IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02752-BNB 

LINAYA HAHN,

Plaintiff,

v.

US BANK,

MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.,

THE PUBLIC TRUSTEE OF BOULDER COUNTY, and

SHERIFF OF BOULDER COUNTY,

Defendants.

 

ORDER OF DISMISSAL

 

Plaintiff, Linaya Hahn, initiated this action by filing pro se a “Complaint to Stop

Eviction and to Nullify Foreclosure Sale” on October 21, 2011. She filed an amended

complaint on November 29, 2011, asserting state law claims arising out of the

foreclosure sale of certain real property located in Boulder, Colorado (“the Property”). 

Ms. Haun has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915. 

The Court must construe the Complaint liberally because Ms. Hahn 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). If the Complaint reasonably can be

read “to state a valid claim on which the plaintiff could prevail, [the Court] should do so

despite the plaintiff’s failure to cite proper legal authority, her confusion of various legal

theories, her poor syntax and sentence construction, or her unfamiliarity with pleading

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requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an advocate

for a pro se litigant. See id. For the reasons set forth below, the Complaint will be

dismissed.

Ms. Haun challenges a foreclosure proceeding initiated by Defendant U.S. Bank

against the Property in the Boulder County District Court. Plaintiff alleges that U.S.

Bank does not have the rights of a holder in due course to the deed of trust to the

Property and, therefore, had no legal right to initiate a foreclosure proceeding because

the Bank failed to comply with certain state statutory requirements and is not in

possession or control of the original promissory note. Plaintiff alleges that “in the

absence of authority to foreclose and proven damages, U.S. Bank was not entitled to an

order authorizing sale.” Amended Compl., at 29. Ms. Haun further challenges the

foreclosure sale on the bases that the Property is patented and argues that any debt

she owed on the Property has been discharged in a bankruptcy proceeding. She

asserts various state law claims based on alleged deficiencies in the state foreclosure

proceeding and fraudulent misrepresentation. Ms. Haun seeks declaratory relief, an

order enjoining Defendants from evicting Plaintiff or any other person from the Property

during the pendency of this action, and asks the Court to cancel the alleged debt and

“reverse or annul the fraudulent foreclosure sale.” Id. at 33. Plaintiff further seeks an

award of damages. 

Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if the Court

lacks subject matter jurisdiction. The issue of subject matter jurisdiction may be raised

sua sponte by the Court at any time during the course of the proceedings. See

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McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). “The party

seeking to invoke the jurisdiction of a federal court must demonstrate that the case is 

within the court’s jurisdiction.” United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.

1994).

“Federal courts are courts of limited jurisdiction; they must have a statutory basis

for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).

There are two statutory bases for federal subject matter jurisdiction: diversity jurisdiction

under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331. In the

amended complaint, Ms. Haun does not allege that any of the defendants violated her

federal constitutional or statutory rights. Instead, she asserts only state law claims for

relief. The amended complaint thus does not implicate a federal question. See 28

U.S.C. § 1331. Ms. Haun must satisfy the diversity jurisdiction statute, 28 U.S.C. 

§ 1332, to maintain her action in federal court.

A plaintiff properly invokes § 1332 jurisdiction when she presents a claim

between parties of diverse citizenship that exceeds the required jurisdictional amount,

currently $75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S.

500, 513 (2006). To demonstrate federal jurisdiction pursuant to § 1332, allegations of

diversity must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v.

Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (citations omitted); see

also Fed. R. Civ. P. 8(a)(1) (pleading must contain “a short and plain statement of the

grounds for the court’s jurisdiction”). 

Ms. Haun has not alleged an adequate basis for exercising diversity

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jurisdiction over her state law claims. Plaintiff alleges that she resides in Lyons,

Colorado. Ms. Haun further alleges that Defendants, The Public Trustee of Boulder

County and the Boulder County Sheriff, county officials, work principally in Boulder,

Colorado. Plaintiff does not allege that these individuals reside outside of Colorado.

The allegations of the amended complaint do not show complete diversity between the

parties and are therefore insufficient to invoke this Court’s diversity jurisdiction. 

The Court notes that Ms. Haun’s original complaint included a claim that

Defendants have deprived her of her property without due process of law in violation of

the federal Constitution. However, the federal claim is omitted from Plaintiff’s amended

complaint. Generally, the filing of an amended complaint supersedes the original

complaint “and renders it of no legal effect.” See Davis v. TXO Prod. Corp., 929 F.2d

1515, 1517 (10th Cir.1991) (internal quotation marks omitted); see also Miller v. Glanz,

948 F.2d 1562,1565 (10th Cir. 1991); 6 C. Wright, A. Miller & M. Kane, Fed. Practice

and Procedure § 1476 (1990). Even if the Court were to construe Ms. Haun’s

pleadings together to find that she continues to assert a federal due process claim in

her amended complaint, the Court lacks subject matter jurisdiction over Plaintiff’s claims

because she is asking the Court to review the foreclosure proceeding in the Boulder

County District Court. 

The Rooker-Feldman doctrine provides that federal courts, other than the United

States Supreme Court, lack jurisdiction to adjudicate claims seeking review of state

court judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). The

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Rooker-Feldman doctrine precludes “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); see also Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) (stating that

the losing party in a state court proceeding is generally “barred from seeking what in

substance would be appellate review of the state court judgment in a United States

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

loser’s federal rights.”).

 The Rooker-Feldman doctrine bars not only cases seeking direct review of state

court judgments; it also bars cases that are “inextricably intertwined” with a prior state

court judgment. See Feldman, 460 U.S. at 482 n.16. “To determine whether a federal

plaintiff’s claim is inextricably intertwined with a state court judgment, [the Court] must

pay close attention to the relief the plaintiff seeks.” Crutchfield v. Countrywide Home

Loans, 389 F.3d 1144, 1147-48 (10th Cir. 2004). “Where a plaintiff seeks a remedy

that would disrupt or undo a state court judgment, the federal claim is inextricably

intertwined with the state court judgment.” Id. at 1148; see also Mann v. Boatright,

477 F.3d 1140 (10th Cir. 2007) (claim is “inextricably intertwined” with the state court

judgment where success in federal district court would require court “to review and

reject” that judgment); Pittsburgh County Rural Water Dist. No. 7 v. City of Maltster,

358 F.3d 694, 707 (10th Cir. 2004) (federal claim is inextricably intertwined with state

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court judgment if the state court judgment “caused, actually and proximately, the injury

for which [the party] seeks redress”). 

Ms. Haun’s claims are inextricably intertwined with the state court judgment. 

Plaintiff's federal due process claim is premised on the argument that Defendants have

violated her constitutional rights by depriving her of the Property in a foreclosure

proceeding without providing her adequate notice and an opportunity to be heard. 

Compl., at 2. Ms. Haun’s state law claims assert numerous deficiencies and fraud

during the state foreclosure proceeding, all of which stem from her contention that

Defendant U.S. Bank has no legal right to the Property. Furthermore, Plaintiff asks this

Court to “annul” the foreclosure sale and to award her compensatory damages. In

short, all of Ms. Haun’s claims appear to be inextricably intertwined with a state court

order finding her in default on her mortgage payments and authorizing the foreclosure. 

See, e.g., Broke v. Chase Home Finance, LLC, No. 10-CV-00692-WYD-MJW, 2010

WL 2691693 at *6 (D. Colo. July 6, 2010) (claim that bank lacked a valid security

interest was resolved against plaintiff in the state court foreclosure proceeding in

determining that a default occurred and was barred by Rooker-Feldman doctrine);

Mayhew v. Cherry Creek Mortg. Co., Inc., No. 09-cv-00219-PAB-CBS, 2010 WL

935674 at **16-17 (D. Colo. March 10, 2010) (claim seeking to challenge or reverse

completed state foreclosure proceeding was barred by Rooker-Feldman doctrine);

Burlinson v. Wells Fargo Bank, N.A., No. 08-cv-01274-REB-MEH, 2009 WL 646330

at **5-6 (D. Colo. March 9, 2009) (same). 

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If Ms. Haun’s claims are not barred by the Rooker-Feldman doctrine, she must

nonetheless pursue relief in the state courts. Colo. R. Civ. P. 120(d) provides for review

of an order authorizing sale in “any court of competent jurisdiction.” However, the

Colorado Rules of Civil Procedure cannot confer jurisdiction in federal court. The Court

has federal question jurisdiction over the federal due process claim and could potentially

exercise supplemental jurisdiction over a Rule 120 proceeding claim, pursuant to 28

U.S.C. § 1367. However, this Court’s exercise of supplemental jurisdiction over the

plaintiff’s Rule 120 proceeding is inappropriate for two reasons. First, § 1367 allows

federal courts to decline to exercise supplemental jurisdiction if “the claim substantially

predominates over the claim or claims over which the district court has original

jurisdiction.” 28 U.S.C. § 1367(c)(2). Here, whether U.S. Bank had the legal right under

state law to foreclose on the Property is the crux of Plaintiff’s case, as well as the basis

of her federal due process claim. See Burlinson, 2009 WL 646330 at *6. Thus, the

Rule 120 proceeding initiated by Defendant U.S. Bank substantially predominates over

the federal claim. Id. 

Second, the exercise of supplemental jurisdiction over the Rule 120 proceeding

is not warranted where there is an ongoing state proceeding and the state court

provides an adequate forum to present any federal challenges. Id. at *7 (citing

Younger v. Harris, 401 U.S. 37 (1971)). Younger abstention is appropriate where the

state courts provide an adequate forum to hear the claims raised in the federal

complaint and the state proceedings involve important state interests. See Weitzel v.

Div. of Occupational & Prof’l Licensing, 240 F.3d 871, 875 (10th Cir. 2001). In this

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case, it is unclear whether there is an ongoing state proceeding at this time. If there has

been a final judgment, Rooker-Feldman applies. If the Rule 120 proceeding is

ongoing, Ms. Haun can continue to challenge the foreclosure sale and U.S. Bank’s legal

right to the Property in the state courts. Furthermore, matters concerning foreclosure

have traditionally been resolved in the state courts. See Colo. R. Civ. P. 120(f)

(providing that “[a]ny proceeding under this Rule involving a consumer obligation shall

be brought in and heard in the county in which such consumer signed the obligation or

in which the property or a substantial part thereof is located.”). Accordingly, the Court

finds that, to the extent the Plaintiff’s claims are not barred by Rooker-Feldman, this

Court should abstain from exercising jurisdiction over the claims to allow her to pursue

her legal remedies in the state district and appellate courts. 

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

from this order would not be taken in good faith and therefore in forma pauperis status

will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S.

438 (1962). If Plaintiff files a notice of appeal, she must also pay the full $455 appellate

filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. 

Accordingly, it is

ORDERED that Defendant U.S. Bank’s Motion to Dismiss Plaintiff’s Amended

Complaint, filed December 5, 2011 (Doc. #5) is DENIED as moot. It is 

FURTHER ORDERED that the Complaint and this action are dismissed without

prejudice for lack of subject matter jurisdiction. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

denied. 

 DATED at Denver, Colorado, this 20th day of December , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge 

United States District Court 

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