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Judith Reimann and Michael Daronco v. Erica L. Brachfeld

December 13, 2010

JUDITH REIMANN AND MICHAEL DARONCO,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
ERICA L. BRACHFELD, THE BRACHFELD LAW GROUP, P.C., MIDLAND FUNGING LLC,
MIDLAND CREDIT MANAGEMENT, LLC, AND
MIDLAND FUNDING NCC-2 CORP., AND DOES 1-100, INCLUSIVE, 17 DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

*E-Filed 12/13/10*

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO REMAND AND DENYING MOTIONS FOR JUDGMENT ON THE PLEADINGS AS MOOT

I. INTRODUCTION

Plaintiffs Judith Reimann and Michael DaRonco filed this class action suit in Alameda County Superior Court for alleged violations of California's Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") and California's Unfair Competition Law ("UCL"). Plaintiffs contend that defendants Erica L. Brachfeld and The Brachfeld Law Group ("BLG") engaged in illegal debt collection practices on behalf of defendants Midland Funding, Midland Credit Management, and Midland Funding NCC-2 (collectively "Midland"). Defendants removed the case 27 to this Court, claiming that plaintiffs' claims raise substantial issues of federal law involving 28 interpretation of the Fair Debt Collection Practices Act ("FDCPA"). Plaintiffs dispute defendants' characterization of their state law claims and move to remand the case to state court based on lack of 2 subject matter jurisdiction. Additionally, defendants filed two motions for judgment on the 3 pleadings, one by Brachfeld and BLG and a second by the Midland defendants. Pursuant to Civil Local Rule 7-1(b), the motions are suitable for disposition without oral argument. For the reasons 5 stated below, plaintiffs' motion to remand is granted and the motions for judgment on the pleadings 6 are denied as moot.

Midland Funding sued Reimann and Midland Funding NCC-2 sued DaRonco to collect alleged debts owed on defaulted credit card accounts that the Midland defendants acquired.

Midland Funding in Alameda Superior Court without prior meaningful attorney involvement. After she retained counsel who made an appearance in the case, BLG dismissed the collection action.

Superior Court without prior meaningful attorney involvement. He maintains he was never served 15 and was unaware of the suit until after Midland Funding NCC-2 obtained a default judgment. He 16 also alleges that the request for default judgment was accompanied by an affidavit containing false 17 assertions, including that the affiant, an agent of Midland, had personal knowledge of the account at 18 issue. Based on these allegations, plaintiffs assert that all defendants except Brachfeld violated the Rosenthal Act and all defendants violated the UCL. Their Rosenthal Act claim relies, at least in 20 part, on California Civil Code section 1788.17, which incorporates the prohibitions and remedies of 21 the FDCPA including 15 U.S.C. sections 1692e, 1692f, and 1692k.

A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a).

Accordingly, removal jurisdiction exists where a case filed in state court presents a federal question or involves diversity of citizenship and meets the statutory amount in controversy. See 28 U.S.C. §§ 1331, 1332. Courts strictly construe the removal statute against finding jurisdiction and the 28 defendant bears the burden of establishing the basis for removal. Provincial Gov't of Marinduque v.

II. BACKGROUND

Reimann contends that BLG sent collection letters ("dunning" letters) and filed suit on behalf of DaRonco also claims that BLG filed suit on behalf of Midland Funding NCC-2 in El Dorado

III. LEGAL STANDARD

Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (citations omitted). Where doubt exists 2 regarding the right to remove an action, it should be ...


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