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Sam Louis Latino v. Wells Fargo Bank

October 14, 2011

SAM LOUIS LATINO,
PLAINTIFF,
v.
WELLS FARGO BANK, N.A., ALSO KNOWN AS
WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A., FORMERLY KNOWN AS WACHOVIA MORTGAGE, FSB, FORMERLY KNOWN AS WORLD SAVINGS BANK, FSB; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Sam Latino ("Plaintiff") originally brought this action in the Superior Court of the State of California, County of Sacramento, against Defendants Wells Fargo Bank, N.A. ("Wells Fargo"),*fn1 Cal-Western Reconveyance Corporation ("Cal-Western"), Golden West Savings Association Service Company ("Golden West") and Does 1-20 (collectively "Defendants").

Defendants Wells Fargo and Golden West ("Removing Defendants") timely removed the case to this Court. Presently before the Court are Plaintiff's Motion to Remand, Motion for Stay of all State Court Proceedings and Motion for Fees and Costs ("Plaintiff's Motion") and Removing Defendants' Motion to Dismiss and Motion to Strike ("Removing Defendants' Motions"). For the following reasons, Plaintiff's Motion is granted in part and denied in part, and Removing Defendants' Motions are denied.*fn2

BACKGROUND*fn3

On March 22, 2007, Plaintiff entered into a loan transaction with World Savings Bank ("World Savings"), now Wells Fargo, to purchase a residence in Sacramento, California (the "Property"). Plaintiff executed a promissory note (the "Note")in connection with the transaction, and World Savings took a security interest in the Property via a Deed of the Trust ("DOT"). Golden West was the original trustee on the DOT and Plaintiff was the trustor.

Plaintiff apparently defaulted on his loan, and, on July 16, 2010, Cal-Western, the substituted trustee, recorded a Notice of Default ("NOD"). On approximately October 19, 2010, Cal-Western recorded a Notice of Trustee's Sale ("NOTS"). Cal-Western eventually held a Trustee's Sale on March 21, 2011, at which time Wells Fargo purchased the property.

On approximately April 11, 2011, Wells Fargo initiated an unlawful detainer action against Plaintiff in the Sacramento County Superior Court.*fn4 Subsequently, on July 26, 2011, Plaintiff filed the instant action in Sacramento County Superior Court against Defendants alleging causes of action for: 1) fraud; 2) intentional misrepresentation; 3) negligent misrepresentation; 4) concealment; 5) violation of California Business and Professions Code § 17200; 6) unjust enrichment; 7) quiet title; 8) declaratory relief; 9) violation of California Civil Code § 2932.5; 10) breach of fiduciary duty; and 11) breach of the implied covenant of good faith and fair dealing. Pursuant to his Complaint, Plaintiff primarily contends that he is a victim of Defendants' predatory lending practices and that Defendants lack standing to foreclose on the Property. According to Plaintiff, Defendants are not the holders of the underlying Note and thus have no right to initiate foreclosure proceedings of any kind.

In addition, at various points throughout the Complaint, Plaintiff alleges that, in conducting the non-judicial foreclosure sale of the subject property, Defendants failed to comply with state statutory requirements. See, e.g., Complaint, ¶ 159 (alleging, among other things, Defendants violated California Civil Code § 2923.5). Plaintiff contends, for example, that a number of relevant documents, including the NOD and NOTS, were defective or signed by unauthorized parties. Plaintiff seeks, among other things: 1) to quiet title to the Property in Plaintiff; and 2) to recover compensatory and punitive damages and fees and costs.

On August 1, 2011, Wells Fargo and Golden West removed Plaintiff's state action to this Court pursuant to 28 U.S.C. § 1332. Plaintiff subsequently moved to remand, arguing that Plaintiff and each Defendant are citizens of California and that no diversity thus exists. Plaintiff further seeks to stay the state court unlawful detainer proceedings and to recover attorney's fees and costs incurred in bringing this Motion. Since Plaintiff filed his Motion, Removing Defendants have filed their own Motion to Dismiss and Motion to Strike. For the following reasons, Plaintiff's Motion is granted in part and denied in part, and Removing Defendants' Motions are denied.

STANDARD

A defendant may remove any civil action from state court to federal district court if the district court has "original jurisdiction" over the matter. 28 U.S.C. § 1441(a).

Generally, district courts have original jurisdiction over civil actions in two instances: (1) where there is complete diversity between the parties and the amount in controversy exceeds $75,000; or (2) where a federal question is presented in an action arising under the Constitution, federal law, or treaty.

28 U.S.C. §§ 1331 and 1332.

Courts construe the removal statute strictly against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). Therefore, if there is any doubt as to the right of removal in the first instance, remand must be granted. See id. Furthermore, "[i]f at any time before final judgment it appears that the district court ...


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