US Bank National Association v. Andrews

Filing 6

ORDER for Summary Remand to Larimer County District Court by Judge Lewis T. Babcock on 10/23/13. 3 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02838-BNB
(Removal from the District Court of Larimer County, Colorado, Case No. 2013-cv30127)
US BANK N.A., as Trustee for SASCO Mortgage Loan Trust 2006-RF4,
Plaintiff,
v.
MICHELLE L. ANDREWS, and
DOES 1-100
Defendants.

ORDER FOR SUMMARY REMAND

Defendant, Michelle Andrews, acting pro se, initiated this action by filing a Notice
of Removal (ECF No. 1) and a Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 3). Ms. Andrews seeks to remove to this Court two state court
cases--Case No. 2013-CV-30127 and Case No. 2013-CV-9--involving claims of unlawful
detainer filed by Plaintiff in the District Court, Larimer County, Colorado. The unlawful
detainer proceeding seeks to remove Ms. Andrews and others from property that has
been foreclosed and which Plaintiff acquired through a public trustee’s sale (ECF No. 11). In support of the Notice, Ms. Andrews cites 28 U.S.C. § 1331, 1332, 1441, 1446,
1453, and Fed.R.Civ.P. 11. Ms. Andrews asserts that she intends “to litigate the issue
of the legality of the attempted, pending foreclosure” of her home under the Fair Debt
Collection Practices Act (erroneously referred to as the “Federal Debt Collection

Practices Act”), and that the case involves a taking of property without due process.
The Court must construe the Notice of Removal liberally because Ms. Andrews 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, the Court finds that Ms. Andrews has not met her burden of establishing
that this Court has subject matter jurisdiction over the case.
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
defendant or defendants in such action.” 28 U.S.C. § 1446(a). “[T]here is a
presumption against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873
(10th Cir. 1995). “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). Removal is permitted only where the existence of a federal claim
appears on the face of a well-pleaded complaint. Holmes Group Inc. v. Vornado Air
Circulation Systems, Inc., 535 U.S. 826, 830 & n. 2 (2002). “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).
Ms. Andrews fails to provide a short and plain statement of the grounds for
removal, and she fails to demonstrate that the Court would have had subject matter
jurisdiction over this action if it had been filed originally in federal court. In the Notice of
Removal, Ms. Andrews asserts in a conclusory and vague fashion that she seeks to
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remove the state case based on violations of the Fair Debt Collection Practices Act,
federal questions including the taking of property without due process, and diversity
jurisdiction. With respect to federal diversity jurisdiction pursuant to 28 U.S.C. § 1332,
Ms. Andrews asserts that she is a citizen of this state. (ECF No. 1-2). Therefore,
diversity jurisdiction does not exist because Ms. Andrews is a resident 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 state court complaint initiated by Plaintiff
reveals that the matters therein involve only state law, i.e., an unlawful detainer
proceeding seeking to recover possession of the property. This action does not contain
a cause of action under the federal Fair Debt Collection Practices Act, nor does the
complaint allege any other federal causes of action. Furthermore, 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 1245. Thus, any claims that Ms. Andrews may
raise in the state court action or any counterclaims pursuant to the Constitution, law, or
treaties of the United States are not removable. Accordingly, Ms. Andrews has not met
her burden to establish federal subject matter jurisdiction over this civil action.
For these reasons, the Court finds that the Notice of Removal is deficient and
that the Court lacks subject matter jurisdiction over the case. As a result, the instant
action will be remanded summarily to the state court. See 28 U.S.C. § 1447(c).

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Accordingly, it is
ORDERED that this action is remanded summarily to the Larimer County District
Court. It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3) is DENIED as moot. It is
FURTHER ORDERED that the Clerk of this Court shall mail a certified copy of
this order to the Clerk of the Larimer County District Court.
DATED at Denver, Colorado, this 23rd

day of

October

, 2013.

BY THE COURT:

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

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