Bank of America, N.A. v. Mbaku et al

Filing 5

ORDER. This case is remanded to the District Court of Arapahoe County, Colorado, where it was filed as Case No. 2013-CV-200883. By Judge Philip A. Brimmer on 5/17/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01277-PAB
BANK OF AMERICA, N.A.,
Plaintiff,
v.
JOHN M. MBAKU, and
LUVIBIDILA JOLIE LUMUENEMO,
Defendants.

ORDER

This matter is before the Court sua sponte on the Notice of Removal [Docket No.
1] filed by defendants John M. Mbaku and Luvibidila Jolie Lumuenemo. Defendants
claim that this Court has jurisdiction over the case pursuant to 28 U.S.C. § 1331. In
light of defendants’ pro se status, the Court construes their filings liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th
Cir. 1991). However, the Court shall not act as an advocate for the pro se litigants.
Hall, 935 F.2d at 1110.
Defendants are the owners of real property located at 1177 S. Alton St. A,
Denver, CO 80247 (the “Residence”) as identified by the Deed of Trust. Docket No. 1-1
at 20-26. On February 22, 2008, defendants executed a promissory note in the amount
of $166,885.00 with the Residence as security. Docket No. 1-1 at 16-18. On May 3,
2013, Bank of America, N.A. (“BOA”) filed a Verified Motion for Order Authorizing Sale
Pursuant to Rule 120, Colorado Rules of Civil Procedure [Docket No. 1-1 at 1-3]. In its

verified motion in the state court action, BOA alleged that defendants were in default
and sought an order to foreclose on the Residence. Docket No. 1-1 at 2. The state
court scheduled a Rule 120 hearing for June 3, 2013.1 Docket No. 1-1 at 9-11. On
May 16, 2013, defendants removed the case to this Court [Docket No. 1].
In the notice of removal, defendants state that the Court has jurisdiction over this
case because the Rule 120 hearing violates their rights to due process and equal
protection. Docket No. 1 at 3. In addition, defendants claim that the Court has
jurisdiction because the Rule 120 hearing will decide issues similar to the ones currently
pending before the Court in a related case. See John M. Mbaku v. Bank of America,
N.A., No. 12-cv-00190-PAB-KLM (D. Colo. 2012).
In every case and at every stage of the proceeding, a federal court must satisfy
itself as to its own jurisdiction, even if doing so requires sua sponte action. See
Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628
F.2d 1289, 1297 (10th Cir. 1980). The removing party bears the burden of establishing
the requirements of federal jurisdiction. Martin v. Franklin Capital Corp., 251 F.3d
1284, 1290 (10th Cir. 2001). Removal statutes are to be “narrowly construed in light of
our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 420 F.3d
1090, 1095 (10th Cir. 2005).

1

Under Colorado law, once a creditor defaults on a loan and the deed of trust so
authorizes, the holder of the promissory note may request that the public trustee sell
the property at a foreclosure sale. Colo. Rev. Stat. § 38-38-101(1). The holder of the
note must also seek an order from the state district court authorizing the sale under
Rule 120. Colo. R. Civ. P. 120.
2

Under 28 U.S.C. § 1441, a defendant in state court may remove a case to
federal court when a federal court would have had jurisdiction if the case had been filed
there originally. Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247 (10th Cir. 2005).
Defendants here have not met their burden to show that this Court has subject matter
jurisdiction over this case. Although defendants attach numerous documents from the
state court proceedings, see Docket No. 1-1, none of these documents sufficiently
establish the Court’s jurisdiction.
First, there is no support for removal based upon federal question jurisdiction
pursuant to 28 U.S.C. § 1331. Federal question jurisdiction is governed by the “wellpleaded complaint rule,” which provides that federal jurisdiction exists only when a
federal question is “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, “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. A
review of BOA’s complaint and Rule 120 motion in the state court proceeding reveals
that the matters alleged therein involve only state law. Because defendants’ notice of
removal alleges that their defenses arise under federal law and those defenses do not
fall within the narrow exceptions to the well-pleaded complaint rule, defendants have
not shown that this case is removable. Johnson, 404 F.3d at 1247.
Second, defendants cannot show that the Court has diversity jurisdiction
pursuant to 28 U.S.C. § 1332 because they are citizens of the State of Colorado. See
28 U.S.C. § 1441(b)(2) (“[any] civil action otherwise removable solely on the basis of

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the jurisdiction under section 1332(a) of this title may not be removed if any of the
parties in interest properly joined and served as defendants is a citizen of the State in
which such action is brought”). Accordingly, the Court finds that it does not have
jurisdiction over this case.
For the foregoing reasons, it is
ORDERED that this case is REMANDED to the District Court of Arapahoe
County, Colorado, where it was filed as Case No. 2013-CV-200883.

DATED May 17, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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