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Nevada v. Bank of Am. Corp.

United States Court of Appeals for the Ninth Circuit

February 8, 2012, Argued and Submitted, Pasadena, California; March 2, 2012, Filed

No. 12-15005

Opinion

 [*664]  Opinion by Judge WARDLAW:

The State of Nevada, through its Attorney General, Catherine Cortez Masto, filed this parens patriae lawsuit against Bank of America Corporation and several related entities (collectively, "Bank of America") in Clark County  [**2] District Court. Nevada alleges that Bank of America misled Nevada consumers about the terms and operation of its home mortgage modification and foreclosure processes, in violation of the Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. §§ 598.0903-.0999. Nevada also alleges that Bank of America violated an existing consent judgment ("Consent Judgment") in a prior case between Nevada and several of Bank of America's subsidiaries, entered in Clark County District Court.

Bank of America removed this action to federal district court, asserting federal subject matter jurisdiction as either a "class action" or "mass action" under the  [*665]  Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), and as arising under federal law, 28 U.S.C. § 1331. Denying Nevada's motion to remand, the federal district court concluded that it has jurisdiction over this action as a CAFA "class action," but not as a "mass action," and that it also has federal question jurisdiction because resolving the state claims will require an interpretation of federal law.

We granted Nevada's request for leave to appeal the district court's denial of its motion to remand pursuant to 28 U.S.C. § 1453(c)(1). We conclude that  [**3] because parens patriae actions are not removable under CAFA, and the action does not otherwise satisfy CAFA's "mass action" requirements, the district court lacks jurisdiction under CAFA. We also exercise our interlocutory appellate jurisdiction under 28 U.S.C. § 1453(c) to review the district court's determination that it has federal question jurisdiction because the complaint references the federal Home Affordable Mortgage Program and the Fair Debt Collection Practices Act. We conclude that the district court lacks federal question jurisdiction. Because there is no basis for federal subject matter jurisdiction, this case must be remanded to Nevada state court.

] The Nevada Deceptive Trade Practices Act ("DTPA") authorizes the Nevada Attorney General to "bring an action in the name of the State of Nevada" against any person whom the Attorney General "has reason to believe . . . has engaged or is engaging in a deceptive trade practice." Nev. Rev. Stat. § 598.0963(3). The State of Nevada filed its amended complaint ("Complaint") in the Clark County District Court on January 19, 2011. The Complaint alleges that Bank of America violated the DTPA by misleading Nevada consumers who sought  [**4] modifications of residential mortgages. It also alleges that Bank of America violated the terms of a February 24, 2009, Consent Judgment between Nevada and several of the bank's subsidiaries. The Clark County District Court entered the Consent Judgment and retains enforcement jurisdiction.

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672 F.3d 661 *; 2012 U.S. App. LEXIS 4377 **; 2012 WL 688552

STATE OF NEVADA, Plaintiff - Appellant, v. BANK OF AMERICA CORPORATION; BANK OF AMERICA NATIONAL ASSOCIATION; BAC HOME LOANS SERVICING, LP; RECONSTRUCT COMPANY, N.A.; COUNTRYWIDE FINANCIAL CORPORATION; COUNTRYWIDE HOME LOANS, INC.; FULL SPECTRUM LENDING, INC., Defendants - Appellees.

Prior History:  [**1] Appeal from the United States District Court for the District of Nevada. D.C. No. 3:11-cv-00135-RCJ-WGC. Robert Clive Jones, Chief District Judge, Presiding.

Nevada v. Bank of Am. Corp., 2011 U.S. Dist. LEXIS 72601 (D. Nev., July 5, 2011)

Disposition: REVERSED.

CORE TERMS

district court, consumers, real party in interest, class action, mass action, modifications, federal question, attorney general, parens patriae, state court, alleges, federal law, restitution, occurrence, mortgage, removal, federal court, foreclosure, cases, federal jurisdiction, consent judgment, Practices, antitrust, deceptive trade practices, consumer protection, cause of action, diversity, borrower, requests, subject matter jurisdiction

Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Governments, State & Territorial Governments, Claims By & Against, Legislation, Statutory Remedies & Rights, Real Property Law, Financing, Mortgages & Other Security Instruments, General Overview, Federal Programs, Civil Procedure, Appeals, Standards of Review, De Novo Review, Subject Matter Jurisdiction, Jurisdiction Over Actions, Special Proceedings, Class Actions, Class Action Fairness Act, Removal, Postremoval Remands, Appellate Review, Specific Cases Removed, Prerequisites for Class Action, Injunctions, Grounds for Injunctions, Appellate Jurisdiction, Interlocutory Orders, Federal Questions, Federal Questions