Summary
remanding the case to the Superior Court of California, Riverside County for lack of facts competently alleging federal question or diversity jurisdiction
Summary of this case from Nationstar Mortg. LLC v. PignataroOpinion
Case No. EDCV 12-1345 UA
08-22-2012
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWMBS, INC. CWMBS REPERFORMING LOAN REMIC TRUST CERTIFICATES, SERIES 2005-R2, Plaintiff, v. MARGARET K. PENNINGTON, et al., Defendants.
(PROPOSED)
ORDER SUMMARILY REMANDING IMPROPERLY-REMOVED ACTION
The Court will remand this unlawful detainer action to state court summarily because it was improperly removed.
On August 13, 2012, Removing Defendant Margaret K. Pennington lodged a Notice of Removal which seeks removal to this Court of what appears to be a routine post-foreclosure unlawful detainer action filed in California state court ("State Complaint" or "State Action"), and also presented an application to proceed in forma pauperis. The Court has denied the latter application under separate cover because the State Action was not properly removed. To prevent the action from remaining in jurisdictional limbo, the Court issues this Order to remand the action to state court.
Simply stated, Plaintiff could not have brought this action in federal court in the first place, in that Removing Defendant does not competently allege facts supplying either diversity or federal-question jurisdiction, and therefore removal is improper. 28 U.S.C. § 1441(a); see Exxon Mobil Corp v. Allapattah Sycs., Inc., 545 U.S. 546, 563,125 S. Ct. 2611, 162 L.Ed.2d 502 (2005). Even if complete diversity of citizenship exists, the amount in controversy alleged in the State Complaint does not exceed the diversity-jurisdiction threshold of $75,000. See 28 U.S.C. §§ 1332, 1441(b). Nor does Plaintiff's unlawful detainer action raise any federal legal question. See 28 U.S.C. §§ 1331, 1441(b).
Accordingly, IT IS ORDERED that (1) this matter be REMANDED to the Superior Court of California, Riverside County, Banning Court, 135 North Alessandro Road, Banning, CA 92220, for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c); (2) the Clerk send a certified copy of this Order to the state court; and (3) the Clerk serve copies of this Order on the parties.
IT IS SO ORDERED.
_______________
HONORABLE AUDREY B. COLLINS
CHIEF UNITED STATES DISTRICT JUDGE
Presented by _______________
Honorable Jacqueline Chooljian
UNITED STATE MAGISTRATE JUDGE
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC. CWMBS REPERFORMING LOAN REMIC TRUST CERTIFICATES, SERIES 2005-R2, Plaintiff,
vs.
MARGARET K. PENNINGTON and DOES 1 through X, inclusive, Defendant.
CASE NO. BAC1200413 NOTICE OPREMOVAL OF STATE COURT ACTION UNDER 1331 and
1441(A), (B)
(FEDERAL QUESTION); (DIVERSITY JURISDICTION) 28 U.S.C 1332
TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Margaret Katherine Pennington, Defendant, hereby removes to this Court the action described below from the Superior Court of the State of California, County of Riverside. I. BACKGROUND
1. ("Plaintiff") filed an action in the Superior Court of the State of California, County of Riverside, titled THE BANK OF NEW YORK MELLON ("Plaintiff") vs. MARGARET K. PENNINGTON; and DOES 1 through X, inclusive. MARGARET K. PENNINGTON was ("Defendant") in said case in a wrongful claim made by Plaintiff and Plaintiff's Attorney filed in Case No. BAC1200413 with the State Court and Defendant was denied her constitutional right to due process. II. BASIS FOR REMOVAL
2. The above-described State Court Action is a civil action of which this Court has original jurisdiction under the provisions of 28 U.S.C. Section 1331, and is one that may be removed to this Court by Defendant pursuant to 28 U.S.C. Section 1441 (a) and (b).
3. Section 1441(a) of Title 28 of the United States Code provides for the removal of any action in which the United States district courts have original jurisdiction. Section 1441 (b) states that district courts have original jurisdiction over any civil action founded on a claim or right arising under the "laws of the United States and shall be removable without regard to citizenship or residence of the parties."
4. Plaintiff's causes of action arises under federal law because it is predicated on alleged violations of federal statutes and are dependent on the resolution of substantial and disputed federal questions. Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal Truth in Lending 15 USCS §1638(a)(9), and Regulation Z. The bank took a security interest without disclosing the security interest. III. PROCEDURAL COMPLIANCE
5. Margaret Katherine Pennington and all unknown occupants were NEVER served pursuant to the rules of the court. Plantiff's Attorney is in violation of his oath of office and of Business and Professions Code 6068 (a)(c)(d)(g) & Section 7 and in violation under the Bill of Rights, Article 4,5, & 6, causing the case to be ruled upon in error and in violation of due process. A notice of removal must be filed within "thirty days after receipt by the defendant... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. 1446(b).
6. The State Court Action was pending before the Superior Court for the State of California, County of Riverside. Because this Court is the UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, it is the appropriate Court for the removal under 28 U.S.C. 1446.
7. Pursuant to 28 U.S.C. 1446(a), attached as Exhibit A are copies of "all process, pleadings, and orders". A copy of this notice will be served on all parties of record and will be filed with the Clerk of the Superior Court for the County of Riverside.
8. There are Federal Questions regarding civil rights violation via due process, equal protection for pro se litigants and a conspiracy to steal Defendant's interest to her home.
9. This Notice of Removal is time filed and has complied with the procedural requirements for removal.
10. ANY OF THE CO-DEFENDANTS THAT HAVE NOT JOINED ARE BASED ON THE FACT THAT CO-DEFENDANTS ARE "NOMINAL" DEFENDANT AND ARE EXCUSED FOR NON-JOINDER. IV. SHORT AND PLAIN STATEMENT OF GROUNDS FOR REMOVAL:
11. The right to remove a case from state to federal court is vested exclusively in ". . . the defendant or the defendants . . ." 28 U.S.C. § 1441(a); 28 U.S.C. § 1446(a). See also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868(1941);
12. A Federal question is presented on the face of plaintiff's petition;
13. There is DIVERSITY JURISDICTION) 28 U.S.C 1332;
14. BANK OF NEW YORK MELLON is located at One Wall Street, New York, NY 10286; and on the face of the complaint, filed April 10, 2012, 2011, states BANK OF NEW YORK MELLON as Plaintiff. BANK OF NEW YORK MELLON has no residency in California. Therefore, BANK OF NEW YORK MELLON is a citizen of New York;
15. Pursuant to California Rule of Court 1230(a)(2) Special appearance challenging the Court's personal jurisdiction or Order to show cause that BANK OF NEW YORK MELLON, display the burden of proof it has both subject and personal jurisdiction over real parties in interest (Real Human Beings) for the 7 amendment mention any controversy shall be governed pursuant to the rule of the Common Law, Article 3 Court Proceeding in claims over controversy of real property that exceeded over $20.00 shall be govern pursuant to the rules of Common Law. Since the 7th Amendment doesn't apply to state court nor does state court recognize the Common Law, therefore, I, Margaret Katherine Pennington seek relief under the Jurisdiction of the United States District Court;
16. Artful Pleading Doctrine. The rule that the plaintiff is the "master of the claim" is subject to this limitation: plaintiff cannot defeat removal of a federal claim by disguising or "artfully pleading" it as a state claim. If the only claim involved is one arising under federal law, the federal court will "recharacterize" it accordingly, in order to uphold removal. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, fn.2, 69 L.Ed.2d 103 (1981). V. REMOVAL IS BASED ON A CLAIM "ARISING UNDER" FEDERAL LAW
17. FEDERAL QUESTION: Margaret Katherine Pennington causes of action arises under Federal Law because it is predicated on alleged violations of federal statutes and are dependent on the resolution of substantial and disputed federal questions. Marshall v. Security State Bank of Hamilton, 121 B.R. 814 (Ill. 1990) violation of Federal Truth in Lending 15 USCS § 1638(a)(9), and Regulation Z. The bank took a security interest without disclosing the security interest. (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2). Timely rescission of Right To Cancel. (15 USC 1601 et seq; 12 CFR Part 226. VI. CONCLUSION
18. Wherefore, Margaret Katherine Pennington respectfully requests that this Court will effect the removal of this case from the Superior Court for the State of California, County of Riverside, and to effect and prepare in this Court the true record of all proceedings that may have been had in the Superior Court for the State of California, County of Riverside. Respectfully,
By: _______________
Margaret Katherine Pennington, UCC1-308
Without Recourse, All Rights Reserved