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Julia M. Carlon, Christine M. Carlon v. Taylor

August 4, 2011

JULIA M. CARLON, CHRISTINE M. CARLON, PLAINTIFFS,
v.
TAYLOR, BEAN & WHITAKER MORTGAGE COMPANY, CENTRAL LOAN ADMINISTRATION, OCWEN LOAN SERVICE, LLC, AND DOES 1 THROUGH 100, DEFENDANTS.



REMAND ORDER AND REPORTING

This matter comes before the Court on Defendants Central Loan Administration and Reporting ("CENLAR") and OCWEN Loan Servicing, LLC's ("OCWEN") (collectively "Defendants") Motion to Dismiss (Doc. #5) Plaintiffs Julia Carlon and Christine Carlon's (collectively "Plaintiffs") Complaint (Doc. #1, Exhibit A) pursuant to Federal Rule of Civil Procedure 12(b)(6). Also before the Court is Defendants' Motion to Expunge the Recorded Lis Pendens (Doc. #6), which includes a request for an award of attorneys' fees and costs pursuant to California Code of Civil Procedure section 405.38.

Plaintiffs oppose both motions (Docs. #10, 11).*fn1 For the reasons 2 set forth below, Plaintiffs fail to state a claim for relief under 3 Federal Law, depriving this Court of original jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of a residential mortgage taken out on Plaintiffs' property, located at 4329 Figwood Way in Sacramento, California. See Plaintiff's Complaint, Doc. #1, Exhibit A ("Comp.") at ¶ 2. During 2009 and 2010, Defendants CENLAR and OCWEN began servicing Plaintiffs' loan, which was originated by non-moving Defendant Taylor, Bean & Whitaker Mortgage Corporation, after Taylor Bean & Whitaker Mortgage Corporation suddenly rejected one of Plaintiffs' mortgage payments. Id. at ¶¶ 2-8, 13-16. Plaintiffs were unable to contact Defendant CENLAR after it began servicing their loan, and therefore did not make loan payments between August 2009 and January 2010 because they did not know where to send their money. Id. at ¶¶ 13-20. When Plaintiffs received a statement of the amount in arrears on their loan, they were unable to pay the total. Id. at ¶¶ 20-21. Plaintiffs unsuccessfully attempted to negotiate a modification of the obligation with Defendant OCWEN, which lead to the filing of this case. Id. at 20-26.

Defendants properly removed this case pursuant to 28 U.S.C. section 1441, as Plaintiffs pled a cause of action in their complaint under a federal statute, 12 U.S.C. section 2601. Doc. 2 #1.*fn2 3 4

II. OPINION

A. Legal Standard

1. Federal Rule of Civil Procedure 12(b)(6)

A party may move to dismiss an action for failure to state a 8 claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a).

"Dismissal with prejudice and without leave to amend is not 2 appropriate unless it is clear . . . that the complaint could not 3 be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 4 316 F.3d 1048, 1052 (9th Cir. 2003).

2. Jurisdiction

It is well settled that a court "ha[s] an independent 7 obligation to address sua sponte whether [it] has subject-matter 8 jurisdiction." See, e.g., Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999).

Pursuant to 28 U.S.C. section 1441, "a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). When a district court has original jurisdiction over a claim, it "shall have supplemental jurisdiction over all other claims that are so related to claims in the action . . . that they form part of the same case or controversy . . . ." 28 U.S.C. ยง 1367(a). However, a court has discretion to "decline to exercise supplemental jurisdiction over a claim [] if: . . . (3) the district court has dismissed all claims over which it has original ...


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