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Brecker v. 1st Republic Mortg. Bankers, Inc.

United States District Court for the District of New Jersey

October 21, 2013, Decided; October 21, 2013, Filed

Civil Action No. 13-5646


Memorandum Order Remanding Case to N.J. Superior  [*6] Court, Law Division, Camden County

This matter comes before the Court sua sponte, after Defendant Bank of America, N.A. filed a Notice of Removal from the New Jersey Superior Court, Law Division, Camden County on September 30, 2013. The Notice of Removal asserts federal question jurisdiction pursuant to 28 U.S.C. § 1331 "based on allegations that Defendants violated two federal programs created by federal statute: (i) the 'Troubled Asset Relief Program,' commonly known as 'TARP' and (ii) the 'Home Affordable Modification Program,' also known as 'HAMP.'" (Notice of Removal, ¶ 5 (citing Compl., ¶¶ 239-45, Count VII for Breach of Contract/Constructive Fraud).)

Federal question jurisdiction applies to "all civil actions arising under the Constitution, laws, or treatises of the United States." 28 U.S.C. § 1331. A claim "arises under" federal law if "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). That is, "in certain cases federal-question  [*7] jurisdiction will lie over state-law claims that implicate significant federal issues" or "turn on substantial questions of federal law." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Manufacturing, 545 U.S. 308, 312, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). Because the Court finds that the breach of contract/constructive fraud claim in Count VII of the Complaint does not arise under federal law, this Court could not have had original jurisdiction over the action as contemplated by 28 U.S.C. § 1441, and the matter will be remanded to State court pursuant to 28 U.S.C. § 1447 for lack of subject matter jurisdiction.

Plaintiffs, approximately 98 in number, brought this action against about 64 Defendants, asserting various forms of mortgage fraud. Included among claims of State statutory violations, intentional and negligent misrepresentation, negligence, slander, civil conspiracy, and unjust enrichment is a claim for Breach of Contract/Constructive Fraud, Count VII. This claim includes the following allegations:

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2013 U.S. Dist. LEXIS 151214 *; 2013 WL 5729783

John and Laura Brecker, et al., Plaintiffs, v. 1st Republic Mortgage Bankers, Inc., et al., Defendants.


private right of action, cause of action, Modification, federal law