IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Chief Judge Wiley Y. Daniel 

Civil Action No. 11-cv-02258-WYD-MEH 

PAMELA D. NOLAND and 

CHRISTIAN S. NOLAND, 

 Plaintiffs, 

v. 

ROSEMARY M. MURPHY, as Public Trustee of Montrose County, Colorado; 

WELLS FARGO HOME MORTGAGE, INC., a California corporation; 

THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK as successor 

in interest to J.P. Morgan Chase Bank N.A. as trustee for Credit Suisse First Boston 

Mortgage Backed Securities Trust 2003-29, a Delaware corporation; 

MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., a Delaware corporation; 

CAPITAL ONE BANK, a national banking institution, and the 

INTERNAL REVENUE SERVICE OF THE UNITED STATES OF AMERICA, 

 Defendants. 

ORDER REMANDING CASE 

I. INTRODUCTION 

THIS MATTER is before the Court on Plaintiffs’ Motion to Remand and Request 

for Attorney Fees, filed September 29, 2011 (ECF No. 13). A response was filed on 

October 20, 2011 (ECF No. 21), and a reply was filed on November 7, 2011 (ECF No. 

24). 

II. BACKGROUND 

Plaintiffs Pamela and Christian Nodland (“Plaintiffs” or “the Nodlands”) owned a 

tract of property located in Montrose County, Colorado. To purchase the property, the 

Nodlands obtained financing from RBMG, Inc., whose successor in interest is the Bank 

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of New York Mellon, f/k/a the Bank of New York (the “Bank”). Wells Fargo services the 

mortgage on behalf of the Bank. 

On November 2, 2009, the Bank obtained an order from the Montrose County 

District Court authorizing a foreclosure sale of the Nodland’s property pursuant to 

C.R.C.P. 120. The Nodlands worked with Wells Fargo to execute a mortgage 

modification through a federal program called the Home Affordable Modification 

Program (“HAMP”), and obtained assurances from Wells Fargo that the foreclosure 

process had been suspended. Assurances aside, in June 2010, the Bank contacted the 

Public Trustee for Montrose County and instructed her to hold a foreclosure sale. On 

July 28, 2010, the Public Trustee held the foreclosure sale and sold the property at 

public auction. On August 12, 2010, the Montrose County District Court issued an 

Order Approving Sale of the property. On August 18, 2010, a Confirmation Deed was 

issued by the Public Trustee. 

On December 17, 2010, the Nodlands initiated this action in the Montrose County 

District Court, bringing claims of breach of contract, deceit based on fraud, and unjust 

enrichment. Plaintiffs seek an order setting aside the foreclosure sale and reinstating 

the prior mortgage. 

On August 26, 2011, Defendants filed a Notice of Removal with this Court, 

alleging that removal of this case was appropriate based on diversity jurisdiction, 

28 U.S.C. § 1332(a), or in the alternative, based on federal question jurisdiction, 

28 U.S.C. § 1331(a). In the pending motion to remand, Plaintiffs request a remand of 

this case back to the Montrose County District Court, asserting that diversity jurisdiction 

does not apply as the Amended Complaint includes a non-diverse defendant, the Public 

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Trustee, or, in the alternative, that this Court should abstain under either the RookerFeldman or Younger abstention doctrines. Plaintiffs further contend that remand is 

appropriate because this Court lacks federal question jurisdiction. 

For the reasons stated below, I agree with Plaintiffs that this Court is barred from 

adjudicating this action under the Rooker-Feldman doctrine, and I remand the case 

back to the state court. However, I decline to award attorney fees. Therefore, Plaintiffs’ 

Motion to Remand and Request for Attorney Fees is GRANTED in part and DENIED in 

part as set forth below. 

III. STANDARD OF REVIEW 

Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of 

which the district courts of the United States have original jurisdiction, may be removed 

by the defendant . . . to the district court of the United States for the district and division 

embracing the place where such action is pending.” Removal is limited to “those cases 

‘that originally could have been filed in federal court.’” Hunt v. Lamb, 427 F.3d 725, 

726 (10th Cir. 2005) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). In 

addition, there is a presumption against removal jurisdiction. Laughlin v. Kmart Corp., 

50 F.3d 871, 873 (10th Cir. 1995). “[S]ection 1441(c) operates to limit federal 

jurisdiction and ‘all doubts arising from defective, ambiguous and inartful pleadings 

should be resolved in favor of the retention of state court jurisdiction.’” Denver U.S. Nat. 

Bank v. Rippey, 260 F. Supp. 717, 721 (D. Colo. 1966) (quoting Greenshields v. Warren 

Petroleum Corp., 248 F.2d 61, 65 (10th Cir. 1957)). Further, “Defendants, as the 

parties seeking removal, have the burden of proving that federal jurisdiction is proper.” 

Plog v. Colorado Ass'n of Soil Conservation Districts, 841 F. Supp. 350, 352 (D. Colo. 

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1993). 

IV. ANALYSIS 

 A. The Rooker-Feldman Doctrine 

Plaintiffs deny that Defendants have established subject matter jurisdiction based 

on diversity, but contend that even if the requirements of § 1332 were satisfied, the 

Court should abstain from adjudicating the action under either the Rooker-Feldman

doctrine or the Younger abstention doctrine. Mot. at 3. I begin my analysis by 

assuming that Defendants have established diversity jurisdiction for the purpose of 

determining whether the Court should abstain from hearing the case. 

The Rooker-Feldman doctrine is a jurisdictional prohibition based on 28 U.S.C. 

§ 1257, which holds that federal review of state court judgments may be obtained only 

in the United States Supreme Court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 

(1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The 

doctrine “precludes federal district courts from conducting appellate type review of state 

court judgments.” Beeler Properties, LLC v. Lowe Enterprises Residential Investors, 

LLC, No. 07-cv-00149, 2007 WL 1346591, at *2 (D. Colo. May 7, 2007) (citing Bolden v. 

City of Topeka, Kansas, 441 F.3d 1129, 1139 (10th Cir. 2006)). It applies to “cases 

brought by state-court losers complaining of injuries caused by state-court judgments 

rendered before the district court proceedings commenced and inviting district court 

review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. 

Corp., 544 U.S. 280, 284 (2005); accord Johnson v. DeGrandy, 512 U.S. 997, 1005-06 

(1994) (The Rooker-Feldman doctrine bars “a party losing in state court . . . from 

seeking what in substance would be appellate review of the state judgment in a United 

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States district court, based on the losing party’s claim that the state judgment itself 

violates the loser’s federal rights.”). 

The Younger abstention doctrine, by contrast, “applies when there is an ongoing 

state court proceeding, the state court provides an adequate forum for determining the 

claims asserted in the federal action, and the proceedings involve important state 

interests ‘which traditionally look to state law for their resolution or implicate separately 

articulated state policies.’” Beeler, 2007 WL 1346591, at *2 (quoting Chapman v. 

Oklahoma, 472 F.3d 747, 749 (10th Cir.2006)). When a state court has approved the 

foreclosure sale -- the final order in the foreclosure process -- before the subsequent 

suit commences, there is no longer an “ongoing proceeding” for Younger purposes, and 

removal is properly challenged under the Rooker-Feldman doctrine. See Brode v. 

Chase Home Finance, LLC, No. 10-cv-00692, 2010 WL 2691693, at *6 (D. Colo. July 6, 

2010). Here, because the state court issued the order approving the foreclosure sale 

on August 12, 2010, before this action was filed on December 17, 2010, I find that the 

Rooker-Feldman doctrine, rather than Younger abstention, applies. 

In support of their argument that the Rooker-Feldman doctrine precludes this 

Court from hearing the case, Plaintiffs cite two fairly recent cases: Beeler Properties, 

LLC v. Lowe Enterprises Residential Investors, LLC, No. 07-cv-00149, 2007 WL 

1346591 (D. Colo. May 7, 2007) and Memphis Street, LLC v. Lowe Enterprises 

Residential Investors, LLC, No. 07-cv-00150, 2007 WL 1456067 (D. Colo. May 15, 

2007). In both cases, property owners attempted to set aside a public trustee’s 

foreclosure sale of their property; in both cases, the defendant removed the action to 

this Court; and in both cases, this Court abstained from adjudicating the action based 

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on the Rooker-Feldman doctrine, or in the alternative, the Younger abstention doctrine. 

Defendants contend, however, that the Rooker-Feldman doctrine only “applies 

when litigants allege that a state court ruling has directly caused their injuries,” and 

here, “Plaintiffs’ claims focus only on the alleged conduct of Wells Fargo, and do not 

seek to directly challenge any allegedly defective rulings by the state court.” Resp. at 2. 

In support of this argument, Defendants cite two cases: Rousseau v. Bank of New York, 

No. 08-cv-00205, 2009 WL 3162153 (D. Colo. September 29, 2009); and Kelly v. 

Wolpoff & Abramson, LLP, No. 07-cv-00091, 2007 WL 2381536 (D. Colo. August 17, 

2007). Resp. at 12-13. In both Rousseau and Kelly, this Court held that federal actions 

which asserted claims contrary to Colorado state court orders authorizing foreclosure 

sales were not subject to dismissal under Rooker-Feldman because they did not directly 

challenge the state court’s ruling. 

 I find this case to be distinguishable from both Rousseau and Kelly. The plaintiffs 

in Rousseau and Kelly both brought claims for violations of the Fair Debt Collection 

Practices Act (“FDCPA”) without actually seeking to have the state court decisions 

overturned. Rousseau, 2009 WL 3162153, at *4; Kelly, 2007 WL 2381536, at *5.

Here, by contrast, Plaintiffs directly challenge the validity of the foreclosure order, and, 

in effect, bring this action as an appeal of the foreclosure process. Am. Compl. at ¶¶ 

96-98; Reply at 3. As this Court held in Beeler, “[a]ctions that challenge the Rule 120 

order and process are proceedings involving important state interests concerning title to 

real property located and determined by operation of state law. . . . [Therefore,] it is 

appropriate for the Colorado District Court rather than this Court to determine the issues 

presented in this matter.” 2007 WL 1346591, at *3. Accordingly, I agree with Plaintiffs 

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that this Court must abstain from adjudicating this action under the Rooker-Feldman 

doctrine. 

Because I find that abstention is warranted under the Rooker-Feldman doctrine, I 

need not determine whether the Defendants properly established diversity jurisdiction. 

B. Federal Question Jurisdiction 

In addition to asserting diversity jurisdiction, Defendants contend that this Court 

has federal question jurisdiction over the action. As the United States Supreme Court 

has explained, “lower federal courts [have] jurisdiction to hear, originally or by removal 

from a state court, only those cases in which a well-pleaded complaint establishes 

either that federal law creates the cause of action or that the plaintiff's right to relief 

necessarily depends on resolution of a substantial question of federal law.” Franchise 

Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). “The mere 

presence of a federal issue in a state cause of action does not automatically confer 

federal-question jurisdiction.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 

813 (1986). 

Defendants argue that Plaintiffs’ Amended Complaint “seeks an order under 

C.R.C.P. 105 adjudicating them to be the fee simple owners of the subject property,” 

and according to Colorado law, “good title in fee simple means the legal estate is in fee, 

free and clear of all claims, liens, and encumbrances whatsoever.” Resp. at 15 (quoting 

Campbell v. Summit Plaza Associates, 192 P.3d 465, 473 (Colo. App. 2008)). Since 

there is a tax lien on the subject property, Defendants argue that the Amended 

Complaint necessarily seeks to extinguish that lien, thus raising a federal question. Id.

at 16. 

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In response, Plaintiffs assert that the Amended Complaint does not seek to 

extinguish or otherwise amend the tax lien. Mot. at 5. The Amended Complaint 

specifically states that Plaintiffs seek “a complete adjudication of the rights of all parties

under Rule 105 to determine that the Nodlands are the fee title owners to the property.” 

Am. Compl. at ¶ 99 (emphasis added). The precise relief sought is an adjudication of 

Plaintiffs’ property rights, thus Defendants’ argument that Plaintiffs are seeking to 

extinguish a federal tax lien is too attenuated to be persuasive. Moreover, Plaintiffs 

have stipulated with the IRS that if Plaintiffs are successful in this action, the tax lien will 

remain on the property, therefore “there is no dispute to be litigated between Plaintiffs 

and the IRS which would trigger federal question jurisdiction.” Reply at 5-6. I agree 

with Plaintiffs and find that there is no federal question that would confer jurisdiction on 

this Court. 

C. Attorney Fees 

Finally, Plaintiffs request attorney fees given that Defendants have twice 

removed this case to federal court, stalling the litigation for nearly a year. In the Tenth 

Circuit, whether to award attorney fees and costs under 28 U.S.C. § 1447(c) when a 

case is remanded to state court is within the sound discretion of the district court. Wallic 

v. Owens-Corning Fiberglass Corp., 40 F. Supp. 2d 1185, 1189 (D. Colo. 1999) (citing 

Suder v. Blue Circle, Inc., 116 F.3d 1351, 1353 (10th Cir. 1997)). “[T]he standard for 

awarding fees should turn on the reasonableness of the removal. Absent unusual 

circumstances, courts may award attorney’s fees under § 1447(c) only where the 

removing party lacked an objectively reasonable basis for seeking removal.” Martin v. 

Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, Plaintiffs have not 

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demonstrated that the removal was objectively unreasonable, so although I am granting 

the motion to remand the case back to state court, I deny Plaintiff’s request for attorney 

fees. 

V. CONCLUSION 

Based on the foregoing, it is 

ORDERED that Plaintiffs’ Motion to Remand and Request for Attorney Fees, filed 

September 29, 2011 (ECF No. 13), is GRANTED IN PART and DENIED IN PART. The 

motion is GRANTED to the extent that this matter is remanded back to the state court.

The motion is DENIED in all other respects. It is 

FURTHER ORDERED that the Clerk of Court is directed to REMAND this action 

to the Montrose County District Court from which the case was removed. 

Dated: November 30, 2011 

BY THE COURT: 

s/ Wiley Y. Daniel 

Wiley Y. Daniel 

Chief United States District Judge 

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