Marzette v. Provident Savings Bank, F.S.B. et al
Filing
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ORDER signed by Judge John A. Mendez on 11/9/2011 DENYING 5 Motion to Remand filed by Pauline Marzette. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PAULINE MARZETTE, an individual, )
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Plaintiff,
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v.
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PROVIDENT SAVINGS BANK, F.S.B.; )
WELLS FARGO BANK, N.A.; AMERICAN )
SERVICING COMPANY; NDEX WEST,
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LLC; E*TRADE BANK; and DOES 1)
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Defendants.
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Case No. 2:11-CV-2089 JAM-CKD
ORDER DENYING PLAINTIFF‟S
MOTION TO REMAND
This matter comes before the Court on Plaintiff Pauline
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Marzette‟s (“Plaintiff”) Motion to Remand (Doc. #5) this case to
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the Superior Court of California, County of El Dorado.
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Wells Fargo, N.A. (“Wells Fargo”) and America‟s Servicing Company,
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named in the Complaint as American Servicing Company, (“ASC”)
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(collectively “Defendants”) oppose the motion to remand (Doc. #11).
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For the reasons set forth below, the Motion to Remand is DENIED.1
Defendants
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This matter was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). Oral argument was scheduled
for October 19, 2011.
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I.
FACTUAL ALLEGATIONS AND SUMMARY OF ARGUMENTS
Plaintiff‟s Complaint (Doc. #1, Ex. A) alleges that she has a
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mortgage loan from Wells Fargo, secured by a Deed of Trust that
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encumbers her home.
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financial difficulties, causing her to fall behind in her mortgage
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payments.
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an attempt to seek a loan modification, but that ASC refused to
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negotiate with her until she hired an attorney and her home was on
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the brink of foreclosure.
Compl., ¶¶ 1, 12.
Compl., ¶¶ 14-15.
Plaintiff suffered
She alleges that she contacted ASC in
Compl., ¶¶ 17-21.
ASC then offered her
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a loan modification that allowed for reduced interest only payments
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for five years, which she alleges she accepted under duress.
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Compl., ¶¶ 21-22.
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her that this modification did not include escrow, and she did not
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understand that she would need to make separate escrow payments in
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addition to the modified mortgage payments.
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Complaint alleges that Plaintiff cannot afford to make additional
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escrow payments, and has realized that once her five year loan
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modification expires, she will be in the same, or worse, position
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than she was before the modification.
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brings state law claims for breach of contract, breach of the
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covenant of good faith and fair dealing, and unfair business
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practices under California Business and Professions Code §§ 17200,
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et seq.
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Plaintiff alleges that ASC did not make clear to
Compl., ¶ 24.
Compl., ¶ 25.
The
Plaintiff
The Notice of Removal states that removal is proper due to
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diversity of citizenship among Plaintiff and all Defendants.
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Notice of Removal claims that Plaintiff is a citizen of California,
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ASC is a citizen of South Dakota, NDEX West is a citizen of
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Delaware and Texas, and Wells Fargo is a citizen South Dakota.
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The
The
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Motion for Remand argues that Wells Fargo is a citizen of South
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Dakota and California, defeating complete diversity and requiring
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remand to the Superior Court.
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attorneys‟ fees and costs for removal and remand.
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The Motion for Remand also seeks
Plaintiff asserts that other courts have found Wells Fargo to be
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a citizen of California and South Dakota.
Plaintiff asks the Court
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to take judicial notice (Doc. #6) of four cases that Plaintiff
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contends support her argument that Wells Fargo is a citizen of
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California and South Dakota.
Defendants contend that Wells Fargo
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is only a citizen of South Dakota, and that courts have made this
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finding.
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notice (Doc. #12) of a recorded copy of their Articles of
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Association in South Dakota, and of a case from the Central
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District of California in which the court reconsidered its earlier
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position and found Wells Fargo to be a citizen only of South
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Dakota.
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parties.
Defendants also request that the Court take judicial
The Court takes judicial notice as requested by both
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II.
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PROCEDURAL BACKGROUND
Plaintiff‟s Complaint was originally filed in the Superior
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Court in El Dorado County, on July 5, 2011.
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removed the case to this Court on August 5, 2011 (Doc. #1).
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Defendant NDEX West joined in removal (Doc. #2).
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ASC note that no other defendants were served, therefore no other
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defendants needed to join in removal.
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Bank was dismissed from the Complaint (Doc. #10).
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///
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Wells Fargo and ASC
Wells Fargo and
Defendant Provident Savings
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III. OPINION
Jurisdiction is a threshold inquiry before the adjudication of
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any case before a court.
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Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir.
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1988).
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pursuant to 28 U.S.C. § 1441.
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civil action brought in State court, (2) over which the district
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court has original jurisdiction, (3) can be removed to federal
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court embracing that state court action, (4) by the defendant or
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See Morongo Band of Mission Indians v.
A party may remove a state court action to federal court
Section 1441 provides that (1) a
defendants in the state court action.
For removal to be proper, the district court must have original
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jurisdiction.
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original jurisdiction of all civil actions “where the matter in
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controversy exceeds the sum or value of $75,000, exclusive of
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interest and costs, and is between citizens of different States...”
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28 U.S.C. § 1332.
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establishing that federal jurisdiction is proper.
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Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted).
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“Federal jurisdiction must be rejected if there is any doubt as to
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the right of removal.”
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Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).
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Pursuant to 28 U.S.C. § 1332, district courts have
The party requesting removal bears the burden of
Id.
Gaus v. Miles,
(citing Libhart v. Santa Monica Dairy
Diversity must be complete, meaning that diversity is destroyed
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if even one plaintiff and one defendant are citizens of the same
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state.
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Jan. 19, 2011) (internal citations omitted).
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provides that a corporation may be a citizen of two different
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states- the state by which is has been incorporated and the state
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where it has its principal place of business.
Tse v. Well Fargo Bank, N.A., 2011 WL 175520, *1 (N.D. Cal.
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28 U.S.C. § 1332
Id.
However, 28
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U.S.C. § 1348 limits the citizenship of a national banking
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association to the state in which the association is located.
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Wells Fargo is a nationally chartered bank whose articles of
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association assert that its main office is in South Dakota.
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Fargo also maintains a principal place of business in San
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Francisco, California.
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Id.
Wells
Tse, supra (citing cases).
“In the course of holding that national banks are not „located‟
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in every state in which they operate a branch, the Supreme Court
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stated that national banks are located in the state designated in
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the bank‟s articles of association as its main office.”
Tse, 2011
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WL 175520 at *2, citing Wachovia Bank v. Schmidt, 546 U.S. 303, 318
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(2006).
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citizenship.
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as to whether national banks are also “located in states in which
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they maintain a principal place of business.
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Circuit has not offered a controlling authority on the question of
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a national bank‟s citizenship, but district court decisions from
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within the Ninth Circuit favor a holding that a national bank is a
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citizen of the state in which its main office, as specified in its
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articles of association, is located.
This is the “main office” test for national banks‟
Id.
However, the Supreme Court expressed no opinion
Id.
The Ninth
Id. (citing cases).
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This Court notes the split among district courts of the Ninth
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Circuit (compare, e.g., Saberi v. Wells Fargo Home Mortgage, 2011
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WL 197860 at *3 (S.D. Cal. Jan.20, 2011) (holding that a national
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bank is a citizen of both the state in which it has designated its
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main office and the state where it has its principal place of
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business); Tse, 2011 WL 175520 at *3 (holding that a national
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banking association is a citizen only of the state in which its
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main office is located); Silva v. Wells Fargo Bank, N.A., 2011 WL
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2437514, *2 (C.D. Cal. June 16, 2011) (same).
However, having
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reviewed the conflicting district court opinions, and the arguments
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promulgated by Plaintiff and Defendants in the motion to remand and
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brief in opposition to the motion, the Court finds most persuasive
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Defendants‟ arguments in opposition to remand.
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Court is not persuaded that the provisions in 28 U.S.C. § 1332
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pertaining to the citizenship of corporations apply to national
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banking associations.
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28 U.S.C. § 1348, the Court finds that Wells Fargo is a citizen
In particular, the
Instead, applying the “main office” test and
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only of South Dakota, the state where it has its main office
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pursuant to its Articles of Association.
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finds that Wells Fargo is a citizen of South Dakota, not
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California, and the Court has diversity jurisdiction over this
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case.
Accordingly, the Court
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IV.
ORDER
For the reasons set forth above, Plaintiff‟s Motion for Remand
is DENIED.
IT IS SO ORDERED.
Dated: November 9, 2011
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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