Ordono v. US Bank National Association, et al

Filing 35

Order by Hon. James Donato denying 17 Motion to Remand. (jdlc2, COURT STAFF) (Filed on 7/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CONSUELO Z. ORDONO,

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Case No. 14-cv-00774-JD

Plaintiff,
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v.

ORDER DENYING MOTION TO
REMAND

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US BANK NATIONAL ASSOCIATION, et
al.,

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Defendants.

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United States District Court
Northern District of California

Re: Dkt. No. 17

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Plaintiff Consuelo Ordono initiated this action in California state court on January 23,

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2014. Dkt. No. 1, Ex. A. She named as defendants US Bank National Association as Trustee for

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RASC 2005-AHL3 and Ocwen Loan Servicing, LLC.1 Id. The complaint alleges eleven causes

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of action against these two defendants: (1) Breach of Security Instrument; (2) Fraud in the

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Inducement; (3) Lack of Standing; (4) Violation of California Civil Codes § 2924 et seq.; (5) Elder

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Abuse; (6) Violation of Business and Professions Code § 17200 et seq.; (7) Intentional Infliction

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of Emotional Distress; (8) Declaratory Relief; (9) Cancellation of Instruments; (10) Slander of

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Title; and (11) Quiet Title. Id. The action relates to real property owned by plaintiff that is

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located in San Francisco, and plaintiff’s “pending loss of her home through foreclosure initiated

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and advanced by Defendants.” Id. ¶¶ 16, 33.

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Defendants removed the action to this Court on February 20, 2014, invoking the Court’s

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diversity jurisdiction pursuant to 28 U.S.C. §§ 1441(b) and 1332. Dkt. No. 1 at 3. On March 5,

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2014, plaintiff moved for remand of the action to state court. Dkt. No. 17.

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Defendants’ Notice of Removal notes that plaintiff erroneously sued “US Bank National
Association as Trustee for RASC 2005-AHL3,” but the correct name for this defendant is “U.S.
Bank National Association, as Trustee for Residential Asset Securities Corporation, Home Equity
Mortgage Asset-Backed Pass-Through Certificates, Series 2005-AHL3.” Dkt. No. 1 at 1.

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Plaintiff initially based her motion to remand on the argument that “this action lacks the

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requisite complete diversity of the parties.” Dkt. No. 17 at 3. In her reply brief, however, she

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conceded the point, stating that she “will stipulate that there is complete diversity of citizenship

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between the parties.” Dkt. No. 21 at 3 n.1. Plaintiff instead shifted her target, arguing in her reply

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brief that the action should be remanded because defendants had failed to prove that the $75,000

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jurisdictional amount-in-controversy requirement has been met. Id. at 3-5.

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While the Court ordinarily does not consider arguments raised for the first time in a reply
brief, it also has an independent obligation to examine whether subject matter jurisdiction exists

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prior to considering this case on the merits. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116

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(9th Cir. 2004). Pursuant to 28 U.S.C. § 1447(c), the Court “shall” remand a case if “at any time

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United States District Court
Northern District of California

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before final judgment it appears that the district court lacks subject matter jurisdiction.”

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Moreover, “the removal statute is strictly construed against removal jurisdiction.” Ethridge v.

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Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988) (citations omitted). “The ‘strong

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presumption’ against removal jurisdiction means that the defendant always has the burden of

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establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)

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(citations omitted).

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On the issue of the amount in controversy, defendants’ removal notice asserts that

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“[p]laintiffs’ [sic] prayer for relief seeks adjudication of rights in the Property - rescission of the

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loan of a property worth far more than $75,000.00.” Dkt. No. 1 at 4. The removal notice further

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states that “[t]he deed of trust referenced is in the amount of $750,000.000” and “Plaintiff also

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seeks additional, unspecified amounts of special, general and punitive damages.” Id. (citing deed

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of trust attached as Exhibit A to the Complaint).

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Plaintiff argues that she “did not ask for a specific amount of damages in her complaint.”

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Dkt. No. 21 at 3. That is true. And “[s]ince it was not facially evident from the complaint that

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more than $75,000 was in controversy,” defendants “should have proven, by a preponderance of

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the evidence, that the amount in controversy met the jurisdictional threshold.” Valdez, 372 F.3d at

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1117 (internal quotation marks, brackets and citations omitted).

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But defendants have pointed to plaintiff’s prayer for relief. Dkt. No. 1 at 4. That prayer

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includes requests for an order “preventing Defendants . . . from causing the Property to be sold,

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assigned, transferred to a third-party, or taken by anyone or any entity” as well as a “judgment

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determining that Defendants’ claims to Plaintiff’s Property are without any right whatever and

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such Defendants have no right, title, estate, lien or interest whatever in the above-described

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Property or any part thereof.” Dkt. No. 1-1 at 45.

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This is sufficient. “In actions seeking declaratory or injunctive relief, it is well established

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that the amount in controversy is measured by the value of the object of the litigation.” Cohn v.

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Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) (quoting Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)) (internal quotation marks

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United States District Court
Northern District of California

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omitted). See also Garfinkle v. Wells Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973).

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Defendants have shown that the value of the property here well exceeds $75,000. The complaint

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itself acknowledges that plaintiff obtained a $750,000 mortgage loan that was secured by the

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property. Dkt. No. 1-1 ¶ 35.

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The Court concludes that jurisdiction is proper, and denies the motion to remand.

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IT IS SO ORDERED.

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Dated: July 15, 2014
______________________________________
JAMES DONATO
United States District Judge

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