Case 5:12-cv-00640-CJC-FFM Document 23

Filed 06/14/12 Page 1 of 4 Page ID #:890

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL Case No. EDCV 12-00640-CJC(FFMx)

JS-6

Date: June 14, 2012

Title: OPHELIA GEORGIEV ROOP v. CITIMORTGAGE, INC., ET AL.

PRESENT: HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE Michelle Urie Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

N/A Court Reporter

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFFS MOTION TO REMAND [filed 5/11/12], DISCHARGING THE COURTS ORDER TO SHOW CAUSE [issued 5/11/12], AND DISMISSING DEFENDANTS MOTION TO STRIKE [filed 6/4/12] Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for June 25, 2012 at 1:30 p.m. is hereby vacated and off calendar. INTRODUCTION & BACKGROUND On March 23, 2012, Plaintiff Ophelia Georgiev Roop filed a First Amended Complaint (FAC) in San Bernardino County Superior Court against Defendants Bank Citimortgage, Inc., Kaiser Federal Bank, Citi Residential Lending, Inc., CR Title Service, Inc. (collectively,Defendants), and fictitious defendants in connection with efforts to modify her home loan, and the foreclosure process commenced on her property. Ms. Roop alleges causes of action for fraud, negligent misrepresentation, wrongful foreclosure, slander of title, breach of written contract, breach of oral contract, verified quiet title, promissory estoppel, emotional distress, conspiracy to defraud, breach of the implied covenant of good faith and fair dealing, negligence and violations of Californias Unfair Competition Law, Californias Rosenthal Fair Debt Collection Practices Act (RFDCPA), and Californias Consumer Legal Remedies Act. On April 26, 2012, Defendants removed this action to federal court based on subject matter jurisdiction. Defendants claim that subject matter jurisdiction exists because the FAC expressly

Case 5:12-cv-00640-CJC-FFM Document 23

Filed 06/14/12 Page 2 of 4 Page ID #:891

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL Case No. EDCV 12-00640-CJC(FFMx) Date: June 14, 2012 Page 2

alleges various violations of federal law, U.S. Code, and federal regulations, and adds three additional causes of action . . . based on purported violations of [the U.S. Treasurys Home Affordable Modification Program (HAMP) . . . [and] added an expressly federal cause of action under the federal Fair Debt Collection Practices Act (FDCPA). (Defs. Opp. Mot. Remand, at 2.) On May 11, 2012, Ms. Roop filed the instant motion to remand, in which she argues that Defendants have failed to establish subject matter jurisdiction. Also before the Court are the parties responses to the Courts order to show cause filed on May 21, 2012, and May 29, 2012. For the following reasons, Ms. Roops motion to remand is GRANTED, and the order to show cause is DISCHARGED. ANALYSIS A civil action brought in a state court but over which a federal court may exercise original jurisdiction may be removed by the defendant to a federal district court. 28 U.S.C. 1441(a). However, [a] suit may be removed to federal court under 28 U.S.C. 1441(a) only if it could have been brought there originally. Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987). The burden of establishing subject matter jurisdiction falls on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 28 U.S.C. 1331 confers original jurisdiction on this Court over civil actions arising under federal law. Removal based on section 1331 is governed by the wellpleaded complaint rule. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, federal jurisdiction exists only when a federal question is presented on the face of plaintiffs properly pleaded complaint. Id. However, [t]he mere presence of a federal issue in a state cause of action does not automatically confer subject matter jurisdiction. Garnett v. Aurora Loan Servs., LLC., No. CV 12-00257, 2012 WL 1440920, *2 (C.D. Cal. Apr. 25, 2012) (citing Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813 (1986). For subject matter jurisdiction to exist, the state law claim must raise a stated federal issue that is actually disputed and substantial. Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 314 (2005). If no federal private cause of action exists, federal courts will flout congressional intent by exercising federal question jurisdiction and providing remedies for violations of that federal statute

Case 5:12-cv-00640-CJC-FFM Document 23

Filed 06/14/12 Page 3 of 4 Page ID #:892

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL Case No. EDCV 12-00640-CJC(FFMx) Date: June 14, 2012 Page 3

solely because the violation of the federal statute is claimed to be a proximate cause under state law. Garnett, 2012 WL * 2 (citing Merrell, 478 U.S. at 811). Here, Ms. Roop alleges that Defendants offered and promised her both trial and permanent modification under HAMP, and failed to inform her until after such a promise that the investor in Ms. Roops loan, Kaiser Federal Bank, did not participate in HAMP. Many of Ms. Roops causes of action are directly or indirectly premised on this allegation. In other words, Ms. Roop alleges that Defendants violations of HAMP are the proximate cause of many of her state law claims. However, it is well established, and this Court has repeatedly found, that no private right of action exists under HAMP. See, e.g. Velasco v. Aurora Loan Servs., LLC, No. CV 11-04784, 2012 WL 569582, *2 (C.D. Cal. Feb. 21, 2012); Carlos v. Bank of Amer. Home Loans, No. CV 10-1966, 2011 WL 166343, *1 (C.D. Cal. Jan. 13, 2011); Villa v. Wells Fargo Bank, N.A., No. CV 10-81, 2010 WL 935680, *3 (S.D. Cal. Mar. 15, 2010). Therefore, no federal question exists simply because Ms. Roops state law claims incorporate or turn upon allegations that Defendants violated HAMP. Preciado v. Ocwen Loan Servicing, No. CV 11-1487, 2011 WL 977819, *1 (C.D. Cal. Mar. 18, 2011). Defendants contention that Ms. Roop asserts a federal cause of action brought pursuant to the FDCPA is similarly without merit. Ms. Roop does not assert a cause of action pursuant to the FDCPA. She asserts instead a state law cause of action pursuant to Californias RFDCPA. Because the California legislature has expressly incorporated portions of the FDCPA into the RFDCPA, a plaintiff may reference the FDCPA under a claim under the RFDCPA without creating a federal question for purposes of removal jurisdiction. Accordingly, Ms. Roops mention of the FDCPA within her state law claim is not an appropriate basis for removing this action. Without more, Defendants lacked sufficient grounds to remove this case to federal court. Because Defendants had an objectively reasonable basis for seeking removal, the Court DENIES Ms. Roops request for attorneys fees.

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Case 5:12-cv-00640-CJC-FFM Document 23

Filed 06/14/12 Page 4 of 4 Page ID #:893

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL Case No. EDCV 12-00640-CJC(FFMx) Date: June 14, 2012 Page 4

CONCLUSION For the foregoing reasons, Ms. Roops motion to remand is GRANTED. This action is hereby REMANDED to state court and the Courts order to show cause is DISCHARGED. Defendants motion to strike is DISMISSED for lack of jurisdiction.

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Initials of Deputy Clerk: MU