Aurora Bank, FSB v. Mortgage Master, Inc.

Filing 27

ORDER remanding case to the District Court, Douglas County, Colorado, by Judge Christine M. Arguello on 5/14/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00474-CMA-CBS
AURORA BANK, FSB,
Plaintiff,
v.
MORTGAGE MASTER, INC.,
Defendant.

ORDER SUA SPONTE REMANDING CASE TO STATE COURT

This matter is before the Court sua sponte. For the reasons discussed below,
the Court concludes that Defendant Mortgage Master, Inc. has not established the
Court’s subject matter jurisdiction over this case. As such, the Court remands this case
to the District Court, Douglas County, Colorado, for further proceedings.
I. BACKGROUND
On or about March 3, 2005, Defendant sold a number of mortgage loans to
Plaintiff Aurora Bank FSB (formerly known as Lehman Brothers Bank). (Doc. # 5-4.)
The terms of the sale were set forth in a loan purchase agreement (the “Agreement”)
that expressly incorporated additional terms contained in Plaintiff’s “Seller’s Guide.”
(Id.) On January 18, 2013, Plaintiff filed a Complaint in Colorado state court alleging
that Defendant “breached one or more of its representations, warranties, and/or
covenants under the Agreement and/or Seller’s Guide.” (Doc. # 3 at 4.) Defendant

filed a Notice of Removal on February 22, 2013, alleging diversity jurisdiction under
28 U.S.C. § 1332. (Doc. # 1.)
II. DISCUSSION
Section 1332(a) sets forth two requirements for diversity jurisdiction: (1) an
“amount in controversy [that] exceeds the sum or value of $75,000 exclusive of interest
and costs” and (2) diversity of citizenship between the parties. 28 U.S.C. § 1332(a).
The party invoking federal jurisdiction bears the burden of proving that such jurisdiction
exists. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). A removing defendant
must prove jurisdictional facts by a “preponderance of the evidence,” including that the
amount in controversy may exceed $75,000. McPhail v. Deere & Co., 529 F.3d 947,
953 (10th Cir. 2008). Such proof may arise in a variety of ways, see id. at 954, but
conclusory assertions or outright speculation do not suffice, Tafoya v. American Family
Mutual Insurance Co., No. 08–cv–01656, 2009 WL 211661, at *2 (D. Colo. Jan. 28,
2009) (unpublished).
In the instant case, while Defendant asserts that the amount in controversy
exceeds $75,000 (Doc. # 1 at 3), Plaintiff, in its Complaint, did not specify a monetary
estimate of the damages it allegedly suffered (see Doc. # 3 at 5). Instead, Plaintiff
merely stated that it sustained “actual, consequential, and substantial damages in an
amount to be proven at trial.” (Id.) The sole instance of Plaintiff’s estimate of damages
is found on the state court Civil Cover Sheet accompanying Plaintiff’s Complaint, which
includes a check-marked box indicating that Plaintiff is seeking a monetary judgment for
more than $100,000.00 against Defendant. (Doc. # 1-3.) This Court has previously

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addressed the evidentiary value, or lack thereof, of the state court Civil Cover Sheet in,
for example, Garner v. Vaki, No. 11-cv-01283, 2011 WL 2463285, at *1 (D. Colo. June
21, 2011) (unpublished), and Tejada v. Allstate Fire & Casualty Insurance Co., No. 09cv-02096, 2009 WL 2958727, at *1 (D. Colo. Sept. 10, 2009) (unpublished). In both
Garner and Tejada, the Court stated that “the Colorado Civil Cover Sheet, by itself,
does not establish the requisite amount in controversy to sustain diversity jurisdiction.”
Id. (citing Baker v. Sears Holding Corp., 557 F. Supp. 2d 1208 (D. Colo. 2007)).
Other sources of evidence often relied on to establish the amount in controversy,
including “interrogatories obtained in state court before the notice of removal was filed,
a proposed settlement amount, or affidavits,” are not present in this case. See Tejada,
2009 WL 2958727, at *1. As such, there is insufficient evidence that the value of this
action exceeds the amount in controversy requirement of $75,000. Any attempt by the
Court to calculate the potential amount of damages “would simply be guesswork and,
thus, amount to improper speculation.” Garner, 2011 WL 2463285, at *1 (citing Tafoya,
2009 WL 211661, at *2.) Thus, the Court concludes that Defendant's Notice of Removal
does not establish the requisite jurisdictional amount by a preponderance of the
evidence.

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III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that this action is REMANDED
to the District Court, Douglas County, Colorado, for further proceedings.
DATED: May

14

, 2013
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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