Bank of America, N.A. v. McCallum et al

Filing 5

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis and Granting 3 Motion to Remand to State Court. This action is Remanded to the Superior Court of California, County of San Diego. Signed by Judge Barry Ted Moskowitz on 12/15/11. (All non-registered users served via U.S. Mail Service/Certified copy sent to Superior Court of california, 330 W Broadway )(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BANK OF AMERICA, N.A.,
SUCCESSOR BY MERGER TO BAC
HOME LOANS SERVICING, LP FKA
COUNTRYWIDE HOME LOANS
SERVICING, LP FOR THE BENEFIT OF
HARBORVIEW 2005-7 TRUST FUND,

Case No. 11cv02740 BTM (BGS)
ORDER

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Plaintiff,
v.

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GREGG MCCALLUM; JOHN
MCCALLUM and DOES 1 through X,
inclusive,

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Defendants.

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On September 14, 2011, the Plaintiff in the above-captioned matter filed an unlawful

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detainer action against the Defendants in the Superior Court of California, County of San

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Diego (Case No. 37-2011-00046865-CL-UD-CTL). On November 22, 2011, Defendant

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Gregg McCallum filed in this Court a “Notice of Removal from San Diego Superior Court”

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(Dkt. No. 1) and a “Motion for Leave to Proceed In Forma Pauperis” (Dkt. No. 2). On

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December 13, 2011, Plaintiff filed a “Motion to Remand to State Court” (Dkt. No. 3). For the

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reasons set forth below, the Court hereby GRANTS Defendant Gregg McCallum’s Motion

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for Leave to Proceed In Forma Pauperis and REMANDS this case to San Diego Superior

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Court.

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//
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11cv02740 BTM (BGS)

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I.

Motion for Leave to Proceed In Forma Pauperis

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Defendant Gregg McCallum, a nonprisoner proceeding pro se, has not paid the $350

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civil filing fee required to remove this action, and instead seeks leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915(a). 28 U.S.C. § 1915(a) allows the Court to authorize

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a party to proceed in a federal case without prepayment of fees if that party submits an

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affidavit, including a statement of all his assets, showing that he is unable to pay filing fees.

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See 28 U.S.C. §

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establishing that he lacks the financial resources to pay filing fees. The Court therefore

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GRANTS Defendant Gregg McCallum’s Motion for Leave to Proceed In Forma Pauperis.

1915(a).

Defendant Gregg McCallum has submitted an affidavit

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II.

Subject-matter Jurisdiction

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Plaintiff’s motion to remand correctly argues that the Court lacks subject-matter

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jurisdiction over Plaintiff’s state court complaint. Plaintiff’s complaint (attached as an exhibit

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to Plaintiff’s Request for Judicial Notice, Dkt. No. 3-3) brings no claim other than unlawful

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detainer pursuant to California Code of Civil Procedure § 1161a. Unlawful detainer actions

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arise under state law and do not require resolution of a substantial question of federal law.

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See U.S. Bank Nat’l Ass’n v. Lasoff, 2010 WL 669239 (C.D. Cal. Feb. 23, 2010) (holding that

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unlawful detainer action did not raise a federal question); HSBC Bank USA, NA v. Valencia,

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2010 WL 546721 (E.D. Cal. Feb. 10, 2010) (remanding unlawful detainer action); Wells

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Fargo Bank, Nat’l Ass’n v. Cencil, 2010 WL 2179778 (N.D. Cal. May 27, 2010) (granting

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motion to remand unlawful detainer action).

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Defendant may wish to bring do not give rise to federal question jurisdiction. Franchise Tax

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Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 14 (1983) (explaining that a case may

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not be removed to federal court on the basis of a federal defense). Because this action

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arises under state law and does not require resolution of a substantial question of federal

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law, the Court REMANDS this action. See 28 U.S.C. § 1447(c) (“If at any time before final

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judgment it appears that the district court lacks subject matter jurisdiction, the case shall be

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remanded.”)
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Any federal defenses or counterclaims

11cv02740 BTM (BGS)

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III.

Conclusion

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For the reasons set forth above, the Court GRANTS Defendant Gregg McCallum’s

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Motion for Leave to Proceed In Forma Pauperis and REMANDS this action to the Superior

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Court of California, County of San Diego.

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IT IS SO ORDERED.

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Dated: December 15, 2011

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HONORABLE BARRY TED MOSKOWITZ
United States District Judge

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11cv02740 BTM (BGS)