Removal to Federal Court

Cal. Super. - 6th Dist.October 17, 2017

. D 4/ A 1 THOMAS A. WOODS (SB #210050) F} L_ E 0&3) Thomas.woods@stoellcom 2 BRYAN L. HAWKINS (SB #238346) Bryan.hawkins@stoe|.com 20” NOV ‘1 ' P 3: 01 3 STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: (916) 447-0700 Facsimile: (916) 447-4781 Attorneys for Defendants ‘ )éy/o Select Portfolio Servicing, Inc. and US. Bank NA, " successor trustee to Bank of America, NA, successor in interest to LaSalle Bank NA, as trustee, on behalf of the holders Ofthe WaMu Mortgage Pass-Through Certificates, Series 2007-OA6 9 10 IN THE SUPERIOR COURT OF CALIFORNIA , 11 IN AND FOR THE COUNTY OF SANTA CLARA l2 RALPH B. NEAL, Case No. #7934318, 170161757 O 13 Plaintiff, DEFENDANT SELECT PORTFOLIO SERVICING, INC. AND US. BANK 14 v. NA, SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, 15 US. BANK NA, SUCCESSOR TRUSTEE TO SUCCESSOR IN INTEREST TO BANK OF AMERICA, NA, SUCCESSOR IN LASALLE BANK NA, AS TRUSTEE, 16 INTEREST TO LASALLE BANK NA, AS ON BEHALF OF THE HOLDERS OF TRUSTEE, ON BEHALF OF THE HOLDERS THE WAMU MORTGAGE PASS- 17 OF THE WAMU MORTGAGE PASS- THROUGH CERTIFICATES, SERIES THROUGH CERTIFICATES, SERIES 2007- 2007-0A6’S NOTICE TO ADVERSE 18 0A6; SELECT PORTFOLIO SERVICING, PARTY OF REMOVAL TO FEDERAL INC.; and DOES I through 20 inclusive, COURT 19 Defendants. Complaint Filed: October 17, 2017 20 21 22 ' 23 24 25 26 27 28 sjggtj'ffifi" NOTICE TO ADVERSE PARTY OF Case N0. 5W, REMOVAL To FEDERAL COURT I In (1V7- 2’ 2 7941875711 OOSZIGl-02642 28 STOEL RIVES LLP ATTORNEYS A1 LAW SACKA MENTO TO PLAINTIFF AND TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA: PLEASE TAKE NOTICE that Defendants Select Portfolio Servicing, Inc. (“SPS”) and US. Bank NA, successor trustee to Bank of America, NA, successor in interest to LaSaIle Bank NA, as trustee, on behalf ofthe holders of the WaMu Mortgage Pass-Through Certificates, Series 2007-OA6 have removed this case to the United States District Court for the Northem District of California. A copy of the Notice of Removal filed in the Federal Court (without exhibits) is attached hereto as Exhibit A. DATED: November 7, 2017 STOEL RIVES LLP BRYAN L I-IAWKINS Attorneys for Defendants Select Portfolio Servicing, Inc. and US. Bank NA, successor trustee to Bank of America, NA, successor in interest to LaSaIle Bank NA, as trustee, on behalf of the holders ofthe WaMu Mortgage Pass- Through Certificates, Series 2007-OA6 NOTICE TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT 79418757.] 0052l61-02642 C as” on, 0: Jim ‘31. EXHIBIT A 9 IO 11 12 I3 14 15 I6 17 18 I9 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP ATTORNEYS AT LAW SACKA u HNTO Case 5:17-c.471 Document 1 Filed 11/07/17 .3e 1 of 7 THOMAS A. WOODS (SB #210050) Thomas.woods@stoel.com BRYAN L. HAWKINS (SB #238346) Br Ian.hawkins@stoel.com STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: (916) 447-0700 Facsimile: (916) 447-4781 Attorneys for Defendants Select Portfolio Servicing, Inc. and U.S. Bank NA, successor trustee to Bank of America, NA, successor in interest to LaSalle Bank NA, as trustee, on behalf of the holders ofthe WaMu Mortgage Pass-Through Certificates, Series 2007-OA6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RALPH B. NEAL, Plaintiff, v. U.S. BANK NA, SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, SUCCESSOR IN INTEREST TO LASALLE BANK NA, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS- TI-IROUGH CERTIFICATES, SERIES 2007- OA6; SELECT PORTFOLIO SERVICING, INC; and DOES I through 20 inclusive, Defendants. Case No. DEFENDANTS SELECT PORTFOLIO SERVICING, INC. AND U.S. BANK NA, SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, SUCCESSOR IN INTEREST TO LASALLE BANK NA, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-OA6’S NOTICE OF REMOVAL [28 use § 1441] (Santa Clara County Superior Court, Case No. I7-CV3I7578) Complaint Filed: October 17, 2017 NOTICE OF REMOVAL 79368215.] 005216102642 \l 10 ll 12 I3 I4 I5 16 I7 l8 I9 20 21 22 23 _24 25 26 27 28 STOEL RIVES LLP ATTORNEYS AT LAW SACRAMENTO Case 5:17-c.471 Document 1 Filed 11/07/17 .3e 2 of 7 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF: PLEASE TAKE NOTICE that Defendants Select Portfolio Servicing, Inc. (“SP8”) and US. Bank NA, successor trustee to Bank of America, NA, successor in interest to LaSalle Bank NA, as trustee, on behalf ofthe holders of the WaMu Mortgage Pass-Through Certificates, Series 2007-OA6 (the “Trust”) file this Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446, asserting diversityjurisdiction, pursuant to 28 U.S.C. § I332, to effect the removal ofthe above- captioned action, which was commenced in the Superior Court of the'State of California for the County of Santa Clara, and states that the removal is proper for the following reasons: BACKGROUND I. On or about June I, 2015, Plaintiff Ralph B. Neal ("Plaintiff“) filed a Complaint in the Superior Court ofthe State of California for the County of Santa Clara, Case Number lS-cv- 281260 (the "First State Action"). Plaintiff’s Complaint in the First State Action alleged causes of action for wrongful assignment of deed oftrust, lack of legal standing, violation of California Homeowners’ Bill of Rights, promissory estoppel, unjust enrichment, accounting, declaratory relief, quiet title, violations of California Business and Professions Code section 17200, et seq., and violation of the consumer protection financial act. On July 10, 2015, Defendant SPS removed this action to this Court, where it was presided over by the Honorable Edward J. Davila. Case No. 5:I5-cv-032I 2-EJD. On March 20, 2017, Judge Davilla entered Judgment in favor of Defendants in the First Action. 2. On or about July 27, 2016, Plaintiff filed another Complaint in the Superior Court of the State of California for the County of Santa Clara, Case Number I6-cv-298182 (the "Second State Action"). Plaintiff‘s Complaint in the Second State Action alleges causes of action for void assignment of deed of trust, lack of legal standing, interference with contract, intentional misrepresentation, negligent misrepresentation, violation of California Homeowners Bill of Rights, unjust enrichment, accounting, quiet title, and violation of California Business and Professions Code. The Complaint in the Second State Action is based on precisely the same factual allegations as the First Amended Complaint in the First State Action. On August 26, NOTICE OF REMOVAL -l - 793682l5,l 0052i6l-02642 10 11 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP AWOKNEVS A7 LAW SACRAMENTO Case 5:17-c.471 Document 1 Filed 11/07/17 .3e 3 of 7 2016, Defendant SPS removed this action to this Court, where it was presided over by the Honorable Edward J. Davila. Case No. 5:16-cv-04923-EJD. On September 22, 2017, Judge Davilla entered Judgment in favor of Defendants in the Second Action. 3. On or about October 17, 2017, Plaintifffiled another Complaint in the Superior Court of the State of California for the County of Santa Clara, Case Number l7-cv317578 (the "Third Action"). Plaintiffs Complaint in the Third State Action alleges causes of action for interference with contractual relations, void links of contractual assignment, void recordation of foreclosure documents, declaratory relief on purchase and assumption agreement, intentional misrepresentation, and constructive fraud. The Complaint in the Third State Action is based on precisely the same factual allegations as the operative pleadings in the First State Action and Second State Action. A copy ofthe Complaint and all other documents served on Defendants and filed with the Superior Court in the Third State Action are attached hereto as Exhibit “A,” as required by 28 U.S.C. § 1446(a). TIMELINESS OF REMOVAL 4. Neither SPS nor the Trust have been served with the Complaint in this action. 5. This Notice of Removal is timely pursuant to 28 USC § 1446 because it is filed prior to the expiration ofthirty days from Defendants’ initial receipt of the Complaint. 28 U.S.C. § 1446(b); Murphy Bros, Inc. v. Micherti Pipe Stringing, Inc., 526 US. 344 (1999) (30 day deadline to remove commences upon service ofthe summons and complaint). DIVERSITY JURISDICTION 6. The Court has original jurisdiction of this action under 28 U.S.C. § 1332(a)(l), and Defendants may remove it from state court to federal court pursuant to 28 U.S.C. § 1441(a), because this action involves a controversy that exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. 7. Plaintiff's Citizenship. For diversity purposes, a person is a “citizen” ofthe state in which she is domiciled. Kan/0r v. Wellesley Galleries, Ltd, 704 F.2d 1088, 1090 (9th Cir. 1983). A party’s residence is prima facie evidence of his or her domicile. State Farm Mutual Auto Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994). The complaint alleges that Plaintiffis NOTICE OF REMOVAL -2- 79368215,] 0052161-02642 Ut-D-WN \l 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP AWORNEYS AT LAW 5mm MENTO Case 5:17-c.471 Document 1 Filed 11/07/17 ge 4 of 7 and at all relevant times was a resident of Santa Clara County, California. Complaint 1] 8. Therefore, Plaintiff is, and at all times since the commencement of this action has been, a citizen and resident of the State of California. 8. Defendants’ Citizenship. Pursuant to 28 U.S.C. § 1332(c), “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business...” SPS is now, and ever since this action commenced has been, incorporated under the laws ofthe State of Utah, with its principal place of business in the State of Utah. Accordingly, SP8 is, and has been at all times since this action commenced, a citizen of Utah. US. Bank is a national banking association. Pursuant to 28 U.S.C. § 1348, national banking associations are deemed citizens only in the state in which their main office is located. Rouse v. Wachovia Mortg, FSB, 747 F.3d 707, 709 (9th Cir. 2014). Defendant US. Bank as Trustee is a national banking association with its main office located in the State of Ohio. Accordingly, US. Bank as Trustee is, and has been at all times since this action commenced, a citizen of Ohio. 9. Doe Defendants. Pursuant to 28 U.S.C. § 1441(a), the residence of fictitious and unknown defendants should be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C. § 1332. Fristos v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed defendants are not required to join in a removal petition). Thus, the existence of DOE defendants in this case does not deprive this court ofjurisdiction. 10. Accordingly, pursuant to 28 U.S.C. § 1332(c), Plaintiff and Defendants have diverse citizenships. AMOUNT IN CONTROVERSY l 1. Plaintiff has asserted multiple causes of action challenging Defendants’ rights to foreclose on the real property located at 1588 Calco Creek Drive, San Jose, California 95127 the “Property”). While Defendants deny any liability as to Plaintiff‘s claims, the amount in controversy requirement is satisfied because the allegations in the complaint make it “more likely than not” that the amount in controversy exceeds the jurisdictional minimum of $75,000. NOTICE OF REMOVAL -3- 79368215,] 0052161-02642 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLI’ Answers AT LAW SACIA memo Case 5:17-c.471 Document 1 Filed 11/07/17 .ge 5 of 7 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398 403-04 (9th Cir. 1996) (internal citation omitted). 12. In this case, Plaintiff did not allege the amount in controversy. An action may be removed if the defendant establishes, by a preponderance of the evidence, that the amount in controversy exceeds thejurisdictional amount. Guglielmino v. McKee Foods Corp, 506 F.3d 696, 699 (9th Cir. 2007). To establish by a preponderance of the evidence that the amount in controversy exceeds thejurisdictional amount, the defendant must establish that it is “more likely than not” that the amount in controversy exceeds that amount. Sanchez v. Monumental Life Ins. Co., supra, 102 F.3d at 404. 13. In determining the amount in controversy the Court must consider the aggregate of general damages, special damages, punitive damages, and attorneys’ fees. Galt G/S v. JSS Scandinavia, 142 F.3d 1 150, l 156 (9th Cir. 1998) (claims for statutory attorneys’ fees to be included in amount in controversy, regardless of whether such an award is discretionary or mandatory); Davenport v. Mutual Ben. Health & Acc. Ass ’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account where recoverable under state law); Conrad Associates v. HartfordAcc. & Ind. C0., 994 F.Supp. 1196, 1 198 (ND. Cal. 1998) (“amount in controversy” includes claims for general and special damages). l4. Plaintiffinitially obtained a loan in the amount of $1 ,000,000 (the ""Note”) secured by a Deed of Trust (“DOT”) on the Property. The Note is currently in foreclosure. Specifically, Plaintiff is more than 69 payments down and the unpaid balance on the Note is in excess of $1,038,341.22. On April 28, 2015, SP5 sent a Notice of Default letter to Plaintiff notifying him that the Note was in default and that the amount of $327,266.96 was required in order to cure the default. 15. Damages. Plaintiff‘s action is aimed primarily at voiding and invalidating Defendants’ interest in the Note, the DOT, and the Property. See e.g. Complaint at 111] 45-53 (second cause of action for void links of contractual assignments), 59 (third cause of action for void recordation of foreclosure documents), Prayer for Relief (stating Plaintiff's claim to permanently enjoin Defendants from foreclosing on the Property or recording any deeds or NOTICE OF REMOVAL -4- 793682151 0052161-02642 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP ATTORNEVS AT LAW Sacuauumo Case 5:17-c‘ _. 171 Documentl Filed 11/07/17‘ .5eeof7 mortgages regarding the Property). Given the value ofthe Note and the Property and the unpaid balance on the Note, these allegations alone demonstrate that the amount in controversy exceeds thejurisdictional minimum of $75,000. This is not including (I) Plaintiff’s claims for tort damages and penalties (Complaint at 1111 43, 54, 60, 80, and 87) and (2) Plaintiff‘s claims for punitive damages and attomeys’ fees (Prayer for Relief). See Gall G/S v. JSS Scandinavia, supra, 142 F.3d at l 156 (claims for statutory attomeys’ fees to be included in amount of controversy, regardless of whether award is discretionary or mandatory). 16. Accordingly, Plaintiff's total claims establish that the amount in controversy exceeds $75,000. w I7. Venue lies in this court pursuant to 28 U.S.C. § ll4l(a), as Plaintiff originally brought this action in the Superior Court of the State of California, County of Santa Clara and Plaintiff resides in the County of Santa Clara, California. INTRADISTRICT ASSIGNMENT I8. Pursuant to Local Rule 3-5(b), this action is properly assigned to the San Jose Division of this Court as Plaintiff originally brought this action in the Superior Court of the State of California, County of Santa Clara. SERVICE OF NOTICE OF REMOVAL I9. Notice of this removal will promptly be served on Plaintiff and the Clerk of the Superior Court in and for the County of Santa Clara. 20. In compliance with 28 U.S.C. § I446(a), a true and correct copy of the Complaint filed in this action is attached hereto as Exhibit A. WHEREFORE, Defendants pray that this civil action be removed from the Superior Court of the State of California, County of Santa Clara, to the United States District for the Northern District of California. NOTICE OF REMOVAL -5- 793682l5.l 0052l6l-Ol642 Case 5:17-c‘~ . 171 Document 1 Filed 11/07/17 .38 7 of 7 1 DATED: November 7, 2017 2 STOEL RIVES LLP 3 4 By: /s/ Bryan L. Hawkins THOMAS A. WOODS 5 BRYAN L. HAWKINS Attomeys for Defendants 6 Select Portfolio Servicing, Inc. and Select Portfolio Servicing, Inc. and US. Bank 7 NA, successor trustee to Bank of America, NA, successor in interest to LaSalle Bank 8 NA, as trustee, on behalf ofthe holders of the WaMu Mortgage Pass-Through 9 Certificates, Series 2007-OA6 10 l 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP Ammvww NOTICE OF REMOVAL -6- SACIA memo 79368215.] 0052161-02642 kJI-bbJ 10 ll l2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STOEL RIVES LLP ATTORNEYS At Law SACRAMENTO \_/ DECLARATION OF SERVICE 1 ‘ . t. I declare that I am over the age of eighteen years and not a party toIthisbtltion ED employed in the City and County of San Francisco and my business address is Three _ Embarcadero Center, Suite 1120, San Francisco, California 94111. 2017 NOV -1 . p 3: 01 .1169615E 6661161 On November 7, 2017, at San Francisco, California, I served the att DEFENDANT SELECT PORTFOLIO SERVICING, “““ T i: P!“ NOTICE OF ADVERSE PARTY OF REMOVAL TO FEDE FIB/F SE[.()[ A C- 0% COURT 78% O, on the following parties: Ralph B. Neal 1588 Calco Creek San Jose, CA 95127 Phone: (408) 219-1 188 [2 BY FIRST CLASS MAIL: I am readily familiar with my employer’s practice for the collection and processing of correspondence for mailing with the US. Postal Service. In the ordinary course ofbusiness, correspondence would be deposited with the US. Postal Service on the day on which it is collected. On the date written above, following ordinary business practices, I placed for collection and mailing at the offices of Stoel Rives LLP, Three Embarcadero Center, Suite 1 120, San Francisco, California 941 l l, a copy ofthe attached document in a sealed envelope, with postage fully prepaid, addressed as shown on the service list. I am aware that on motion ofthe party served, service is presumed invalid ifthe postal cancellation date or postage meter date is more than one day afier the date of deposit for mailing contained in this declaration. [3 BY FACSIMILE: On the date written above, I caused a copy ofthe attached document to be transmitted to a fax machine maintained by the person on whom it is served at the fax number shown on the service list. That transmission was reported as complete and without error and a transmission report was properly issued by the transmitting fax machine. [I BY HAND DELIVERY: On the date written above, I placed a copy ofthe attached document in a sealed envelope, with delivery fees paid or provided for, and arranged for it to be delivered by messenger that same day to the office ofthe addressee, as shown on the service list. BY EMAIL: On the date written above, I emailed a copy ofthe attached documents to the addressee, as shown on the service list. BY OVERNIGHT MAIL: I am readily familiar with my employer’s practice for the collection and processing of correspondence for overnight delivery. In the ordinary course of business, correspondence would be deposited in a box or other facility regularly maintained by the express service carrier or delivered to it by the carrier’s authorized courier on the day on which it is collected. On the date written above, following ordinary business practices, I placed for collection and overnight delivery at the offices of Stoel Rives LLP, 500 Capitol Mall, Suite 1600, Sacramento, California 95814, a copy ofthe attached document in a sealed envelope, with delivery fees prepaid or provided for, addressed as shown on the service list. 1] (Federal Courts Only) I declare that I am employed in the office ofa member ofthis court at whose direction this service was made. I declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing is true and correct and that this document was executed on November 7, 2017, at San Francisco, California. 2 02/; Sharon R.|Witkin NOTICE TO ADVERSE PARTY or Case No. 17CV3 l 75 78 REMOVAL TO FEDERAL COURT 794187571 0052161-02642