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Aleem v. Bank of America

February 9, 2010

OZZIE ALEEM AND ROSE PEGUES, PLAINTIFFS,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION; COUNTRYWIDE HOME LOANS, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC; RECONTRUST COMPANY, N.A.; AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion to Remand filed on December 21, 2009; Motion to Dismiss filed on December 24, 2009]

ORDER (1) GRANTING MOTION TO DISMISS, IN PART; AND (2) GRANTING MOTION TO REMAND

The Court has received and considered all papers filed in support of, and opposition to, Plaintiffs Ozzie Aleem's and Rose Pegues's Motion to Remand Removed Action ("Motion to Remand") and Defendants Bank of America, Countrywide Home Loans, Inc., and Recontrust Company, N.A.'s Motion to Dismiss Plaintiffs' First Amended Complaint ("Motion to Dismiss"). The Motions are appropriate for resolution without a hearing. L.R. 7-15.

For the reasons set forth below, the Court: (1) GRANTS Defendants' Motion to Dismiss with prejudice as to Plaintiffs' federal claims, and (2) GRANTS Plaintiffs' Motion for Remand.

I. BACKGROUND

On August 24, 2009, Plaintiffs Ozzie Aleem and Rose Pegues (collectively, "Plaintiffs") filed a Complaint in California Superior Court, Riverside County against Defendants Bank of American National Association ("Bank of America"), Countrywide Home Loans, Inc. ("Countrywide"), Mortgage Electronic Registration Systems, Inc. ("MERS"), Recontrust Company, N.A. ("Recontrust"), and DOES 1 through 10. Plaintiffs alleged the following causes of action: (1) violations of Cal. Civ. Code §2923.5; (2) violations of Cal. Civ. Code §2923.53; (3) violations of Cal. Civ. Code §2926.6; (4) negligent servicing; (5) wrongful foreclosure; (6) breach of contract - third party beneficiary; (7) unfair debt collection practices; (8) violations of Cal. Bus. & Prof. Code §17200; (9) violations of Cal. Bus. & Prof. Code §17500; (10) cancellation of instrument; (11) quiet title; (12) breach of fiduciary duty; (13) unconscionability; (14) rescission in equity; (15) accounting; and (16) unjust enrichment/double dipping.

Defendants removed the action to this Court on September 25, 2009, on the basis of federal question jurisdiction. On December 7, 2009, Plaintiffs filed a First Amended Complaint ("FAC"), in which they removed MERS as a defendant and eliminated twelve causes of action. Plaintiffs' remaining four causes of action are as follows: (1) violations of Cal. Bus. & Prof. Code §17200; (2) violations of Cal. Bus. & Prof. Code §17500; (3) breach of fiduciary duty; and (4) unjust enrichment.

On December 21, 2009, Plaintiffs filed a Motion to Remand. On December 24, 2009, Defendants filed the Motion to Dismiss and Request for Judicial Notice ("Motion to Dismiss RJN"). On January 7, 2010, Defendants filed Opposition to the Motion to Remand ("Remand Opp'n") and Request for Judicial Notice ("Remand Opp'n RJN"). On January 11, 2010, Plaintiffs filed Opposition to the Motion to Dismiss ("MTD Opp'n"). On January 14, 2010, Defendants filed a Reply in support of the Motion to Dismiss ("MTD Reply"). On January 18, 2010, Plaintiffs filed a Reply in support of the Motion to Remand ("Remand Reply").

II. LEGAL STANDARDS

A. Removal

Removal jurisdiction is governed by statute. See 28 U.S.C. § 1441, et seq. The Ninth Circuit applies a strong presumption against removal jurisdiction, ensuring "the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992), citing Nishimoto v. FedermanBachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990); see also In re Ford Motor Co./Citibank (South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) ("The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.").

Removal is improper when the district court would not have original jurisdiction over the case. See 28 U.S.C. § 1441(a). A case shall be remanded when the court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c).

B. Motion to Dismiss

Rule 12(b)(6) allows a party to bring a motion to dismiss for failure to state a claim upon which relief can be granted. As a general matter, the Federal Rules require only that a plaintiff provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In addition, the Court must accept all material allegations in the complaint -- as well as any reasonable inferences to be drawn from ...


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