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Bruce Nguyen v. Citi Residential Lending Formerly Doing Business As Argent Mortgage

August 17, 2012


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


Presently before the court in this foreclosure-related case is defendant Citi Residential Lending Inc.'s*fn1 ("Citi") motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2 Defendant First American TE Servicing So ("First American") has not appeared in the action, and it does not appear that First American has been served with the summons and complaint. (See, e.g., Notice of Removal ¶ 5.)

Plaintiff filed a timely written opposition to Citi's motion. However, plaintiff's brief is entirely unresponsive to the substantive arguments made in Citi's motion to dismiss. The only material argument raised in the opposition brief is plaintiff's contention that Citi's removal of this case from the California Superior Court for the County of Sacramento ("Superior Court") was untimely by one day; plaintiff did not file a noticed motion to remand. Plaintiff's objection to Citi's removal of this case is addressed below.

The court heard these motions on its law and motion calendar on August 9, 2012. Attorney Kimberly A. Paese appeared on behalf of Citi. Plaintiff, who is proceeding without an attorney, failed to appear at the hearing in violation of Local Rule 230(i), which provides that "[a]bsent notice of intent to submit the matter on the briefs, failure to appear may be deemed withdrawal of the motion or of opposition to the motion, in the discretion of the Court, or may result in the imposition of sanctions." In the exercise of discretion, the undersigned has considered plaintiff's written opposition and declines to sanction plaintiff at this time.

The undersigned has considered the briefs, Citi's oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that: (1) plaintiff's request to remand this case to the Superior Court on the basis of Citi's untimely removal be denied; (2) Citi's motion to dismiss plaintiff's claim alleged pursuant to the federal Truth In Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., be dismissed with prejudice; (3) the court decline to exercise supplemental jurisdiction over plaintiff's remaining claims pursuant to 28 U.S.C. §§ 1367(c)(2)-(3); and this case be remanded to the Superior Court.


In its motion to dismiss, Citi references its request for judicial notice that attaches certain documents relating to the foreclosure proceedings and the trustee's sale (e.g., Deed of Trust, Trustee's Deed Upon Sale, etc.). (See Citi's Memo. of P. & A. In Supp. of Mot. to Dismiss ("Citi's Memo.") at 2, 4, and 9.) However, Citi did not actually file any request for judicial notice or the related documents. Accordingly, the court denies Citi's request for judicial notice and does not accept any representations made by Citi that rely on the documents to be noticed and that are not otherwise supported by the allegations in the complaint.

Additionally, plaintiff's complaint references documents purportedly attached thereto as exhibits. (See, e.g., Compl. ¶¶ 6-7.) However, the copy of the complaint attached to the Notice of Removal does not append any exhibits, and plaintiff has not supplemented this court's record with any such exhibits. Accordingly, the court cannot rely on such exhibits to the extent that the parties' arguments rely on the contents of those exhibits.


Although plaintiff's complaint is 20 pages long, the allegations regarding the underlying foreclosure proceedings are rather limited. Plaintiff alleges that he is the owner of the real property located at 7171 Saltgrass Way in Elk Grove, California. (Compl. ¶ 1.) He alleges that Citi, formerly doing business as Argent Mortgage Co., LLC, was the original lender in regards to plaintiff's note and deed of trust. (Id. ¶ 2.) Plaintiff further alleges that First American was listed in the notice of default and notice of trustee's sale relating to the foreclosure of plaintiff's real property. (Id. ¶ 3.)

Plaintiff alleges that on or about November 24, 2004, he obtained a loan from Citi or its predecessor to purchase the real property, and that the loan was secured by "Notes" and a deed of trust. (See Compl. ¶¶ 6, 24, 26.) Plaintiff alleges that on or about February 22, 2010, a notice of default was issued in regards to plaintiff's loan. (See id. ¶¶ 7, 26.) Citi contends, on the basis of Citi's unfiled request for judicial notice, that plaintiff's property was sold at a trustee's sale that occurred on March 21, 2012, and that a trustee's deed upon sale was recorded on April 3, 2012. (Citi's Memo. at 2.) Although the court does not rely on Citi's representations in this regard, plaintiff's complaint confirms the date of the trustee's sale in the prayer for relief, wherein plaintiff requests "[r]eversal or [sic] Trustee sale conducted by defendants on 3/21/2012 and restitution of the home to Plaintiff." (Compl. at 19.) Plaintiff alleges claims for: (1) violation of California Civil Code § 2923.5; (2) fraud; (3) intentional misrepresentation; (4) violation of California Civil Code § 2923.6; (5) violation of California Civil Code § 1572; (6) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq.; and (7) violation of TILA.

Plaintiff filed his complaint in the Superior Court on April 4, 2012, as case number 34-2012-00121725. (Notice of Removal ¶ 1 & Ex. A.) In its notice of removal, Citi alleges that plaintiff attempted personal service on Citi's agent for service of process on April 19, 2012. (Id. ¶ 2; see also Citi's Reply Br. at 1; Paese Decl., Exs. 1-2.) However, as discussed further below, plaintiff contends that his process server actually effectuated service of the summons and complaint on Citi's agent for service of process on April 18, 2012. (Pl.'s Opp'n to Mot. to Dismiss at 1-2 & Ex. A.) Citi removed this case to federal court on May 21, 2012, on the basis of plaintiff's TILA claim, which invoked the court's federal question subject matter jurisdiction, 28 U.S.C. § 1331. (Notice of Removal ¶ 3.) Citi further asserted that this court could exercise supplemental jurisdiction over plaintiff's remaining claims, 28 U.S.C. § 1367(a). (Id.)


The parties contest whether Citi's removal was timely, and plaintiff tersely seeks the remand of this case through his opposition brief. (Pl.'s ...

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