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Lopez v. Federal National Mortgage Association

October 23, 2010

DANIEL LOPEZ PLAINTIFF,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS AND REMAND THE MATTER TO KERN COUNTY SUPERIOR COURT (Docs. 1, 3)

Daniel Lopez is seeking to remove an action from the Kern County Superior Court based upon his claim that the Federal National Mortgage Association is a foreign corporation and, based thereon, claims that, in fact, the United States of America is the real party in interest. (Doc. 1) Currently before the Court is Plaintiff's motion to proceed in forma pauperis ("IFP"). (Doc. 3)

I. The Motion to Proceed in Forma Pauperis is Recommended to be Denied Because the Matter is Frivolous, is Filed for Purposes of Harassment and Fails to State a Claim

On October 19, 2010, Lopez filed an application to proceed in IFP pursuant to 28 U.S.C. § 1915. (Doc. 3) Under 28 USC § 1915(e)(2), the Court is obligated to deny the motion to proceed IFP if the allegation of poverty is untrue or the action is frivolous or malicious, it fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune. For the reasons set forth below, the Court recommends that the motions to proceed IFP be DENIED and the action be REMANDED to the Kern County Superior Court.

A. Background

On May 24, 2010, Lopez and Rita Lopez*fn1 were sued in Kern County Superior Court in case number S-1500-CL-249339 for unlawful detainer.*fn2 The underlying state court complaint, attached to Lopez's filing as Exhibit 1, details that on March 16, 2010, the Federal National Mortgage Association foreclosed on the property where Lopez and Rita Lopez lived. (Doc. 1, Exhibit 1) Although the Lopezs were served with notices to quit the property, they failed to do so. Id. In the unlawful detainer action, Federal National Mortgage Association sought to have the Lopezs evicted from the property and to receive an award of $50 per day rental value. Id.

The Lopezs were served on May 25, 2010--Daniel Lopez was served via substituted service to Rita Lopez-- although proof of service was not filed until July 20, 2010. The Lopezs filed demurrer to the complain which were denied on July 6, 2010. They filed their answer to the complaint on July 12, 2010. The court set the matter for trial to occur on October 20, 2010. The day before the trial was to commence, on October 19, 2010, Lopez filed his notice of removal to this Court.

B. The Current Matter

Lopez purports to file a motion to remove the state court action based upon diversity of citizenship and because he contends that the United States of America is the real party in interest.*fn3 Lopez asserts that the Court has original jurisdiction in this matter under 28 USC §§ 1346 and 2410. (Doc. 1 at 4) Toward this end, Lopez asserts that the Federal National Mortgage Association is a foreign corporation. He provides no evidence to this effect but, on this basis, he claims that the United States is the real party in interest.*fn4 Id. Finally, Lopez fails to provide any evidence that his co-defendant, Rita Lopez, joins in the removal.

C. The Matter was not Timely Removed

Under 28 U.S.C. § 1446(b) provides,

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable , except that a case may not be removed on the basis of jurisdiction conferred ...


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