Full title: ROBERT FRENCH, Plaintiff, v. GREENPOINT MORTGAGE FUNDING, INC., et al.…
Court: United States District Court, N.D. California
Date published: Feb 19, 2010
Facts
The plaintiff, Robert French, is suing Greenpoint Mortgage Funding, Inc., Bank of America Home Loans, Mortgage Electronic Registration Systems, Inc., GMAC Mortgage, and Triton Funding, Inc. for mortgage loan transactions in May 2006. The plaintiff claims that the original beneficiaries were no longer the true beneficiaries under both notes due to fraud in factum and ineffective endorsement. The plaintiff also alleges that the security instrument was defective from the onset, meaning the principal mortgage note was never secured in favor of the noteholder.
The plaintiff alleges that the defendants “Broker and Lender,” in conjunction with the principal mortgage note, made certain TILA disclosures, such as the APR and finance charge, but the true APR was 7.9227% and the finance charge was $911,631.22. The plaintiff also alleges that the prepaid finance charge was understated by at least $1000. The plaintiff was charged two yield spread premiums to Triton Funding, and without these representations, the plaintiff would not have taken the mortgage loan.
The plaintiff filed an action in San Francisco Superior Court on October 9, 2009, alleging seventeen causes of action against the defendants: cancellation of voidable contract, quiet title, accounting, fraud, constructive fraud, breach of fiduciary duty, tortious violation of RESPA, reformation, broker’s breach of duty to disclose, California consumer legal remedies violation, TILA, false advertising and unfair competition, unfair competition, unfair debt collection practices, declaratory relief, violation of Cal. Civil Code § 1788.17, and violation of Cal. Civil Code § 1572.
Defendant GMAC filed a notice of removal on December 4, 2009, invoking federal question jurisdiction based on the plaintiff’s TILA, RESPA, and Fair Debt Collection Practices Act claims. The court construes the lack of any joinder as a procedural defect that may be waived. The plaintiff now seeks to remand the complaint to state court, on grounds that federal question jurisdiction is lacking.
Issue
Decision
The plaintiff’s motion to remand the case is GRANTED. Given this ruling, the court also declines to consider the merits of the pending motions to dismiss and to strike, and vacate the February 24, 2010 pending hearing date in connection with those motions.
