IN RE MARTIN, (Bankr.E.D.Va. 1998)

STEPHEN MITCHELL, Bankruptcy Judge

Before the court is a "Verified Motion to Enjoin Violations of Federal Law" filed by the debtor, Anthony R. Martin, on October 30, 1998, seeking to prohibit Judge Michael J. Cassidy of the Fairfax County General District Court from hearing, and Fairfax County Sheriff Carl Peed from executing process in, this action which was removed to this court under 28 U.S.C. § 1452. While it is abundantly clear that, upon removal, the parties to a removed action may "proceed no further" in the original court unless and until the cause of action is remanded, it is less clear that a bankruptcy judge may enjoin a state court, as opposed to enjoining the litigants before that court. Additionally, to the extent that the motion attempts to vindicate the automatic stay arising in Mr. Martin's chapter 13 case, the United States Bankruptcy Court for the Southern District of Florida, where the chapter 13 case is pending, is the appropriate forum to determine whether the stay has been violated and, if so, to impose appropriate sanctions. Accordingly, the motion to enjoin, which the court treats as a motion for a temporary restraining order or preliminary injunction under Federal Rule of Bankruptcy Procedure 7065, is denied without prejudice.

Background

This is an action for unlawful detainer commenced in the General District Court of Fairfax County, Virginia, on October 16, 1998, by Syed Naqvi and Nyyar Naqvi, who allege that they purchased the property in question (1905 Westfield Street, Alexandria, Virginia) at a foreclosure sale on August 4, 1998. The defendant, Helen V. Martin-Trigona, is the mother of Anthony R. Martin, who has filed a petition for relief under chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Florida. The return date of the unlawful detainer summons was October 30, 1998. On October 16, 1998, Mr. Martin, who asserts that he is a co-owner of the property, filed a notice of removal in this court under 28 U.S.C. § 1452. He alleges in his verified motion that, upon attempting to file the notice of removal with the Clerk of the Fairfax County General District Court, he was advised that Judge Michael J. Cassidy "was insisting on proceeding notwithstanding the pendency of the removal[.]"

Mr. Martin's chapter 13 filing is the latest in a series of six chapter 13 cases that have been filed since 1993 in an effort to prevent foreclosure of the property in question. All but the present filing have been in this court. Only one of the cases resulted in a confirmed plan, and each case was ultimately dismissed. Two of the dismissals have been with prejudice to refiling for stated periods of time. Three of the prior filings were by George Martin-Trigona (the debtor's brother and the son of Helen Martin-Trigona) and two have been by Helen Martin-Trigona (the debtor's mother), who resides in the property. In the most recent of the prior filings, the court held a full-day evidentiary hearing on Helen Martin-Trigona's objection to the claim of Mellon Mortgage Corporation, the holder of a first-lien deed of trust against the property, and made findings of fact with respect to the balance due on the note and the claimed arrearages.

The property was originally purchased by Helen V. Martin-Trigona and title was taken solely in her name. She later deeded the property to her son George. He subsequently executed an instrument, which was recorded in the land records, acknowledging that he held legal title only, and that his mother was the beneficial owner of the property. Although a copy has not been provided, it would appear that some instrument has been recorded since the dismissal of the last chapter 13 filing granting Anthony Martin an interest in the property.

Discussion A.

The filing of a bankruptcy petition creates an automatic stay of, among other actions, "any act to obtain possession of property of the estate" and "any act to . . . enforce any lien against property of the estate." 11 U.S.C. § 362(a)(3) and (4). Property of the estate consists of all legal and equitable interests of the debtor in property as of the filing date of the bankruptcy petition. 11 U.S.C. § 541 (a). The bankruptcy court has exclusive jurisdiction over property of the debtor, wherever located. 28 U.S.C. § 1334(d). Pending litigation in other forums involving the debtor or affecting the debtor's rights may be removed to the bankruptcy court under 28 U.S.C. § 1452, which provides as follows:

(a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.

(b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title.

Removal is accomplished by filing a notice of removal in the district in which the action is pending. F.R.Bankr.P. 9027(a)(1). "Promptly" upon so doing, the removing party is required to file a copy of the notice of removal in the court in which the action was pending, and removal is "effective" upon such filing. F.R.Bankr.P. 9027(c). The Federal Rules of Bankruptcy Procedure further provide: "The parties shall proceed no further in that court unless and until the claim or cause of action is remanded." Id. Removal of a cause of action does not, in itself, modify or terminate the automatic stay (if otherwise applicable), and it is still necessary for a party seeking to go forward on a claim against the debtor or the debtor's property to obtain relief from the automatic stay from the court in which the bankruptcy case is pending. This court has the power to remand the action to the Fairfax County General District Court "on any equitable ground." Alternatively, this court may transfer venue of the removed action to the court in which the bankruptcy case is pending or may retain venue and try the issues itself, once the automatic stay has been terminated or modified for such purpose.

Jurisdiction of cases and proceedings under 28 U.S.C. § 1334 is vested in the first instance in the United States District Courts. Each District Court, however, may refer all or any such cases and proceedings to the bankruptcy judges for the district. 28 U.S.C. § 157(a). The United States District Court for the Eastern District of Virginia has, by order dated August 15, 1984, referred to the bankruptcy judges of the district all bankruptcy cases, and all civil proceedings arising under the Bankruptcy Code, arising in a bankruptcy case, or "related to" a bankruptcy case. Thus, in this district a notice of removal is properly filed with the clerk of the bankruptcy court.

B.

There are two separate issues raised by the motion to enjoin. First, the motion seeks to enforce the provision of F.R.Bankr.P. 9027(c) that prohibits parties to a removed action from proceeding in the original court unless and until the action is remanded. Second, the motion seeks to enforce the automatic stay. As to the latter, this court concludes that it is not the appropriate court to consider such a motion. The debtor's bankruptcy case is pending in the United States Bankruptcy Court for the Southern District of Florida, and only that court has subject matter jurisdiction to modify, terminate, annul, condition, enforce, or sanction violations of, the automatic stay. This court's jurisdiction is limited solely to the removed unlawful detainer action, and this court does not become a surrogate for the court having jurisdiction over the bankruptcy case simply because litigation related to the bankruptcy has been removed here.

As to the removal, this court concludes that it has ample power to compel compliance by "the parties" to the removed action with the requirement that they "proceed no further" in the original court unless and until the action is remanded. 11 U.S.C. § 105(a). The language of F.R.Bankr.P. 9027(c), however, specifically addresses only the conduct of the parties and not the court. Traditionally, bankruptcy courts, as a matter of policy, have not enjoined conduct by other courts when the same relief could be obtained by enjoining the litigants before that court. Furthermore, it is questionable whether a bankruptcy judge has the power to enjoin another court, or whether such power may be exercised, if at all, only by a district judge.

See 1 Collier on Bankruptcy (Lawrence P. King, ed., 15th ed. rev. 1998), ¶ 3.09[1], p. 3-105 (noting split of authority). Compare In re Johns-Manville Corp., 801 F.2d 60 (2d Cir. 1986) (bankruptcy court may enjoin state court action that threatens to interfere with the administration of the bankruptcy estate) with Browning v. Navarro, 887 F.2d 553 (5th Cir. 1989) (only U.S. District Court, not bankruptcy court, has power to enjoin proceeding in another court).

In the present case, there is nothing in the verified motion suggesting that the plaintiffs will not comply with F.R.Bankr.P. 9027(c) or that irreparable injury will result if a temporary restraining order is not issued, particularly as the debtor does not reside in the property and furthermore is not even a formal party to the removed action. To the extent that a party has violated or may be violating the automatic stay, a request for sanctions or other enforcement relief is properly addressed to the United States Bankruptcy Court for the Southern District of Florida.

ORDER

It is, accordingly,

ORDERED:

1. The motion to enjoin, which the court treats as a motion for a temporary restraining order or preliminary injunction under F.R.Bankr.P. 7065, is denied without prejudice to any appropriate motion or proceeding in the United States Bankruptcy Court for the Southern District of Florida.

2. The clerk will mail a copy of this order to the parties listed below.