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RICHARD IVAR RYDSTROM, ESQ. CSBN: 147470 rlawnow@gmail.com RYDSTROM LAW OFFICE 4695 MacArthur Court 11th Floor Newport Beach, Ca 92660 949.678.2218 (Tel) | 949.606.9716 (Fax) www.RydstromLaw.Com Attorney for Plaintiff PHILIP W. FISCHER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION PHILIP W. FISCHER Plaintiff, vs. GMAC MORTGAGE, LLC; EXECUTIVE TRUSTEE SERVICES, LLC.; FOREMOST INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, and Does 1 to 100, Inclusive Defendants. Case NO.: 2:12-cv-03843-GAF-JCG [Michael D. Antonovich Antelope Valley Superior Courthouse No. MC023329] PLAINTIFFS NOTICE OF MOTION AND MOTION TO REMAND ACTION REMOVED BY DEFENDANTS; FOR COSTS AND FEES; MEMORANDUM OF POINTS AND AUTHORITIES; EXHIBITS; DECLARATION IN SUPPORT THEREOF [28 U.S.C.S. 1447(c)] Hon. Gary A. Feess Hearing Date: July 2, 2012 Time: 9:30 a.m. Courtroom: 740 Complaint Served: May 18, 2012 Case Removed: April 30, 2012

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TO THE COURT AND ALL PARTIES AND THEIR COUNSEL: PLEASE TAKE NOTICE that on July 2, 2012, or as soon thereafter as the matter may be heard, Plaintiff PHILIP W. FISCHER (FISCHER) will move this court, in the courtroom of the Honorable Gary A. Feess, U.S. District Judge, located at 255 East Temple Street, Los Angeles, CA 90012, for an order remanding (Remand) this case back to state court, pursuant to 28 U.S.C. 1447(c). Defendants raise federal question as its basis for removal. Defendants cannot overcome its burden to show federal question jurisdiction (see Defendants Notice of Removal at pg. 2). Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (U.S. 1921). The action should be remanded to the Superior Court of California, County of Los Angeles, North District Michael D. Antonovich Antelope Valley Courthouse. In addition, since there is no anchor claim establishing original jurisdiction, this court cannot exercise supplemental jurisdiction over any other state law claims. 28 U.S.C. 1367(a). Plaintiff further moves this Court for an order that Defendants improperly removed this matter, and for just costs and any actual expenses, including attorney's fees, incurred as a result of the removal 28 U.S.C. 1447(c); Martin v. Franklin Capital Corp. 546 U.S. 132 (U.S. 2005).

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This motion for remand is based on this notice and the Courts entire file and the documents filed as Exhibit A to the Removal (Original Complaint), the accompanying memorandum of points and authorities in support hereof, the Declaration of Attorney Richard Rydstrom, any and all evidence submitted in support thereof, and any oral argument requested by the court. This motion is made following the conference of counsel pursuant to L.R. 73 which took place on May 23, 2012. Dated: May 25, 2012

______________________________________ By: Richard Ivar Rydstrom, Esq.

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TABLE OF CONTENTS I. INTRODUCTION...1 II. STATEMENT OF THE CASE...2 III. LAW AND AUTHORITY..4 IV. ARGUMENT.5 a. The Court Does Not Have Federal Question Subject-Matter Jurisdiction Over This Action Based Upon the Servicemembers Civil Relief Act (SCRA)....5 b. Federal Question Jurisdiction Does Not Exist Because Plaintiff Exclusively Alleges State Causes of Action and Does Not Allege HAMP as a Federal Private Right of Action, and Does Not Allege That He Is a Third Party Beneficiary of the SPA..7 c. The OC Does Not Raise a Federal Question Because HAMP and SCRA Are Not Necessary Elements of the Alleged State Causes of Action; and Removing State Causes of Action Will Disturb The Congressional Intent of HAMP and SCRA..9 d. Defendants Removal Fails Because No State Causes of Action Have Been Preempted by HAMP or SCRA....13 e. This Court May Not Exercise Supplemental Jurisdiction Over Any Other Claims That Could Not, By Itself, Invoke Original Jurisdiction ....15 V. CONCLUSION.16

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TABLE OF AUTHORITIES United States Supreme Court Cases Burford v. Sun Oil Co., 319 U.S. 315, 334 (U.S. 1943).16 Caterpillar, Inc. v. Williams, 482 U.S. 386 (U.S. 1987)..13 Carnegies-Mellon Univ. v. Cohill, 484 U.S. 343 (U.S. 1988)..16 Grable & Sons Metal Prods v. Darue Engg & Mfg, 545 U.S. 308 (U.S. 2005)..10, 11, 13 Martin v. Franklin Capital Corp. 546 U.S. 132 (U.S. 2005)ii, 5 Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (U.S.1986)...10 Mitchell v. Maurer, 293 U.S. 237 (U.S. 1934)5 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (U.S. 1941)4 United Mine Workers v. Gibbs, 383 U.S. 715 (U.S. 1966)..16 Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (U.S. 1921)ii, 16

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United States Court of Appeals Cases ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108 (9th Cir.2000)13 Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593 (9th Cir.1996)..................5 Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033 (9th Cir. Cal. 2003)...12 Nevada v. Bank of America Corp., 672 F.3d 661 (9th Cir. 2012).10 Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1265-1266 (9th Cir.1999)..4 Rains v. Criterion Sys., 80 F.3d 339 (9th Cir. Cal. 1996).10, 12 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.1996)..4 United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960 (9th Cir.2004)5 Wigod v. Wells Fargo Bank, N.A. No. 11-1423; 2012 WL 727646 (7th Circuit, Ill Mar. 7 2012)..2, 8, 11, 14, 15 United States District Court Cases Allen v. CitiMortgage, Inc., No. CCB-10-2740, 2011 WL 3425665 (D. Md. Aug. 4, 2011)..8
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Bosque v. Wells Fargo Bank NA, 762 F. Supp. 2d 342 (D. Mass. 2011).............8 Guerra v. Carrington Mortg. Services, (C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL 2630278)..9, 10, 11 In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No.10-md-02193-RWZ, 2011 WL 2637222 (D. Mass. July 6, 2011)8 Leal v. U.S. Bank Nat'l Ass'n, 2010 WL 2389959 (C.D.Cal. June 9, 2010) .12 Montoya v. Mortgageit Inc., 2010 WL 546891 (N.D.Cal. Feb.10, 2010)...12 Ortega v. HomEq Servicing, No. CV 09-02130, 2010 WL 383368 (C.D. Cal. Jan. 25, 2010)..13 Ortiz v. Indymac Bank, F.S.B., 2010 WL 2035791 (C.D.Cal. May 20, 2010)11 Thiara v. Kiernan, No. C06-03503 MJJ, 2006 WL 3065568 (N.D.Cal. Oct.25, 2006)5 U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 553551, 2, 4, 6, 12, 15 State Court of Appeals Cases State Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093 (1996)11
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Statutes & Treaties 12 U.S.C. 5219(a).......7 28 U.S.C. 13317 28 U.S.C 1367(a)..ii, 16 28 U.S.C. 1447(c)ii, 4, 5 50 U.S.C. 501-596 et seq..1, 7 CA Business & Professions Code 17200, 17203, 175003, 4, 6, 11 CA Civil Code 1709-1710.3, 6 CA Civil Code 2924 et seq..3, 7

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MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO REMAND I. INTRODUCTION: Plaintiff PHILIP W. FISCHER (hereinafter Plaintiff or

FISCHER) requests that this Court remand the current matter back to the state Superior Court of California, County of Los Angeles, North District Michael D. Antonovich Antelope Valley Courthouse because federal question jurisdiction does not exist. Plaintiff exclusively alleges state statutory and common law causes of action in its original complaint (OC). Plaintiff does not allege the Making Home Affordable program (HAMP) or the Servicemembers Civil Relief Act (SCRA) of 50 U.S.C. 501-596 et seq. as a private right of action. Moreover, SCRA does not create a private right of action nor a basis of federal jurisdiction[T]he Court does not have subject-matter jurisdiction over this action based upon the SCRA. U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6. Instead, Plaintiff supplements its state causes of action with HAMP standards and SCRA standards in support thereof. With respect to HAMP, the federal courts have held that:

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Where there is no private right of action under a federal statute, a violation of the federal HAMP standard as an element of a state tort cause does not prevent state law from providing a cause of action based in whole or in part on violations of the federal (HAMP) law. (emphasis added) (Wigod v. Wells Fargo Bank, N.A., No. 11-1423; 2012 WL 727646 at *19-29 (7th Circuit, Ill Mar. 7 2012) (Wigod 2012). With respect to SCRA, the United States District Court for the Northern District of California held that: the SCRA neither creates a private right of action nor a basis for federal jurisdiction. Accordingly, the Court does not have subject-matter jurisdiction over this action based upon the SCRA. U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6 II. STATEMENT OF THE CASE: On March 27, 2012, Plaintiff filed an OC for damages in the Superior Court of California, County of Los Angeles, North District Michael D. Antonovich Antelope Valley Courthouse alleging that Defendants acted in a common plan and scheme to defraud and unfairly mislead Plaintiff under state law. Plaintiff further alleged that Defendants acted in a common plan and scheme to obtain title and possession of Plaintiffs home, by wrongful threats of foreclosure and continued activity to wrongly foreclose on Plaintiffs property, all during periods of protection afforded Plaintiff as
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active military under SCRA. (OC, Page 2, para 2 at Notice of Removal, Exhibit A). Moreover, Plaintiff alleged that Defendants acted in a common plan and scheme to make mispresentations and omissions of material facts concerning HAMP and non-hamp mortgage solutions, and induced Plaintiff to make insurance premium payments on an insurance policy that was nonexistent, and on another policy that was supposed to have been terminated. The gravamen of Plaintiffs causes of action are strictly based in California statutory and common law [California Civil Code 1709-1713 (fraud, deceit, negligent misrepresentation); B&P 17200, 17203, 17500 (unfair business practices); California Civil Code 2924 et. seq. (California foreclosure law), etc.]. The OC raised federal HAMP issues and standards to support its state causes of action. (OC, Page 15-20 at Notice of Removal, Exhibit A alleging Defendants Seminal HAMP Violations:). The OC expressly and objectively alleged HAMP standards not as a private right of action (OC, Page 18, Para. 56), but as components of standards proving state causes of action. The OC also alleges that Defendants damaged

Plaintiffs credit, which violates CAs Unfair Competition Laws (B&P Code

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17200, 17203, 17500). (OC, pg. 62, para. 233 at Notice of Removal, Exhibit A). Plaintiff did not allege any federal causes of action. III. LAW AND AUTHORITY:

A plaintiff may seek to have a case remanded to the state court if the district court lacks jurisdiction. U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *2-3; 28 U.S.C. 1447(c). On a motion to remand, a removing defendant faces a strong presumption against removal, and bears the burden of establishing by a preponderance of the evidence submitted in the Notice of Removal that removal is proper. Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1265-1266 (9th Cir.1999); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.1996). The removal statutes are construed restrictively, so as to limit removal jurisdiction. Doubts as to removability are resolved in favor of remanding the case to the state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (U.S. 1941). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. 1447(c). Federal courts have a duty to examine their subject matter jurisdiction whether or not the parties raise the issue.
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United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966 (9th Cir.2004) ([A] district court's duty to establish subject matter jurisdiction is not contingent upon the parties' arguments, citing Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)); see also Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir.1996) (lack of subject matter jurisdiction may be raised at any time by either party or by the court sua sponte); Thiara v. Kiernan, No. C0603503 MJJ, 2006 WL 3065568, *2 (N.D.Cal. Oct.25, 2006) (A district court has an independent obligation to examine whether removal jurisdiction exists before deciding any issue on the merits). On granting a motion for remand, Plaintiff requests that the federal court order the Defendants to pay Plaintiff its just costs and any actual expenses, including attorney's fees, incurred as a result of the removal 28 U.S.C. 1447(c); Martin v. Franklin Capital Corp. 546 U.S.at 136. IV. ARGUMENT a. The Court Does Not Have Federal Question Subject-Matter Jurisdiction Over This Action Based Upon the Servicemembers Civil Relief Act (SCRA):

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Invoking removal jurisdiction is improper on grounds based upon SCRA. The United States District Court for the Northern District of

California held that: the SCRA neither creates a private right of action nor a basis for federal jurisdiction. Accordingly, the Court does not have subject-matter jurisdiction over this action based upon the SCRA. U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6 It is precisely because SCRA does not have a federal private right of action that Plaintiff may use SCRA standards as an ingredient to support its state causes of action (i.e. fraud, breach of contract, unfair business practices, etc.). The SCRA protects servicemembers in state, federal, and administrative proceedings. (emphasis added) U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6. Moreover, Plaintiff does not allege SCRA as a cause of action, but rather incorporates SCRA to support its state causes of action. The gravamen of Plaintiffs causes of action are strictly based in California statutory law [California Civil Code 1709-1713 (fraud, deceit, negligent misrepresentation); B&P 17200, 17203, 17500 (unfair business practices); California Civil Code

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2924 et. seq. (California foreclosure law), etc.]. Thus, this court cannot exercise federal question jurisdiction on grounds based upon SCRA. b. Federal Question Jurisdiction Does Not Exist Because Plaintiff Exclusively Alleges State Causes of Action and Does Not Allege HAMP as a Federal Private Right of Action, and Does Not Allege That He Is a Third Party Beneficiary of the SPA: Pursuant to section 1331, [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treatises of the United States (emphasis added). Defendants removed this action citing two basic arguments for its Removal (Notice of Removal, pg. 2, para. 2). Basically, Defendants removal alleges (1) a private right of action arising under HAMP (12 U.S.C. 5219a) and (2) a federal cause of action arising under SCRA (50 U.S.C. 501-596 et seq.). However, Plaintiff does not allege a federal cause of action with a private right of action arising under the Constitution, treaties, or federal laws of the United States (HAMP or the SCRA), or make a claim as a third-party beneficiary of the HAMP Servicers Participation Agreement (SPA). Also, Plaintiff does not allege grounds for preemption. Moreover, HAMP law does not preempt state causes of action.

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Plaintiff Does Not Allege a HAMP Federal Private Right of Action: In fact, Plaintiffs OC expressly alleges that it is not alleging a HAMP federal private right of action: ...Plaintiff cites Making Home Affordable (MHA) HAMP violations not as a private right of action, but as factual allegations and prima facie proof of breaches of mandatory standard industry practices and duties that violate federal/state regulations in support of each cause of action. (OC, pg. 24, para. 71 at Notice of Removal, Exhibit A). The federal courts have already decided that federal HAMP violations may be used to support state (and California) causes of action, and that HAMP does not preempt state causes of action. (See Wigod 2012 at *19; In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation No.10-md-02193-RWZ, 2011 WL 2637222 at *5 (D. Mass. July 6, 2011); Bosque v. Wells Fargo Bank NA 762 F. Supp. 2d 342, 351 (D. Mass. 2011); Allen v. CitiMortgage, Inc. No. CCB-10-2740, 2011 WL 3425665, at *4 (D. Md. Aug. 4, 2011). In fact, the United States Court of Appeals (in Wigod 2012 at *19) held: We reject this end-run theory, along with Wells Fargos formal preemption arguments. Federal law does not displace Wigods state-law claims. (Emphasis Added)

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1

Similarly, references to federal law (like HAMP and SCRA) do not convert the state claim into a federal cause of action, when Plaintiff merely cites federal law standards to support its state claims, such as CAs unfair business practices act (UCL). Guerra v. Carrington Mortg. Services, (C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL 2630278).1 FISCHERs alleged state causes of action that may also be supported by federal HAMP standards, as well as non-hamp standards. HAMP does not limit or preempt its application in state court whatsoever. It is precisely because HAMP does not have a federal private right of action that Plaintiff may use HAMP standards as an ingredient to support its state causes of action. Defendants fail to meet their burden of establishing federal question jurisdiction, and removal is not proper. c. The OC Does Not Raise a Federal Question Because HAMP and SCRA Are Not Necessary Elements of the Alleged State
Here, Plaintiffs have not asserted a claim pursuant to RICO, the FDCPA,

or 42 U.S.C. 1981, 1982. Instead, they allege violations of the UCL, and merely cite federal law violations to support their state claim. (Compl. 113.) Accordingly, the UCL claim is not properly characterized as a federal cause of action; the first basis for federal question jurisdiction is unavailing. Guerra v. Carrington Mortg. Services LLC (C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL 2630278 at *2 a. at page 2. (emphasis added)
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Causes of Action; and Removing State Causes of Action Will Disturb The Congressional Intent of HAMP and SCRA: Since HAMP and SCRA do not preempt any state cause of action, removal would be contrary to the intent of Congress. A state cause of action invokes federal question jurisdiction only if it necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Nevada v. Bank of America Corp. (9th Cir. 2012) 672 F.3d 661, 674; citing Grable & Sons Metal Prods v. Darue Engg & Mfg, 545 U.S. 308, 314 (2005). A claim does not present a substantial question of federal law merely because a federal statute is an ingredient of a state cause of action. Indeed, the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (U.S. 1986). When a claim can be supported by alternative and independent theories one of which is a state law theory and one of which is a federal law theory federal question jurisdiction does not attach because federal law is not a necessary element of the claim. (emphasis added) Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996). Plaintiffs OC raises exclusively state law claims, as discussed above. Plaintiffs reference to the HAMP and SCRA, and other federal laws are not
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alleged as necessary elements of the alleged state causes of action. Rather, HAMP standards support state causes of action as components of the allegations of violations of public policy, standard industry practice for purposes of all Federal and State laws (Section 129 of Emergency Economic Stabilization Act of 2008), best practices, usual and customary industry standards (Supp. Dir. 09-01 (April 6, 2009) at page 1), standards of performance, duties, custom and practice, and applicable state and federal regulations and laws. (Supp. Dir. 09-01 cited by Wigod 2012 *24). Just like FDCPA allegations couched as violations of the UCL in Guerra (see FN1) are not properly characterized as a federal cause of action, HAMP and SCRA support state claims in Plaintiffs OC at bar, and does not support the first basis for federal question jurisdiction. By so alleging, Plaintiff does not necessarily raise asubstantial issue of federal law. Grable, 545 U.S. at 314 (2005). Californias Unfair Competition Laws (B&P Code 17200, 17203, 17500) (UCL) includes a borrowing provision making it a violation of this code to violate an underlying tort, public policy or statute (HAMP or SCRA) violation. State Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093, 1105,
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(1996). California district courts have held that mere references to federal law in UCL claims do not convert the claim into a federal cause of action. Guerra v. Carrington Mortg. Services LLC (C.D. Cal., June 29, 2010, CV 10-4299 GAF (EX)) 2010 WL 2630278; citing Ortiz v. Indymac Bank, F.S.B., 2010 WL 2035791, at *1 n. 3 (C.D.Cal. May 20, 2010); Leal v. U.S. Bank Nat'l Ass'n, 2010 WL 2389959, at *2 (C.D.Cal. June 9, 2010) (Merely using the potential violation of a federal statute to form part of the basis for a state law cause of action does not transform the action into a federal claim.). In Montoya, the court noted that because the claim arose under the UCL, as in Rains, it is state, not federal law that creates the cause of action. Montoya v. Mortgageit Inc, 2010 WL 546891 at *3 (N.D.Cal. Feb.10, 2010). In Lippitt, the court explained that federal law was not a necessary element of the plaintiff's UCL claim because he did not have to rely on a violation of the Exchange Act nor an infraction of an NYSE rule or regulation to bring a UCL claim in California state court. Lippitt v. Raymond James Fin. Servs, 340 F.3d 1033, 1043 (9th Cir. Cal. 2003). To bring a UCL claim, the plaintiff merely had to show that Defendants' conduct was either unfair or fraudulent. Id. Thus, the complaint's

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references to federal law do not convert the [ ] claim into a federal cause of action. Id.; see also Lippitt, 340 F.3d at 1039. The gravamen of the OC is that Defendants violated California state causes of action through numerous misrepresentations, false promises without the intent to perform, some about the HAMP program, and some which also violate the SCRA standards. The gravamen of the OC does not raise federal causes of action. Thus, exercising federal question jurisdiction would have more than a microscopic effect on the federal-state division of labor. Grable, 545 U.S. at 315. State courts frequently handle state-law consumer protection suits that refer to or are predicated on standards set forth in federal statutes. Exercising federal question jurisdiction over any state law claim that references a federal consumer protection statute would herald[] a potentially enormous shift of traditionally state cases into federal courts. Id. at 319. For these reasons, there is no valid basis for federal question jurisdiction in this case. d. Defendants Removal Fails Because No State Causes of Action Have Been Preempted by HAMP or SCRA: In its removal, Defendants do not assert that the HAMP or SCRA completely preempts other state laws.
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Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. Ortega v. HomEq Servicing, No. CV 09-02130, 2010 WL 383368 at *4, C.D. California, Jan. 25, 2010; Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (U.S. 1987); ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108, 1114 (9th Cir.2000) (A state-created cause of action can be deemed to arise under federal law ... where federal law completely preempts state law). This is not the case at bar. Here, Defendants removed the case

knowing there is no private right of action in federal court, as Plaintiffs OC expressly alleges this. (OC, pg. 24, para. 71 at Notice of Removal, Exhibit A). Moreover, Plaintiffs OC expressly alleges Wigod 2012, which holds that HAMP is not a private right of action and that federal law does not contain any preemption of state law. (OC, pg. 18, para. 56 at Notice of Removal, Exhibit A). There is no indication that Congress meant to

foreclose suits against servicers for violating state laws that impose obligations parallel to those established in a federal program. (Wigod 2012 at *23) Moreover, the court held that the Treasury HAMP program in Supplemental Directive 09-01 states that servicers must implement [HAMP] in compliance with state common law and statutes. (Wigod 2012 *24) The issue here, however, is not whether federal law itself provides
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private remedies, but whether it displaces remedies otherwise available under state law. The absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal lawTo find otherwise would require adopting the novel presumption that where Congress provides no remedy under federal law, state law may not afford one in its stead. (Wigod 2012 at *24). Moreover, the United States Court of Appeals (in Wigod 2012 at *19) held: We reject this end-run theory, along with Wells Fargos formal preemption arguments. Federal law does not displace Wigods state-law claims. (Emphasis Added) The very fact that there is no federal private right of action and Plaintiffs state law claims are not preempted by federal law is what affords Plaintiff her right to sue for federal HAMP standards supporting state causes of action. Moreover, as discussed above, the United States District Court for the Northern District of California held that: the SCRA neither creates a private right of action nor a basis for federal jurisdiction. Accordingly, the Court does not have subject-matter jurisdiction over this action based upon the SCRA. U.S. Bank National Association v. Gilliam, 2012 U.S. Dist. LEXIS 55355 at *6
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For these reasons, Defendants removal fails because no state causes of action have been preempted by HAMP or SCRA. Thus, there is no valid basis for federal question jurisdiction in this case. e. This Court May Not Exercise Supplemental Jurisdiction Over Any Other Claims That Could Not, By Itself, Invoke Original Jurisdiction: Because this court does not have federal question jurisdiction over any cause of action, it cannot exercise supplemental jurisdiction over state claims not independently supported by original jurisdiction. 28 U.S.C. 1367(a). Unless, considerations of judicial economy, convenience[,] and fairness to litigants weigh in favor of the exercise of supplemental jurisdiction, a federal court should hesitate to exercise jurisdiction over state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also Carnegies-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). V. CONCLUSION: Plaintiff respectfully requests that this Court grant Plaintiffs motion to remand on the grounds that Defendants cannot overcome its burden to show a federal question (Wilson, 257 U.S. at 92) and if it can, the abstention doctrine would still require remand (Burford v. Sun Oil Co., 319 U.S. 315,
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334 (U.S. 1943)); and there is no federal anchor claim establishing original jurisdiction to exercise supplemental jurisdiction. Plaintiff also requests an order taxing costs, including attorney fees against Removing Defendants.

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By: Richard Ivar Rydstrom, Esq. Attorney for Plaintiff

17 PLAINTIFFS REMAND MOTION 2:12-cv-03843-GAF-JCG