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Title: Francisco Lopez et al. v. Fv-I

December 29, 2011

TITLE: FRANCISCO LOPEZ ET AL.
v.
FV-I, INC., ET AL.



CIVIL MINUTES - GENERAL

DOCKET ENTRY

[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]

Date:____________ Deputy Clerk:

THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING MOTION TO REMAND

Before the Court is a Motion to Remand ("Motion to Remand") filed by Plaintiffs Francisco Lopez and Socorro Lopez ("Plaintiffs"). (Docket 10). Also before the Court is a Motion to Dismiss filed by Defendants Morgan Stanley Capital Holdings, LLC and Saxon Mortgage Services, Inc. ("Defendants"). (Docket 5). The Court finds the matters appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby GRANTS the Motion to Remand. Consequently, the Court DENIES as MOOT the Motion to Dismiss.

I. BACKGROUND

Plaintiffs allege that Defendants wrongfully sold Plaintiffs' home in a non-judicial foreclosure sale on March 11, 2011. Motion to Remand, 3. Plaintiffs assert breach of contract and promissory estoppel claims based on the alleged breach of a modified stipulation agreement regarding Plaintiffs' mortgage payments, as well as statutory causes of action under California Civil Code § 2923.5, and California Civil Code § 2932.5. Defendants removed the present case to this Court on October 12, 2011 alleging diversity jurisdiction (Docket 1). Plaintiffs now seek to remand.

II. LEGAL STANDARD

Remand may be ordered for lack of subject matter jurisdiction or any defect in the removal procedure. 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). A federal court has jurisdiction if: (1) the controversy is between "citizens of different States"; and (2) the amount in controversy exceeds the sum or value of $75,000. 28 U.S.C. § 1332. Because the Court concludes that Defendants have failed to show that the joinder of a diversity-destroying Defendant was improper, the Court does not reach the issue of the amount in controversy.

There is a "general presumption" that joinder of a non-diverse defendant is not fraudulent, that is, there is a general presumption that a plaintiff's ...


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