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Everbank, Successor By Merger To Everhome Mortgage Company v. Rosan Wissa

May 1, 2012

EVERBANK, SUCCESSOR BY MERGER TO EVERHOME MORTGAGE COMPANY, PLAINTIFF,
v.
ROSAN WISSA, AN INDIVIDUAL, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of Sacramento ("Superior Court") (Dkt. No. 4).*fn1 Defendant failed to file an opposition to plaintiff's motion to remand.

Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the moving papers and record in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court on the grounds that this court lacks federal subject matter jurisdiction over plaintiff's unlawful detainer claim.

I. BACKGROUND

On January 30, 2012, plaintiff filed a complaint in the Superior Court entitled "Verified Complaint For Unlawful Detainer [C.C.P. §§ 1161a(b)(3) and 1166] Against Occupants Holding Over After Non-judicial Sale Under Power of Sale In Deed of Trust" ("Complaint"). (Compl. at 1, attached to Notice of Removal.) The caption of the Complaint further states: "Limited Jurisdiction - Amount Demanded Up To $10,000." (Id.) Plaintiff filed its case seeking to recover possession of the subject residential property located in North Highlands, California. (Id. ¶ 1.)

The Complaint alleges that the California Housing Finance Agency purchased the subject property as the highest bidder at a trustee's sale following foreclosure proceedings,*fn2 and that the California Housing Finance Agency conveyed the property to plaintiff by a recorded Grant Deed*fn3 on August 25, 2011. (Compl. ¶¶ 7-8 & Exs. 1-2.) Plaintiff alleges that as a result of these transactions, "Plaintiff is the owner, and entitled to immediate possession of the Property." (Id. ¶ 9.)

Plaintiff alleges that it believes that defendant claims a "sub-tenancy interest in the property and are [sic] in possession of the premises." (Compl. ¶ 10.) Plaintiff alleges that it provided defendant with a notice to vacate the premises and deliver possession of the property within three days.*fn4 (See Compl. ¶ 12 & Ex. 3.) Plaintiff alleges that defendant failed to vacate and deliver possession after at least 60 days. (Id. ¶ 13.) Through this action, plaintiff seeks:

(1) possession of the subject property, and (2) costs. (Compl. at 4.)*fn5 Defendant removed this unlawful detainer action on March 23, 2012, pursuant to 28 U.S.C. § 1441, asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C § 1331. (Notice of Removal ¶¶ 5, 8-11, 14.) Specifically, defendant asserts that this court has federal question jurisdiction based on the "Protecting Tenants at Foreclosure Act, 12 USC 5220," and contends that plaintiff failed to provide her with a sufficient 90-day notice to quit as required by that legislation. (See Notice of Removal ¶¶ 6, 13.) Defendant's Notice of Removal does not assert that this court can exercise subject matter jurisdiction over plaintiff's unlawful detainer claim based on the diversity jurisdiction statute, 28 U.S.C. § 1332(a).

On April 2, 2012, plaintiff filed its motion to remand, arguing that defendant's removal was untimely and that this court lacks subject matter jurisdiction over its single unlawful detainer claim.*fn6 Defendant failed to oppose the motion to remand.

II. LEGAL STANDARDS

In relevant part, the federal removal statute provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . . .

28 U.S.C. § 1441(a). "The defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009), cert. denied, 131 S. Ct. 65 (2010). "The removal statute is strictly construed against removal jurisdiction," id., and removal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance" Geographic ...


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