND; AWARDING PLAINTIFF ATTORNEY'S FEES; VACATING JULY 19, 2013 HEARING. Signed by Judge Maxine M. Chesney on July 15, 2013. (mmclc1, COURT STAFF) (Filed on 7/15/2013) (Additional attachment(s) added on 7/15/2013: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS OF
CWMBS, INC., CHL MORTGAGE PASSTHROUGH TRUST 2006-11, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2006-11,

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ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND; AWARDING
PLAINTIFF ATTORNEY’S FEES;
VACATING JULY 19, 2013 HEARING

Plaintiff,

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No. C-13-2100 MMC

v.
ADRIEL TANSKI, et al.,
Defendants.

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Before the Court is plaintiff’s Motion to Remand Case to State Court, filed June 4,

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2013. Defendants have filed opposition; plaintiff has not filed a reply. Having read and

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considered the papers filed in support of and in opposition to the motion, the Court deems

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the matter suitable for decision on the parties’ respective written submissions, VACATES

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the hearing scheduled for July 19, 2013, and rules as follows.

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In its complaint, filed in state court, plaintiff alleges a single claim, specifically, a

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state law claim for unlawful detainer. In their notice of removal, defendants assert the

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complaint is removable pursuant to 28 U.S.C. § 1441 because, they contend, plaintiff has

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not complied with the federal Protecting Tenants at Foreclosure Act (“PTFA”) and/or the

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PTFA essentially preempts state law, and, consequently, a federal question is presented.

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Even assuming, however, plaintiff has violated the PTFA and that any such violation

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constitutes a defense to the unlawful detainer claim, defendants are not entitled to remove

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the complaint, because “federal defenses do not provide a basis for removal,” see

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Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987); Bank of New York Mellon v. Kiely,

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2012 WL 4490870, at *2 (E.D. Cal. 2012) (remanding unlawful detainer complaint where

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defendant removed based on plaintiff’s alleged failure to comply with PTFA; holding

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defense based on PTFA “cannot serve as a basis for removal jurisdiction”) (internal

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quotation and citation omitted), nor does the PTFA serve as a basis for preemption, see id.

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(holding “PTFA is not a substitute for an unlawful detainer action”); see also K2 America

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Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011) (holding, for

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purposes of removal, “[f]ederal jurisdiction cannot hinge upon . . . counterclaims, whether

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actual or anticipated”).

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Accordingly, the above-titled action will be remanded to state court.

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In addition to seeking an order remanding the complaint, plaintiff seeks an award of

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attorney’s fees. “An order remanding the case may require payment of just costs and any

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actual expenses, including attorney fees, incurred as a result of the removal,” see 28

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U.S.C. § 1447(c), and an award of costs and expenses is proper where “the removing party

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lacked an objectively reasonable basis for seeking removal.” See Martin v. Franklin Capital

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Corp., 546 U.S. 132, 141 (2005). Here, defendants lacked an objectively reasonable basis

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for removal; it is “settled law that a case may not be removed to federal court on the basis

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of a federal defense, including the defense of preemption, even if the defense is anticipated

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in the plaintiff’s complaint.” See Caterpillar, 482 U.S. at 393.1

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//

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In their opposition, defendants argue the law is unsettled as to whether a private
cause of action exists under the PTFA. As set forth above, “the PTFA is not a substitute for
an unlawful detainer action.” See Bank of New York Mellon, 2012 WL 4490870, at *2.
Consequently, whether such private cause of action may exist has no bearing on the
question of removal. See id.; see also K2 America Corp., 653 F.3d at 1029 (holding
counterclaims have no bearing on removal).
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Accordingly, the Court finds plaintiff is entitled to its reasonable attorney’s fees

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incurred in filing the instant motion, which fees, plaintiff has shown, total $315.00. (See

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Hood Decl. ¶ 4.)2
CONCLUSION

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For the reasons stated above:

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1. Plaintiff’s Motion to Remand is hereby GRANTED, and the above-titled action is

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hereby REMANDED to the Superior Court of California, in and for the County of Humboldt.
2. Plaintiff shall have judgment against defendants, jointly and severally, in the
amount of $315.00, comprising the reasonable attorney’s fees incurred by plaintiff as a

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result of the instant removal.

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IT IS SO ORDERED.

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Dated: July 15, 2013
MAXINE M. CHESNEY
United States District Judge

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The Declaration of Nicholas G. Hood is attached to plaintiff’s motion.
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