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Litigators in state and federal court: can a CA defendant remove a VA
1. Litigators in state and federal court: can a CA defendant remove a VA
state court action to a CA bankruptcy court? My client got sued in VA state
court and a default judgment was entered. A motion to set aside the default
judgment is pending there. Can I just remove it to the BK court in CA and
ask the BK judge to set aside the default judgment, or do I need to wait
for a determination in VA? If I have to wait for the VA judge to rule and
assuming he rules in my favor, then can I remove the case? Plaintiff has
some contacts with CA as my client has sued her here before and she is
participating in the litigation here.
http://www.law.cornell.edu/rules/frbp/rule_9027
I believe the suit would be a core proceeding because it is an action
brought by a creditor for breach of contract and this claim will be
disputed in the bankruptcy forum when the creditor files a proof of claim
anyway, so the matter has to be litigated somewhere. In order to avoid the
duplicity of actions it might as well be in the BK court here.
Rule 9027 says that a notice of removal may be filed only within the
longest of (A) 90 days after the order for relief in the case under the
Code, (B) 30 days after entry of an order terminating a stay, if the claim
or cause of action in a civil action has been stayed under 362 of the
Code, or (C) 30 days after a trustee qualifies in a chapter 11
reorganization case but not later than 180 days after the order for relief.
We missed the 90 days, but I just filed a relief from stay motion for that
VA matter so assuming the order is granted I can remove it within 30 days
of that. However, the Motion to Set aside the Default judgment will not
have yet been heard.
I guess I am wondering whether, if I removed the case to CA, would the BK
court be able to make a determination as to whether the default judgment
rendered in the VA state court could be set aside so the case could be
litigated here?
I would appreciate a refresher on civil procedure if anyone has any clues
here.
Holly Roark
Certified Bankruptcy Specialist*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
Litigators in state and federal court: can a CA defendant remove a VA state court action to a CA bankruptcy court? My client got sued in VA state court and a default judgment was entered. A motion to set aside the default judgment is pending there. Can I just remove it to the BK court in CA and ask the BK judge to set aside the default judgment, or do I need to wait for a determination in VA? If I have to wait for the VA judge to rule and assuming he rules in my favor, then can I remove the case? Plaintiff has some contacts with CA as my client has sued her here before and she is participating in the litigation here.
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