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Bank of New York as Trustee for the Certificate Holders Cwalt, Inc. v. Chang

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


June 8, 2009

THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC2 PLAINTIFF,
v.
LILLIAN L. CHANG AND DOES 1 THROUGH X, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Honorable Manuel L. Real United States District Court, Judge

ORDER ON MOTION FOR ORDER REMANDING CASE TO STATE COURT, FILED BY PLAINTIFF BANK OF NEW YORK

(28 U.S.C. §§ 1441(a), 1446(b), 1447(c))

Assigned: Hon. Manuel L. Real, Court Room 8

Date: June 1, 2009 Time: 10:00 a.m. Ctrm: 8

This matter having come before the Court upon the motion of Plaintiff THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC2

(hereinafter, "BONY") for an Order remanding this matter to state court, and good cause therefore having been shown,

NOW, THEREFORE, it is ordered that this matter be remanded to the Los Angeles County Superior Court, East District -- West Covina, as Case No. 09U00033, entitled CHANG and DOES I through X, Inclusive on the grounds that this court lacks subject matter jurisdiction over this matter, as the case could not have been filed originally in Federal court (i.e., on diversity or Federal question grounds) for the following reasons:

1. Diversity jurisdiction does not exist because the matter in controversy does not exceed $75,000, exclusive of interest and costs, and the parties are not diverse. The Complaint contains a single claim for possession of residential real property under California Code of Civil Procedure § 1161a.

BONY admits that the maximum damages that could be awarded on this claim do not exceed $75,000;

2. Federal subject matter jurisdiction does not exist because the Unlawful Detainer Complaint does not present a claim or right arising under the Constitution, treaties, or laws of the United States.

The Complaint contains a single claim for possession of residential real property under California Code of Civil Procedure § 1161a. This claim is grounded solely in the statutes of the State of California.

IT IS FURTHER ORDERED that this case be remanded on the basis that the removal was filed untimely and in violation of 28 U.S.C. § 1446(b), in that it was not filed within 30 days after receipt by the defendant of a copy of the initial pleading which defendant is seeking to remove to this Court.

IT IS FURTHER ORDERED that Defendant, LILLIAN L. CHANG, pay attorneys' fees and costs to Plaintiff BONY to reimburse BONY for all attorneys' fees and costs incurred in preparing, filing, and subsequently appearing at the June 1, 2009 hearing on the within Motion for Order Remanding Case to State Court, as well as all attorneys' fees and costs that BONY incurred in preparing and filing their original Ex Parte Motion for Order Remanding Case to State Court, which was granted by this Court on March 13, 2009; for the two improper removals of this state court action filed by Defendant LILLIAN L. CHANG, in the total amount of $3,855.00 in attorneys' fees. The fees and costs to be paid by Defendant, LILLIAN L. CHANG, are itemized as follows:

1. Original Ex Parte Motion for Order Remanding Case to State Court:

11 Hours at $150.00/hour, total $1,650.00;

2. Second Motion for Order Remanding Case to State Court 14.7 Hours at $150.00/hour, total $2,205.00.

Combined Total: $3,855.00.

IT IS FURTHER ORDERED that Plaintiff BONY provide notice to Defendant of the within

Orders issued by this Court at the June 1, 2009 hearing on Plaintiff BONY's Motion for Order

Remanding Case to State Court.

20090608

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