Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jose Bazan v. U.S. Bancorp As Successor In Interest To Downey Savings and Loan

February 14, 2011

JOSE BAZAN
PLAINTIFF,
v.
U.S. BANCORP AS SUCCESSOR IN INTEREST TO DOWNEY SAVINGS AND LOAN ASSOCIATION AND DOES 1 THROUGH 50, INCLUSIVE,
DEFENDANTS



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER REMANDING CASE

Plaintiff Jose Bazan filed the instant action in the Santa Clara County Superior Court, alleging five state-law claims for relief. Defendant removed the action to federal court and 20 subsequently moved to dismiss Plaintiff's Complaint. In reviewing the pleadings, the Court 21 became concerned that it lacked subject matter jurisdiction over the removed action. The Court 22 therefore ordered Defendant to show cause why the case should not be remanded. Defendant's 23 motion is fully briefed, and both parties have responded to the Order to Show Cause. Pursuant to Civil Local Rule 7-1(b), the Court finds that these matters are appropriate for determination 25 without oral argument and vacates the motion hearing and case management conference scheduled 26 for February 17, 2011. Having considered the submissions of the parties and the relevant law, the Court finds that it lacks removal jurisdiction and remands the action to state court. The Court 28 therefore does not reach the merits of Defendant's motion to dismiss.

I.Background

This action arises out of a residential mortgage transaction in which Downey Savings and Loan Association, U.S. Bank's predecessor in interest, allegedly failed to make material 4 disclosures and provided Plaintiff with a loan he could not actually afford. On or about August 16, 2006, Plaintiff Jose Bazan refinanced an existing mortgage with the assistance of Eduardo Huerta, 6 a broker employed by United Trust Mortgage Company. Compl. ¶ 18. At the time, Plaintiff's loan 7 balance was $315,000 and had an interest rate of 9.8 percent. Id. Plaintiff sought to refinance in 8 order to lower his interest rate and obtain funds to pay off other creditors and to pay for a 9 remodeling project. Id. Plaintiff provided his financial information to Defendant and was told that 10 he would be able to refinance his loan. Compl. ¶¶ 18-19.

6.375% interest rate on the refinance would be fixed only for five years. Compl. ¶ 22. Defendant 14 allegedly told Plaintiff not to worry about the adjustable rate, as he would be able to refinance the 15 loan after five years without a problem. Id. Plaintiff alleges that he was told this was the best loan Plaintiff also claims that Defendant failed to disclose that the loan included an interest-only 18 payment and that escrow fees were not included in the loan. Compl. ¶¶ 24-25. At some point, Defendant multiple times to attempt to work out a loan that he could actually afford, Plaintiff 21 claims that Defendant has been unwilling to provide assistance. Id.

Law, Cal. Bus. & Profs. Code § 17200; (2) fraudulent omission; (3) injunctive relief; (4) breach of 25 the covenant of good faith and fair dealing; and (5) rescission pursuant to California Civil Code § 1688. Defendant removed the action to federal court on July 26, 2010, on the basis of federal 27 question jurisdiction under 28 U.S.C. § 1331. Notice of Removal at 2, ECF No. 1. Although 28

Plaintiff requested a 30-year fixed rate loan wi

th an interest rate under 6 percent. Compl.

¶¶ 20, 22. When it came time to sign the loan documents, however, Plaintiff realized that the Defendant could offer him, and he had no choice but to sign the loan documents. Compl. ¶ 23.

Plaintiff became unable to afford his monthly payments. Compl. ¶ 26. Although he contacted

On June 23, 2010, Plaintiff filed the instant action in the Santa Clara County Superior Court, alleging five state-law claims for relief: (1) violations of the California Unfair Competition

Plaintiff's Complaint contains only state-law claims, Defendant argued that these claims were artfully pled to disguise a federal cause of action. The Notice of Removal states that the factual 2 allegations for each of Plaintiff's claims necessarily depend on a violation of the federal Truth in 3

Notice of Removal states that Plaintiff's claims for breach of the covenant of good faith and fair 5 dealing and for rescission under California Civil Code § 1688 turn on violations of the federal Removal ¶¶ 5-6. Defendant thus argues that under the "well-pleaded complaint" rule, these claims 8 arise under federal law and establish federal question jurisdiction.

865 (9th Cir. 2000). In the case of a removed action, if it appears at any time before final judgment 13 that the court lacks subject matter jurisdiction, the court must remand the action to state court. 28 U.S.C. § 1447(c). "The removal statute is strictly construed, and any doubt about the right of 15 removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Because 17 of the "strong presumption" against removal jurisdiction, the defendant bears the burden of 18 establishing the facts to support jurisdiction. Gaus, 980 F.2d at 566-67.

complaint rule," which provides that "federal jurisdiction exists only when a federal question is 23 presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). This rule makes the plaintiff the master of his complaint and permits 25 him to avoid federal jurisdiction by relying exclusively on state law. Id. Ordinarily, therefore, 26 federal question jurisdiction is determined from the face of the plaintiff's complaint. Easton v. Crossland Mortg. Corp., 114 F.3d 979, 982 (9th Cir. 1997).

Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. Notice of Removal ¶¶ 3-4. More specifically, the Truth in Lending Act ("TILA") and are artfully pled to disguise their federal character. Notice of 7

II.Legal Standard

As the Court noted in its prior Order to Show Cause, ECF No. 17, every federal court has an independent obligation to examine its own ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.