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Deutsche Bank National Trust Company As Trustee For Downey 2006-Ar1 v. Linda F. Poda

July 9, 2012

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR DOWNEY 2006-AR1,
PLAINTIFF,
v.
LINDA F. PODA,
DEFENDANT.



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

ORDER GRANTING MOTION TO REMAND

Defendant Linda Poda ("Defendant" or "Poda"), proceeding pro se, filed a notice of removal of a Santa Clara County Superior Court unlawful detainer action to this Court. See ECF No. 1. Deutsche Bank National Trust Company As Trustee For Downey 2006-AR1 ("Plaintiff") 20 has moved to remand the case to state court. ECF No. 11. Defendant did not file an opposition to 21 Plaintiff's motion to remand. The deadline to file an opposition has passed. Thus, Plaintiff's 22 motion to remand is unopposed. See Civil L.R. 7-3(a). Pursuant to Civil Local Rule 7-1(b), the 23 Court finds that Plaintiff's motion is suitable for decision without oral argument. Accordingly, the 24 motion hearing and case management conference set for September 27, 2012 are VACATED. 25 Having reviewed the state court complaint and the relevant law, the Court determines the 26 complaint was improperly removed from state court. Accordingly, the case is REMANDED to 27 state court. 28 located at 2068 Swensen Ct., San Jose, CA 95131 (the "Property"). See Complaint ("Compl.") ¶ 4 1, ECF No. 1. Plaintiff is the owner of the Property having purchased the premises at a trustee's 5 sale on January 28, 2011. Id. ¶ 4. On August 15, 2011, Plaintiff filed an unlawful detainer action 6 in Santa Clara County Superior Court against Plaintiff, based on a failure to comply with a 90-day 7

I.BACKGROUND

This action arises from Plaintiff's efforts to evict Defendant from residential property Written Notice to Vacate, which expired May 9, 2011. Id. ¶¶ 6-8. Plaintiff's attempts to obtain 8 possession of the Property after filing the unlawful detainer action have consistently been thwarted 9 by Plaintiff. 10

On October 19, 2011, Plaintiff filed her first Chapter 13 bankruptcy petition in the Northern District of California. See Case No. 11-bk-59685.

The petition was dismissed on November 29, 2011. See id. On January 18, 2012, after the bankruptcy petition was dismissed, the unlawful 13 detainer action proceeded to trial in state court. According to Plaintiff, after the trial, the California 14 Superior Court granted judgment in favor of Plaintiff and against Defendant, but before Plaintiff 15 could execute the writ of possession for the Property, Defendant filed another petition for 16 bankruptcy. See Mot. to Remand at 2. This second Chapter 13 bankruptcy was filed on February 17 Plaintiff filed her third Chapter 13 bankruptcy petition on April 2, 2012. See Case No. 12- 19 bk-52503. Judge Johnson, the Bankruptcy Judge presiding over the third bankruptcy petition, 20 dismissed the petition on May 21, 2012. In addition, Judge Johnson barred Poda from filing any 21 bankruptcy petition in the Northern District of California without prior court approval. See ECF 22

On March 5, 2012, before filing her third bankruptcy petition, Poda removed the unlawful 24 detainer action from state to federal court. See ECF No. 1. The matter was originally assigned to 25 Magistrate Judge Paul S. Grewal and was reassigned to the undersigned judge on March 19, 2012.

See ECF Nos. 8. 27

15, 2012, and dismissed on March 19, 2012. See ECF No. 14, Case No. 12-bk-51154. 18 No. 21, Case No. 12-bk-52503. 23

II.DISCUSSION

district courts of the United States have original jurisdiction, may be removed by the defendant." 3

In the case of a removed action, if it appears at any time before final judgment that the court lacks 4 subject matter jurisdiction, the court must remand the action to state court.*fn1 28 U.S.C. § 1447(c). 5

The removing defendant bears the burden of establishing that removal is proper. See Provincial 6

Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Defendant 7 alleges, as the basis for removal, that this court has subject matter jurisdiction based both on federal 8 question jurisdiction under 28 U.S.C. ยง ...


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