Funk v. Bank of Hawaii

• Court: District Court, N.D. California
• Decided: May 14, 2020
• Docket: 5:20-cv-01378
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 LEIRE FUNK, Case No. 20-CV-01378-BLF

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. REMAND AND REQUEST FOR ATTORNEYS’ FEES; TERMINATING 10 BANK OF HAWAI’I, et al., DEFENDANT MTGLQ INVESTORS, L.P.’S MOTION TO DISMISS 11 Defendants. WITHOUT PREJUDICE 12 [Re: ECF 11; 17]

13 14 Plaintiff Leire Funk brings this action against Bank of Hawai’i (“BOH”) and MTGLQ 15 Investors, L.P. (“MTGLQ”) (together “Defendants”) alleging unlawful conduct related to 16 Defendants’ foreclosure of Plaintiff’s real property. Exh. A to Am. Notice of Removal (“Compl.”), 17 ECF 16. On February 24, 2020, BOH removed this action from California state court based on 18 diversity jurisdiction. See ECF 1. On March 3, 2020, Plaintiff filed the present motion for remand 19 on the ground that BOH’s Notice of Removal (at ECF 1) failed to establish: (1) the citizenship of 20 MTGLQ, (2) that MTGLQ consented to removal, and (3) that the amount in controversy is met. 21 Motion, ECF 11. On March 9, 2020, MTGLQ made its appearance in the case, consented to 22 removal, and submitted that it is a citizen of Delaware and New York. ECF 12; 14. On the same 23 day, BOH filed an amended Notice of Removal. Am. Notice of Removal, ECF 15. Pursuant to 24 Civil L.R. 7-1(b), the Court finds Plaintiff’s Motion for Remand suitable for decision without oral 25 argument and hereby VACATES the hearing scheduled for June 11, 2020. For the reasons discussed 26 below, the Court GRANTS Plaintiff’s Motion for Remand and Request for Attorneys’ Fees. 27 I. BACKGROUND 1 “Property”). Compl. ¶ 7. On or about September 2002, Funk and her ex-husband obtained financing 2 secured by the Property (the “First Loan”), executing a Promissory Note and Deed of Trust currently 3 assigned to Defendant MTGLQ. Id. ¶ 8. On or about September 2003, Funk and her ex-husband 4 obtained a loan of $100,000 secured by the Property (the “Second Loan”), executing a Promissory 5 Note and Deed of Trust currently assigned to Defendant BOH. Id. ¶ 9. Funk claims that BOH 6 stopped sending her monthly statements in 2009 and that MTGLQ stopped sending her monthly 7 statements in 2015. Id. ¶¶ 10-11. 8 On October 8, 2019, BOH caused a Notice of Default to be recorded on the Second Loan. 9 Compl. ¶ 12. On November 5, 2019, MTGLQ caused a Notice of Default to be recorded on the 10 First Loan. Id. ¶ 13. On January 8, 2020, Plaintiff submitted a payoff request to BOH through her 11 title company. Id. ¶ 14. On January 16, 2020, BOH provided Plaintiff with a payoff quote, including 12 $11,479.50 in legal fees that Plaintiff now contests. Id. ¶¶ 15-16. On January 7, 2020, Plaintiff 13 submitted a payoff request to MTGLQ through her title company. Id. ¶ 18. On January 30, 2020, 14 MTGLQ provided Plaintiff with a payoff quote, including $13,176.81 in fees that Plaintiff now 15 contests. Id. ¶¶ 18-19. Plaintiff alleges that these “fees are interfering with Plaintiff’s attempts to 16 avoid foreclosure.” Id. ¶¶ 17, 21. 17 On February 6, 2020, Plaintiff filed a Complaint in Santa Clara County Superior Court 18 against Defendants. See generally Compl. Based on the above allegations, Plaintiff asserts the 19 following causes of action: 20 (1) Violation of Cal. Civ. Code Section 2924 (Against All Defendants); 21 (2) Violation of Cal. Civ. Code Section 2924(c) (Against All Defendants); 22 (3) Breach of Covenant of Good Faith and Fair Dealing (Against All Defendants); 23 (4) Breach of Contract (Against MTGLQ); 24 (5) Violation of Cal. Civ. Code Section 2943 (Against MTGLQ); 25 (6) Violation of Bus. and Prof. Code Section 17200 et seq. (Against All Defendants); 26 (7) Negligence (Against All Defendants); and 27 (8) Violation of Rosenthal Fair Debt Collect Practices Act, Cal. Civ. Code Section 1788, et 1 See generally, Compl. 2 On February 24, 2020, BOH filed a notice of removal on the basis of diversity jurisdiction. 3 See Notice of Removal, ECF 1. Plaintiff moved to remand this action back to state court. See 4 Motion. On March 9, 2020, MTGLQ filed its notice of appearance and consented to removal. ECF 5 12. On the same day, BOH filed a notice of errata regarding its notice of removal (ECF 13) and an 6 amended notice of removal (ECF 15). Defendants oppose the Motion for Remand on the ground 7 that there is diversity of citizenship and the amount in controversy requirement is met. See BOH’s 8 Opposition to Motion to Remand (“Opp’n”), ECF 20; MTGLQ’s Joinder in Opposition of BOH to 9 Plaintiff’s Motion to Remand, ECF 22. 10 II. DISCUSSION 11 A. Requests for Judicial Notice 12 The Court may take judicial notice of documents referenced in the complaint, as well as 13 matters in the public record. See Lee v. City of L.A., 250 F.3d 668, 688–89 (9th Cir. 2001), overruled 14 on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). 15 In addition, the Court may take judicial notice of matters that are either “generally known within 16 the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources 17 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records, including 18 judgments and other court documents, are proper subjects of judicial notice. See, e.g., United States 19 v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). However, “[j]ust because the document itself is 20 susceptible to judicial notice does not mean that every assertion of fact within that document is 21 judicially noticeable for its truth.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th 22 Cir. 2018). 23 BOH requests judicial notice of (1) PACER Docket of bankruptcy case, In re Rick Funk, 24 No. 09-52600 (Bankr. N.D. Cal.) (Exh. A); (2) Notice of Trustee’s Sale dated February 13, 2020 25 (Exh. B); (3) Notice of Trustee’s Sale dated January 24, 2020 (Exh. C); (4) Notice of Federal Tax 26 Lien from the Internal Revenue Service dated August 5, 2011 and recorded on August 18, 2011— 27 Doc. No. 21283637 (Exh. D); (5) Court Order from MTGLQ Investors, L.P. v. Wellington, No. 17- 1 Mortgage LLC, No. 17-cv-02994-BLF (N.D. Cal. Oct. 16, 2017) (Exh. F). Request for Judicial 2 Notice (“RJN”), ECF 21. Plaintiff objects to the BOH’s request as to Exhibits A, D, and E because 3 Defendants do not rely on these exhibits for their arguments in opposition to Motion for Remand, 4 and the inclusion of the documents would be prejudicial to Plaintiff. Reply at 1, ECF 24. Plaintiff 5 also objects the request as to Exhibit F (a previous opinion from this Court), labeling the request as 6 “confusing” because Defendants can simply cite to the opinion without the need for judicial notice. 7 Id. 8 The Court agrees with Plaintiff as to Exhibits A, D, and E and declines to judicially notice 9 those exhibits because they are not relevant to the Court’s resolution to the Motion for Remand. 10 The Court, however, takes judicial notice of Exhibits B, C and F, because they are public documents, 11 Lee, 250 F.3d at 688-89, and are relevant to the resolution of this Motion. 12 In sum, BOH’s request for judicial notice as to Exhibits B, C and F is GRANTED and BOH’s 13 request for judicial notice as to Exhibits A, D, and E is DENIED. 14 B. Motion for Remand 15 1. Legal Standard 16 “[A]ny civil action brought in a State court of which the district courts of the United States 17 have original jurisdiction, may be removed by the defendant or the defendants, to the district court 18 of the United States for the district and division embracing the place where such action is pending.” 19 28 U.S.C. § 1441(a). “A defendant may remove an action to federal court based on federal question 20 jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 21 2009) (citing 28 U.S.C. § 1441(a)). District courts have diversity jurisdiction over all civil actions 22 between citizens of different states where the amount in controversy exceeds $75,000, exclusive of 23 interests and costs. 28 U.S.C. § 1332. If the district court determines that it lacks jurisdiction, the 24 action should be remanded back to the state court. Martin v. Franklin Capital Corp., 546 U.S. 132, 25 134 (2005). The Ninth Circuit recognizes a “strong presumption against removal.” Gaus v. Miles, 26 Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal quotations omitted). Thus, “[f]ederal jurisdiction 27 must be rejected if there is any doubt as to the right of removal in the first instance.” Id. The court 1 F.3d 1089, 1090 (9th Cir. 2003). In her Motion, Plaintiff argues that the Notice of Removal failed 2 to establish both diversity of citizenship and the amount in controversy. See Motion. 3 2. Diversity of Citizenship 4 In her Motion for Remand, Plaintiff argues that Defendants have not established diversity of 5 citizenship – in the original Notice of Removal at ECF 1 – because “[n]o evidence has been 6 presented regarding [MTGLQ’s] citizenship” and MTGLQ has not consented to removal. Motion 7 at 5-7. Diversity jurisdiction under 28 U.S.C. Section 1332(a)(1) requires that the action is between 8 citizens of different States. 28 U.S.C. § 1332(a)(1). As Plaintiff correctly notes, the citizenship of 9 a limited partnership, like MTGLQ, is established through identifying the partners of the 10 partnership. Motion at 3; see Carden v. Arkoma Assoc., 494 U.S. 185, 195 (1990) (“Diversity 11 jurisdiction in a suit by or against a [limited partnership] depend[s] on the citizenship of all the 12 members.”). 13 Defendants respond that MTGLQ’s consent to notice of removal and disclosure of 14 citizenship (ECF 14) and BOH’s amended notice of removal (ECF 15) – both filed after Plaintiff 15 filed her Motion for Remand – demonstrate that MTGLQ is a citizen of Delaware and New York 16 and that MTGLQ has consented to removal. Opp’n at 3. Further, BOH is a citizen of Hawaii and 17 Plaintiff is a resident and citizen of California. Am. Notice of Removal at 3-4; see Compl. ¶¶ 2, 7. 18 Plaintiff no longer contests that diversity of citizenship exists. See generally, Reply. 19 Accordingly, because the Amended Notice of Removal clarifies that diversity of citizenship 20 has been established, the only issue remaining in dispute is whether the amount in controversy is 21 established. 22 3. Amount in Controversy 23 The parties’ dispute over the amount in controversy arises from ambiguity in the Complaint 24 regarding the specific amount of damages. “[W]hen a complaint filed in state court alleges on its 25 face an amount in controversy sufficient to meet the federal jurisdictional threshold, such 26 requirement is presumptively satisfied unless it appears to a legal certainty that the plaintiff cannot 27 actually recover that amount.” Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 1 requisite amount in controversy is pled, . . . we apply a preponderance of the evidence standard.” 2 Id. Further, when “the plaintiff after removal, by stipulation, by affidavit, or by amendment of his 3 pleadings, reduces the claim below the requisite amount, this does not deprive the district court of 4 jurisdiction.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938). 5 Plaintiff argues that Defendants have not established that the amount in controversy limit 6 has been met. Motion at 7. Defendants, on the other hand, argue that the combination of damages 7 Plaintiff seeks “put[s] the amount in controversy well over $75,000.” Opp’n at 5. Plaintiff seeks 8 compensatory damages, statutory damages, damages for emotional distress, punitive damages, 9 disgorgement, and attorneys’ fees and costs. Compl. at Prayer. In addition, Defendants argue that 10 they are entitled to transactional costs that arise from the delaying of foreclosure on the Property. 11 Opp’n at 9. The Court will consider each form of damages in turn.1 12 a. Value of Plaintiff’s Loans 13 Although this dispute is about the foreclosure of real property, the value of the property or 14 amount of indebtedness is irrelevant to the amount in controversy because Plaintiff seeks only a 15 temporary injunction of foreclosure proceedings. See Corral v. Select Portfolio Servicing, Inc., 878 16 F.3d 770, 776 (9th Cir. 2017). Plaintiff, citing Corral, argues that Defendants are incorrect “to 17 imply that the amount in controversy is exceeded because the total value of the loans exceeds 18 $555,000.00.” Motion at 7 (citing Corral, 878 F.3d at 776). For their part, while mentioning 19 Plaintiff’s “unpaid principal on the loans” several times, Defendants do not meaningfully argue that 20 the value of Plaintiff’s loans should be included in the amount in controversy. See e.g., Opp’n at 1, 21 6; Am. Notice of Removal ¶ 14. 22 In Corral, the Ninth Circuit found that where plaintiff seeks only a temporary injunction on 23 the foreclosure, the amount in controversy does not include the full indebtedness on the property 24 because the outcome of the suit would not result in plaintiff being relieved of the obligation to repay 25 the debt. Corral, 878 F.3d at 776. Here, Plaintiff seeks a temporary injunction pending the 26 resolution of this action. Compl., Prayer ¶¶ 2-4. Thus, under Corral, neither the value of the 27 1 property nor the amount of indebtedness is included in the amount in controversy. 2 b. Compensatory Damages 3 With regard to compensatory damages, Plaintiff alleges “approximately $12,000.00 in 4 unlawful legal fees” charged by BOH and “approximately $14,000.00 in unlawful legal fees” 5 charged by MTGLQ. Compl. ¶¶ 25-26. The parties do not meaningfully dispute the inclusion of 6 these legal fees as compensatory damages in estimating the amount in controversy. Thus, Plaintiff’s 7 request for compensatory damages adds $26,000 to the amount in controversy. 8 c. Statutory Damages 9 With regard to statutory damages, Defendants argue that “Plaintiff’s claim for statutory 10 damages under the California Homeowner Bill of Rights adds $50,000 to her claims” per Defendant. 11 See Am. Notice of Removal ¶ 16; see also Opp’n at 6. In response, Plaintiff argues that (1) she 12 “does not bring any causes of action under the Homeowner’s Bill of Rights” (“HBOR”), and (2) 13 even if Plaintiff did allege HBOR claims, monetary damages under the HBOR are not available 14 prior to the recordation of a trustee’s deed upon sale. Reply at 3. Specifically, Plaintiff argues that 15 she “filed her complaint before any trustee sale took place, and thus before a [trustee’s deed upon 16 sale] could be recorded.” Id. 17 As an initial matter, the Court notes that Plaintiff has clearly brought causes of action under 18 HBOR. The first and second causes of action are for violations of Cal. Civ. Code § 2924 – an HBOR 19 statute. See Beverly v. Bank of New York Mellon for Certificate-holders of CWABS, Inc. Asset- 20 Backed Certificates, Series 2005-16, 751 F. App’x 1011, 1013 (9th Cir. 2018) (identifying 21 California’s Homeowner Bill of Rights by Cal. Civ. Code §§ 2920-2924); see also Valbuena v. 22 Ocwen Loan Servicing, LLC, 237 Cal. App. 4th 1267, 1272 (2015), as modified (June 19, 2015) 23 (“The Homeowner Bill of Rights (Civ.Code,4 §§ 2920.5, 2923.4–.7, 2924, 2924.9–.12, 2924.15, 24 2924.17–.20) (‘HBOR’), effective January 1, 2013, was enacted to ensure that, as part of the 25 nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity 26 to obtain, available loss mitigation options, if any, offered by or through the borrower’s mortgage 27 servicer, such as loan modifications or other alternatives to foreclosure.”) (citation omitted). 1 HBOR are not available to Plaintiff prior to the recordation of a trustee’s deed upon sale. See Cal. 2 Civ. Code § 2924.12(b). Defendants do not provide any evidence that the Property was sold and 3 that a trustee’s deed upon sale was recorded. BOH requested and the Court took judicial notice of 4 notices of trustee’s sales (Exhs. B & C to RJN) but Defendants have not provided any evidence as 5 to the recordation of a trustee’s deed upon sale as required by Cal. Civ. Code Section 2924.12. 6 See; Williams v. Wells Fargo Bank, N.A., 2018 WL 453748, at *4 (E.D. Cal. Jan. 17, 2018) 7 (remanding the case and finding that “the $50,000 statutory damages provision of § 2924.12 only 8 applies after a sale has been conducted in a manner the court finds to be willful or reckless[.]”); 9 Foote v. Wells Fargo Bank, N.A., No. 15-CV-04465-EMC, 2016 WL 2851627, at *7 (N.D. Cal. 10 May 16, 2016) (“Because Plaintiff failed to allege a trustee’s sale had occurred, her allegations are 11 insufficient to state a claim for monetary relief [under § 2924.12(b)].”). 12 Although the Notices of Trustee’s Sale (Exhibits B & C to RJN) indicate that the trustee’s 13 sale was scheduled for February 26, 2020 (Exhibit C to RJN) and March 18, 2020 (Exhibit B to 14 RJN) and those dates have now passed, “the Court determines the amount in controversy from the 15 allegations in the Complaint—not by considering whether events could or could not have occurred 16 since.” Jauregui v. Nationstar Mortg. LLC, No. EDCV 15-00382-VAP, 2015 WL 2154148, at *5 17 (C.D. Cal. May 7, 2015). Here, Plaintiff does not allege that the sale has occurred or that a trustee’s 18 deed upon sale has been recorded. Neither have Defendants presented any evidence of the sale. 19 Section 2924.12(b), therefore, does not apply. Thus, contrary to Defendants’ assertions, Plaintiff’s 20 request for statutory damages does not add $50,000 per Defendant to the amount in controversy 21 under Cal. Civ. Code Section 2924.12(b); see Opp’n at 6-7. 22 Plaintiff concedes that “[t]he only statutory damages available are those under section 2943, 23 and those amount to just $300.00.” Reply at 3; see also Cal. Civ. Code § 2943. Thus, Plaintiff’s 24 request for statutory damages will add $300 to the amount in controversy. 25 d. Emotional Distress Damages 26 With regard to emotional distress damages, Defendants argue that “Plaintiff’s claim for 27 emotional distress damages will also add at least thousands of dollars to her claims.” Am. Notice 1 establish the amount of emotion distress damages . . . but just asserts they could be thousands of 2 dollars.” Reply at 4. In determining appropriate emotional distress damages, the courts may 3 consider “emotional distress damage awards in similar . . . cases.” Kroske v. U.S. Bank Corp., 432 4 F.3d 976, 980. Defendants cite one similar foreclosure case that awarded $20,000 in emotional 5 distress damages.2 Opp’n at 7 (citing In re Dawson, 346 B.R. 503, 511 (N.D. Cal. 2006)). The 6 court in Dawson, however, granted emotional distress damages because the defendant had willfully 7 violated an automatic stay on a foreclosure by attempting to evict plaintiff. In re Dawson, 346 B.R. 8 at 510. In this case, Defendants have not pointed the Court to any extenuating circumstances other 9 than Plaintiff’s general allegations of emotional distress. Opp’n at 7 (citing Compl. ¶¶ 28, 39, 54). 10 Thus, Defendants have failed to provide a basis for, or amount which, Plaintiff could recover 11 emotional distress damages. 12 e. Punitive Damages 13 With regard to punitive damages, Defendants argue that “Plaintiff’s claims for punitive 14 damages will add at least thousands of dollars to her claims.” Am. Notice of Removal ¶ 18. Plaintiff 15 replies that “Defendant provides no authority for its assertion that punitive damages are at least 16 $26,000.” Reply at 4. “To establish probable punitive damages, defendant may introduce evidence 17 of jury verdicts in cases involving analogous facts.” Simmons v. PCR Technology, 209 F. Supp. 2d 18 1029, 1033 (N.D. Cal. 2002). Defendants cite to Guglielmino v. McKee Foods Corp., to support 19 their claim that “Plaintiff’s request for punitive damages would add at least $26,000 to the amount 20 in controversy.” Opp’n at 8 (citing Guglielmino, 506 F.3d 696, 698 (9th Cir. 2007) (upholding 21 district court estimate of 1:1 punitive damages to economic damages ratio)). As Defendants note, 22 this Court has found the 1:1 ratio upheld in Guglielmino to be an appropriate estimate of punitive 23 damages in foreclosure cases. Opp’n at 8 (citing Order on Motion to Dismiss, Fisher v. Nationstar 24 Mortg. LLC, No. 17-cv-02994-BLF, ECF 28 (N.D. Cal. October 16, 2017)). Thus, the Court is 25 2 Defendants cite to two other cases to provide an estimate for emotional distress damages—these 26 cases are irrelevant because they are not factually similar to the case at hand (i.e., related to foreclosure). See Opp’n at 7 (citing Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005) 27 (age discrimination claim); Duncan v. State Farm Mutual Automobile Ins. Co., No. 2:18-cv-01174- 1 persuaded that Defendants have shown, by a preponderance of evidence, that Plaintiff’s request for 2 punitive damages would add $26,000 to the amount in controversy. 3 f. Attorneys’ Fees 4 With regard to attorneys’ fees, Defendants argue that “Plaintiff’s request for attorney fees 5 and costs adds thousands of dollars to her claims.” Am. Notice of Removal ¶ 1; see also Opp’n at 6 8 (citing Cal. Civ. Code 2924.12(h)). Defendants fail, however, to provide a basis on which the 7 Court is able to make an estimate of attorneys’ fees. Thus, even if Plaintiff is able to recover on 8 attorneys’ fees, there is no basis for the Court to estimate fees necessary to satisfy the amount in 9 controversy requirement. 10 4. Defendants’ Transactional Costs 11 Finally, Defendants argue that they “will also incur thousands of dollars in transactional 12 costs from the delaying of foreclosure on Plaintiff’s property.” Am. Notice of Removal ¶ 19; see 13 also Opp’n at 9. Plaintiff responds that “Defendant asserts that the transactional costs may be 14 thousands of dollars, but again, does not attempt to substantiate this claim.” Reply at 4. 15 As Defendants correctly note, “transactional costs to the lender of delaying foreclosure or a 16 fair rental value of the property during the pendency of the injunction . . . can be added to any other 17 compensatory damages sought by the plaintiff to determine whether more than $75,000 is in 18 controversy.” Opp’n at 6 (quoting Corral, 878 F.3d at 776). But here, Defendants fail to provide a 19 basis on which the Court is able estimate what those transactional costs might be. See Opp’n at 9. 20 Thus, even if Defendants are able to recover transactional costs there is no basis for the Court to 21 estimate transactional costs in the amount necessary to satisfy the amount in controversy 22 requirement. 23 *** 24 In conclusion, Defendants have established the amount in controversy in this case is as 25 follows: $26,000 in compensatory damages, $300 in statutory damages, and $26,000 in punitive 26 damages, totaling to $52,300. Thus, Defendants have failed to meet their burden of proving, by a 27 preponderance of evidence, that the amount in controversy exceeds the jurisdictional threshold. C. Plaintiff’s Request for Attorneys’ Fees 1 Plaintiff requests the Court to award attorneys’ fees and costs for bringing his Motion for 2 Remand. See Motion at 8-10. Plaintiff argues that “removal was objectively unreasonable” because 3 the law is “clear that the amount in controversy must exceed $75,000.00 and that the value of a loan 4 is irrelevant unless the case is a wrongful foreclosure case.” Motion at 9. Defendants, on the other 5 hand, argue that BOH had an “objectively reasonable basis for removal based on the citizenship of 6 MTGLQ and the amount in controversy.” Opp’n at 9. 7 Upon issuing an order remanding the case, a court may award “just costs and any actual 8 expenses, including attorney fees, incurred as a result of the removal” pursuant to 28 U.S.C. § 9 1447(c). The “award of fees under § 1447(c) is left to the district court’s discretion.” Martin v. 10 Franklin Capital Corp., 546 U.S. 132, 139 (2005). The standard for awarding fees turns “on the 11 reasonableness of the removal.” Id. at 141. “Absent unusual circumstances, courts may award 12 attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable 13 basis for seeking removal.” Id. Courts have determined whether removal was objectively 14 reasonable in part “by looking to the clarity of the law at the time of removal.” See Lussier v. Dollar 15 Tree Stores, Inc., 518 F.3d 1062, 1066 (9th Cir. 2008) (citing Martin, 546 U.S. at 141). 16 After reviewing the briefing and relevant authority, the Court agrees with Plaintiff that an 17 award of reasonable attorneys’ fees under Section 1447(c) is justified in these circumstances. First, 18 Corral is clear that neither the value of the property nor the amount of indebtedness is included in 19 the amount in controversy when Plaintiff is seeking a temporary injunction. 878 F.3d at 776. 20 Second, the bulk of BOH’s proposed amount in controversy comes from the $50,000 in statutory 21 damages it claims Plaintiff seeks under the HBOR. Opp’n at 6. The HBOR statute is clear that 22 monetary damages are only available after a trustee’s deed upon sale has been recorded. Cal. Civ. 23 Code § 2924.12(a)(1). Defendants have not provided any evidence that the Property was sold or 24 that a trustee’s deed upon sale had been recorded. As discussed above, without the statutory 25 damages, the amount in controversy does not reach $75,000. Moreover, BOH admits that its 26 original notice of removal was faulty thereby forcing Plaintiff to bring this Motion as to the issues 27 of MTGLQ’s citizenship and consent to removal. See Notice of Errata. 1 In sum, because the law was clear at the time of removal, BOH lacked an objectively 2 || reasonable basis for removal. Thus, Plaintiff is entitled to recover attorneys’ fees and costs from 3 || BOH for bringing this Motion. The Court will retain jurisdiction over the award of fees and costs, 4 as a matter collateral to the order remanding this case to state court. See Moore v. Permanente Med. 5 || Grp., Inc., 981 F.2d 443, 445 (9th Cir. 1992). 6 || I. ORDER 7 For the foregoing reasons, IT IS HEREBY ORDERED that: 8 (1) Plaintiff’s Motion for Remand at ECF 11 is GRANTED. The Clerk shall remand this 9 action to the Superior Court of the Stata of California for Santa Clara County. 10 (2) Plaintiffs request for attorneys’ fees and costs is GRANTED. 11 (3) Plaintiff shall file a declaration no longer than five (5) pages in length, with supporting 12 documentation, regarding the fees and costs incurred as a result of the removal within 13 fourteen (14) days of the date of this Order. If BOH wishes to respond to □□□□□□□□□□□ 14 declaration regarding attorneys’ fees, it may file an opposition, not to exceed five (5) 15 pages, within seven (7) days of receiving the declaration. a 16 (4) Defendant MTGLQ’s motion to dismiss the Complaint at ECF 17 is TERMINATED 3 17 without prejudice. 18 19 IT IS SO ORDERED. 20 21 || Dated: May 14, 2020 | y han on) 22 Me BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28