hence, the federal question suggested by the McGuirls is not at issue in this case. Accordingly, this argument is fruitless for the McGuirls and does not provide subject matter jurisdiction for this Court.
New York law provides that when a necessary party is omitted from a foreclosure action, that party's rights are "unaffected by the judgment of foreclosure and sale." Polish Nat. Alliance v. White Eagle, 98 A.D.2d 400, 470 N.Y.S.2d 642, 648 (A.D. 2 Dept. 1983). In such circumstances, New York law neither mandates dismissal of the action nor invalidates the judgment and sale in its entirety. Id. Therefore, even assuming that the bankruptcy trustee is the true "owner" of the property -- and accordingly the "proper" defendant for foreclosure -- because the property has not been abandoned to the debtors, the judgment of foreclosure of the New York state court is unaffected as to the McGuirls. Hence, whether the McGuirls do in fact have any ownership interest, or whether another has superior interest -- which is the essence of the McGuirls' debate regarding abandonment -- is of no moment: the foreclosure action against the McGuirls is sufficient to foreclose any ownership interest they hold in the property. N.Y. Real Prop. Acts. Law § 1353 (McKinney 1979); Polish Nat. Alliance v. White Eagle, 470 N.Y.S.2d at 648. It necessarily follows that, in the context of this action between these parties, the abandonment issue is irrelevant and there is no federal question that needs to be resolved. Therefore, this claim for subject matter jurisdiction must fail.
The McGuirls raise, in various papers, objections to Citibank's obtaining a deficiency judgement against them. This is not, however, an attempt to enforce a deficiency judgment against a bankrupt. Furthermore, Citibank specifically denies any attempt to obtain a deficiency judgment against the McGuirls. Thus, because a plea of bankruptcy could be interposed to any such attempt, and because Citibank has denied any intent to obtain a deficiency judgment, this objection is a meritless distraction as far as the underlying foreclosure action and its removal are concerned. The mere hypothesis of a deficiency judgment is patently insufficient to establish federal question jurisdiction for this court.
Where the court is without subject matter jurisdiction, the case must be remanded. 28 U.S.C. § 1447(c). Accordingly, because this court is without subject matter jurisdiction over the present action, it is ordered remanded.
Not only does this court lack subject matter jurisdiction, but the removal was untimely, and thus must be remanded. In October 1991, this action was commenced in New York state court, with service upon the defendants. The defendants defaulted, and the property was foreclosed and sold. Now, over three years later, defendants seek to litigate ab initio the propriety of foreclosure by way of removal to the federal court. This cannot be conscienced, especially in an egregious case like this where the removal occurs at a point when the state court action was undergoing review at the appellate level. Accordingly, the petition for removal is untimely pursuant to 28 U.S.C. § 1446(b), and the action must be, and hereby is, remanded.
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The clerk of the court is ordered to REMAND this action to the New York Supreme Court, Appellate Division, First Department.
DATED: New York, New York
June 8, 1995
DEBORAH A. BATTS