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Title Virgilio Ochoco v. Wells Fargo Bank

August 16, 2012

TITLE VIRGILIO OCHOCO
v.
WELLS FARGO BANK, ET AL.



The opinion of the court was delivered by: The Honorable Christina A. Snyder

CIVIL MINUTES - GENERAL JS-6

Present: The Honorable CHRISTINA A. SNYDER

CATHERINE JEANG Not Present N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (In Chambers:) Plaintiff's Ex Parte Application to Remand or for a Temporary Restraining Order

INTRODUCTION

On June 12, 2012, plaintiff Virgilio Ochoco filed the instant action in the Los Angeles County Superior Court against Wells Fargo Bank, N.A. ("Wells Fargo"), NDeX West, LLC,*fn1 and Does 1 through 20. The complaint alleges five claims for relief: (1) Breach of Contract; (2) Promissory Estoppel; (3) Anticipatory Breech; (4) Intentional Misrepresentation; and (5) Violation of California Business and Professions Code § 17200. The gravamen of plaintiff's complaint is that defendants are wrongfully attempting to pursue non-judicial foreclosure proceedings against plaintiff's home, and that defendants breached a contract by which they agreed to provide plaintiff with a loan modification pursuant to the Home Affordable Modification Program ("HAMP"). Compl. ¶¶ 14--18.

Wells Fargo removed the action to this Court on July 18, 2012.*fn2 Wells Fargo asserts two bases for federal jurisdiction. First, Wells Fargo contends that a federal question is present because the action "contains allegations of Wells Fargo's purported violation of . . . [HAMP] - and seeks relief thereunder." Notice of Removal at 3--4. Next, Wells Fargo argues that the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because plaintiff is a citizen of California and Wells Fargo is a citizen of South Dakota and because the amount in controversy exceeds $75,000. Id. at 6.

Plaintiff filed an ex parte application to remand or for a temporary restraining order on August 8, 2012. Wells Fargo filed its opposition on August 10, 2012. After considering the parties' arguments, the Court finds and concludes as follows.

BACKGROUND

On or about February 23, 2007, plaintiff purchased real property located at 1286 Sequoia Gln. in Pomona, California. Compl. ¶ 12. To finance a portion of the purchase price, plaintiff executed a promissory note in the amount of $360,000. Id.

In September 2010, plaintiff began suffering financial distress. Plaintiff applied for a loan modification, and on or about October 1, 2010, Wells Fargo approved plaintiff for ...


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