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Rawak-German v. Countrywide Bank

February 16, 2010

GRAHAM RAWAK-GERMAN, PLAINTIFF,
v.
COUNTRYWIDE BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion to Strike filed by Defendants Bank of America and Recontrust Company (Doc. # 5), the Motion to Dismiss filed by Defendants Bank of America and Recontrust Company (Doc. # 6), and the Motion to Remand to State Court filed by Plaintiff (Doc. # 7).

BACKGROUND

This action concerns Plaintiff's mortgage. Plaintiff initiated this action by filing a complaint in the Superior Court of the State of California for the County of San Diego on September 17, 2009. (Doc. # 1 at 2). Defendants removed the case to this Court on October 26, 2009. Id. On November 2, 2009, Defendants Bank of America, successor in interest to Countrywide Bank, and Recontrust Company filed their Motion to Strike (Doc. # 5) and their Motion to Dismiss (Doc. # 6). On November 19, 2009, Plaintiff filed her Motion to Remand to State Court (Doc. # 7).

The complaint alleges six state law claims and one federal claim against Defendants.

(Doc. # 1 at 7). Plaintiff's state law claims are: (1) declaratory relief that Plaintiff owns the property; (2) reformation of the contract due to fraud; (3) quiet title; (4) unfair competition in violation of California Business and Professions Code § 17200; (5) fraud in violation of California Civil Code § 1572; and (6) injunctive relief preventing foreclosure on the home. Plaintiff's seventh claim, her sole federal claim, is for violation of the Truth In Lending Act ("TILA").

ANALYSIS

I. Motion to Remand

Plaintiff contends that this Court should remand the entire case, including the federal claim, to state court pursuant to 28 U.S.C. § 1441(c) because "state law predominates on this matter." (Doc. # 7-2 at 2-3). Plaintiff contends that this Court should abstain from exercising jurisdiction pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943), because federal adjudication would interfere with state interests. (Doc. # 7 at 2). Plaintiff contends that this Court should abstain under the Rooker-Feldman doctrine because a state judge issued a temporary restraining order in the state court action prior to removal. (Doc. # 7-2at 3). Plaintiff contends that this Court should abstain under the Younger doctrine because it interferes with an ongoing state court case. Id. at 4. Plaintiff contends that this court should abstain pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), because this case results in duplicative litigation in state and federal court. Id. at 5. Finally, Plaintiff contends that this Court should defer to Plaintiff's choice of forum. Id. at 5-6.

Defendants contend that several of Plaintiff's state law claims are dependent on the alleged violation of TILA and that, in any event, this Court has jurisdiction where the complaint contains even a single federal claim. (Doc. # 11 at 6). Defendants contend that the complaint contains no difficult questions of state law, so the Court should not remand even the state law claims. Id. at 7. Defendants contend that a temporary restraining order is not an adverse state court judgment requiring abstention under Rooker-Feldman doctrine. Id. at 6-7. Defendants contend that there is no ongoing state court proceeding because the case was removed to federal court, so the Younger doctrine is inapplicable, as is the Colorado River doctrine. Id. at 8. Finally, Defendants contend that Plaintiff's forum arguments are a misunderstanding of forum non conveniens, which is not at issue in this case. Id. at 8-9. Defendants contend that Plaintiff cannot argue forum non conveniens because she filed her action in San Diego County Court and is now in federal district court in San Diego. Id.

Plaintiff's contention that the entire action, including the TILA claim, could be remanded because state law claims predominate is not supported by 28 U.S.C. §1441(c). The Court is not entitled to decline jurisdiction over Plaintiff's TILA claim on the grounds that there are more state law claims than federal law claims. None of the abstention doctrines Plaintiff cited are applicable to this case. Plaintiff has not identified any difficult issues of state law which would mitigate in favor of remanding her state law claims while retaining jurisdiction over her TILA claim. A temporary restraining order is not a judgment that requires abstention pursuant to Rooker-Feldman. When the case was removed, the state court proceedings were terminated, so there is no reason to abstain pursuant to Younger or Colorado River. Respecting a plaintiff's choice of forum does not permit a court to remand a properly removed action. Plaintiff's Motion to Remand is denied.

II. Motion to Dismiss

A. Federal Claim

In her seventh cause of action for violation of TILA, Plaintiff alleges the Notice of Right to Cancel disclosure was defective pursuant to 15 U.S.C. ยง 1635. (Doc. # 1, Ex. A at 14). Plaintiff alleges the Notice incorrectly states that Plaintiff had the right to cancel before May 22, 2007, when in fact the correct date was May 25, 2007. Id. Plaintiff alleges Defendants also failed to "disclose properly and accurately the number, amount, and due dates or period of payments scheduled to repay the obligation" in violation of TILA. Id. Plaintiff alleges Defendants engaged in a pattern or practice of mortgage lending without regard to the borrower's ability to pay. Id. at 14-15. Plaintiff alleges she is "willing and/or able to tender the loan proceeds either by a ...


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