Tumlinson et al v. Select Portfolio Servicing et al

Filing 4

ORDER Sua Sponte Remanding Case to State Court. Signed by Judge Cathy Ann Bencivengo on 6/4/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOUGLAS E. TUMLINSON (pro se),
DEBORAH A. TUMLINSON (pro se),

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ORDER SUA SPONTE REMANDING
CASE TO STATE COURT

Plaintiff,

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Case No.: 18cv1111-CAB-JLB

v.
SELECT PORTFOLIO SERVICES
(SPS), CHASE HOME LOAN, REAL
INDUSTRY, INC.,
Defendant.

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On April 23, 2018, Plaintiffs Douglas E. Tumlinson and Deborah A. Tumlinson

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(“Plaintiffs”) filed a complaint in the Superior Court of the State of California against

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Defendants Select Portfolio Servicing, Inc. (“SPS”), Chase Home Loans, and Real

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Industry, Inc., Case No. 37-2018-00019966-CR-OR-CTL (the “State Court Action”),

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setting forth numerous state law claims regarding the foreclosure of their home. On May

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31, 2018, Defendant SPS filed a notice of removal, claiming that this Court has original

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jurisdiction under 28 U.S.C. §1331 because the complaint asserts a claim for declaratory

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relief that is premised on a violation of the Real Estate Settlement Procedures Act

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(“RESPA”), 12 U.S.C. §§1601, et seq. [Doc. No. 1 at 3, ¶9.]

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18cv1111-CAB-JLB

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A review of the complaint shows there is no federal question jurisdiction in this

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case. All of the causes of action are state law claims. While the claim for declaratory

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relief does mention Defendants allegedly failing to comply with RESPA, it does not seek

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RESPA remedies. Rather, Plaintiffs seek a declaration that Defendant SPS had no right

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to conduct the Trustee’s sale for many reasons, including violating RESPA. But Plaintiffs

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do not seek the statutory damages available under RESPA. See 12 U.S.C. §2605(f)(1).

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Thus, the reference to RESPA in the complaint is incidental and cannot be the basis for

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removal. See Rains v. Criterion Systems, Inc., 80 F.3d 339, 343-344 (9th Cir.

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1996)(although a federal statute was referred to in the complaint, the claim sued under

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did not “arise under” the federal statute; it arose under state law); Berg v. Leason, 32

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F.3d 422, 425-426 (9th Cir. 1994)(incidental federal issues are insufficient for removal).

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Because Plaintiffs do not assert any federal claims and there are no allegations of

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diversity between Defendants and Plaintiffs, the Court lacks subject matter jurisdiction

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over Plaintiffs’ complaint. Accordingly, the case is sua sponte REMANDED to state

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court.

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IT IS SO ORDERED.
Dated: June 4, 2018

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18cv1111-CAB-JLB