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Hopkins v. American Home Mortgage Servicing, Inc.

United States District Court, Ninth Circuit

April 29, 2013



DONNA M. RYU, Magistrate Judge.

Defendant Homeward Residential, Inc., f/k/a American Home Mortgage Servicing, Inc. ("Homeward") has filed a Motion to Remand and Request for Costs and Attorneys' Fees ("Motion") [Docket No. 4]. This matter is suitable for determination without oral argument, pursuant to Civil L.R. 7-1(b). The May 9, 2013 hearing date is VACATED. For the reasons stated below, the Motion is GRANTED.[1] Homeward has also filed a motion to dismiss. [Docket No. 8.] Because the case will be remanded to state court, the motion to dismiss is DENIED as moot. Plaintiff Donald Ray Hopkins ("Plaintiff") also filed a Motion for Extension of Time to File Opposition to Motion to Remand [Docket No. 17], a Motion for Extension of Time to File Opposition to Motion to Dismiss [Docket No. 23], and an Administrative Motion to File Under Seal [Docket No. 24]; all of these motions are DENIED as moot.


This case concerns residential real property located at 18050 Broadway Terrace in Oakland, California (the "Property"). On or about October 24, 2006, Plaintiff and Defendant American Brokers Conduit ("ABC") entered into an agreement wherein ABC agreed to loan Plaintiff $815, 000 secured by the deed on the Property. Amended Notice of Removal at 6 [Docket No. 13] (Third Amended Complaint, hereinafter "TAC, " at ¶ 7).[2] Homeward was and is the home loan servicer for ABC. TAC at ¶ 3. Plaintiff alleges that he made all payments on the loan in a timely fashion, but that Homeward and ABC nevertheless declared the loan in default and initiated collection activities against Plaintiff. TAC at ¶ 15.

On June 16, 2011, Plaintiff initiated this lawsuit in the Superior Court for the State of California, Alameda County. Amended Declaration of Antonio Cortes in Support of Motion to Remand ("Cortes Decl.") [Docket No. 4-1] at ¶ 2. The state court complaint asserts causes of action against Homeward for negligence, slander of title, violation of the Real Estate Settlement Procedures Act, and breach of a contract for which Plaintiff was a third party beneficiary. Homeward demurred. Id. at ¶ 4, Ex. B (Docket Report for Alameda County Superior Court). On October 20, 2011, the parties stipulated that the demurrer would be sustained and that Plaintiff would have 30 days to amend the complaint. Id.

On November 17, 2011, Plaintiff filed the First Amended Complaint ("FAC"). Id. On December 20, 2011, Homeward again demurred. Id. Defendant Citibank filed a demurrer as well, and both matters were set for a May 31, 2012 hearing. Id. The state court sustained the demurrers with leave to amend. Id.

On July 5, 2012, Plaintiff filed the SAC, to which Homeward again demurred. Id. Before the hearing on the demurrer, Plaintiff sought and was granted leave to file the TAC, which he filed on October 22, 2012. Id. Plaintiff did not serve the TAC on Homeward. Id. Homeward obtained a redacted copy of the TAC from the Court, and again demurred to the TAC. Id. Plaintiff did not file any opposition to this demurrer. On February 26, 2013, the Superior Court issued a tentative ruling sustaining the demurrer to the TAC without leave to amend. Id. Its tentative ruling stated:

The order of 5/31/12 sustaining the demurrer of [Homeward] to the First Amended Complaint stated, "Preliminarily, the Court strongly admonishes Plaintiff to file and serve all papers in conformance with the applicable code. The Court will not consider any untimely or non-conforming papers in the future." [Homeward] has field [sic] two unopposed discovery motions, which resulted in the order of 7/3/12 compelling plaintiff to produce discovery responses and the order of 1/8/13 compelling plaintiff to provide verified and complete responses in its response to the prior order. Plaintiff has not filed any opposition to the demurrer of [Homeward] to the Third Amended Complaint. Plaintiff's actions demonstrate a failure to prosecute this action seriously. The demurrer is, therefore, SUSTAINED WITHOUT LEAVE TO AMEND.

Cortes Decl. at ¶ 9, Ex. G. The tentative ruling stated that it would become the final order of the court unless a party contested it at a hearing two days later. Id. On February 26, 2013, Plaintiff removed SAC to this court. Id. at ¶ 4; Notice of Removal at 1.


Plaintiff bases federal removal jurisdiction on 28 U.S.C. §§ 1331 and 1441. Pursuant to Section 1441, "[a]ny 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." 28 U.S.C. § 1441(a). Section 1331 confers original jurisdiction on district courts over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

A motion to remand is the proper procedure for challenging removal. 28 U.S.C. § 1447(c). In considering the motion to remand, this court must "strictly construe the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A federal court must remand a case to state court if there is any doubt about the propriety of removal. Id. Because there exists a presumption against removal, the removing party bears the burden of establishing that propriety. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). When evaluating the validity of removal, courts generally may not look beyond the plaintiff's pleadings and must resolve disputed questions of fact in favor of the party resisting removal. Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 113 (1936); Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993); Iwag, 882 F.Supp. at 603.


Homeward's principal argument regarding improper removal is that the removal statute does not permit a plaintiff to remove a case he originally filed in ...

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