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Eastern Savings Bank, Fsb v. the Estate of Alexis Kirk

September 26, 2011

EASTERN SAVINGS BANK, FSB, PLAINTIFF,
v.
THE ESTATE OF ALEXIS KIRK, BY LISA KIRK AS EXECUTOR, AND ALEXIA KIRK ANDRUS, AS EXECUTOR OF THE ESTATE OF ALEXIS KIRK, HIS HEIRS, DISTRIBUTEES, DEVISEES AND PERSONAL REPRESENTATIVES AND ANY OF HIS SUCCESSORS IN RIGHT, TITLE AND/OR INTEREST, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge:

MEMORANDUM & ORDER

Plaintiff Eastern Savings Bank, FSB commenced this diversity action seeking to foreclose on a mortgage encumbering real property located in Southampton, New York (the "Property"). The mortgage was executed by Alexis Kirk ("Kirk"), who subsequently passed away. Plaintiff has named as defendants the Estate of Alexis Kirk (the "Estate") by the Estate's co-executors, Lisa Kirk and Alexia Kirk Andrus (collectively, the "defendants"). Presently before the Court is a motion by defendants, made pursuant to 28 U.S.C. § 1447(c), requesting that the matter be "remanded" from this Court to the New York State Surrogate's Court, New York County (the "Surrogate's Court"). For the reasons set forth below, defendants' motion is denied.

BACKGROUND

Plaintiff is a federally chartered savings bank with its usual place of business located in Hunt Valley, Maryland. (Compl. ¶ 2.) On or about February 26, 2008, Kirk individually executed a Note in which he promised to pay plaintiff the principal amount of $500,000 as repayment of money that plaintiff loaned to him (the "Note"). (Id. ¶ 10 & Ex. C.) That same day, Kirk executed a mortgage (the "Mortgage"), whereby he pledged the Property as security for the amount he promised to repay in the Note. (Compl. ¶ 11, Ex. D.) The Mortgage was duly recorded in the Office of the Suffolk County Clerk on March 26, 2008. (Compl. ¶ 11.)

On or about May 17, 2010, Kirk passed away. (Id. ¶ 13.) On May 21, 2010, Kirk's will was offered for probate in the Surrogate's Court. (Id., Ex. B.) The Surrogate's Court issued Preliminary Letters Testamentary dated June 7, 2010, which named Lisa Kirk and Alexia Kirk Andrus co-executors of Kirk's will. (Id.)

Plaintiff alleges that the Estate has failed to comply with the terms and provisions of the Note and Mortgage in that it did not make any of the required monthly payments between April 2010 and the filing of the Complaint. (Compl. ¶ 16.) Plaintiff commenced this action by filing the Complaint in this Court on October 8, 2010, seeking a judgment of foreclosure and sale of the Property pursuant to the New York Real Property Actions and Proceedings Law ("NY RPAPL") Section 1301, et seq., so that plaintiff could recover the unpaid principal and interest secured by the Note, as well as its attorneys' fees and costs. (Id. ¶¶ 20, 21.)

DISCUSSION

I. Defendants' Motion to "Remand" is Denied

As noted above, defendants have filed the present motion pursuant to 28 U.S.C. § 1447(c), and they request that the action be "remand[ed]" from this Court to the Surrogate's Court. Defendants' request is denied because "[f]ederal district courts do not have the authority to remand an action originally commenced in federal court . . . to a state tribunal . . . ." Schiffman v. Epstein, 2009 WL 1787760, at *5 (S.D.N.Y. June 23, 2009); see also Hatheril v. Michael, 1993 WL 385754, at *1 (S.D.N.Y. Sept. 23, 1993) ("This Court lacks the power and authority to remove this case from federal to state court.").

The concept of "removal" is "limited to the transfer of an action originally commenced in state court to a federal court." Hatheril, 1993 WL 385754 at * 1; see also 28 U.S.C. § 1446. "Thus, a case originally commenced by a plaintiff in federal court cannot then be removed . . . from federal to state court." Hatheril, 1993 WL 385754 at *1. Moreover, the authority of a district court "to remand [a] case to the state court from which it was removed . . . is limited to instances where an action is commenced in state court and subsequently removed to federal court." Schiffman, 2009 WL 1787769 at *5. Because this action was commenced in federal court, 28 U.S.C. § 1447(c) does not confer upon this Court any authority to remand the action to Surrogate's Court. See id. (noting that "the authority to remand implies that the federal district court can return or send a case back to where it was originally commenced.")*fn1

Thus, defendants' request that this Court remand or transfer this case to the Surrogate's Court is denied.

II. The Court will not Abstain From Exercising Jurisdiction

Defendants' motion can be read, in the alternative, as requesting that this action be stayed pending the outcome of the proceedings before the Surrogate's Court. "The decision as to whether to stay a federal action on the ground that there is a related action pending in a state court is committed to the sound discretion of the district court." United States v. Pikna, 880 F.2d 1578, 1582 (2d Cir. 1989). In Colorado River Water Conservation District v. United States, 424 U.S. 800, 813 (1976), the Supreme Court held that "the doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Thus, "a district court may abstain in order to conserve federal judicial resources in exceptional circumstances, where the resolution of existing concurrent state-court litigation could result in comprehensive disposition of litigation." Nieves v. Bd. of Educ., 2006 WL 2989004, at *2 (E.D.N.Y. Sept. 15, 2006) (citing Woodford v. Cmty. Action Agency of Greene Cnty., 239 F.3d 517, 522 (2d Cir. 2001)).

"[A] finding that the concurrent proceedings are 'parallel' is a necessary prerequisite to abstention under Colorado River." Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 117-18 (2d Cir. 1998). The Court notes that plaintiff is not a named party in the Surrogate's Court proceedings. "However, abstention under Colorado River does not require identical parties in the federal and state proceedings." Nieves, 2006 WL 2989004 at *2. Even assuming arguendo that this action and the ...


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