PNC Bank N.A. v. Salas

Filing 5

ORDER for Summary Remand. ORDERED that this action is remanded summarily to the Gunnison County District Court in Gunnison, Colorado. FURTHER ORDERED that the Clerk of this Court shall mail a certified copy of this Order to the Clerk of the Gunnison County District Court. FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 2 is denied as moot, by Judge Lewis T. Babcock on 10/2/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02580-BNB (Removal From the District Court of Gunnison
County, Colorado, Case No. 2012cv139)
PNC BANK N.A.,
Plaintiff,
v.
FRED SALAS,
Defendant.

ORDER FOR SUMMARY REMAND

Fred Salas has filed a Notice of Removal. This case involves a proceeding
brought against him by PNC pursuant to Colo. R. Civ. P. 120. PNC has sought an
authorized public trustee sale of Mr. Salas’s property on the grounds that he is in
default. Mr. Salas alleges that the sale violates his due process rights and he seeks a
writ of mandamus from this Court to enjoin any foreclosure of his property in Crested
Butte, Colorado.
The Court must construe the Notice of Removal liberally because Mr. Salas is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
stated below, this action will be remanded to the state court.
The court in Beeler Properties, LLC v. Lowe Enterprises Residential Investors,
LLC, 2007 WL 1346591 at *2 (D. Colo. May 7, 2007), described the Colorado real
estate foreclosure process as follows:

In Colorado, consensual liens against real property are created by
recordation of a deed of trust granted by the lender to the public trustee of
the count where the property is situate. Foreclosure of such liens is a
hybrid process governed by statute. The process involves issuance of
orders by the state district court authorizing and confirming the
[foreclosure] sale. C.R.C.P. 120; C.R .S. § 38-38-105. However, the
process of conducting the sale and parties' rights in such process are
largely administrative.
Upon default, if the deed of trust so authorizes, the lender or holder
of the note may direct the public trustee to sell the property at a
foreclosure sale. C.R.S. § 38-38-101(1). The lender must also seek an
order from the state district court authorizing the sale under Rule 120.
(footnote omitted). Once a sale is authorized, the public trustee advertises
and conducts the sale. C.R.S. § 38-38-101(4). The property is sold to the
highest bidder who receives a Certificate of Purchase. Often, the
purchaser is the holder of the deed of trust who bids all or part of the debt
owed by the borrower.
Prior to sale, the borrower may cure the default. After sale, the
borrower and any junior lienholders may redeem the title to the property
by paying, to the holder of the Certificate of Purchase, the sum for which
the property was sold with interest from the date of sale, together with any
taxes paid or other proper charges. See C.R.S. § 38-38-101 to § 38-38103. Redemption thus annuls the sale. If the redemption period passes,
the holder of the Certificate of Purchase may seek an order confirming the
sale and obtain a Trustee's Deed.
By filing his Notice of Removal, Mr. Salas has attempted to remove the Rule 120
proceeding to this Court. Mr. Salas asserts jurisdiction pursuant to 28 U.S.C. §§ 1332,
1441, 1446, 1453 and Fed. R. Civ. P. 11. He also asserts a Fair Debt Collection
Practices Act violation and the taking of property without due process by a party that is
not the real party in interest in the Rule 120 proceeding
“Under 28 U.S.C. § 1441 a defendant in state court may remove the case to
federal court when a federal court would have had jurisdiction if the case had been filed
there originally.” Topeka Housing Authority v. Johnson, 404 F.3d 1245, 1247 (10th Cir.
2005). A notice of removal must contain “a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders served upon such
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defendant or defendants in such action.” 28 U.S.C. § 1446(a). “The removing party
has the burden to demonstrate the appropriateness of removal from state to federal
court.” Baby C v. Price, 138 F. App’x 81, 83 (10th Cir. 2005).
The Court has reviewed the Notice of Removal and finds that it is deficient for the
following reasons. First, the underlying state court action is a Rule 120 proceeding that
involves the administrative process of authorizing and confirming a foreclosure sale.
Moreover, Rule 120 does not authorize the relief that Mr. Salas requests. Rule 120
expressly provides that a court’s order approving a sale is “without prejudice to the right
of any person aggrieved to seek injunctive or other relief in any court of competent
jurisdiction.” Rule 120(d); United Guar. Residential Ins. Co. v. Vanderlann, 819 P.2d
1103, 1105 (Colo. App. 1991). Mr. Salas, therefore, cannot remove the Rule 120
proceeding to federal court.
Mr. Salas relies on 28 U.S.C. § 1332, or diversity jurisdiction, for removing their
claim. It appears that the instant action is not removable based on diversity jurisdiction
because
[a]ny civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws
of the United States shall be removable without regard to the citizenship or
residence of the parties. Any other such action shall be removable only if
none of the parties in interest properly joined and served as defendants is
a citizen of the State in which such action is brought.
See 28 U.S.C. § 1441(b). Mr. Salas alleges that he is a resident of the State of
Colorado and the instant action was filed originally in the Gunnison County District Court
in Gunnison, Colorado. Therefore, it does not appear that the instant action may be
removed on the basis of diversity jurisdiction.

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The Court also notes that Mr. Salas has not complied with 28 U.S.C. § 1446(a) in
that he has not included with the Notice of Removal copies of all process, pleadings,
and orders entered in the state action
Even if the Court were to consider Mr. Salas’s claims based on federal question,
or 28 U.S.C. § 1331, there still is no support for removal of this action. In order to
establish federal question jurisdiction, the federal question must be “presented on the
face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). Except for narrow circumstances that do not appear to be present in
this action, “a case may not be removed to federal court solely because of a defense or
counterclaim arising under federal law.” See Johnson, 404 F.3d at 1247.
For these reasons, the Court finds that the notice of removal is procedurally and
substantively deficient. As a result, the instant action will be remanded summarily to the
state court. Accordingly, it is
ORDERED that this action is remanded summarily to the Gunnison County
District Court in Gunnison, Colorado. It is
FURTHER ORDERED that the Clerk of this Court shall mail a certified copy of
this Order to the Clerk of the Gunnison County District Court, 200 East Virginia Avenue,
Gunnison, CO 81230. It is

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FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915, ECF No. 2, filed on September 28, 2012, is denied as
moot.
DATED at Denver, Colorado, this

2nd day of

October

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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