Removing a Case to Bankruptcy Court
By Stephen Otto, Pennsylvania Bankruptcy Attorney on May 28, 2008 in Bankruptcy Practice and Procedure, General Bankruptcy Information, Lawyer to Lawyer
A debtor may remove a claim or cause of action from a nonbankruptcy court to the bankruptcy court. 28 U.S.C. Section 1452. The action is removed from the court in which the civil action is pending to the district court in the district where the action is pending. Then, the civil action may be referred to bankruptcy court. This is generally called “removal.”
Removal is available for any civil action except for removal from the U.S. Tax Court to bankruptcy court and removal of an action brought by a government entity to enforce its police or regulatory authority to a bankruptcy court. 28 U.S.C. 1452(a). The only requirement for the district court to have jurisdiction is that the action arises in, arises under, or relates to a bankruptcy case. If it does, the distict court has jurisdiction and can refer the removed action to its own bankruptcy court.
In order to remove a case to bankuptcy court, the debtor must file a notice of removal with the district court and with the state court where the litigation is pending. If a party opposes the removal, they must attack it with a motion to remand or abstain filed in district court.
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