United States District Court, E.D. California
BRUNO J. BICOCCA, an individual, DIANNA BICOCCA, an individual, Plaintiffs,
WELLS FARGO BANK, N.A.; NBS DEFAULT SERVICES, LLC; and DOES 1 through 20, inclusive, Defendants.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND JR. UNITED STATES DISTRICT JUDSE.
1, 2017, Plaintiffs Bruno J. Bicocca and Dianna Bicocca
(“Plaintiffs”) filed this action in state court
against Defendant Wells Fargo Bank N.A. (“Wells
Fargo”) and Defendant NBS Default Services, LLC
(“NBS”). Plaintiffs' Complaint alleges,
inter alia, that Defendants proceeded with
foreclosure proceedings against Plaintiffs' home in
violation of California's Homeowner's Bill of Rights
(“HBOR”), a 2012 legislative reform package which
made various changes to provisions in the California Civil
Code pertaining to foreclosure safeguards. See Cal.
Civ. Code § 2923, et seq. On June 1, 2017, Defendants
removed Plaintiffs' lawsuit to this Court, citing
diversity of citizenship pursuant to 28 U.S.C. §
before the Court is Plaintiffs' Motion to Remand. ECF No.
5. For the following reasons, that Motion is
obtained a mortgage loan for $247, 500 from Wells Fargo's
predecessor-in-interest, World Savings Bank FSB, in December
of 2007. The loan was memorialized in a promissory note and
secured by a deed of trust recorded against real property
known as 124 W. 19th Street, Chico, CA 95928 (“Subject
Property”). By January of 2017, Plaintiff was more than
$21, 000 in arrears on the loan, and Defendant NBS, who had
been substituted in as Trustee on December 28, 2016,
accordingly recorded a Notice of Default and Election to Sell
Under Deed of Trust as to the Subject Property.
indicated above, Plaintiffs originally filed suit in state
court, which prompted Defendants, on June 1, 2017, to remove
the case to this Court on diversity grounds. In addition to
alleging that the citizenship of the parties is completely
diverse (Plaintiffs being California residents, and
Defendants Wells Fargo and NBS being citizens of South Dakota
and Texas/Delaware, respectively), Defendants further assert,
as they must in order to invoke jurisdiction on diversity
grounds, that the amount in controversy exceeds $75, 000.
According to Defendants, because Plaintiffs seeks to
permanently enjoin Wells Fargo from taking any action to
protect its secured interest in the Subject Property
(See Pl.'s Compl., Ex. A. to Notice of Removal,
14:6), Wells Fargo stands to lose its entire loan amount of
$247, 500, a sum well in excess of the jurisdictional
minimum. Additionally, because Plaintiffs seek attorneys'
fees, general, compensatory and consequential damages, and
interest on top of the loan balance, Defendants maintain that
the $75, 000 amount in controversy requirement is satisfied.
the matter was removed to this Court, Plaintiffs brought a
Motion for Temporary Restraining Order (“TRO”) on
July 7, 2017. This Court proceeded to issue, on July 11,
2017, a TRO enjoining Defendant from performing any acts in
furtherance of holding a Trustee's Sale of the Subject
Property (which had been set for July 12, 2017), until it
could hear Plaintiffs' request for a preliminary
injunction. That request has recently been denied.
meantime, through the Motion to Remand now before the Court,
Plaintiffs ask the Court to find that the amount in
controversy requirement for diversity jurisdiction is
lacking. They allege that since their Complaint does not
explicitly seek damages in excess of $75, 000, Defendants
must establish by a preponderance of the evidence that the
requisite amount in controversy has been established.
Plaintiffs maintain that their loan amount should not be the
touchstone for that determination, and accordingly allege
that Defendants cannot meet their burden in showing that more
than $75, 000 is in controversy.
case “of which the district courts of the United States
have original jurisdiction” is initially brought in
state court, the defendant may remove it to the federal court
“embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). There are two bases
for federal subject matter jurisdiction: (1) federal question
jurisdiction under 28 U.S.C. § 1331, and (2) diversity
jurisdiction under 28 U.S.C. § 1332. A district court
has federal question jurisdiction in “all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Id. § 1331. A district
court has diversity jurisdiction “where the matter in
controversy exceeds the sum or value of $75, 000, . . . and
is between citizens of different states, or citizens of a
state and citizens or subjects of a foreign state . . .
.” Id. § 1332(a)(1)-(2).
defendant may remove any civil action from state court to
federal district court if the district court has original
jurisdiction over the matter. 28 U.S.C. § 1441(a).
“The party invoking the removal statute bears the
burden of establishing federal jurisdiction.”
Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393
(9th Cir. 1988) (citing Williams v. Caterpillar Tractor
Co., 786 F.2d 928, 940 (9th Cir. 1986)). Courts
“strictly construe the removal statute against removal
jurisdiction.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992) (internal citations omitted).
“[I]f there is any doubt as to the right of removal in
the first instance, ” the motion for remand must be
granted. Id. Therefore, “[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded” to state court. 28 U.S.C. § 1447(c).
indicated above, Plaintiffs seek an order remanding this
action to state court on the grounds that Defendants cannot
show that this action satisfies the $75, 000 amount in
controversy requirement of 28 U.S.C. § 1332.
Specifically, Plaintiffs contend that it is improper to treat
the loan amount as the amount in controversy for purposes of
a lawsuit brought under the HBOR. Plaintiffs further argue
that Defendants cannot satisfy the amount in controversy
requirement here by aggregating their requests for various
types of damages, injunctive relief, and attorneys' fees.
The Court disagrees. In Jerviss v. Select Portfolio
Servicing, Inc., No. 2:15-cv-01904, 2015 WL 7572130
(E.D. Cal. November 25, 2015), under analogous circumstances,
this Court already found that the loan amount is a proper
measure of the amount in controversy in an HBOR case like
this one. More specifically, in Jerviss, like the
present case, the plaintiff argued that it was improper to
treat the loan amount as the amount in controversy for
purposes of a lawsuit brought under the HBOR. As we noted
there, it is well established that the amount in controversy
in actions seeking declaratory or injunctive relief is
measured by the value of the object of the litigation.
Gardner v. Nationstar Mortg. LLC, No. 2:14-cv- 1583,
2014 WL 7239496 at *2 (E.D. Cal. Dec. 16, 2015) (quoting
Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
HBOR cases, “the fact that Plaintiffs' complaint .
. . seeks to enjoin a potential foreclosure, is not
dispositive of whether the loan amount establishes the amount
in controversy for purposes of diversity jurisdiction.”
Vonderscher v. Green Tree Servicing, LLC, No.
2:13-cv-00490, 2013 WL 1858431 at *3 (E.D. Cal. May 2, 2013).
Instead, the court conducts a functional analysis of the
amount in controversy based on the plaintiff's primary
objective in bringing suit. In doing so, the court looks to
whether the plaintiff primarily seeks to enjoin a foreclosure
or instead primarily seeks damages under what essentially
constitutes a common law fraud action. Id. at *4. To
make this determination, the court considers whether the
plaintiff is in default on its loan, ...