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Jenkins v. Bank of America, N.A.

United States District Court, C.D. California

January 26, 2015

William L. Jenkins, et al.
v.
Bank of America, N.A., et al

Attorneys for Plaintiffs: Not Present.

Attorneys for Defendants: Not Present.

ORDER REMANDING CASE TO LOS ANGELES SUPERIOR COURT FOR LACK OF SUBJECT MATTER JURISDICTION

MARGARET M. MORROW, J.

I. BACKGROUND

A. Procedural Background

On May 8, 2014, William L. and Adriana Pasetto-Jenkins (collectively, " plaintiffs") filed this action against Bank of America, N.A. (" BofA"), ReconTrust Company, N.A. (" ReconTrust"), and various fictitious defendants (collectively, " defendants") in Los Angeles Superior Court.[1] Defendants timely removed the case to this court on June 12, 2014, invoking the court's federal question jurisdiction under 28 U.S.C. § 1331, and its diversity jurisdiction under 28 U.S.C. § 1332(a).[2] Plaintiffs' original complaint alleged claims for violation of the California Homeowner's Bill of Rights (" HBOR") and the Perata Mortgage Relief Act (" PMRA"), California Civil Code § § 2923.5, 2923.7; violation of California's Unfair Competition Law (" UCL"), California Business and Professions Code § 17200, et seq; fraud in the inducement; violation of the Real Estate Settlement Procedures Act (" RESPA"), 15 U.S.C. § 1601, et seq .; breach of implied covenant of good faith and fair dealing; and breach of fiduciary duty.[3] Following the removal, on June 19, 2014, BofA filed a motion to dismiss the complaint and ReconTrust filed a declaration of non-monetary status under California Civil Code § 2924l.[4] The motion and declaration were stricken by the court the same day.[5] Later that day, BofA refiled its motion to dismiss.[6] On September 4, 2014, the parties filed a joint stipulation to permit plaintiffs to file a first amended complaint.[7] On September 10, 2014, the court entered an order on the stipulation, and in light of the first amended complaint, denied BofA's motion to dismiss the original complaint as moot.[8]

Plaintiffs' amended complaint alleges claims for violation of the HBOR and the PMRA; [9] violation of the UCL; [10] fraud in the inducement; [11] breach of implied covenant of good faith and fair dealing; [12] and unfair and deceptive business practices.[13] On October 7, 2014, defendants filed a motion to dismiss plaintiffs' first amended complaint, which plaintiffs oppose.[14]

B. Factual Background[15]

Plaintiffs allege that they own property at 26822 Wyatt Lane, Stevenson Ranch, California 91381-1002.[16] They contend they purchased the property on or about April 7, 2006, using funds obtained from a a $670, 000 mortgage loan made by BofA.[17] The loan was secured by a deed of trust recorded against the property.[18] Plaintiffs assert BofA advised them that their monthly payment would be approximately $4, 234.96 per month.[19]

Plaintiffs contend that in or about November 2009, they began to have difficulty making payments and keeping the loan current due to the downturn in the economy, as William Jenkins, the family's sole source of income, lost his job as vice president of ad sales at LATV, LLC.[20] As a result, plaintiffs filed a Chapter 7 bankruptcy petition in December 2011, and received a discharge from United States Bankruptcy Court on May 17, 2012.[21]

In December 2011, plaintiffs purportedly received a notice of trustee's sale from ReconTrust stating that it was the duly appointed trustee under the deed of trust, and that a foreclosure sale had been scheduled on December 29, 2011.[22] Plaintiffs contend they received no prior notice of the sale.[23] After receiving the notice, plaintiffs allegedly requested that BofA modify their loan so they could avoid foreclosure.[24] Plaintiffs assert that they were denied a modification, that they were systematically misled and given inconsistent information, that a decision was delayed, and that they were verbally abused during the loan modification process.[25] They assert their application was reassigned to multiple BofA representatives before finally being assigned to Calpurnia Moses, one of BofA's customer relationship managers.[26] Plaintiffs allege Moses was impossible to reach. Most of their calls to Moses went straight to voicemail; although plaintiffs left messages, Moses rarely returned the calls. Plaintiffs also assert they sent facsimiles containing financial information to Moses. On several occasions, however, BofA would insist that the documents had not been received, or request further additional or duplicate information.[27] Plaintiffs allege that while the " runaround" was ongoing, they succeeded in postponing the foreclosure sale until May 24, 2012.[28]

On May 17, 2012, approximately one week before the pending foreclosure sale, plaintiffs purportedly mailed a hardship letter to BofA, explaining that their loan modification application was still under active review and that they wished to postpone the foreclosure sale further. They also applied for mortgage assistance under the " Making Home Affordable Program, " and attempted to avoid foreclosure by listing their property for short sale.[29] At some point between July 12 and September 13, 2012, they obtained a buyer; the sale was canceled on September 13, 2012, however, and the escrow terminated on or about November 7, 2012.[30]

Plaintiffs contend that, after the short sale fell through, in December 2012, they notified BofA of their financial situation, sought assistance under various government programs, and mailed another hardship letter.[31] BofA purportedly reassigned their loan to another customer relationship manager, Nadia Montufar, who proved to be just as unresponsive as Moses.[32] Plaintiffs assert that BofA continued to request further duplicative documentation of hardship, and that they complied with all requests; once again, however, they were purportedly misled, delayed, and verbally abused by BofA and its agents.[33]

Plaintiffs contend that sometime in the fall of 2013, they received a second notice of trustee sale stating that ReconTrust had scheduled a foreclosure sale for December 9, 2013. They assert that they were under the impression that BofA was still actively reviewing their loan modification application.[34] Thus, they immediately contacted BofA to inquire about the status of that application, [35] sent another loan modification application to the bank, and were assigned a new customer relationship manager, Margarita Guardodo. The application contained forms plaintiffs had already submitted numerous times; once again, however, BofA purportedly requested that they produce duplicative information.[36]

Plaintiffs allege that between December 2013 and the end of January 2014, they were systematically misled, delayed, and verbally abused by BofA.[37] After being assigned to Guardodo, BofA allegedly assigned another new customer relationship manager, Jimmy Rodriguez, on December 7, 2013. Plaintiffs allege that Rodriguez never contacted them.[38] On January 27, 2014, they purportedly received a letter from BofA requesting the same financial information related to loan modification they had previously provided.[39] Finally, on January 31, 2014, BofA sent plaintiffs a letter denying their loan modification application; it stated that plaintiffs' only remedy was a short sale.[40] Plaintiffs assert they appealed BofA's loan modification denial on February 7, 2014.[41] During the appeal process, when plaintiffs' asked for updates, BofA simply responded that it needed more time and more documentation.[42] On February 27, 2014, BofA denied the appeal.[43]

On March 17, 2014, BofA allegedly sent plaintiffs forms indicating that they might qualify for a loan modification program; the programs, however, were those for which BofA had already determined plaintiffs did not qualify.[44] Plaintiffs contend they diligently sought relief under the programs identified in BofA's correspondence, but BofA has continued to request duplicative documentation and to mislead them concerning possible alternative solutions.[45] Plaintiffs assert that, as a result of BofA's actions, they have wasted countless hours providing duplicative paperwork and documents.[46]

II. DISCUSSION

A. Legal Standard Governing Removal Jurisdiction

The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows a defendant to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75, 000. See 28 U.S.C. § 1441(a), (b); see also 28 U.S.C. § 1331, 1332(a). Only state court actions that could originally have been filed in federal court can be removed. 28 U.S.C. § 1441(a); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988).

The Ninth Circuit " strictly construe[s] the removal statute against removal jurisdiction, " and " [f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart, 592 F.2d at 1064). " The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman--Bachrach & Assocs .., 903 F.2d 709, 712 n. 3 (9th Cir. 1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)).

B. Whether the Court Should Remand the Action to Los Angeles Superior Court

In its notice of removal, BofA invoked the court's diversity jurisdiction under 28 U.S.C. § 1332 and its federal question jurisdiction under 28 U.S.C. § 1331.[47] In assessing whether it has subject matter jurisdiction to hear this action, the court considers each independent basis for jurisdiction in turn.

1. Diversity Jurisdiction

" The districts courts . . . have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs and is between . . . citizens of different states." 28 U.S.C. § 1332(a); see also Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (" [J]urisdiction founded on [diversity] requires that the parties be in complete diversity and the amount in controversy exceed $75, 000"). In any case where subject matter jurisdiction is premised on diversity, there must be complete diversity, i.e., all plaintiffs must have citizenship different than all defendants. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 & n. 3 (1996).

a. Plaintiffs' Citizenship

A person is a citizen of the state in which he or she is domiciled, i.e., the state in which he or she has a permanent home where he or she intends to remain or to which he or she intends to return. See Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); Kanter v. Warner--Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (" A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return"). " The status of the parties' citizenship . . . can be determined from the complaint or from other sources, including statements made in the notice of removal." HSBC Bank USA, NA v. Valencia, No. 09-CV-1260-OWW-JLT, 2010 WL 546721, *2 (E.D. Cal. Feb.10, 2010); see also Kanter, 265 F.3d at 857 (examining the complaint and notice of removal to determine citizenship).

In their original state court complaint, plaintiffs alleged only that they were residents of California.[48] In the notice of removal, BofA asserted that plaintiffs were California citizens.[49] BofA's assertion, as it concedes, is based solely on information and belief. This alone would not be sufficient to satisfy BofA's burden of demonstrating plaintiffs' citizenship. Based on the facts alleged in the complaint, however, the court concludes that plaintiffs are California citizens for diversity jurisdiction purposes. In addition to alleging that they are residents of California, plaintiffs plead that they have owned the property and lived in the state for nearly nine years. and that William had worked in California as the Vice President of Ad Sales for LATV, LLC.[50] From these allegations, it appears that plaintiffs have lived and at least one of them has worked in California for at least eight years. This suffices to establish that they are citizens of the state. See Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) (" [D]etermination of an individual's domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting practices, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes").

b. BofA's Citizenship

BofA is a national banking association and alleges that its main office is located in North Carolina. [51] " 'A national bank . . . is a citizen of the State in which its main office, as set forth in its articles of association, is located." Deutsche Bank Nat. Trust Co. v. Antonino, No. CV 11-10201 MMM (PLAx), 2012 WL 893734, *2 (C.D. Cal. Mar. 15, 2012) (quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 303, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006)). Because BofA's main office is in North Carolina, it is a citizen of North Carolina for diversity purposes. See, e.g., Hale v. Bank of America, N.A., No. CV 12-10064 MMM (PJWx), 2013 WL 989968, *1 (C.D. Cal. Mar. 13, 2013) (" BofA is a federally chartered national banking association formed and existing under the laws of the United States, with its headquarters located in North Carolina; it is therefore a citizen of North Carolina for diversity purposes, " citing Mireles v. Wells Fargo Bank, N.A., 845 F.Supp.2d 1034, 1061 (C.D. Cal. 2012) (recognizing that a national banking association is a citizen of the state in which its main office is located)).

c. ReconTrust's Citizenship

The complaint alleges that ReconTrust is a " California corporation, wholly-owned by B[of]A, " that conducts business in the State of California.[52] In the notice of removal, BofA alleges that ReconTrust is a California citizen.[53] It contends, however, that ReconTrust is a " nominal defendant against which no affirmative relief is sought." [54] Consequently, it maintains that ReconTrust's citizenship must be disregarded in determining whether the court has subject matter jurisdiction to hear the action.[55] The court must thus determine whether ReconTrust is a nominal defendant. If it is, its citizenship can be disregarded in determining whether diversity jurisdiction exists; if it not, complete diversity is lacking.

" Circuit law teaches that courts should 'ignore the citizenship of nominal or formal parties who have no interest in the action, and are merely joined to perform the ministerial act of conveying the title if adjudged to the complainant.'" Silva v. Wells Fargo Bank NA, No. CV 11-3200 GAF (JCGx), 2011 WL 2437514, *3 (C.D. Cal. June 16, 2011) (citing Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 873 (9th Cir. 2000)); Wise, 2011 WL 1466153 at *4 (" A[n] [ ]exception to the complete diversity requirement applies to nominal parties. 'Defendants who are nominal parties with nothing at stake may be disregarded in determining diversity, despite the propriety of their technical joinder, '" quoting Strotek Corp. v. Air Transport Ass'n of America, 300 F.3d 1129, 1133 (9th Cir. 2002)); see also Daniels v. Wells Fargo Bank, N.A., No. CV 12-5289 PSG (FMOx), 2012 WL 10649202, *4 (C.D. Cal. Sept. 11, 2012) (citing Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980) (" [A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy")).

BofA argues that ReconTrust's citizenship must be disregarded because it " is the trustee on the Deed of Trust encumbering the subject property, " and thus is " not related to this dispute or the foreclosure process in any way, except as a mere agent with no allegations of liability against it at issue." [56] BofA relies on Cabriales v. Aurora Loan, No. C 10-161 MEJ, 2010 WL 761081, *1 n. 1 (N.D. Cal. Mar. 2, 2010). There, the court concluded that a trustee, which had been named as a defendant in a state court action, was no longer a party to the action because it had filed a declaration of non-monetary status under California Civil Code § 2924l in state court prior to removal.

California Civil Code § 2924l permits a trustee to file a declaration of non-monetary status if it is named in an action concerning a deed of trust, and it has a reasonable belief that it has been named solely in its capacity as trustee, and not as a result of any wrongful acts or omissions in the performance of its duties. Cal. Civ. Code § 2924l(a). In the event no objection is served within fifteen days of the date the declaration is served, the trustee is not required to participate in the action and is not subject to any damages award. Cal. Civ. Code § 2924l(c), (d).

" District courts have recognized that defendants who file a declaration of non-monetary status to which plaintiffs do not object are merely nominal parties whose citizenship does not count for diversity jurisdiction purposes, " so long as the fifteen-day period for objections passed prior to removal of the action to federal court and no timely objection was filed. Silva, 2011 WL 2437514 at *4 (" District courts have recognized that defendants who file a declaration of non-monetary status to which plaintiffs do not object are merely nominal parties whose citizenship does not count for diversity jurisdiction purposes. However, '[a] party that files a declaration of non-monetary status does not actually become a nominal party until 15 days pass without objection'" (citations omitted)); see Chancellor v. OneWest Bank, No. C 12-01068 LB, 2012 WL 3834951, *2 (N.D. Cal. Sept. 4, 2012) (concluding that a defendant trustee was " no longer considered a party to this action" where it filed a declaration of non-monetary status in Alameda Superior Court more than fifteen days prior to removal and no objection was asserted); Smith v. Bank of America, N.A., No. 1:11-cv-00141 OWW SMS, 2011 WL 1332035, *3 (E.D. Cal. Apr. 6, 2011) (" Plaintiffs argue the case should be remanded because Defendant Quality did not join the removal. Although the usual rule is that all defendants in a state action must join in a petition for removal, the rule of unanimity does not apply to 'nominal, unknown or fraudulently joined parties.' United Computer Sys. v. AT& T Corp., 298 F.3d 756, 762 (9th Cir. 2002). A nominal defendant is a person who 'holds the subject matter of the litigation in a subordinate or possessory capacity as to which there is no dispute.' SEC v. Colello, 139 F.3d 674, 676 (9th Cir. 1998) (quoting SEC v. Cherif, 933 F.2d 403, 414 (7th Cir. 1991)). 'The paradigmatic nominal defendant is a 'trustee, agent, or depositary . . . [who is] joined purely as a means of facilitating collection.' Id. Here, Defendant Quality filed a Declaration of Non-Monetary Status pursuant to California Civil Code § 2924, stating that it was named as a defendant solely in its capacity as trustee and not due to any of its acts or omissions. As Defendant Quality is a nominal defendant, its consent was not required for removal, " citing Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1050, 1052 (N.D. Cal. 2009)).[57]

Because " [r]emoving [d]efendants must show that diversity of citizenship existed at the time of removal, " Silva, 2011 WL 2437514 at *4 (citing Wise, 2011 WL 1466153 at *4), however, and a party filing a declaration of non-monetary status does not become a nominal party until fifteen days have passed without objection by plaintiffs, courts refuse to ignore the " nominal" party's citizenship for purposes of diversity jurisdiction when the case is removed to federal court before the fifteen-day objection period has expired. See, e.g., Silva, 2011 WL 2437514 at *4 (" Here, Removing Defendants filed their notice of removal before the 15 days had passed. Cal-Western filed its declaration of non-monetary status on April 8, 2011, and Removing Defendants filed their notice of removal before the 15 days had passed. Thus, at the time of removal, Cal-Western had not yet become a nominal party by virtue of its declaration of non-monetary status. Removing Defendants must show that diversity of citizenship existed at the time of removal . At the time of removal, the declaration of non-monetary status had not rendered Cal-Western a nominal party whose citizenship was irrelevant for diversity purposes" (citations omitted)); Wise, 2011 WL 1466153 at *4 (" Here, Defendant alleges that as trustee, Wolf Firm is a nominal defendant to this action because it filed a statement of non-monetary status pursuant to California Civil Code § 2924l on March 18, 2011. Section 2924l permits a trustee to declare non-monetary status if the trustee " maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee." Cal. Civ. Code § 2924l(a). If there is no objection to the declaration within 15 days of filing, the trustee gains non-monetary status. Cal. Civ. Code § 2924l(d). . . . [I]n order for this Court to have jurisdiction over the removed action, original federal jurisdiction must exist 'as of the time the complaint is filed and removal is effected.' In this case, Wolf Firm had not attained nominal party status at the time of removal. As noted above, a party gains non-monetary status and is transformed into a nominal party only if no objection is served within the 15--day objection period. Cal. Civ. Code § 2924l. Sun Trust removed this action to federal court on March 22, 2011, approximately 4 days after Wolf Firm filed its Declaration of Non--Monetary Status and 11 days before the objection period expired. Accordingly, at the time of removal, Wolf Firm had not yet attained non-monetary status and was not yet a nominal party for purposes of diversity jurisdiction. Because the Court has found that Wolf Firm . . . was not a nominal party at the time of removal, its presence in this action prevented removal based on diversity jurisdiction. Accordingly, the Court finds that diversity jurisdiction was not a proper basis for removal of this action to federal court"); Sun v. Bank of America Corp., No. SACV 10-0004 AG (MLGx), 2010 WL 454720, *2-3 (C.D. Cal. Feb. 8, 2010) (" Defendants argue that because ReconTrust filed a Declaration of Non-monetary Status with the state court on December 22, ReconTrust is a nominal party and its citizenship should not be considered for diversity. The Court disagrees. Federal diversity jurisdiction must exist 'as of the time the complaint is filed and removal is effected.' See id.; see also Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (diversity is determined by citizenship of parties as of filing of the original complaint); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (diversity must exist when action is removed). At the time of removal, ReconTrust had not attained nominal party status. A party that files a declaration of non-monetary status does not actually become a nominal party until 15 days pass without objection. Cal. Civ. Code § 2924l(d), see also Kang v. Bank of Am. Home Loans Servicing, LP, No. 09-8890, (C.D. Cal. Jan. 5, 2010) (order denying reconsideration). Here, Defendants removed the action to federal court on January 4, only 13 days after ReconTrust filed its Declaration of Non-Monetary Status on December 22. Thus, at the time of removal ReconTrust did not have nominal status. The nominal party status exception does not apply").[58]

There is no evidence in the record that ReconTrust filed a declaration of non-monetary status in Los Angeles Superior Court at least fifteen days prior to BofA's removal, nor that plaintiffs failed to object to any declaration filed. In the notice of removal, BofA merely asserts that ReconTrust, as trustee under the deed of trust encumbering the property, is a nominal party whose citizenship should be disregarded for purposes of assessing whether diversity jurisdiction exists.[59] " However, [ReconTrust's] status as a trustee is not itself sufficient to render it a nominal party." Natividad v. Ocwen Loan Servicing, LLC, No. 2:14-cv-01670-MCE-DAD, 2014 WL 6611054, *4 (E.D. Cal. Nov. 19, 2014) (citing Couture v. Wells Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011 WL 3489955, * 3 (S.D. Cal. Aug. 9, 2011)).

Nor would filing a declaration of non-monetary status under § 2924l in this court after the case is removed be sufficient to render ReconTrust a nominal party at the time of removal . The reasons for this are twofold. First, as noted, the citizenship of the parties must be determined at the time of removal . Because a trustee who files a declaration of non-monetary status does not become a nominal party until the fifteen-day objection period has expired without objection, courts have declined to consider whether a declaration of non-monetary status filed subsequent to removal renders the party's citizenship irrelevant for purposes of diversity jurisdiction. See, e.g., Alabastro v. Wells Fargo Bank, N.A., No. 5:14-cv-03469 EJD, 2015 WL 138235, *3 n. 2 (N.D. Cal. Jan. 9, 2015) (declining to discuss the effect of a declaration of non-monetary status on diversity jurisdiction because " Cal-Western did not file Declaration of Non-Monetary Status under California Civil Code § 2924l prior to removal"); Sherman v. Wells Fargo Bank, N.A., No. CIV S-11-0054 KJM EFB, 2011 WL 1833090, *2 n. 2 (E.D. Cal. May 12, 2011) (" After the hearing on defendant Wells Fargo's motion, defendant Cal-Western Reconveyance filed a Declaration of Non-Monetary Status, Cal. Civil Code § 2924l. Had the declaration been filed in the Superior Court, with sufficient time for plaintiffs to have objected before the action was removed, it would have allowed this court to ignore Cal-Western's citizenship for diversity purposes when considering the propriety of removal, " citing Lawrence v. Aurora Loan Services, Inc., No. 1:09cv01598 LJO DLB, 2010 WL 449734, *4 (E.D. Cal. Feb. 8, 2010)).

Second, and more fundamentally, it would be procedurally improper for this court to permit ReconTrust to file a declaration of non-monetary status following removal. " In federal court, procedure is governed by federal law." Bever v. Cal-Western Reconveyance Corp., No. 1:11-cv-01584-AWI-SKO, 2012 WL 662336, *3 (E.D. Cal. Feb. 28, 2012) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). " The Federal Rules of Civil Procedure apply irrespective of the source of subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003) (citing Hanna v. Plumer, 380 U.S. 460, 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)). Where an issue is directly covered by the Federal Rules of Civil Procedure, federal law controls; it is immaterial whether a state court action would have reached a different result if state procedural law had been applied. Id.; see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009).

Federal courts in California considering declarations of non-monetary status under Civil Code § 2924l have concluded that § 2924l is a state procedural rule, and that declarations of non-monetary status conflict with Rule 7(a) of the Federal Rules of Civil Procedure, which governs the filing of pleadings in federal court. As Judge William Alsup of the Northern District of California reasoned in Kennedy v. PLM Lender Services, Inc., No. C 10-04942 WHA, 2012 WL 1038632, *6-7 (N.D. Cal. Mar. 27, 2012):

" Under the Erie doctrine, federal law governs procedure in the federal courts, irrespective of whether the substantive law at issue is state or federal. Where an issue is directly covered by the FRCP, federal law controls. 'It is immaterial whether a different result would have been reached in a state court action if state procedural law had been applied.' Vess v. Ciba--Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003). Whether Section 2924l may properly be applied in federal court depends on whether such an application would result in a 'direct collision' with the FRCP. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972 (9th Cir.1999).
Section 2924l directly collides with FRCP 7(a), which specifies the only pleadings allowed in federal court. Fed.R.Civ.P. 7(a). A declaration of non-monetary status is not listed under FRCP 7(a). Section 2924l governs a pleading: It sets the procedure for filing and serving, the time for objections and result of a party's failure to timely object. These procedural requirements directly conflict with the exclusive list of pleadings allowed and governed by the FRCP. Accordingly, Section 2924l is here inapplicable under the Erie doctrine."

The court agrees with Judge Alsup's reasoning and joins the majority of courts that have concluded that § 2924l is a state procedural rule and thus such a declaration is barred by the Federal Rules of Civil Procedure. See, e.g., Daniels, 2012 WL 10649202 at *4 (" Although it may be recognized in federal court, nonmonetary status under California Civil Code § 2924l is a state procedural rule and, thus, 'nonmonetary status may not be granted in federal court.' Moreover, 'interpreting this provision in the context of determining complete diversity in a removal action, courts in this circuit have held that because nominal status is not achieved until 15 days after filing, the allegedly nominal party remains an active participant in the lawsuit whose citizenship must be considered where removal is sought during the 15--day window.' Therefore, non-monetary status must be granted by passage of the 15--day window before the case is removed to federal court"); Bever, 2012 WL 662336 at *4 (" Thus, relying on the reasoning in Tran that Section 2924l is a California state procedural law, and the fact that pleadings are controlled in federal court under Rule 7, the Court finds in the instant case that Cal--Western's filing of its Declaration of Non--Monetary Status is not a sufficient pleading since this case was initially filed in federal court"); Tran v. Washington Mutual Bank, No. CIV S-09-3277 LKK/DAD, 2010 WL 520878, *1-2 (E.D. Cal. Feb. 11, 2010) (" It appears to this court, however, that California Civil Code § 2924l is a state procedural rule, and not state substantive law. Accordingly, nonmonetary status may not be granted in federal court. Moreover, even if this court were to construe Quality's declaration of nonmonetary status as a declaration of the status of a nominal defendant, such a status is not warranted here where plaintiff objects to the declaration. Specifically, plaintiff argues that Quality is liable of wrongful conduct and thereby may be subject to damages as well as injunctive relief. For the foregoing reasons, defendant Quality shall not be considered a nonmonetary or a nominal defendant").

Thus, even had ReconTrust's declaration of non-monetary status filed on June 19, 2014[60] not been stricken, or even had ReconTrust had attempted to file another declaration of non-monetary status, the filing would have been procedurally improper and would have been insufficient to make it a " nominal party" under § 2924l, permitting the court to disregard its citizenship for purposes of diversity jurisdiction. Rather, as the removing party, BofA must show that ReconTrust filed a declaration of non-monetary status in state court, and that plaintiffs did not object to it prior to BofA's removal. This it has failed to do; consequently, the court cannot disregard ReconTrust's citizenship because it is a nominal party under § 2924l.

Because BofA has not demonstrated that ReconTrust is a nominal party, i.e., that it filed an a declaration of non-monetary status in Los Angeles Superior Court fifteen days prior to removal, and that plaintiffs failed to object, " [BofA] must demonstrate other reasons why [ReconTrust] was a nominal party as of the time of removal." Silva, 2011 WL 2437514 at *5. As noted, the citizenship " of nominal or formal parties who have no interest in the action and are merely joined to perform the ministerial act of conveying the title if adjudged to the complainant" can be disregarded in assessing whether diversity jurisdiction exists. Prudential Real Estate Affiliates, 204 F.3d at 873. While " [t]he [c]ourt acknowledges that the trustee on a deed of trust is often a nominal party, " Silva, 2011 WL 2437514 at *5 (citing Lawrence, 2010 WL 449734 at *4; Reynoso v. Paul Fin., LLC, No. 09-3225, 2009 WL 3833494, *1 (N.D. Cal. Nov. 16, 2009); Hafiz, 652 F.Supp.2d at 1052), " 'an exception is made where the complaint contains substantive allegations against the trustee or seeks to recover money damages from the trustee.'" Newman v. Select Portfolio Servicing, Inc., No. C-13-03685 JSC, 2013 WL 5708200, *3 (N.D. Cal. Oct. 21, 2013) (quoting Osorio v. Wells Fargo Bank, No. C 12-02645 RS, 2012 WL 2054997, *2 (N.D. Cal. June 5, 2012)).

Although in the notice of removal BofA contends that plaintiffs' complaint contains no substantive allegations against ReconTrust, [61] the court cannot agree. The complaint includes substantive allegations against ReconTrust and also seeks damages jointly and severally from BofA and ReconTrust. As noted, plaintiffs allege that ReconTrust, as trustee, recorded notices of default and notices of trustee's sale against the property on multiple occasions in 2011 and 2013.[62] It pleads all causes of action against BofA and ReconTrust jointly as " defendants, " alleging that BofA and ReconTrust conspired to file the notices of default and notices of trustee's sale against the property improperly while their loan modification application was still under review, and that they failed to contact plaintiffs as required by California Civil Code § 2923.5.[63] Finally, plaintiffs' prayer for relief explicitly seeks damages jointly and severally against all defendants.[64] Based on these facts, the court cannot conclude that ReconTrust was joined as a nominal party merely to facilitate collection, see S.E.C. v. Colello, 139 F.3d 674, 676 (9th Cir. 1998) (citing S.E.C. v. Cherif, 933 F.2d 403, 414 (7th Cir. 1991)); rather, it appears that ReconTrust has a sufficient stake in the action such that it may not be considered a nominal party for purposes of diversity jurisdiction.

Courts have consistently found similar allegations sufficient to demonstrate that a trustee is not a nominal party and that its citizenship must be considered in ascertaining whether diversity jurisdiction exists. See, e.g., Alabastro, 2015 WL 138235 at *3 & n. 2 (concluding that " the allegations in the Complaint are sufficient to preclude a finding that Cal-Western should be disregarded from the jurisdictional analysis as a nominal party" where the complaint's " factual allegations, when taken as whole, imply that Cal--Western may have conspired with other defendants to improperly or fraudulently initiate foreclosure proceedings against the Milpitas property. See, e.g., Compl., at ¶ 46 ('Defendants [Bank of New York Mellon] and Wells Fargo caused Cal--Western, their agent, to breach its duty of care to Plaintiff by directing Cal--Western to initiate foreclosure proceedings against Plaintiff based on the fraudulent and void foreclosure documents. . . .'); ¶ 60 ('[T]he named defendants, and each of them, have engaged in and are engaging in deceptive business practices with respect to mortgage servicing and the mailing of fraudulent foreclosure documents and related matters. . . .')"); Raissian v. Quality Loan Service Corp., No. CV 14-07969 BRO (AGRx), 2014 WL 6606802, *4 (C.D. Cal. Nov. 19, 2014) (" Quality cannot be deemed a nominal defendant because the Complaint clearly demonstrates it is not a mere stakeholder. This is because a court need not regard a trustee as a nominal party where the complaint pleads substantive allegations against and seeks money damages from the trustee. Plaintiff's Complaint alleges a claim under California Civil Code section 2923.55 against both SPS and Quality. Under the statute, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default until the mortgage servicer sends certain information and documentation to the borrower as required by subdivision (b)(1). See Cal. Civ. Code § 2923.55(a)(1). Plaintiff alleges he did not receive any of the required documents. Plaintiff also alleges SPS and Quality nevertheless recorded a notice of default on the subject property. SPS has not provided the Court with any documents to suggest Quality was not involved in recording the notice of default, and the Complaint alleges SPS and Quality acted as agents. Plaintiff also seeks money damages from each defendant for the alleged statutory violation. The Court must assume the truth of Plaintiff's allegations. Assuming these allegations are true, Quality has a sufficient stake in the outcome of these proceedings such that it cannot be deemed a purely nominal defendant. The Court therefore cannot disregard Quality's citizenship for diversity jurisdiction purposes. Because complete diversity is lacking, the Court does not address whether SPS has established the requisite amount in controversy for diversity jurisdiction under § 1332"); Pardo v. Sage Point Lender Services LLC, No. 14cv305-WQH-DHB, 2014 WL 3503095, *3-4 (S.D. Cal. July 14, 2014) (" Defendants contend that Sage Point is a nominal defendant because it was named in this action 'purely in its capacity as trustee, ' and trustees are 'often' nominal parties. Defendants also contend that the Complaint fails to allege facts or claims against Sage Point. Plaintiff contends that he has sued Sage Point for damages along with the other defendants on a theory of 'joint and several liability, ' and he has sued Sage Point for its negligence in carrying out its duties as trustee, including foreclosure. The Court concludes that Defendants have not met their heavy burden of establishing that Sage Point is a nominal defendant with no real interest in this lawsuit. First, Sage Point's status as trustee is only determinative if Sage Point is being sued solely in its role as trustee and 'merely to perform [a] ministerial act.' There is no rule that a party's status as a trustee renders him or her a nominal party. . . . Second, Plaintiff is actually suing Sage Point for wrongdoing, not merely as a formal party in order to facilitate collection. Plaintiff notes at the outset of his Complaint that the four defendants would be 'collectively referred to as Defendant, ' and Sage Point, along with RCS's other unnamed agents, would be 'collectively referred to as Defendants.' Plaintiff makes several allegations against Defendants collectively. For example, Plaintiff alleges that Defendants have 'purposefully and willfully harassed Plaintiff' by 'trespassing' and putting the house up for sale, despite him qualifying for a loan modification. Plaintiff also alleges that 'Defendant and its agents increased public knowledge of Plaintiff's economic status in reckless and harassing [sic] manner.' As to Sage Point specifically, Plaintiff alleges that he received a notice of a foreclosure sale of his home in retaliation for his complaining to Defendants about his rights as a California homeowner. . . . A fair construction of the Complaint demonstrates at this point in the proceedings that Sage Point is being sued for wrongdoing and not merely as a party from whom to 'facilitate collection.' Defendants have not met their 'heavy burden' by pointing out Plaintiff's pleading deficiencies").[65]

Because BofA has failed to meet its burden of showing that ReconTrust is a nominal defendant, the court cannot disregard its citizenship. Because both plaintiffs and ReconTrust are citizens of California, complete diversity is lacking. Accordingly, the court lacks diversity jurisdiction to hear this action.

2. Federal Question Jurisdiction

As noted, plaintiffs' original complaint alleged a cause of action for violation of RESPA. This was sufficient to vest the court with federal question jurisdiction under 28 U.S.C. § 1331. When plaintiffs filed a first amended complaint, however, they abandoned their RESPA claim.[66] Thus, the court no longer has an independent basis under § 1331 to exercise jurisdiction over the state law claims pled in the first amended complaint. " [B]ecause removal was proper, [however, ] the court has power to retain jurisdiction over supplemental state law claims that 'are so related to [the federal] claim[ ] in the action that they form part of the same case or controversy.'" Horne v. Wells Fargo Bank, N.A., 969 F.Supp.2d 1203, 1207 (C.D. Cal. 2013) (citing 28 U.S.C. § 1367(a)).

When the federal claim that served as the basis for removal jurisdiction is eliminated, the district court has discretion to decline to exercise supplemental jurisdiction over the remaining state law claims, and remand the action to state court. Perez v. Wells Fargo Bank, N.A., 929 F.Supp.2d 988, 2013 WL 892746, *11 (N.D. Cal. 2013) (citing Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009) (where a district court dismisses every claim over which it had original jurisdiction, it retains discretion to decide whether to exercise supplemental jurisdiction over the remaining claims); see also Albingia Versicherungs A.G. v. Schenker Int'l Inc., 344 F.3d 931, 938 (9th Cir. 2003) (" [o]nce supplemental jurisdiction exists, it remains, subject to the discretionary provision for remand"), amended on other grounds, 350 F.3d 916 (9th Cir. 2003); Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991)).

Here, the court declines to exercise supplemental jurisdiction over plaintiffs' state law claims. The factors of judicial economy, convenience, fairness, and comity, in combination, weigh in favor of remand. The remaining claims rely entirely on California law, so considerations of comity favor remand. See Harrell, 934 F.2d at 205 (" [I]t is generally preferable for a district court to remand remaining pendent claims to state court"); Paulick v. Starwood Hotels & Resorts Worldwide, Inc., No. C-10-01919 JCS, 2012 WL 2990760, *16 (N.D. Cal. July 20, 2012) (declining to exercise supplemental jurisdiction over state law claims after granting summary judgment on a plaintiff's ADA claim); Carpenter v. Raintree Realty, LLC, No. CV 11-06798-RGK, 2012 WL 2579179, *2 (C.D. Cal. July 2, 2012) (" The Court dismisses as moot Plaintiff's claim for injunctive relief under the ADA . . . [, ] declines to exercise supplemental jurisdiction over Plaintiff's state law claim[, ] and remands the remaining claim to Los Angeles County Superior Court for further a[d]judication"); Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134, 1150 (S.D. Cal. 2006) (" Having found that summary judgment in Defendant's favor as to Plaintiff's ADA claim is warranted and there being no other basis for federal jurisdiction, the Court DISMISSES the state law claims under 28 U.S.C. § 1367(c)(3) WITHOUT PREJUDICE TO BEING RE--FILED IN STATE COURT"); see also Anderson v. Countrywide Financial, No. 2:08-cv-01220-GEB-GGH, 2009 WL 3368444, *6 (E.D. Cal. Oct.16, 2009) (" Since state courts have the primary responsibility to develop and apply state law, and the [ United Mine Workers v.] Gibbs values do not favor continued exercise of supplemental jurisdiction over Plaintiff's state claims, Plaintiff's state claims are dismissed under 28 U.S.C. § 1367(c)(3), " citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (" Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law")). The court has not engaged in significant, or indeed any, legal analysis of the state law claims that would have to be duplicated by the state court; as a consequence, there would be no significant loss of judicial economy if the action were remanded. See Perez, 929 F.Supp.2d 988, 2013 WL 892746 at * 17. Finally, there is no indication that having the matter heard in Los Angeles Superior Court, which is located in the same city as this court, will cause the parties any inconvenience. See id. Accordingly, the court declines to exercise supplemental jurisdiction over the state law claims in plaintiffs' first amended complaint and directs that the matter be remanded to Los Angeles Superior Court.

III. CONCLUSION

For the reasons stated, the court concludes ReconTrust is not a nominal party whose citizenship can be disregarded for purposes of diversity jurisdiction. As a result, complete diversity is lacking because plaintiffs and ReconTrust are both California citizens. With plaintiffs' abandonment of their RESPA claim, there is no longer an independent basis to exercise federal question jurisdiction, and the court declines to exercise supplemental jurisdiction over plaintiffs' claims. It thus directs the clerk to remand the action to Los Angeles Superior Court forthwith.[67]


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