Motion to Remand Online

7/31/2019 Motion to Remand Online

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PLAINTIFFS REMAND MOTION2:12-cv-03843-GAF-JCG

RICHARD IVAR RYDSTROM, ESQ. CSBN: [email protected]

RYDSTROM LAW OFFICE4695 MacArthur Court 11th Floor

Newport Beach, Ca 92660949.678.2218 (Tel) | 949.606.9716 (Fax)

www.RydstromLaw.Com

Attorney for Plaintiff

PHILIP W. FISCHER

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PHILIP W. FISCHER

Plaintiff,

vs.

GMAC MORTGAGE, LLC;

EXECUTIVE TRUSTEE SERVICES,

LLC.; FOREMOST INSURANCE

COMPANY; NATIONAL UNION

FIRE INSURANCE COMPANY;NATIONAL UNION FIRE

INSURANCE COMPANY OF

PITTSBURGH, PA, and Does 1 to 100,Inclusive

Defendants.

Case NO.: 2:12-cv-03843-GAF-JCG

[Michael D. Antonovich AntelopeValley Superior Courthouse No.MC023329]

PLAINTIFFS NOTICE OFMOTION AND MOTION TOREMAND ACTION REMOVED BYDEFENDANTS; FOR COSTS ANDFEES; MEMORANDUM OFPOINTS AND AUTHORITIES;

EXHIBITS; DECLARATION INSUPPORT THEREOF

[28 U.S.C.S. 1447(c)]

Hon. Gary A. Feess

Hearing Date: July 2, 2012

Time: 9:30 a.m.

Courtroom: 740

Complaint Served: May 18, 2012Case Removed: April 30, 2012
http://www.rydstromlaw.com/http://www.rydstromlaw.com/


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TO THE COURT AND ALL PARTIES AND THEIR COUNSEL:

PLEASE TAKE NOTICE that on July 2, 2012, or as soon thereafter as the

matter may be heard, Plaintiff PHILIP W. FISCHER(FISCHER) will move this

court, in the courtroom of the Honorable Gary A. Feess, U.S. District Judge,

located at 255 East Temple Street, Los Angeles, CA 90012, for an order remanding

(Remand) this case back to state court, pursuant to 28 U.S.C. 1447(c).

Defendants raise federal question as its basis for removal. Defendants cannot

overcome its burden to show federal question jurisdiction (see Defendants Notice

of Removal at pg. 2). Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (U.S.

1921). The action should be remanded to the Superior Court of California, County

of Los Angeles, North DistrictMichael D. Antonovich Antelope Valley

Courthouse. In addition, since there is no anchor claim establishing original

jurisdiction, this court cannot exercise supplemental jurisdiction over any other

state law claims. 28 U.S.C. 1367(a). Plaintiff further moves this Court for an

order that Defendants improperly removed this matter, and forjust costs and any

actual expenses, including attorney's fees, incurred as a result of the removal 28

U.S.C. 1447(c);Martin v. Franklin Capital Corp. 546 U.S. 132 (U.S. 2005).


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This motion for remand is based on this notice and the Courts entire file and

the documents filed as Exhibit A to the Removal (Original Complaint), the

accompanying memorandum of points and authorities in support hereof, the

Declaration of Attorney Richard Rydstrom, any and all evidence submitted in

support thereof, and any oral argument requested by the court.

This motion is made following the conference of counsel pursuant to L.R. 7-

3 which took place on May 23, 2012.

Dated: May 25, 2012

______________________________________By: Richard Ivar Rydstrom, Esq


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TABLE OF CONTENTS

I. INTRODUCTION...1

II.STATEMENT OF THE CASE...2

III.LAW AND AUTHORITY..4

IV. ARGUMENT.5

a. The Court Does Not Have Federal Question Subject-MatterJurisdiction Over This Action Based Upon the Servicemembers Civil

Relief Act (SCRA)....5

b. Federal Question Jurisdiction Does Not Exist Because PlaintiffExclusively Alleges State Causes of Action and Does Not Allege

HAMP as a Federal Private Right of Action, and Does Not Allege

That He Is a Third Party Beneficiary of the SPA..7

c. The OC Does Not Raise a Federal Question Because HAMP and

SCRA Are Not Necessary Elements of the Alleged State Causes ofAction; and Removing State Causes of Action Will Disturb The

Congressional Intent of HAMP and SCRA..9

d. Defendants Removal Fails Because No State Causes of Action HaveBeen Preempted by HAMP or SCRA....13

e. This Court May Not Exercise Supplemental Jurisdiction Over Any

Other Claims That Could Not, By Itself, Invoke Original Jurisdiction

....15

V.CONCLUSION.16


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TABLE OF AUTHORITIES

United States Supreme Court Cases

Burford v. Sun Oil Co.,319 U.S. 315, 334 (U.S. 1943).16

Caterpillar, Inc. v. Williams,

482 U.S. 386 (U.S. 1987)..13

Carnegies-Mellon Univ. v. Cohill,484 U.S. 343 (U.S. 1988)..16

Grable & Sons Metal Prods v. Darue Engg & Mfg,

545 U.S. 308 (U.S. 2005)..10, 11, 13

Martin v. Franklin Capital Corp.

546 U.S. 132 (U.S. 2005)ii, 5

Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804 (U.S.1986)...10

Mitchell v. Maurer,

293 U.S. 237 (U.S. 1934)5

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (U.S. 1941)4

United Mine Workers v. Gibbs,

383 U.S. 715 (U.S. 1966)..16

Wilson v. Republic Iron & Steel Co.,

257 U.S. 92 (U.S. 1921)ii, 16


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United States Court of Appeals Cases

ARCO Environmental Remediation, L.L.C. v. Department of Health &Environmental Quality of Montana,

213 F.3d 1108 (9th Cir.2000)13

Attorneys Trust v. Videotape Computer Products, Inc.,93 F.3d 593 (9th Cir.1996)..................5

Lippitt v. Raymond James Fin. Servs.,

340 F.3d 1033 (9th Cir. Cal. 2003)...12

Nevada v. Bank of America Corp.,672 F.3d 661 (9th Cir. 2012).10

Prize Frize Inc. v. Matrix Inc.,

167 F.3d 1261, 1265-1266 (9thCir.1999)..4

Rains v. Criterion Sys.,80 F.3d 339 (9th Cir. Cal. 1996).10, 12

Sanchez v. Monumental Life Ins. Co.,

102 F.3d 398, 403-04 (9th Cir.1996)..4

United Investors Life Ins. Co. v. Waddell & Reed, Inc.,360 F.3d 960 (9th Cir.2004)5

Wigod v. Wells Fargo Bank, N.A.

No. 11-1423; 2012 WL 727646 (7th Circuit, Ill Mar. 7

2012)..2, 8, 11, 14, 15

United States District Court Cases

Allen v. CitiMortgage, Inc.,No. CCB-10-2740, 2011 WL 3425665 (D. Md. Aug. 4, 2011)..8


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Bosque v. Wells Fargo Bank NA,

762 F. Supp. 2d 342 (D. Mass. 2011).............8

Guerra v. Carrington Mortg. Services,(C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL

2630278)..9 , 10, 11

In re Bank of America Home Affordable Modification Program (HAMP) ContractLitigation,

No.10-md-02193-RWZ, 2011 WL 2637222 (D. Mass. July 6, 2011)8

Leal v. U.S. Bank Nat'l Ass'n,2010 WL 2389959 (C.D.Cal. June 9, 2010) .12

Montoya v. Mortgageit Inc.,

2010 WL 546891 (N.D.Cal. Feb.10, 2010)...12

Ortega v. HomEq Servicing,No. CV 09-02130, 2010 WL 383368 (C.D. Cal. Jan. 25,

2010)..13

Ortiz v. Indymac Bank, F.S.B.,

2010 WL 2035791 (C.D.Cal. May 20, 2010)11

Thiara v. Kiernan,

No. C06-03503 MJJ, 2006 WL 3065568 (N.D.Cal. Oct.25, 2006)5

U.S. Bank National Association v. Gilliam,

2012 U.S. Dist. LEXIS 553551, 2, 4, 6, 12, 15

State Court of Appeals Cases

State Farm Fire & Cas. Co. v. Superior Court,45 Cal. App. 4th 1093 (1996)11


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Statutes & Treaties

12 U.S.C. 5219(a).......7

28 U.S.C. 13317

28 U.S.C 1367(a)..ii, 16

28 U.S.C. 1447(c)ii, 4, 5

50 U.S.C. 501-596 et seq..1, 7

CA Business & Professions Code 17200, 17203, 175003, 4, 6, 11

CA Civil Code 1709-1710.3, 6

CA Civil Code 2924 et seq..3, 7


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PLAINTIFFS REMAND MOTION 2:12-cv-03843-GAF-JCG

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF

MOTION TO REMAND

I. INTRODUCTION:Plaintiff PHILIP W. FISCHER (hereinafter Plaintiff or

FISCHER) requests that this Court remand the current matter back to the

state Superior Court of California, County of Los Angeles, North District

Michael D. Antonovich Antelope Valley Courthouse because federal

question jurisdiction does not exist.

Plaintiff exclusively alleges state statutory and common law causes of

action in its original complaint (OC). Plaintiff does not allege the Making

Home Affordable program (HAMP) or the Servicemembers Civil Relief

Act (SCRA) of 50 U.S.C. 501-596 et seq. as a private right of action.

Moreover, SCRA does not create a private right of action nor a basis of

federal jurisdiction[T]he Court does not have subject-matter jurisdiction

over this action based upon the SCRA. U.S. Bank National Association v.

Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6. Instead, Plaintiff supplements

its state causes of action with HAMP standards and SCRA standards in

support thereof. With respect to HAMP, the federal courts have held that:


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Where there is no private right of action under a federal statute, aviolation of the federal HAMP standard as an element of a state

tort cause does not prevent state law from providing a cause ofaction based in whole or in part on violations of the federal

(HAMP) law. (emphasis added) (Wigod v. Wells Fargo Bank,N.A., No. 11-1423; 2012 WL 727646 at *19-29 (7th Circuit, Ill

Mar. 7 2012) (Wigod 2012).

With respect to SCRA, the United States District Court for the Northern

District of California held that:

the SCRA neither creates a private right of action nor a basisfor federal jurisdiction. Accordingly, the Court does not have

subject-matter jurisdiction over this action based upon the SCRA.U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS

55355 at *6

II. STATEMENT OF THE CASE:On March 27, 2012, Plaintiff filed an OC for damages in the Superior

Court of California, County of Los Angeles, North District Michael D.

Antonovich Antelope Valley Courthouse alleging that Defendants acted in a

common plan and scheme to defraud and unfairly mislead Plaintiff under

state law. Plaintiff further alleged that Defendants acted in a common plan

and scheme to obtain title and possession of Plaintiffs home, by wrongful

threats of foreclosure and continued activity to wrongly foreclose on

Plaintiffs property, all during periods of protection afforded Plaintiff as


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active military under SCRA. (OC, Page 2, para 2 at Notice of Removal,

Exhibit A). Moreover, Plaintiff alleged that Defendants acted in a common

plan and scheme to make mispresentations and omissions of material facts

concerning HAMP and non-hamp mortgage solutions, and induced Plaintiff

to make insurance premium payments on an insurance policy that was non-

existent, and on another policy that was supposed to have been terminated.

The gravamen of Plaintiffs causes of action are strictly based in California

statutory and common law [California Civil Code 1709-1713 (fraud,

deceit, negligent misrepresentation); B&P 17200, 17203, 17500 (unfair

business practices); California Civil Code 2924 et. seq. (California

foreclosure law), etc.]. The OC raised federal HAMP issues and standards

to support its state causes of action. (OC, Page 15-20 at Notice of Removal,

Exhibit A alleging Defendants Seminal HAMP Violations:). The OC

expressly and objectively alleged HAMP standards not as a private right of

action (OC, Page 18, Para. 56), but as components of standards proving

state causes of action. The OC also alleges that Defendants damaged

Plaintiffs credit, which violates CAs Unfair Competition Laws (B&P Code


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17200, 17203, 17500). (OC, pg. 62, para. 233 at Notice of Removal,

Exhibit A). Plaintiff did not allege any federal causes of action.

III. LAW AND AUTHORITY:A plaintiff may seek to have a case remanded to the state court if the

district court lacks jurisdiction. U.S. Bank National Association v. Gilliam,

2012 U.S. Dist. LEXIS 55355 at *2-3; 28 U.S.C. 1447(c). On a motion to

remand, a removing defendant faces a strong presumption against removal,

and bears the burden of establishing by a preponderance of the evidence

submitted in the Notice of Removal that removal is proper. Prize Frize Inc.

v. Matrix Inc., 167 F.3d 1261, 1265-1266 (9th Cir.1999); Sanchez v.

Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.1996). The

removal statutes are construed restrictively, so as to limit removal

jurisdiction. Doubts as to removability are resolved in favor of remanding

the case to the state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108 (U.S. 1941). 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). Federal courts have a duty to examine

their subject matter jurisdiction whether or not the parties raise the issue.


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United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966

(9th Cir.2004) ([A] district court's duty to establish subject matter

jurisdiction is not contingent upon the parties' arguments, citing Mitchell v.

Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)); see also

Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95

(9th Cir.1996) (lack of subject matter jurisdiction may be raised at any time

by either party or by the court sua sponte); Thiara v. Kiernan, No. C06-

03503 MJJ, 2006 WL 3065568, *2 (N.D.Cal. Oct.25, 2006) (A district

court has an independent obligation to examine whether removal jurisdiction

exists before deciding any issue on the merits).

On granting a motion for remand, Plaintiff requests that the federal

court order the Defendants to pay Plaintiff its just costs and any actual

expenses, including attorney's fees, incurred as a result of the removal 28

U.S.C. 1447(c);Martin v. Franklin Capital Corp. 546 U.S.at 136.

IV. ARGUMENTa.The Court Does Not Have Federal Question Subject-Matter

Jurisdiction Over This Action Based Upon the ServicemembersCivil Relief Act (SCRA):


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Invoking removal jurisdiction is improper on grounds based upon

SCRA. The United States District Court for the Northern District of

California held that:


subject-matter jurisdiction over this action based upon the SCRA.U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS

55355 at *6

It is precisely because SCRA does not have a federal private right of

action that Plaintiff may use SCRA standards as an ingredient to support its

state causes of action (i.e. fraud, breach of contract, unfair business

practices, etc.). The SCRA protects servicemembers in state, federal, and

administrative proceedings. (emphasis added) U.S. Bank National

Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6. Moreover,

Plaintiff does not allege SCRA as a cause of action, but rather incorporates

SCRA to support its state causes of action. The gravamen of Plaintiffs

causes of action are strictly based in California statutory law [California

Civil Code 1709-1713 (fraud, deceit, negligent misrepresentation); B&P

17200, 17203, 17500 (unfair business practices); California Civil Code


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2924 et. seq. (California foreclosure law), etc.]. Thus, this court cannot

exercise federal question jurisdiction on grounds based upon SCRA.

b.Federal Question Jurisdiction Does Not Exist Because PlaintiffExclusively Alleges State Causes of Action and Does Not

Allege HAMP as a Federal Private Right of Action, and DoesNot Allege That He Is a Third Party Beneficiary of the SPA:

Pursuant to section 1331, [t]he district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws or

treatises of the United States (emphasis added). Defendants removed

this action citing two basic arguments for its Removal (Notice of Removal,

pg. 2, para. 2). Basically, Defendants removal alleges (1) a private right of

action arising underHAMP (12 U.S.C. 5219a) and (2) a federal cause of

action arising under SCRA (50 U.S.C. 501-596 et seq.). However,

Plaintiff does not allege a federal cause of action with a private right of

action arising underthe Constitution, treaties, or federal laws of the United

States (HAMP or the SCRA), or make a claim as a third-party beneficiary of

the HAMP Servicers Participation Agreement (SPA). Also, Plaintiff does

not allege grounds for preemption. Moreover, HAMP law does not preempt

state causes of action.


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Plaintiff Does Not Allege a HAMP Federal Private Right of Action:

In fact, Plaintiffs OC expressly alleges that it is not alleging a HAMP

federal private right of action:

...Plaintiff cites Making Home Affordable (MHA) HAMPviolations not as a private right of action, but as factual

allegations and prima facie proof of breaches of mandatorystandard industry practices and duties that violate federal/state

regulations in support of each cause of action. (OC, pg. 24,para. 71 at Notice of Removal, Exhibit A).

The federal courts have already decided that federal HAMP violations

may be used to support state (and California) causes of action, and that

HAMP does not preempt state causes of action. (See Wigod 2012 at *19;In

re Bank of America Home Affordable Modification Program (HAMP)

Contract Litigation No.10-md-02193-RWZ, 2011 WL 2637222 at *5 (D.

Mass. July 6, 2011); Bosque v. Wells Fargo Bank NA 762 F. Supp. 2d 342,

351 (D. Mass. 2011); Allen v. CitiMortgage, Inc. No. CCB-10-2740, 2011

WL 3425665, at *4 (D. Md. Aug. 4, 2011). In fact, the United States Court

of Appeals (in Wigod 2012 at *19) held:

We reject this end-run theory, along with Wells Fargos

formal preemption arguments. Federal law does not displace

Wigods state-law claims. (Emphasis Added)


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Similarly, references to federal law (like HAMP and SCRA) do not

convert the state claim into a federal cause of action, when Plaintiff merely

cites federal law standards to support its state claims, such as CAs unfair

business practices act (UCL). Guerra v. Carrington Mortg. Services,

(C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL 2630278).1

FISCHERs alleged state causes of action that may also be supported by

federal HAMP standards, as well as non-hamp standards. HAMP does not

limit or preempt its application in state court whatsoever. It is precisely

because HAMP does not have a federal private right of action that Plaintiff

may use HAMP standards as an ingredient to support its state causes of

action. Defendants fail to meet their burden of establishing federal question

jurisdiction, and removal is not proper.

c. The OC Does Not Raise a Federal Question Because HAMPand SCRA Are Not Necessary Elements of the Alleged State

1Here, Plaintiffs have not asserted a claim pursuant to RICO, the FDCPA,

or42 U.S.C. 1981, 1982. Instead, they allege violations of the UCL, andmerely cite federal law violations to support their state claim. (Compl.

113.) Accordingly, the UCL claim is not properly characterized as a federalcause of action; the first basis for federal question jurisdiction is unavailing.

Guerra v. Carrington Mortg. Services LLC (C.D. Cal., June 29, 2010, CV10-4299 GAF (EX)) 2010 WL 2630278 at *2 a. at page 2. (emphasis added)
http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1981&originatingDoc=I9ac553af85f111df8e45a3b5a338fda3&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1982&originatingDoc=I9ac553af85f111df8e45a3b5a338fda3&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1982&originatingDoc=I9ac553af85f111df8e45a3b5a338fda3&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1981&originatingDoc=I9ac553af85f111df8e45a3b5a338fda3&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)


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Causes of Action; and Removing State Causes of Action WillDisturb The Congressional Intent of HAMP and SCRA:

Since HAMP and SCRA do not preempt any state cause of action,

removal would be contrary to the intent of Congress.

A state cause of action invokes federal question jurisdiction only if it

necessarily raise[s] a stated federal issue, actually disputed andsubstantial, which a federal forum may entertain without disturbing

any congressionally approved balance of federal and state judicialresponsibilities. Nevada v. Bank of America Corp. (9th Cir. 2012)

672 F.3d 661, 674; citing Grable & Sons Metal Prods v. Darue Engg& Mfg, 545 U.S. 308, 314 (2005).

A claim does not present a substantial question of federal law

merely because a federal statute is an ingredient of a state cause of action.

Indeed, the mere presence of a federal issue in a state cause of action does

not automatically confer federal question jurisdiction. Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (U.S. 1986).

When a claim can be supported by alternative and independent

theories one of which is a state law theory and one of which is afederal law theory federal question jurisdiction does not attach

because federal law is not a necessary element of the claim.

(emphasis added) Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th

Cir. 1996).

Plaintiffs OC raises exclusively state law claims, as discussed above.

Plaintiffs reference to the HAMP and SCRA, and other federal laws are not


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alleged as necessary elements of the alleged state causes of action. Rather,

HAMP standards support state causes of action as components of the

allegations of violations of public policy, standard industry practice for

purposes of all Federal and State laws (Section 129 of Emergency

Economic Stabilization Act of 2008), best practices, usual and customary

industry standards (Supp. Dir. 09-01 (April 6, 2009) at page 1), standards

of performance, duties, custom and practice, and applicable state and federal

regulations and laws. (Supp. Dir. 09-01 cited by Wigod 2012 *24).

Just like FDCPA allegations couched as violations of the UCL in

Guerra (see FN1) are not properly characterized as a federal cause of

action, HAMP and SCRA support state claims in Plaintiffs OC at bar, and

does not support the first basis for federal question jurisdiction.

By so alleging, Plaintiff does not necessarily raise asubstantial

issue of federal law. Grable, 545 U.S. at 314 (2005). Californias Unfair

Competition Laws (B&P Code 17200, 17203, 17500) (UCL) includes a

borrowing provision making it a violation of this code to violate an

underlying tort, public policy or statute (HAMP or SCRA) violation. State

Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093, 1105,


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(1996). California district courts have held that mere references to federal

law in UCL claims do not convert the claim into a federal cause of action.

Guerra v. Carrington Mortg. Services LLC (C.D. Cal., June 29, 2010, CV

10-4299 GAF (EX)) 2010 WL 2630278; citing Ortiz v. Indymac Bank,

F.S.B., 2010 WL 2035791, at *1 n. 3 (C.D.Cal. May 20, 2010); Leal v. U.S.

Bank Nat'l Ass'n,2010 WL 2389959, at *2 (C.D.Cal. June 9, 2010) (Merely

using the potential violation of a federal statute to form part of the basis for a

state law cause of action does not transform the action into a federal

claim.). InMontoya, the court noted that because the claim arose under the

UCL, as in Rains, it is state, not federal law that creates the cause of

action. Montoya v. Mortgageit Inc, 2010 WL 546891 at *3 (N.D.Cal.

Feb.10, 2010).

In Lippitt, the court explained that federal law was not a necessaryelement of the plaintiff's UCL claim because he did not have to rely

on a violation of the Exchange Act nor an infraction of an NYSE ruleor regulation to bring a UCL claim in California state court. Lippitt

v. Raymond James Fin. Servs, 340 F.3d 1033, 1043 (9th Cir. Cal.

2003).

To bring a UCL claim, the plaintiff merely had to show that Defendants'

conduct was either unfair or fraudulent. Id. Thus, the complaint's


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references to federal law do not convert the [ ] claim into a federal cause of

action.Id.; see also Lippitt, 340 F.3d at 1039.

The gravamen of the OC is that Defendants violated California state

causes of action through numerous misrepresentations, false promises

without the intent to perform, some about the HAMP program, and some

which also violate the SCRA standards. The gravamen of the OC does not

raise federal causes of action. Thus, exercising federal question jurisdiction

would have more than a microscopic effect on the federal -state division of

labor. Grable, 545 U.S. at 315. State courts frequently handle state-law

consumer protection suits that refer to or are predicated on standards set

forth in federal statutes. Exercising federal question jurisdiction over any

state law claim that references a federal consumer protection statute would

herald[] a potentially enormous shift of traditionally state cases into federal

courts. Id. at 319. For these reasons, there is no valid basis for federal

question jurisdiction in this case.

d. Defendants Removal Fails Because No State Causes of ActionHave Been Preempted by HAMP or SCRA:

In its removal, Defendants do not assert that the HAMP or SCRA

completely preempts other state laws.


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Once an area of state law has been completely pre-empted, any claimpurportedly based on that pre-empted state law is considered, from its

inception, a federal claim, and therefore arises under federal law.Ortega v. HomEq Servicing, No. CV 09-02130, 2010 WL 383368 at

*4, C.D. California, Jan. 25, 2010; Caterpillar, Inc. v. Williams, 482U.S. 386, 393 (U.S. 1987);ARCO Environmental Remediation, L.L.C.

v. Department of Health & Environmental Quality of Montana, 213F.3d 1108, 1114 (9th Cir.2000) (A state-created cause of action can

be deemed to arise under federal law ... where federal law completelypreempts state law).

This is not the case at bar. Here, Defendants removed the case

knowing there is no private right of action in federal court, as Plaintiffs OC

expressly alleges this. (OC, pg. 24, para. 71 at Notice of Removal, Exhibit

A). Moreover, Plaintiffs OC expressly alleges Wigod 2012, which holds

that HAMP is not a private right of action and that federal law does not

contain any preemption of state law. (OC, pg. 18, para. 56 at Notice of

Removal, Exhibit A). There is no indication that Congress meant to

foreclose suits against servicers for violating state laws that impose

obligations parallel to those established in a federal program. (Wigod 2012

at *23) Moreover, the court held that the Treasury HAMP program in

Supplemental Directive 09-01 states that servicers must implement

[HAMP] in compliance with state common law and statutes.(Wigod 2012

*24) The issue here, however, is not whether federal law itself provides


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private remedies, but whether it displaces remedies otherwise available

under state law. The absence of a private right of action from a federal

statute provides no reason to dismiss a claim under a state law just because it

refers to or incorporates some element of the federal lawTo find otherwise

would require adopting the novel presumption that where Congress provides

no remedy under federal law, state law may not afford one in its stead.

(Wigod 2012 at *24). Moreover, the United States Court of Appeals (in

Wigod 2012 at *19) held:

We reject this end-run theory, along with Wells Fargos

formal preemption arguments. Federal law does not displace

Wigods state-law claims. (Emphasis Added)

The very fact that there is no federal private right of action and

Plaintiffs state law claims are not preempted by federal law is what affords

Plaintiff her right to sue for federal HAMP standards supporting state causes

of action.Moreover, as discussed above, the United States District Court

for the Northern District of California held that:


subject-matter jurisdiction over this action based upon the SCRA.

U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS55355 at *6


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For these reasons, Defendants removal fails because no state causes of

action have been preempted by HAMP or SCRA. Thus, there is no valid

basis for federal question jurisdiction in this case.

e. This Court May Not Exercise Supplemental Jurisdiction OverAny Other Claims That Could Not, By Itself, Invoke Original

Jurisdiction:

Because this court does not have federal question jurisdiction over any

cause of action, it cannot exercise supplemental jurisdiction over state claims

not independently supported by original jurisdiction. 28 U.S.C. 1367(a).

Unless, considerations of judicial economy, convenience[,] and fairness to

litigants weigh in favor of the exercise of supplemental jurisdiction, a

federal court should hesitate to exercise jurisdiction over state claims.

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also

Carnegies-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).

V. CONCLUSION:Plaintiff respectfully requests that this Court grant Plaintiffs motion

to remand on the grounds that Defendants cannot overcome its burden to

show a federal question (Wilson, 257 U.S. at 92) and if it can, the abstention

doctrine would still require remand (Burford v. Sun Oil Co., 319 U.S. 315,


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334 (U.S. 1943)); and there is no federal anchor claim establishing original

jurisdiction to exercise supplemental jurisdiction. Plaintiff also requests an

order taxing costs, including attorney fees against Removing Defendants.

_________________________By: Richard Ivar Rydstrom, Esq.

Attorney for Plaintiff

Motion to Remand Online

Documents

Transcript of Motion to Remand Online