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Marshall v. Wells Fargo Bank

United States District Court, Ninth Circuit

June 27, 2013



ELIZABETH D. LAPORTE, Chief Magistrate Judge.

On March 28, 2013, Plaintiff Michael Marshall filed a complaint in Contra Costa County Superior Court against Defendant Wells Fargo Bank, N.A. (also known as Wachovia Mortgage, a division of Wells Fargo Bank, N.A. and formerly known as Wachovia Mortgage FSB, which was in turn formerly known as World Savings Bank, FSB) ("Wells Fargo") and Cal-Western Reconveyance Corporation ("Cal-Western"). The complaint alleged state law claims for fraud, negligence, intentional infliction of emotional distress, wrongful foreclosure, violation of California Civil Code section 2924, and violation of California Business & Professions Code section 17200. Wells Fargo removed this matter to federal court on April 17, 2013 based on diversity jurisdiction.

On April 25, 2013, Wells Fargo filed a motion to dismiss Plaintiff's claims. On April 30, 2013, Plaintiff filed a motion to remand, arguing that the Court lacked subject matter jurisdiction because complete diversity of citizenship did not exist. Both motions have been fully briefed. Because these matters are appropriate for decision without oral argument, the Court vacated the June 18, 2013 hearing. For the reasons stated in this Order, Plaintiff's Motion to Remand is denied and Defendant's Motion to Dismiss is granted.

Allegations from the complaint

Plaintiff alleges that on August 9, 2007, Dorothy Marshall, Plaintiff's mother, executed a Promissory Note and Deed of Trust in favor of World Savings, FSB in an amount of $600, 000.00. Compl. ¶ 6. Plaintiff alleges that in September 2012, Plaintiff, as the Beneficiary of the trust where the Subject Property was held, inquired about modifying or restructuring the loan and submitted an application to modify the loan. Id. at ¶ 7. In November 2012, while the application was in active review, Plaintiff alleges that Defendant Cal-Western recorded a Notice of Default and Notice of Trustee's Sale. Id. at ¶¶ 8-9.

Plaintiff alleges that after Dorothy Marshall passed away in January of 2013, Plaintiff, who became the equitable owner of the property, contacted Defendant Wells Fargo to inquire about what effect her death would have on the loan modification application. Id. at ¶¶ 10-11. According to Plaintiff, Defendant Wells Fargo asked Plaintiff to provide an updated loan application and a copy of the death certificate which he did. Plaintiff alleges that Defendant Wells Fargo stated that the existing modification process would proceed. Id.

However, on March 14, 2013, Plaintiff alleges that his representative spoke with Defendant Wells Fargo about the progress of the application and Wells Fargo could not find the modification application. Id. at ¶ 13. Therefore, Defendant Wells Fargo allegedly requested that Plaintiff re-send the package. Id . Plaintiff's representative allegedly contacted Defendant Wells Fargo after the package was re-submitted and Defendant Wells Fargo stated that the application was already in the system and under active review. Id. at ¶ 14. Furthermore, Defendant Wells Fargo instructed Plaintiff's representative to request a postponement of the upcoming foreclosure sale. Id.

On March 19, 2013, Defendant Wells Fargo allegedly told Plaintiff's representative that the foreclosure sale would not be postponed because the bank would not proceed on a loan modification for a deceased homeowner. Id. at ¶ 16. Despite the fact that Plaintiff explained the situation and still had a modification application with his income alone under active review, Defendant allegedly stated that there could be no modification of the loan. Id . Plaintiff alleges that he had the funds available to bring the loan current and was denied the right to reinstate the loan prior to the foreclosure sale. Id.


1. Legal standard

"Except as otherwise expressly provided by Act of Congress, 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." 28 U.S.C. § 1441(a). "If at any time before final judgment, it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). Thus, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id . (citation omitted). "The strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id .; see also Abrego v. Dow Chemical Co. , 443 F.3d 676, 685 (9th Cir. 2006). Removal jurisdiction may be based on diversity of citizenship or on the existence of a federal question. 28 U.S.C. § 1441. Whether removal jurisdiction exists must be determined by reference to the well-pleaded complaint. Merrell Dow Pharmaceuticals, Inc. v. Thompson , 478 U.S. 804, 808 (1986).

2. Discussion

Pursuant to 28 U.S.C. § 1348, all national banking associations are "deemed citizens of the States in which they are respectively located." Unlike 28 U.S.C. § 1332, § 1348 does not state that a national banking association "shall be deemed to be a citizen of any State... where it has its principal place of business...." 28 U.S.C. § 1332(c)(1). The Supreme Court has interpreted this provision to mean that a national banking association is a citizen of the state where its articles of association designate its "main office, " as opposed to being a citizen ...

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