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Steven L. Wideman v. Bank of America

July 10, 2012

STEVEN L. WIDEMAN,
PLAINTIFF ,
v.
BANK OF AMERICA, N.A., AND QUALITY LOAN SERVICE CORP.,
DEFENDANTS.



ORDER ON DEFENDANT'S MOTION TO DISMISS (Doc. No. 14)

This case arises from a mortgage obtained by Plaintiff in 2007 on real property located in Turlock, California. The mortgage is currently in the foreclosure process. Plaintiff brings suit in this Court for fraud by concealment. Defendant Bank of America, N.A. ("BOA") moves to dismiss the Complaint under Rule 12(b)(6). Plaintiff filed no opposition or response to the motion to dismiss. For the reasons that follow, the Court will dismiss this case for an apparent lack of subject matter jurisdiction.

FACTUAL BACKGROUND

In February 2007, Plaintiff obtained a mortgage of approximately $417,000 for real property located in Turlock, California ("the Property"). See RJN Ex. A. *fn1 The mortgage was secured by a Deed of Trust. See id. On July 7, 2011, an assignment of the Deed of Trust was recorded. See RJN Ex. B. BOA was assigned the beneficial interest in the Deed of Trust. See id. In November 2011, a substitute of trustee was recorded. See RJN Ex. C. Defendant Quality Loan Service Corporation ("QLS") was substituted as the trustee for the Deed of Trust on the Property. See id.

At some point, Plaintiff appears to have fallen behind on his mortgage payments. On November 14, 2011, QLS recorded a Notice of Default in the amount of $18,887.44. See RJN Ex. D.

A Notice of Trustee Sale was recorded in February 2012. See RJN Ex. E. The Notice set a sale date of March 14, 2012. See id.

Plaintiff alleges that this matter was resolved by an electronic fund transfer on March 15, 2012. However, BOA did not credit his account for the amount of the transfer. Plaintiff has submitted copies of a check that identifies BOA as the payee and is made out for approximately $441,000.00. See Doc. No. 7. *fn2 On the back of the check, Plaintiff wrote: "Not For Deposit. For EFT Only. For Discharge of Debt. /s/ Steven L. Wideman. Authorized Representative Without Recourse." Id.

On April 6, 2012, Plaintiff filed a complaint in this Court. Plaintiff states that he is aggrieved by BOA's and QLS's fraudulent concealments. See Doc. No. 1. Plaintiff states that BOA is trying to take away his property without proof of authority to act as shown by an original, unaltered promissory note and such business records that sufficiently verify that QLS is empowered to foreclose. See id. Citing a case from a Texas appellate court, Plaintiff then alleges that QLS failed to disclose facts to him, QLS had a duty to disclose facts, the facts were material, QLS knew that he was ignorant of the facts, QLS was deliberately silent and failed to disclose facts with the intent that he surrender property without proof of claim, he acted in reliance on the omission, and he suffered injury as a result of acting without knowledge of the undisclosed facts. See id.

I. Jurisdiction

It is a fundamental precept that federal courts are courts of limited jurisdiction. Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). As such, "it is well established that a court may raise the question of subject matter jurisdiction, sua sponte , at any time during the pendency of the action . . . ." Nevada v. Bank of Am. Corp. 672 F.3d 661, 673 (9th Cir. 2012). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003); General Atomic Co. v. United Nuclear Corp., 655 F.2d 968 (9th Cir. 1981). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Vacek, 447 F.3d at 1250.

A review of the Complaint shows no federal cause of action has been adequately pled. The docket indicates that this is a Truth in Lending Act case, but no paragraph in the Complaint attempts to state such a claim. Instead, all the Court sees is some state law fraud claim and possibly a type of state law wrongful foreclosure claim. Thus, there is no federal question apparent under 28 U.S.C. § 1331.

Part of the complaint indicates that this Court has diversity jurisdiction. Federal courts have diversity jurisdiction in suits between citizens of different States of the United States and suits between citizens of a State of the United States and subjects of a foreign state. See 28 U.S.C. §§ 1332(a)(1), (2). Citizenship for diversity purposes requires that a person (a) be a citizen of the United States, and (b) be domiciled in a state of the United States. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). "A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return." Von Kennel Gaudin v. Remis, 379 F.3d 631, 636 (9th Cir. 2004). For corporations, a corporation is citizen "of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business . . . ." 28 U.S.C. § 1332(c)(1). There must be complete diversity of citizenship between the parties opposed in interest. Kuntz v. Lamar Corp., 385 F.3d 1177, 1181 (9th Cir. 2004).

Here, the Complaint does not identify the citizenship of any party. Part of the complaint indicates that Plaintiff is the subject of a foreign state, but he does not identify that state. Further, although domicile, not residence, determines citizenship, see Seven Resorts v. Cantlen, 57 F.3d 771, 774 (9th Cir. 1995), the Plaintiff's mailing address is the same as the Property at issue. In light of these considerations, the Court has questions about whether Plaintiff is in fact a citizen of California.

The Court will dismiss the Complaint on the basis that subject matter jurisdiction has not been properly pled. If Plaintiff chooses to file a new complaint, he must include express allegations that identify and support this Court's subject matter jurisdiction. For example, if he is relying on diversity jurisdiction, he must expressly identify the citizenship of himself and of each of the Defendants. If he is relying on federal question jurisdiction, he must expressly identify ...


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