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London O. Wright v. Saxon Mortgage Services

February 9, 2011

LONDON O. WRIGHT,
PLAINTIFF,
v.
SAXON MORTGAGE SERVICES, INC., ET 10 AL., DKT. 19 DEFENDANTS.



The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND AND COSTS DENYING REQUEST FOR FEES

Plaintiff filed the instant mortgage fraud action in Alameda County Superior Court on April 16, 2010. On August 2, 2010, Defendant The Bank of New York Mellon ("Defendant") 14 removed this action under 28 U.S.C. § 1441, asserting federal question jurisdiction under U.S.C. § 1331. The parties are presently before the Court on Plaintiff's motion to remand and 16 request for an award of attorney's fees and costs. Dkt. 19. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS Plaintiff's motion to remand and DENIES his request for fees and costs. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

I.BACKGROUND

alleging the following causes of action: (1) constructive fraud, deceit, false promise, and 24 concealment under California Civil Code § 1709 et seq.; (2) breach of fiduciary duty; (3) 25 breach of contract; (4) breach of the implied covenant of good faith and fair dealing, and 26 tortious interference with contractual dealings; (5) negligence; (6) violation of the California Rosenthal Fair Debt Collections Practices Act, California Civil Code § 1788 et seq.; (7)

On April 16, 2010, Plaintiff filed the instant action in Alameda County Superior Court, violation of California Business and Professions Code § 17200 et seq.; and (8) wrongful 2 foreclosure. See Compl. Plaintiff's claims arise from the Defendants' involvement in an 3 allegedly fraudulent residential mortgage transaction pertaining to Plaintiff's property located in Oakland, California. Id.

On August 2, 2010, Defendant removed the action to this Court under 28 U.S.C. § 1441.

Defendant alleges that Plaintiff's first cause of action -- constructive fraud, deceit, false promise, and concealment under California Civil Code § 1709 et seq. -- is "labeled as a purported state law claim," however, "it is actually a disguised Truth In Lending Act ('TILA') 9 claim" because it "is based entirely on alleged conduct constituting violations of TILA."

Notice of Removal ¶¶ 11,12. Defendant further asserts that Plaintiff's sixth cause of action 11 alleging violation of the California Rosenthal Fair Debt Collections Practices Act ("RFDCPA")

(California Civil Code § 1788 et seq.) raises questions of federal law because it "refer[s] to 13 alleged subsections and violations of 15 U.S.C. § 1692, including 15 U.SC. § 1692(f)(6), U.S.C. § 1692(k), and 15 U.S.C. § 1692(k)(a)(2)(A)." Id. ¶ 14. Now, Plaintiff has moved to 15 remand this action, asserting that removal was improper. Plaintiff also seeks attorney's fees 16 and costs.

II.LEGAL STANDARD

19 ordered either for lack of subject matter jurisdiction or for a defect in removal procedure. See 28 U.S.C. § 1447(c). "[R]emoval statutes are strictly construed against removal." Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). "The 22 presumption against removal means that the defendant always has the burden of establishing 23 that removal is proper." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). As such, any doubts regarding the propriety of the removal favor remanding the case.

See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

A motion for remand is the proper procedure for challenging removal. Remand may be a State court of which the district courts of the United States have original jurisdiction, may be 6 removed by the defendant or the defendants, to the district court of the United States for the 7 district and division ...


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