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Duenas v. Freitas

United States District Court, Ninth Circuit

June 28, 2013

GERARD DUENAS, HAROLD GOLDMAN, Plaintiffs,
v.
STEVEN FREITAS, AKA STEVE FREITAS, in his Official and Private Capacity, SONOMA COUNTY SHERIFF'S DEPARTMENT, KATHRYN STRALEY in her official and private capacity, DEUTSCHE BANK, NATIONAL TRUST COMPANY, MICHAEL S. AND MARY C. BASKAUSKAS, DOES 1-15, Inclusive, Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS Docket 12, 21.

SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiffs Gerard Duenas ("Duenas") and Harold Goldman ("Goldman") bring the instant pro se action against Deutsche Bank National Trust Company ("Deutsche Bank"), along with the Sonoma County Sheriff's Office (erroneously sued the "Sonoma County Sheriff's Department"), Sonoma County Sheriff Steven Freitas and Sonoma County employee Kathryn Straley, in their personal and official capacities (collectively "Sheriff Defendants"). Plaintiffs allege that Defendants improperly obtained and then attempted to serve a Writ of Possession to recover possession of property leased to Goldman by Duenas, who lost the property through foreclosure. Plaintiffs allege claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1682 et seq., the Due Process Clause and the Fourth Amendment, and the Protecting Tenants in Foreclosure Act ("PTFA").

The parties are presently before the Court on the Sheriff Defendants' Motion to Dismiss First Amended Complaint ("Amended Complaint"), Dkt. 12, and Deutsche Bank's Motion to Dismiss Amended Complaint, Dkt. 21. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS the motions for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

I. BACKGROUND

A. FACTUAL SUMMARY

1. Foreclosure of the Property

Duenas is the former owner of residential real property located at 6285 Highway 12, Santa Rosa, California (the "Property"). First Am. Compl. ("FAC") Ex. B, Dkt. 10. In or about 2005, Duenas obtained an adjustable rate rider loan from IndyMac Bank, F.S.B. ("IndyMac"), which was secured by the Property. Id . On a date not specified in the pleadings, Deutsche Bank assumed ownership of Duenas' loan from IndyMac. Around 2007, Duenas defaulted on his mortgage, resulting in a Notice of Default being recorded against the Property on November 27, 2007. Deutsche Bank Req. for Jud. Notice ("RJN") Ex. A, Dkt. 21-2. Deutsche Bank eventually completed its non-judicial foreclosure of the Property on April 11, 2011. Id . Ex. B, Dkt. 21-3.[1]

2. Unlawful Detainer Action

On June 3, 2011, after completing the foreclosure process, Deutsche Bank filed an unlawful detainer action against Duenas in the Sonoma County Superior Court. FAC Ex. H. At that time, the Property was occupied by Goldman, who had leased the Property from Duenas for the time period from December 3, 2009 to December 2, 2014. Goldman Decl. ¶ 1, Dkt. 3.

On August 4, 2011, the Superior Court entered judgment in the unlawful detainer action and issued a Writ of Possession in favor of Deutsche Bank. RJN Exs. P, Q, Dkt. 21-17, 21-18. In response, Goldman appealed the judgment to the Appeal Department of the Sonoma County Superior Court and obtained a stay of the Writ of Possession. Id . Ex. S, Dkt. 20-20. The Appeal Department rejected Goldman's argument that he was protected by the PTFA, among other claims, and affirmed the judgment on November 7, 2012. Id . Ex. V, Dkt. 21-23. On February 11, 2013, the Superior Court vacated the stay of the judgment and directed the clerk to issue a Writ of Possession. Id . Ex. W. The clerk issued the writ on the same date. FAC Ex. A.

On February 15, 2013, Goldman filed a Notice of Removal in this Court which purported to remove the closed unlawful detainer action. See Deutsche Bank Nat'l Trust Co. v. Gerard Duenas, No. C 13-0738 RS. Deutsche Bank timely filed a motion to remand. On April 2, 2013, Magistrate Judge Joseph Spero issued a Report and Recommendation in which he recommended granting the motion and remanding the action to state court. RJN Ex. Y, Dkt. 21-26. In particular, Magistrate Judge Spero found that Goldman's removal was untimely, diversity jurisdiction was lacking, no federal question was presented by the unlawful detainer action, and that Goldman's proposed cross-claims under the PTFA and the Fourteenth Amendment did not provide a basis for removal jurisdiction. On April 7, 2013, District Judge Richard Seeborg issued an Order adopting Magistrate Judge Spero's recommendation and remanded the action. See Deutsche Bank Nat. Trust Co. v. Goldman, No. C 13-0738 RS, 2013 WL 1663549 (N.D. Cal. Apr. 2, 2013), adopted 2013 WL 1662437 (N.D. Cal. Apr. 17, 2013).

B. PROCEDURAL HISTORY

1. Original Complaint and Temporary Restraining Order

On February 25, 2013-ten days after Goldman attempted to the remove the unlawful detainer action-Duenas and Goldman filed a verified Complaint in this Court against the Sheriff Defendants. The Complaint alleged four causes of action for violation of: (1) the FDCPA; (2) the Due Process Clause; (3) the Fourth Amendment; and (4) the PTFA. Dkt. 1. Plaintiffs also filed an application for a TRO to enjoin the Sheriff ...


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