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Vittitow v. Bank of America, N. A.

United States District Court, E.D. Washington

October 10, 2014

WELDON W. VITTITOW and LOUISE M. VITTITOW, Plaintiffs,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION; U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE BEAR STEARNS ALT-A TRUST 2006-3 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-3; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants.

ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING DEFENDANTS' MOTIONS TO DISMISS

SALVADOR MENDOZA, Jr., District Judge.

I. INTRODUCTION

Before the Court, without oral argument, are Plaintiffs' Objection to Defendant's Notice of Removal, ECF No. 8, Defendant Bank of America, N.A.'s ("BANA") Motion to Dismiss Plaintiffs' Complaint, ECF No. 3, and Defendants U.S. Bank National Association, as Trustee for the Holders of the Bear Stearns Alt-A Trust 2006-3 Mortgage Pass Through Certificates Series 2006-3 ("US Bank") and Mortgage Electronic Registration Systems, Inc.'s ("MERS") Motion to Dismiss Plaintiffs' Complaint, ECF No. 7. Plaintiffs maintain this matter should be removed to state court while Defendants seek dismissal of this matter for failure to state a claim. The Court, having reviewed the pleadings and file in this matter, is fully informed and finds this matter was properly removed as the amount in controversy exceeds $75, 000, and that Plaintiffs' claims must be dismissed with prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background[1]

A Statutory Warranty Deed record on May 27, 1999, indicates Plaintiffs received possession of the property located at 2830 South Lakeshore Drive, Chelan, WA 98816 ("Property"). On January 25, 2006, Plaintiffs took out a loan and signed a promissory note stating that they owed the lender $945, 000. The loan was secured by a Deed of Trust ("Deed") that was signed by Plaintiffs and recorded on January 31, 2006, which identifies Eagle Home Mortgage, Inc. as the lender, Transnational Title and Escrow Company as the trustee, and MERS as the beneficiary, in a nominee capacity for the lender and its heirs and assigns. On November 3, 2011, MERS recorded an assignment of the Deed indicting the transfer of the loan to U.S. Bank as trustee for the investor. Plaintiffs' Complaint does not allege that any foreclosure has been initiated against the property.

Plaintiffs' Complaint makes the factual assertion that the Deed stated "[a]n assignee of a Deed of Trust and Note must give the debtor written notice of such Assignment within thirty (30) days after the Assignment." ECF No. 1-2 at 12 ¶14. The Court, after carefully reviewing the Deed, finds no such statement contained in the document. The absence of the statement in the Deed was also noted by defense counsel. See ECF No. 7 at 4. To the contrary, the Deed that Plaintiffs signed specifically states that "[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower." ECF No. 1-2 at 31 ¶20.

B. Procedural Background

On April 16, 2014, Plaintiffs filed a Complaint with the Clerk of the Superior Court of Chelan County, Washington, seeking "Declaratory Action" and alleging "Breach of Contract" and "Fraud and Misrepresentation." ECF No. 1-2 at 12-16. BANA removed this matter to this Court on July 16, 2014. ECF No. 1. On August 13, 2014, Plaintiffs timely filed an objection to removal, which this Court has construed as a motion to remand.[2] ECF No. 8. On July 23, 2014, and August 6, 2014, Defendants filed separate motions to dismiss Plaintiffs' claims. ECF Nos. 3 & 7.

III. PLAINTIFFS' MOTION TO REMAND

Plaintiffs object to removal of this matter and ask that this case be remanded back to state court. In relevant part, the federal removal statute provides:

(a) 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). "The defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). "The removal statute is strictly construed against removal jurisdiction, " id., and removal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance, " Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (citation and quotation marks omitted).

A federal district court generally has original jurisdiction over a civil action when: 1) a federal question is presented in an action "arising under the Constitution, laws, or treaties of the United States" or 2) there is complete diversity of citizenship and the ...


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