I am currently fighting my bank in Superior Court. They illegally foreclosed and tried to remove me by Unlawful Detainer. I am beating the unlawful detainer and filed a Quiet Title action to resolve the issue of title before possession. The banks laywer tried to end around by filing an automatic stay and notice to remove to federal court based on diversity and the amount of damages being in excess of $75,000. My question is, how do I fight this? There has to be a way to remove the automatic stay and file my own stay in the unlawful detainer until my unlimited action as to title is resolved.
Lawsuit / Dispute Attorney
If the amount in dispute exceeds $75000 and the bank is domiciled (the term used to describe the state where the corporation has its corporate filings), then the bank is permitted to remove it to district court. See 28 U.S.C. sec. 1332. The removal is supposed to be done within 21 days after being served or receiving a copy of the complaint. See Rule 81, subd (c) of the Federal Rules of Civil Procedure. Many lawyers fear removal and for this reason claim less than $75000 in their complaint, so that the defendant cannot remove. Also, the case should be remanded if the defendant failed to remove within the 21 day period.
Generally, the only way to defeat a diversity action is to show that either the amount in controversy is less than $75,000 or that one of the parties is not diverse (i.e., from another state). As the other attorney pointed out, you can also challenge it as being untimely. You also want to notify the Federal Court that there are related actions pending in the state court (the Quiet Title action). Remember, unless there is some federal rule, it is likely that the Federal Court will also have to follow California law in deciding the issue. Federal court is much more strict in its application of the rules, so I would definitely recommend that you higher a lawyer that is familiar with practicing in Federal court instead of forging ahead on your own.
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