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Burnt Chimney Props., Inc. v. KGG, LLC (In re KGG, LLC) (Case No. 04-74550; A.P. No. 05-07005) 3/28/2005

The plaintiff sought removal of the litigation from circuit court to the bankruptcy court pursuant to 28 U.S.C. § 1452 and Federal Rule of Bankruptcy Procedure 9027.  The defendant opposed removal, arguing that removal from the circuit court to the bankruptcy court was impossible because the debtor filed the notice of removal with bankruptcy court clerk rather than the district court clerk in contravention of Rule 9027(a)(1), and because the 90-day time frame mandated by Rule 9027(a)(2) had expired, thereby barring removal.  The Court held that removal was proper because the Federal Rules of Bankruptcy Procedure define "clerk" as the bankruptcy court clerk, the majority of case law supports this position, and modal errors of process are not jurisdictional.  Therefore, since the plaintiff’s notice and motion for removal were properly submitted to the bankruptcy court clerk, and is in compliance with Rule 9027(a)(1) and (2), the removed litigation will be heard in the bankruptcy court.

Date: 
Monday, March 28, 2005
Category: 
Jurisdiction
Chapter: 
11