GMAC Mortgage, LLC v. Stoneberg et al

Filing 6

ORDER of Remand. granting 5 Motion to Remand. The Clerk of Court shall REMAND this action to the District Court, County of Gunnison, State of Colorado, from which the case was removed by Chief Judge Wiley Y. Daniel on 10/11/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 12-cv-02662-WYD
GMAC MORTGAGE, LLC,
Plaintiff,
v.
MICHAEL ALAN STONEBERG; and
LORI ANN STONEBERG,
Defendants.

ORDER OF REMAND

On October 9, 2012, Defendants filed a Notice of Removal asserting that this
Court has jurisdiction over the foreclosure proceeding filed in state court under Colo.
R. Civ. P. 120 that was removed to this Court. In support of the Notice, Defendants cite
28 U.S.C. §§ 1332, 1441, 1446, 1453 and Fed. R. Civ. P. 11. Defendants also assert
that they intend to litigate the issue of the legality of the attempted foreclosure of their
home under the Fair Debt Collection Practices Act, and that the case involves a taking
of property without due process. On October 10, 2012, Plaintiff GMAC Mortgage, LLC
[“GMAC”] filed a Motion for Remand Pursuant to 28 U.S.C. § 1447, asserting that this
Court does not have subject matter jurisdiction over the case.
Turning to my analysis, either party may seek remand or the court may remand
sua sponte if the federal court lacks subject matter jurisdiction. American Fire & Cas
Co. v. Finn, 341 U.S. 6 (1951). The party invoking federal jurisdiction, here the

Defendants, bear the burden of proving that such jurisdiction exists. Martin v. Franklin
Capital Corp., 251 F.3d 1284, 1289-90 (10th Cir. 2001). The removal statute is to be
strictly construed against removal, and all doubts should be resolved in favor of remand.
Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1097 (10th Cir. 2005).
Even construing their filings liberally since they are proceeding pro se, Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), I find that Defendants have not met their
burden of establishing that this Court has subject matter jurisdiction over the case. As
noted in the Motion to Remand, the underlying action filed by GMAC is a proceeding for
authorization of a foreclosure sale of Defendants’ home under Rule 120 of the Colorado
Rules of Civil Procedure. Indeed, Defendants attached to the Notice of Removal the
State Court’s Notice of Hearing on Plaintiff’s Verified Motion for Order Authorizing Sale,
which hearing is set for October 15, 2012. This Court does not have jurisdiction over
state proceedings under Rule 120. See Bank of America: Nat'l Ass'n v. Sladek, No. 11cv-02842-BNB, 2011 WL 5459492, at *2 (D. Colo. Nov. 10, 2011); Mut. of Omaha Bank
v. McKee, No. 11-cv-02936-REB-KLM, 2012 WL 1884231, at 2 (D. Colo. Jan. 23,
2012), aff’d, 2012 WL 1884189 (D. Colo. May 23, 2012); PNC Bank N.A. v. Salas, No.
12-cv-02580-BNB, 2012 WL 4511401, at *2 (D. Colo. Oct. 2, 2012).
Additionally, GMAC has shown in its Motion for Remand that the bases of federal
jurisdiction relied on by Defendants are not present. Diversity jurisdiction does not exist
since Defendants are residents of Colorado and the action was brought in Colorado
State Court. 28 U.S.C. § 1441(b). There is also no support for removal based upon
federal question jurisdiction pursuant to 28 U.S.C. § 1331. A review of the Motion for
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Order Authorizing Sale giving rise to the underlying Rule 120 proceeding reveals that
the matters therein involve only state law matters regarding foreclosure. Further, 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 Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247 (10th
Cir. 2005). Thus, any claims that Defendants may raise in the state court action or any
counterclaims pursuant to the Constitution, law, or treaties of the United States are not
removable.
Based on the foregoing, I find that this Court lacks subject matter jurisdiction over
the case, and it must be remanded to the State Court from which it was removed. 28
U.S.C. § 1447(c). Accordingly, the Motion to Remand is granted. To the extent,
however, that GMAC requested its fees and costs in the motion, that request is denied.
In conclusion, it is
ORDERED that GMAC Mortgage, LLC’s Motion for Remand Pursuant to 28
U.S.C. § 1447 (ECF No. 5) is GRANTED. The Clerk of Court shall REMAND this action
to the District Court, County of Gunnison, State of Colorado, from which the case was
removed.
Dated: October 11, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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