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Mary Miller v. Wholesale America Mortgage

March 23, 2013

MARY MILLER, PLAINTIFF,
v.
WHOLESALE AMERICA MORTGAGE, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: United States District Judge Jon S. Tigar

ORDER DENYING PLAINTIFF'S MOTION TO REMAND, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE Re: Dkt. Nos. 14 & 36.

This matter came before the court on March 21, 2013 for hearing on Plaintiff‟s Motion to Remand and Defendants‟ Motion to Dismiss. Having considered the papers filed by the parties, as 16 well as the arguments presented at the hearing, and good cause appearing, and for the reasons 17 stated below, the court now DENIES Plaintiff‟s Motion to Remand, and GRANTS IN PART and 18

DENIES IN PART

Defendants‟ Motion to Dismiss, without prejudice. Plaintiff has leave to 19 amend her complaint within twenty-one days to establish a viable federal claim. Absent such a 20 claim, this Court is likely to remand Plaintiff‟s remaining state-law claims to state court. 21

I. Background

A. Factual History

Plaintiff Mary Miller purchased her Novato home in March 2006, financing the purchase 24 with a loan originated by Defendant Wholesale America Mortgage, Inc. ("Wholesale"). Second 25 Amended Complaint ("SAC"), ¶¶ 12-13. Plaintiff alleges, and for the purposes of a motion to 26 dismiss, this Court assumes, that the Truth in Lending Act ("TILA") Statement Plaintiff received 27 understated the APR on Plaintiff‟s loan by 4.9580%, and understated the finance charges 28 associated with Plaintiff‟s loan by $1,144.42. SAC, ¶¶ 40-41.

On March 10, 2011, an Assignment of Deed of Trust was recorded in the Marin County 2 recorder‟s office, listing Wholesale as a grantor and Aurora Loan Services, LLC ("Aurora") as the 3 grantee. SAC, ¶ 26. A Notice of Default, initiating foreclosure proceedings, was filed on March 4 Aurora informed Plaintiff that they were now the servicer of the loan and that U.S. Bank National 6 Association was now the owner of the loan.*fn1

28, 2011, listing Aurora as the beneficiary of Plaintiff‟s loan. SAC, ¶ 27. In February 2012, 5 Plaintiff brought an action in Marin County Superior Court on May 25, 2012, seeking to enjoin a scheduled foreclosure sale of her property. Complaint, Civ-1202426. Her complaint 9 named Wholesale, Aurora, U.S. Bank National Association, Lehman Brothers Holdings, Inc., 10

Secured Asset Securities Corporation and Does 1-50 as Defendants. Id. Plaintiff asserted claims 11 under TILA, the federal Home Ownership and Equity Protection Act, and several state common

B. Procedural History

law rights of action. Id. Five days later, the Marin County Superior Court issued a temporary 13 restraining order ("TRO") enjoining the foreclosure sale, pending a hearing scheduled for July 13, 14

The same day that the Superior Court issued the TRO, Defendants Aurora and U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 17 2006-GPI (together, "the Removing Defendants") removed the action to this Court. Dkt. No. 1. 18

The Removing Defendants argue that this court has federal question jurisdiction over the alleged 19 federal causes of action, and supplemental jurisdiction over the remaining state-law claims 20 because they arise out of the same "nucleus of operative facts." Dkt. No. 1. Plaintiff filed a 21

Motion to Remand, which the Court now considers. Dkt. No. 14. 22

The Removing Defendants have moved to dismiss three times. Dkt. Nos. 5, 19 & 36. The motion to dismiss, which seeks to dismiss Plaintiff‟s Second Amended Complaint. Dkt. No. 36. 2

The first cause of action in the SAC alleges that Defendants have violated TILA, and the second 3 through sixth causes allege California statutory and common law claims. 4

District courts must remand at any time that "it appears that the district ...


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