United States District Court, D. Alaska
Kathleen M. Ragler, Plaintiff,
Wells Fargo Bank, N.A., Defendant.
ORDER AND OPINION [RE: MOTION AT DOCKET 9 AND REQUEST
AT DOCKET 18]
W. SEDWICK SENIOR JUDGE
docket 9 plaintiff Kathleen M. Ragler (“Ragler”)
moves to remand this case to the Superior Court for the State
of Alaska. Her motion is supported by a memorandum at docket
10. Defendant Wells Fargo Bank, N.A. (“Wells”)
opposes at docket 16 with a supporting memorandum at docket
17. Ragler replies at docket 24. Oral argument was not
requested, and it would not be of assistance to the court.
docket 18, Wells asks the court to judicially notice two
documents recorded in the Anchorage Recording District, a
notice of default and a trustee's deed. Ragler has not
responded to the request, and it meets the criteria for
judicial notice. Accordingly, the court judicially notices
these two recorded documents.
filed her complaint in state court alleging, “This is
an action for relief and damages against [Wells]. . . ..
[Wells] is threatening a wrongful foreclosure against an
elder. This foreclosure must be stopped until [Wells]
complies with the law and its
obligations.” The complaint was filed on January 18,
2018. A foreclosure sale had already been scheduled for
January 19, 2018. Anticipating that the foreclosure sale
would proceed, the complaint asserted: “The threatened
foreclosure auction of January 19, 2018, should be halted
and/or rescinded until a full accounting can be done on Ms.
Ragler's account.” The foreclosure sale was held on
January 19, 2018. Wells removed the case to this court based
on diversity jurisdiction.
STANDARD OF REVIEW
law requires that if at any time prior to entry of judgment
“it appears that the district court lacks subject
matter jurisdiction, the case shall be
remanded.” The law authorizing removal must be
strictly construed against removal, and any question
concerning the right to remove must be resolved in favor of
remand to state court.“The presumption against removal
means ‘that the defendant always has the burden of
establishing removal is proper.'”
contends that the amount in controversy is less than the $75,
000 required by 28 U.S.C. § 1332. Her argument is
premised on the propositions that the amount by which she
fell behind on her mortgage payments was less than $75, 000,
and that as a matter of law the amount in controversy may not
be measured by the value of the foreclosed property.
relies on two of this court's decisions, Dalby v.
Ditech Fin., LLC, et al.and Baker v. Robinson Tait, et
al. Baker turned on issues not
present here and provides no guidance for resolving the
pending motion. Dalby, on the other hand, is
instructive. In Dalby, Judge Holland cited a recent
California district court decision.The California court first
recognized that generally when an action seeks injunctive
relief the amount in controversy is measured by the value of
the lawsuit's object. Here, that would be the value of
the foreclosed property. Nonetheless, the California court
and Judge Holland both recognized an exception to the general
rule which applies when a plaintiff does not ask to prevent
the ultimate sale of the property at a foreclosure
Dalby, the defendants argued that plaintiff Dalby
sought to rescind the foreclosure sale and restore title to
him. Judge Holland agreed that Dalby did not explicitly ask
for a temporary delay of the foreclosure proceeding. But,
Judge Holland emphasized that Dalby did not ask the court to
restore his title free and clear the mortgage obligation. He
Rather, in his complaint [Dalby] acknowledges that there
would still be a mortgage on the property, and he asks the
court to determine how much is still owed on the mortgage.
Plaintiff has alleged that he was not credited for some loan
payments he made * * * *.
situation in the case at bar is essentially the same.
Ragler's complaint alleges that Wells did not credit her
for all payments she made. Like Dalby, Ragler does not ask
the court to award her title free and clear of whatever
actually remains due on the mortgage. Her request
for injunctive relief is limited to halting or rescinding the