U.S. Bank, N.A. as Trustee for the Certicateholders of Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series 2006-H v. Lucore et al

Filing 20

ORDER: (1) Granting Plaintiff's 6 Motion to Remand; (2) Remanding Action to the Superior Court of California, County of San Diego; (3) Denying as Moot Defendants' 3 Motion to Consolidate and Defendants' 17 Ex Parte Motion to File a Sur Reply. (Certified copy sent to State Court via US Mail Service.) Signed by Judge Janis L. Sammartino on 5/14/2018. (All non-registered users served via U.S. Mail Service)(mpl)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

U.S. BANK, NA AS TRUSTEE FOR
THE CERTIFICATEHOLDERS OF
BANC OF AMERICA FUNDING
CORPORATION MORTGAGE PASSTHROUGH CERTIFICATES SERIES
2006-H,

15
16
17
18
19

Case No.: 18-CV-286 JLS (MDD)
ORDER: (1) GRANTING
PLAINTIFF’S MOTION TO
REMAND; (2) REMANDING
ACTION TO THE SUPERIOR
COURT OF CALIFORNIA, COUNTY
OF SAN DIEGO; AND (3) DENYING
AS MOOT DEFENDANTS’ MOTION
TO CONSOLIDATE

Plaintiff,
v.
STEVEN H. LUCORE; JUDY L.
LUCORE; and DOES 1 to 10, Inclusive,

(ECF Nos. 3, 6, 17)

Defendants.

20
21

Presently before the Court is Defendants Steven H. Lucore and Judy L. Lucore’s

22

Motion to Consolidate, (ECF No. 3), and Plaintiff U.S. Bank, NA as Trustee for the

23

Certificateholders of Banc of America Funding Corporation Mortgage Pass-Through

24

Certificates, Series 2006-H’s Motion to Remand, (“MTN to Remand,” ECF No. 5). Also

25

before the Court is Defendants’ Opposition, (“Remand Opp’n,” ECF No. 11), and

26

Plaintiff’s Reply in Support of, (“Remand Reply,” ECF No. 12), its Motion to Remand.

27

Additionally, Plaintiff filed a Response in Opposition to, (ECF No. 9), and Defendants

28

filed a Reply in Support of, (ECF No. 15), the Motion to Consolidate. Defendants also
1
18-CV-286 JLS (MDD)

1

filed an ex parte motion for leave to file a sur reply. (ECF No. 17.) The Court took these

2

motions under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1).

3

(ECF No. 13.) Having considered the parties’ arguments and the law, the Court GRANTS

4

Plaintiff’s Motion to Remand, (ECF No. 6); REMANDS this action to the Superior Court

5

of California, County of San Diego, (ECF No. 1); and DENIES AS MOOT Defendants’

6

Motion to Consolidate, (ECF No. 3) and Defendants’ ex parte motion for leave to file a sur

7

reply, (ECF No. 17).

8

BACKGROUND

9

Plaintiff filed its Complaint for unlawful detainer in the Superior Court of California,

10

County of San Diego on June 15, 2015. (Ex. B, ECF No. 1-3.) On July 27, 2015,

11

Defendants filed their Answer asserting as an affirmative defense that the foreclosure sale

12

was void. (Ex. C, ECF No. 1-4.) On February 7, 2018, Defendants filed a Notice of

13

Removal. (ECF No. 1.)

14

Defendants filed the instant Motion to Consolidate on February 2, 2016, (ECF No.

15

4), seeking to consolidate this action with Lucore v. U.S. Bank as Trustee for the Certificate

16

Holders of Banc of America Funding Corporation Mortgage Pass-Through Certificates

17

Series 2006-H, No. 15-CV-2246 JLS (MDD), and Lucore v. Michael D. Zeff et al., No. 15-

18

CV-910 JLS (MDD). Pursuant to the low number rule, this action was reassigned to this

19

Court from Judge Anthony J. Battaglia on February 14, 2016. (ECF No. 5.) Then, Plaintiff

20

filed the instant Motion to Remand on February 15, 2018, (ECF No. 6).

21

LEGAL STANDARD

22

In cases “brought in a State court of which the district courts of the United States

23

have original jurisdiction,” defendants may remove the action to federal court. 28 U.S.C.

24

§ 1441(a). Section 1441 provides two bases for removal: diversity jurisdiction and subject-

25

matter jurisdiction. Federal courts have diversity jurisdiction “where the amount in

26

controversy” exceeds $75,000, and the parties are of “diverse” state citizenship. 28 U.S.C.

27

§ 1332. Federal courts have federal question jurisdiction over “all civil actions arising

28

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
2
18-CV-286 JLS (MDD)

1

The party invoking the removal statute bears the burden of establishing that federal

2

subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th

3

Cir. 1988). Moreover, courts “strictly construe the removal statute against removal

4

jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis,

5

863 F.2d 662, 663 (9th Cir. 1988); and Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d 815,

6

818 (9th Cir. 1985)). Therefore, “[f]ederal jurisdiction must be rejected if there is any

7

doubt as to the right of removal in the first instance.” Id. (citing Libhart v. Santa Monica

8

Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

9

ANALYSIS

10

Plaintiff seeks remand to state court because the Court lacks subject matter

11

jurisdiction. (MTN to Remand 6.)1 Plaintiff contends that it filed a limited civil case in

12

state court that did not exceed $10,000. (Id. (citing ECF No. 1-3, at 2).) Therefore, the

13

amount in controversy does not exceed $75,000, as required for diversity jurisdiction. (Id.)

14

Additionally, Plaintiff argues that there is no federal question on the face of Defendants’

15

state court complaint and therefore this Court has no federal question jurisdiction. (Id.)

16

Defendants respond by recounting the lengthy procedural history between the two

17

parties. (See Remand Opp’n 2–11.) This history includes purported notices of rescission,

18

bankruptcy stays, Plaintiff attempting to enforce unlawful detainers against Defendants,

19

alleged fraud by a notary public, a complaint filed with the Consumer Financial Protection

20

Bureau, and violations of the Fair Debt Collection Practices Act and the Rosenthal Fair

21

Debt Collection Practices Act. (See id.) Defendants conclude by arguing that this Court

22

should retain jurisdiction based on the “complex Federal issues plead [sic] in this document

23

because they are better litigated in and under Federal Jurisdiction.” (Id. at 12.) Defendants

24

finally argue that Plaintiff has no standing or interest in the mortgage to file a motion to

25

remand because the mortgage on Defendants’ property was void. (Id.)

26
27
28

1

Pin citations to docketed materials refer to the CM/ECF page numbers electronically stamped at the top
of each page.
3
18-CV-286 JLS (MDD)

1

Plaintiff replies by arguing that Defendants’ time limit to remove this case from state

2

court has long since lapsed. (Remand Reply 2.) 28 U.S.C. § 1446(b)(1) requires notice of

3

removal to be filed within 30 days after receipt by defendant of a copy of the initial

4

pleading. Plaintiff points out that Defendants filed their answer on July 27, 2015, over

5

three years ago.

6

This is not the first time Defendants have removed this particular action from state

7

court. Two years ago, this Court addressed this exact same issue, in the exact same case.

8

On January 28, 2016, Defendants removed the present state court unlawful detainer action

9

to the Southern District of California. (See No. 16-CV-226 JLS (MDD), ECF No. 1.)

10

Plaintiff filed a motion to remand, which this Court granted because Defendants’ Notice of

11

Removal was untimely. (See No. 16-CV-226 JLS (MDD), ECF No. 20.) The issue here

12

is, once again, timeliness of removal.

13

Under section 1446(b) of title 28 of the United States Code, there are two thirty-day

14

windows within which a case can be removed. Reyes v. Dollar Tree Stores, Inc., 781 F.3d

15

1185, 1189 (9th Cir. 2015). First, a defendant has thirty days to remove after receiving an

16

initial complaint that is removable. 28 U.S.C. § 1446(b)(1). If the initial complaint is not

17

removable, another thirty-day removal window begins after receipt of the first document

18

from which it can be ascertained that the case is removable. 28 U.S.C. § 1446(b)(3). The

19

second removal window is triggered by the occurrence of an event that first discloses that

20

the case is or was removable. See Reyes, 781 F.3d at 1189. Furthermore, “[a] case may

21

not be removed under subsection (b)(3) on the basis of [diversity] jurisdiction . . . more

22

than 1 year after commencement of the action.” 28 U.S.C. § 1446(c)(1).

23

Here, Plaintiff filed its complaint in state court on June 15, 2015, (Ex. B, ECF No.

24

1-3), and Defendants answered on July 27, 2015, (Ex. C, ECF No. 1-4). Defendants did

25

not file their Notice of Removal until February 7, 2018—nearing three years since the filing

26

of Plaintiff’s state court complaint. (ECF No. 1.) Defendants’ first thirty-day window in

27

which to remove closed in July 2015—long before Defendants filed their Notice of

28

Removal on February 7, 2018. See 28 U.S.C. § 1446(b)(1). Further, Defendants do not
4
18-CV-286 JLS (MDD)

1

claim that they received “an amended pleading, motion, order or other paper from which it

2

may first be ascertained that the case is one which is or has become removable” within the

3

thirty days before filing their Notice of Removal. See 28 U.S.C. § 1446(b)(3). Nor does it

4

appear from the record that an amended pleading, motion, order or other paper was filed

5

thirty days preceding the notice of removal. Instead, it appears that this case was rapidly

6

proceeding to trial in state court. (See MTN to Remand 4.)

7

Finally, section 1446(c)(1) bars removal of a case, based on diversity jurisdiction,

8

more than one year after commencement of the action. Defendants’ Notice of Removal

9

argues this Court has subject matter jurisdiction based on complete diversity of citizenship

10

and the amount in controversy.2 (See ECF No. 1, at 3.) As this case would be governed

11

under the Court’s diversity jurisdiction, the one year removal window closed June 15,

12

2016. See 28 U.S.C. § 1446(c)(1). The time to remove this case has long since passed.

13

The burden of proof is on the party invoking the removal statute. Emrich, 846 F.2d

14

at 1195. Defendants do not address the timeliness issue in their Opposition brief. (See

15

Remand Opp’n.) Defendants have not carried their burden; this case was not removable in

16

2016 and they have not demonstrated this case is removable in 2018. Accordingly,

17

Defendants “lost their opportunity to remove the case when they failed to file a petition for

18

removal within thirty days of the filing of the original complaint.” Cantrell v. Great

19

Republic Ins. Co., 873 F.2d 1249, 1256 (9th Cir. 1989) (citing Clorox Co. v. U.S. Dist. Ct.

20

for N. Dist. of Cal., 779 F.2d 517, 521 (9th Cir. 1985)). The Court therefore GRANTS

21

Plaintiff’s Motion to Remand, (ECF No. 6), and REMANDS this action to the Superior

22

Court of California, County of San Diego, (ECF No. 1). Because the Court grants

23

Plaintiff’s Motion to Remand, the Court DENIES AS MOOT Defendants’ Motion to

24
25
26
27
28

2

In their Opposition brief, Defendants argue that this case should not be remanded because there are
complex federal issues. (Remand Opp’n 12.) A court evaluates federal question jurisdiction based on the
existence of a federal question presented on the face of a plaintiff’s properly pleaded complaint.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat’l Bank, 299 U.S. 109,
112–13 (1936)). Here, Plaintiff’s complaint only raises an unlawful detainer issue arising under California
law. (See ECF No. 1-3.) There is no federal question jurisdiction.
5
18-CV-286 JLS (MDD)

1

Consolidate, (ECF No. 3).

2

CONCLUSION

3

In light of the foregoing, the Court GRANTS Plaintiff’s Motion to Remand, (ECF

4

No. 6); REMANDS this action to the Superior Court of California, County of San Diego,

5

(ECF No. 1); and DENIES AS MOOT Defendants’ Motion to Consolidate, (ECF No. 3),

6

and Defendants’ ex parte Motion to file a Sur Reply, (ECF No. 17).

7
8

IT IS SO ORDERED.
Dated: May 14, 2018

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
18-CV-286 JLS (MDD)