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HIDDEN PONDS PHASE IV DEV. ASSOCS. v. GROSS

April 12, 1993

HIDDEN PONDS PHASE IV DEVELOPMENT ASSOCIATES, a partnership, Plaintiffs,
v.
STANLEY GROSS, et al., Defendants.



The opinion of the court was delivered by: LEONARD D. WEXLER

 MEMORANDUM AND ORDER

 WEXLER, District Judge

 The above-referenced action was initially commenced in New York State Supreme Court. Hidden Ponds (the "plaintiff") brought this action against the Whitestone Federal Savings and Loan Association and the Nassau Federal Savings and Loan Association (the "defendants"). Subsequently, the Office of Thrift Supervision (the "OTS") appointed the Resolution Trust Corporation (the "RTC") as receiver for both defendants. Thereafter, the RTC moved in state court to have itself substituted as a party and for summary judgment. The state court granted the RTC's motion for substitution and denied the summary judgment motion. The RTC then removed this action to federal court. Presently before the Court is plaintiff's motion to remand this case to state court. For the reasons stated below, plaintiff's motion to remand is granted.

 I. BACKGROUND

 Plaintiff commenced this action in July 1990. On Novpmber 16, 1990 the OTS appointed thc RTC receiver for both defendants. On December 31, 1990, the RTC moved for both substitution and summary judgment. In its motion, the RTC informed the state court of its appointment as receiver for defendants. On February 18, 1992 the state court granted the RTC's motion for substitution and denied the motion for summary judgment with respect to all but plaintiff's fourth and fifth causes of action. On April 28, 1992, a notice of settlement of the above motions was served in the state court.

 On May 27, 1992, the RTC removed the case from state court pursuant to 12 U.S.C. § 1441a(1). This statute was amended effective February 1, 1992, during the pendency of the state court action. On May 27, 1992, the date the RTC removed the case, the amended removal statute provided as follows:

 
The removal of any such suit or proceeding shall be instituted not later than 90 days after the date the Corporation is substituted as a party. . . . The Corporation shall be deemed substituted in any action, suit or proceeding for a party upon the filing of a copy of the order appointing the Corporation as a conservator or receiver for that party or the filing of such other pleading informing the Court that the Corporation has been appointed conservator or receiver for such party.

 12 U.S.C. § 1441a(1)(3).

 Prior to February 1, 1992, 12 U.S.C. § 1441(1)(3) read as follows:

 
The RTC shall be substituted as a party in any civil action . . . to which its predecessor in interest was a party. . . . The removal of any such action . . . shall be instituted -- not later than 90 days after the date [RTC] is substituted as a party. . . .

 Unlike the amended statute, the predecessor statute, which was in effect when this action was originally commenced in state court, does not indicate when the RTC should be deemed substituted. Because of this ambiguity, it is difficult to determine when the 90 day period begins to run.

 II. DISCUSSION


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