RydstromLaw Wins Remand for HAMP Denial Violations Fed to State Court

7/31/2019 RydstromLaw Wins Remand for HAMP Denial Violations Fed to State Court

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JS-6UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES GENERAL

Case No. EDCV 12-00640-CJC(FFMx) Date: June 14, 2012

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

PRESENT:

HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

Michelle Urie N/A

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: 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, wrongfulforeclosure, 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 1 of 4 Page ID #:890


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UNITED STATES DISTRICT COURT




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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 subjectmatter 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 well-

pleaded 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) (citingMerrell 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



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solely because the violation of the federal statute is claimed to be a proximate cause

under state law. Garnett, 2012 WL * 2 (citingMerrell, 478 U.S. at 811).

Here, Ms. Roop alleges that Defendantsoffered 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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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.

jsk

MINUTES FORM 11

CIVIL-GEN Initials of Deputy Clerk: MU


RydstromLaw Wins Remand for HAMP Denial Violations Fed to State Court

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