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Marcella Rose, An Individual v. Seamless Financial Corporation Inc.

September 10, 2012

MARCELLA ROSE, AN INDIVIDUAL,
PLAINTIFF,
v.
SEAMLESS FINANCIAL CORPORATION INC., A NEVADA CORPORATION;
MICHAEL MCDEVITT, AN INDIVIDUAL;
CHAD HAGOBIAN, AN INDIVIDUAL;
JEAN-PIERRE RADTKE, AN INDIVIDUAL;
PREMIERE CAPITAL ESCROW, INC., A CALIFORNIA CORPORATION;
LUIS ANTONIO VENEGAS, AN INDIVIDUAL; AND DOES 1-100,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (Doc. No. 59 and 61)

Presently before the Court are Defendant Chad Hagobian's ("Defendant" or "Hagobian") Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC") [Doc. No. 53], and Plaintiff Marcella Rose's ("Plaintiff") Motion to Remand, [Doc. No. 61]. In accordance with Civil Local Rule 7.1.d.1, the Court finds both motions suitable for determination on the papers and without oral argument. Accordingly, the motion hearing scheduled for September 14, 2012 is hereby vacated. For the reasons set forth below, the Court DENIES Plaintiff's Motion to Remand and GRANTS Defendant's Motion to Dismiss without leave to amend, with the exception of Plaintiff's fourth cause of action, in which the Court GRANTS Defendant's motion to dismiss with leave to amend.

I. BACKGROUND

Factual Background

Plaintiff is a ninety-year-old woman residing in San Diego, California. On or around April 2008, Plaintiff executed a loan in the amount of $510,000 (the "Loan") secured by a first deed of trust on the property located at 3665 Trenton Avenue, San Diego, California 92117 (the "Property").*fn1 The purpose of the Loan was to obtain funds for personal, family, and household purposes, and to pay off a then-existing mortgage held by Countywide Bank, FSB and Countrywide Home Loans, Inc. [Doc. No. 1.]

Plaintiff currently alleges that Premiere Capital Escrow, Inc. ("Premiere") requested through Ms. Evelyn Ortega ("Ortega") a preliminary title report on the Property on or about April 8, 2009. Plaintiff then received a telephone call from Michael McDevitt ("McDevitt"), an individual employed by Seamless Financial Corporation, Inc. ("Seamless"), regarding the possibility to refinance a loan on her current mortgage. [SAC, Doc. No. 53 ¶ 19.] During initial conversations between McDevitt and Plaintiff, Plaintiff disclosed that she had a savings account containing approximately $85,000. [Id. ¶ 20.] Plaintiff also provided McDevitt with proof of income showing she received monthly social security benefits in the amount of $1,077, and pension payments in the amount of $338.83. [Id.] McDevitt then informed Plaintiff that if she could contribute $27,000 from her saving account up front, he could provide her with a loan with a 3.75% interest rate, fixed for fifteen years. [Id. ¶ 20.] Plaintiff further alleges that Seamless, through Ms. Grosser ("Grosser'), Mr. Radtke ("Radtke"), and/or McDevitt, caused Plaintiff's loan application to state that her monthly income was $9,600 ($7,800 from her pension and retirement and $1,800 a month in pension benefits) and forged her signature on the typewritten loan application documents to falsely state her monthly income to ensure she would qualify for the Loan. [SAC Doc. No. 53 ¶ 23.]

After the Loan documents were finalized, Plaintiff made payments on the Loan for over a year. Plaintiff then became aware that her Loan was in fact a "Pick-A-Payment"*fn2 mortgage loan rather than a loan with a fixed interest rate of 3.75%. [Id. ¶ 26.] Soon thereafter, the Loan payments became unaffordable and Plaintiff defaulted on the Loan. [Id. ¶ 26-29.] After several unsuccessful attempts to modify the terms of Plaintiff's Loan, foreclosure proceeding commenced against the Property on August 11, 2009. The Property was then sold in a short sale to avoid foreclosure.*fn3

At all times relevant herein, Defendant Hagobian was an agent and the designated broker of record for Seamless.*fn4 [SAC, Doc. No. 53 ¶ 8.] As the designated broker, Plaintiff alleges that Hagobian had a responsibility to supervise loan officers employed by Seamless, including, but not limited to, Grosser, Radtke, and McDevitt, and that Hagobian delegated this duty in the instant transaction to Radtke and/or others employed by Seamless. [Id. ¶ 8.]

Procedural Background

The present action was originally filed on December 29, 2010 in state court against Defendants Wachovia, Wells Fargo,*fn5 Seamless, McDevitt, and Hagobian. [Doc. No. 1]. The complaint contained six causes of action alleging: (1) violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 ("RESPA"); (2) violation of the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"); (3) violation of the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 et seq. ("Rosenthal Act"); (4) Unfair Competition under California Business and Professions Code §§ 17200 et seq. ("UCL"); (5) fraud and deceit; and (6) violation of the Elder Abuse and Dependent Adult Civil Protection Act, Cal. Welfare & Institutions Code § 15610.30 (the "Elder Abuse Act"). The first, second, and third causes of action were alleged solely against Wachovia and Wells Fargo, whereas the remaining state law causes of action were alleged against all Defendants.

On February 4, 2011, the Defendants removed this action to federal court on the basis of federal question jurisdiction and supplemental jurisdiction over the related state law claims. [Doc. No. 1.] On February 11, 2011, Defendant Wells Fargo filed a motion to dismiss the complaint, [Doc. No. 2], which was subsequently denied as moot after Plaintiff filed a First Amended Compliant ("FAC") on March 4, 2011. [Doc. No. 7.]*fn6 Thereafter, on March 18, 2011, Wells Fargo moved to dismiss Plaintiff's FAC. [Doc. No. 13.] On May 25, 2011, Plaintiff and Hagobian filed a joint motion for an extension of time for Hagobian to respond to the FAC. [Doc. No. 23.] While Wells Fargo's motion to dismiss was pending, Wells Fargo and Plaintiff entered into a good faith settlement. [Doc. No. 32.] Such settlement was approved by the Court on March 2, 2012, [Doc. No. 50], and Wells Fargo and the federal causes of action alleged against Wells Fargo were thereby dismissed, [Doc. No. 56].

Plaintiff filed a SAC on April 2, 2012. [Doc. No. 53.] The SAC alleged four causes of action, including: (1) violation of the Elder Abuse Act; (2) fraud and deceit; (3) breach of fiduciary duty; and (4) unlawful, unfair, and deceptive practices under the UCL.*fn7 On May 1, 2012, Defendant Hagobian filed the instant Motion to Dismiss, [Doc. No. 59], and on June 1, 2012 Plaintiff filed the instant motion to remand, [Doc. No. 61].

II. DISCUSSION

Motion to Remand

Pursuant to 28 U.S.C. § 1441(a), "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." Under 28 U.S.C. §§ 1331 and 1332, a district court has original jurisdiction over civil actions that arise under federal law or are between citizens of different states and the amount in controversy, exclusive of costs and interest, exceeds $75,000. An action "arises under" federal law if the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law. Grable & Sons Metal Prods. Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). In determining whether federal jurisdiction attaches to a state law claim that is predicated on violation of federal law, a court must examine whether the "state-law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressional approved balance of federal and state judicial responsibilities." Id. Therefore, "when a claim can be supported by alternative and independent theories -- one of which is a state law theory and one of which is a federal law theory -- federal question jurisdiction is not a necessary element of the claim." Id. (quoting Rains v. Criterion Sys. Inc., 80 F.3d 339, 346 (9th Cir. 1996)). Specifically, in the context of a UCL claim, courts have consistently found that federal question jurisdiction does not exist where a plaintiff has alleged a UCL claim based on violations of both federal and state law, as the cause of action does not "necessarily" depend on a resolution of federal law. See Franchise Tax Bd. Of State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 28 (1983).

The propriety of the removal may be tested in federal court by a motion to remand. See 28 U.S.C. § 1447(c). Remand of a case to state court after removal is appropriate when removal is procedurally improper, or when there are no grounds for federal jurisdiction, whether federal question or diversity. Id; Baker v. BDO Seidman, L.L.P., 390 F. Supp. 2d 919, 920 (N.D. Cal. 2005) (noting that federal jurisdiction is "traditionally predicated upon diversity jurisdiction or federal question jurisdiction"). The removal statute is strictly construed against removal jurisdiction, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). The party seeking removal bears the burden of proving the propriety of removal. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).

However, it is well settled that a federal court has the power to hear claims that would not be independently removable even after the basis for removal jurisdiction has been dismissed from the proceedings. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991); Carlsbad Tech., Inc. v. HIF BIO, Inc., 556 U.S. 635 (2009). Thus, while it is generally preferable for a district court to remand remaining pendent claims to state court, the decision of the district court to remand "remains discretionary and is dependent upon what will ...


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