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Wells Fargo Bank, N.A. v. Cortez

United States District Court, D. Hawaii

October 14, 2016

WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE OPTION ONE MORTGAGE LOAN TRUST 2007-2, ASSET-BACKED CERTIFICATES, SERIES 2007-2, Plaintiff,
v.
DONNIE R. CORTEZ; ANNABELLE S. CORTEZ; DEPARTMENT OF TAXATION, STATE OF HAWAII; CREDIT ASSOCIATES OF MAUI, LTD.; JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1- 20; DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20, Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR REMAND

          Kevin S.C. Chang United States Magistrate Judge

         Before the Court is Plaintiff Wells Fargo Bank, N.A.'s (“Plaintiff”) Motion for Remand, filed July 25, 2016. Defendant Donnie Cortez (“Defendant”) did not file a response. Plaintiff filed a Reply on October 7, 2016. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice for the U.S. District Court for the District of Hawaii.

         BACKGROUND

         On November 15, 2011, Plaintiff filed an action in the Circuit Court of the Second Circuit, State of Hawaii. It appears that Defendant was served by certified mail in February of 2013.

         Judgment entered in the state court action on April 8, 2015. On May 4, 2016, the state court confirmed the foreclosure sale and entered a judgment and a writ of possession of the subject property.

         On June 27, 2016, Defendant filed a Notice of Removal (“Notice”).

         DISCUSSION

         Plaintiff moves to remand this action to the Circuit Court of the Second Circuit, State of Hawaii, on two grounds: 1) the state court action does not involve a federal question and 2) the Notice was untimely filed.

         I. Removal was Improper

         Based on what the Court is able to discern from the Notice, Defendant removed the instant case on the basis of federal question jurisdiction. Section 1441(a) provides, in pertinent part:

(a) Generally.--Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). Section 1441 is strictly construed against removal and courts resolve any doubts about the propriety of removal in favor of remanding the case to state court. See Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006). The party seeking to remove the case bears the burden of establishing the existence of federal jurisdiction. See California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005).

         “A case ‘arises under' federal law only if the federal question appears on the face of the plaintiff's well-pleaded complaint.” Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 821 (9th Cir. 1985) (citations omitted). That is, “[t]he federal question ‘must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.'” Id. at 822 (citation omitted). Here, the Complaint only contains a state law foreclosure claim. Consequently, the Court finds that the Notice fails to establish a proper basis for removal and this Court recommends that the district court remand the case to the Second Circuit Court, State of Hawaii. 28 U.S.C. § 1447(c).

         II. Timelin ...


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