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GREEN POINT SAV. BANK v. HIDALGO

December 18, 1995

THE GREEN POINT SAVINGS BANK, Plaintiff, against BERTHA HIDALGO, et al., Defendants.


The opinion of the court was delivered by: JOHNSON

 JOHNSON, District Judge:

 INTRODUCTION

 Plaintiff, Greenpoint Savings Bank, brings the instant motion to remand this action to state court pursuant to 28 U.S.C. § 1447(c) due to improper removal of the case to this Court. Plaintiff claims that (1) the petition for removal was not filed within thirty days after receipt by Defendant of a copy of the initial pleading; and (2) the petition for removal on the basis of diversity of citizenship was filed more than one year after commencement of the action. For the reasons stated herein, Plaintiff's motion is granted.

 BACKGROUND

 Defendant, Bertha Hidalgo, is a Florida resident. On September 25, 1987 Defendant borrowed $ 55,000 from Plaintiff for a mortgage on property that she purchased at 2900 Ocean Avenue in Brooklyn, New York. Pursuant to the mortgage agreement, the principal, interest of 12%, and mortgagor deposits became due on June 1, 1990 and every month thereafter up to and including October 1, 1990. Defendant defaulted on her loan and failed to comply with its terms.

 On November 15, 1990, Defendant filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Florida. In the same month, Plaintiff filed an action to foreclose on Defendant's property in the Supreme Court for the State of New York, Kings County. The petition was filed against Defendants Hidalgo; GAZDO Properties Corporation, the certified owner of the premises; the New York City Finance Administration; the New York State Department of Taxation; and "John Doe 1" to "John Doe X," all persons with a real interest in the property at issue. Plaintiff brought suit for $ 53,440.98 in principal and late charges calculated at a defaults rate of 17%. In addition to the loan repayment, Plaintiff sought recovery for reasonable attorney's fees. Plaintiff subsequently withdrew this foreclosure action.

 The Florida bankruptcy case was dismissed with prejudice to the filing of a petition under any chapter of the Bankruptcy Code on June 9, 1992. On August 14, 1992, Defendant filed another bankruptcy petition in the Bankruptcy Court of the Central District of California.

 On or about November 23, 1992, Plaintiff commenced a foreclosure action in the Supreme Court of the State of New York, County of Kings, by personal service of a summons and complaint on Defendant. Defendant has not filed an answer to this complaint.

 On or about March 4, 1993, Defendant's California bankruptcy petition was dismissed and the automatic stay was annulled as of the petition date. *fn1"

 On August 17, 1994, almost two years after Plaintiff commenced this foreclosure action, Defendant pro se filed a petition for removal pursuant to 28 U.S.C. § 1441. Her petition was based on this Court's subject matter jurisdiction over parties with diverse citizenship, 28 U.S.C. § 1332(a)(1). Defendant also claimed that Plaintiff: (1) sought usurious interest in its complaint in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. ; (2) unreasonably filed multiple proceedings against her in violation of 28 U.S.C. § 1927; and (3) violated her civil rights in connection with the improper and illegal pursuit of the foreclosure action. In her removal petition, Defendant seeks an order pursuant to 28 U.S.C. § 1651(a) enjoining Plaintiff from the filing of further claims against her. Finally, Defendant claims that this Court has original jurisdiction over this matter under 28 U.S.C. §§ 1334 and 1452 because of its relationship to Defendant's prior bankruptcy actions.

 Plaintiff now moves for remand of the instant case to the Supreme Court of the State of New York in Queens County.

 DISCUSSION

 Section 1446(b) of the United States Code, Title 28, as amended by the Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 ...


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