in this case was untimely twenty eight u s c section fourteen forty six b provides only two windows in which to remove an action the first window was within thirty days from the receipt of the initial complaint upon which federal jurisdiction is apparent the second window is within thirty days from the receipt of any other paper or order from which it may be first ascertainable that the case is one which can be removed for that it has fourteen fifty three b it appears that you will you have a five million dollar limit here it appears that that only applies to the minimal diversity cases rather because the notice of removal doesn't alleged on the following amount of controversy was satisfied in this case moment that's my point is that five million only apply to situation where there is minimal diversity you know where there are all you have to have is one party that's diverse controversy you have to look at the ballot you have the right to the point of and other district court cases in the eastern district of arkansas and the district court in minnesota in a foreclosure action that is determined by looking at the underlying debt of the mortgage loan or the fair market value of the home those numbers didn't change throughout the litigation but it's not but the original comply didn't didn't attack anything to do that now and it didn't mention any numbers i didn't mention any numbers except that he was behind on his mortgage payments and he could not you do about the inri willis it talks about the requirement that the if you do not stop statutory foreclosure sell your client immediately you lose every affirmative defense of the foreclosure except for fraud and except for spirit compliance with the statutory foreclosure act provisions  west and the amount of controversy there was in order entered by the circuit court want to see issued a temporary restraining order on february twenty fifth two thousand and eleven and in that order he said that he doubted the defendants would prevail on the merits  we should have he should have but the problem is as i see it is that that there's no way a reader in looking at the your initial pleading could tell the amount in controversy there's no reference to the value of the property the argue it's more of a subjective standard you look at the particular defendant and what the defendant may know from experience sick and there is when there is black letter law that the value that you measure for  pleading and by that time the bank should have done an investigation and how much mr raced out on the net or what the value of the home was in there was no excuse me there was no notice removal within thirty days of the february twenty fifth two thousand and eleven order once you had a class action explain to me how you get around the fourteen fifty three b exclusion defendant may be able to remove a class action but it's not an absolute right to remove a class action fourteen fifty three still adopts the procedures and fourteen forty six in those two windows i discussed in fourteen forty six be one of those two windows still has to open in a thirty day time period must start when one of those two windows open the first one you still have to have the ability to remove the case within one of the two windows and fourteen forty six that opened it's when you get the initial pleading is it removable is the amount of controversy satisfied or if the case was not removal from the beginning because the text of the second window states within thirty days from the receipt of another paper from which it may be first ascertained that the case is one which or has become remov our position is that the case was removable from the beginning and the class action complaint was not the pleading from which it may be first ascertain that the case was removable it doesn't say that the case was removable under calf it says it removable period congress didn't write the statute in that way so since the case was removable from the beginning or at least from the feb twenty fifth two thousand and eleven order that's when the defendants had thirty days to remove the case a removable once a class action is sought and because it was removable from the beginning and that even to remove a class action it has to be removable from the beginning in the first window or it has to be removable in the second window the second window doesn't always open for a defendant it only opens when the first initial pleading was not removable to begin with that's the text of the statute from which it may be first ascertain that the case is one which more has become remov removable that it can't be removable later question and you may eat perhaps you were going to touch on this but i think you have an argument that the  that the district court improperly denied the motion to remain and and you argued that the apple a did not sustain its burden of showing by a preponderance of the evidence that the jurisdictional threshold is satisfied yes there are now that with my question is let's say we agree with that and we say the judge mailer just didn't do enough it's the order was too skimpy or so saying there was not really a discussion of that requirement and and we were manned it are you really arguing at this point that that this jurisdictional amount is still an issue but we're arguing at this point your honor is if you review the notice of removal the bank did not allege that the million dollar amount in controversy was satisfied that's not an allegation of the notice of removal they talk about is filing a class action complaint in the sods of the class but typically when you get a notice removal from a defendant in a class action that will say the amount of controversy under cafe is satisfied and here's why and connect the dots about how bad a million is in controversy we didn't get that in this notice of removal so when we filed our motion to remain on we felt like we had to raise that in it as an issue within thirty days to the notice of removal or we would lose it but our argument there is the notice of removal never started jurisdiction under kappa we think that going to come after the calf is not mentioned anywhere in any of them by the district court or about the parties in any of this is it is not mentioned in the notice of removal it was mentioned by the bank  got in the predicament because he fell behind on his mortgage payments and he did not know how much he owed on the loan even though he asked and that burden of or proving the amount of controversy either over seventy five thousand or over five million is still on the defendants and all don't think that they could that they would be able to carry that burden with respect to the seventy five thousand based on a single allegation in the notice of removal that he owed one hundred thirty nine thousand without a partial payment history morning may please the court i'm gary martz and here on behalf of bank of new york mellon i'm going to stop at that there's a lot of stuff listed in the style comes after and i can't remember all of it the court should affirm the district argued that the notice of removal did not state that the jurisdictional minimum under cathal was met and i agree that the notice of removal could have been clear on that point but i would point the court to paragraph fifteen of that notice which appears that page three of the appendix that paragraph alleges that receives judgment against trustee for compensatory damages treble damages and punitive damages and this is the key part payable to the  an unspecified amount that will exceed the minimum for defender diversity jurisdiction that is a reference to the to the class minimum under cafe the removal is filed stated that more explicitly more clearly i think that sufficient upon which to remove under katha the fact that the statement that the jurisdictional minimum is met is hinged entirely upon the fact that damage individual diversity jurisdiction on the point that mister i think that appellant is being somewhat inconsistent in the arguments that it's making with regard to seventy five thousand dollars that judge sheppard asked about on the one hand appellant is arguing well this case was removable from the start from the filing of that first complaint this case was removable because the you is an individual claim it met the requirements for diversity jurisdiction it was removable when he first filed it in two thousand and ten but then on the other hand they say well no they haven't ever shown that the seventy five thousand dollars is a stake and they still won't concede that seventy five thousand dollars has been met here so the one hand it's removable because the seventy five thousand dollars is met and then on the other hand the seventy five thousand dollars hasn't been met and i think the reason why they have to be in  i didn't didn't go back and look that was one of the first good alleged come out that there was one hundred thirty nine thousand dollar note it's not in their complaint it's not in your removals of the wonder that finally show up to the papers that were filed on the issue of remained if i'm not mistaken the motion to remain i believe so that that that the copy of the mortgage is there it shows that the does that show what's left on the mortgage arguably it could be fifty thousand dollars well it shows that the total amount of the mortgage originally was one hundred forty four thousand dollars and that the mortgage was executed in two thousand  four so we don't have anything reasonable inferences that i think that the court can reasonably infer that there's still a significant amount owed in that mortgage given that it had only been that he was in a reraise on it in the first place and dollars i think too that it's important all we've gotten from mr reese in this case is an argument this hasn't been proven the amount and in controversy has been proven there's never been any serious dispute over what the amount  controversy is he's never submitted any evidence of his own and he's never said anything other than to say that they haven't proven this and this is not a case it's been cited in the briefs and i will submit a twenty a j letter on it after th after today but there's a case decided by the u s supreme court a couple of years ago it's hurts court versus friend it's a case that deals with removal jurisdiction and that case says this is a quote from the case when challenged on allegations of jurisdictional facts the parties must support their allegations by competent proof there's never been a challenge here of the allegation of the amount of controversy all there's been is well we need more but that's not a real challenge and if we're looking at in the  preponderance of the evidence standard the only evidence in the record as to the amount of the claim that mr aris is made is that mortgage which is in the record there's nothing else and in terms of the five million dollars into kath alleges in his class action complaint that his claim is typical and he alleges that there are thousands of members of this class well if there are thousands of members of this class it doesn't take a significant amount per member to get the five million dollars and the amount if we look at what's alleged in the first amended complaint they seek actual damages under the arkansas deceptive trade practices act on behalf of the class they seek an award of attorney's fees they'd seek enhanced penalties under the arkansas  deceptive trade practices act they seek disgorgement of amounts but which the defendant has been unjustly enriched they seek to avoid all non judicial foreclosures in the state of arkansas which they number in the thousands and they also seek actual damages treble damages and punitive damages for slander of title so it doesn't take a big stretch for the court to conclude that with thousands of people posing those same claims that we're going to get to five million dollars and the standard is we don't have to prove that with certainty the standard is that a five a fact finder might legally conclude that the damages exceed five million dollars and i think that well what the c is that you don't have to do show vibe million dollars because that only applies when you have minimal diversity and here you have a total diversity now do you have a position then i'm not prepared for that point my understanding of katha is that it puts in place a standard where you can remove if you have less than total diversity but i think that if you're removing under cafe you have to show the five million dollar amount in controversy i don't think that applies only when there's minimal diversity i think minimal diversity is the minimum standard of diversity under cafe but i'm not adequately prepared on that point and i could be wrong so you are is it your client's position that  there's federal jurisdiction either way either under taffeta or under normal diversity i'd and i think what we try and what was what was actually trying to  and to be frank with the court i don't think that we could move under that i think the one year deadline applies and i think if you look at the standard for determining whether this case is commenced more than a year before the notice of remov i think that there's no way to get around that one year with regard to regular diversity jurisdiction on mr rhys's individual claims we were also trying to remove under katha and as i stated i think that could have been stated more clearly in the notice of remov but i think that there's enough there where it says that the class claims exceed the amount for federal diversity jurisdiction that sufficient under caf and then there was a third ground that frankly i think it's a little bit for is a little marginal federal question jurisdiction but i think the issue here today is kathy and i want to in my remaining time if i can respond on the issue of timeliness when mr rhys filed his initial complaint in state court sought nothing more than a temporary restraining order and asserted a theory totally different from the one that was ultimately asserted in the class action complaint it asserted that the trustee could not for close because of a lack of privity and a temporary restraining order to stop foreclosure quote until all proper parties are joined and are in privity of contract with there was no monetary relief requested in any form and it did not seek to enjoin foreclosure permanently it just sikh all it sought was for mr rhys to get a day in court to shoot to make sure that whoever was foreclosing against him was in privity of contract with the order that mr referred to that was entered on february twenty fifth two thousand and eleven did nothing more than just keep the temporary restraining order in place it also ordered mr rhys to continue making payment i guess maybe at that point to start making payments on his mortgage into the registry of the court there was nothing in that order that gave an explicit disclosure that a basis for federal jurisdiction may be asserted the first amended complaint which was filed and then we get a new committee complaint that has for the first time a theory that the that my client was violating the statutory foreclosure act it added class claims for the first time it added claims for money damages for the first time it added claims for punitive damages for the first time it added claims for attorney's fees for the first time that was the first time that it was appear that it was shown that this was a case that was removable and at that point that triggered the thirty day deadline under twenty eight u s c fourteen forty six and the notice of removal was filed within thirty days of the filing of the first amended complaint that was the that makes it timely but i would also submit to the court that even if the court were to find that the initial complaint were removable under regular diversity jurisdiction because the amount in controversy was seventy five thousand dollars and the parties were diverse that it would frustrate the intent of cafe to interpret section fourteen forty six as applying in a case like this one where there was no ground certain in the initial complaint under which the defendant could remove under katha the purpose of kat what the phrases used in and bill the abuses of the class action device if you look at the senate report on katha one of the things that the court that the senate and the congress were addressing was situations where the system where they used the word gaming the system where allegations that would make a complaint removable are held out of the complaint until the one year deadline has expired and they've eliminated the when your deadline to eliminate that possibility and i think that in this case if the court permit holds that when this case was not a class action beforehand that the first time it became a class action the first time that the case was put out there in a form that made it removable under cafe it couldn't be removed because there was an argument that the initial complaint was removable it frustrates that intent because it encourages a plaintiff to file an initial complaint that's innocuous looks a certain way doesn't have these class claims and then later after the after the initial period is expired to mynde and add class claims and i think that's exactly what catherine was trying to eliminate  it optional i think that i think it's mandatory i think that it says that it has to a bill of costs has to be submitted i would submit to you though that it was submitted as part of a motion that was signed by counsel subject to rule eleven and i think that i would suffice so i do think that that is sufficient thank you thank  the court issued its opinion in j p morgan chase versus johnson so it's out there i do want to address this issue about gaming the system in class action attorneys are gaming the system up owing a monday complaint at the beginning of the case the complaint at the beginning of the secret compliance after that complaint was filed the u s bankruptcy court in right johnson issued an opinion that said national banks had to register in arkansas before they could statutorily foreclose and that led to several lawsuits in arkansas being filed challenging statutory foreclosure act by national banks that did not register to do business in arkansas it's not gaming the system when you're trying to stop  unless you have other questions thank you very much thank you well we appreciate your argument and we will be back to you as soon as we get him thank you