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Federal Deposit Insurance Corp. v. Azadzoy

July 13, 2009

FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC BANK, F.S.B., SUCCESSOR-IN-INTEREST TO INDYMAC INC., PLAINTIFF,
v.
MIRWAIS AZADZOY, AN INDIVIDUAL; MIRWAIS AZADZOY, D.B.A. INVESTORS REALTY & MORTGAGE; INVESTORS REALTY & MORTGAGE, A CALIFORNIA ENTITY, FORM UNKNOWN; ZARMINA AZADZOY, AN INDIVIDUAL; WASIL A. GUDUS, AN INDIVIDUAL , DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING MOTION FOR ATTORNEYS' FEES [Motion filed on June 1, 2009]

This matter comes before the Court on Defendant Mirwais Azadzoy's Motion to Remand this action to state court. The relevant facts underlying this motion are undisputed. The sole question raised by the remand motion is whether Plaintiff FDIC as Receiver for Indymac Federal Bank, F.S.B. timely removed this action to federal court. After reviewing the materials submitted by the parties and considering the arguments therein, the Court grants the motion. The Court denies Azadzoy's request for attorneys' fees.

I. BACKGROUND

IndyMac Bank, F.S.B. filed this action in state court on October 15, 2007 against Mirwais Azadzoy, an individual and dba Investors Realty & Mortgage, and others. Azadzoy is a mortgage broker licensed by the California Department of Real Estate. The Complaint alleges that, in exchange for money, Azadzoy allowed branch offices of Investors Realty to open and operate his broker's license. The Complaint further charges that Azadzoy's agents in the Pleasanton, California submitted fraudulent loans. Against Azadzoy, the Complaint alleges breach of contract, specific performance, and negligence arising out of the mortgage fraud.

On July 11, 2008, IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision ("OTS"). In conjunction with closing IndyMac Bank, F.S.B., OTS approved the reorganization of a newly chartered FDIC-insured institution, IndyMac Federal Bank, F.S.B. Pursuant to 12 U.S.C. § 1821(d)(2)(B), the FDIC was appointed as Conservator for IndyMac Federal Bank. On August 22, 2008, the FDIC as Conservator was substituted in for Plaintiff IndyMac Bank in the State Court Action.

On March 19, 2009, OTS replaced the FDIC as Conservator with the FDIC as Receiver for IndyMac Federal Bank as a result of reported undercapitalization. On April 21, 2009, the FDIC as Conservator filed an ex parte application to substitute in the FDIC as Receiver for IndyMac Federal Bank. Azadzoy neither opposed nor appeared at the hearing on the motion. The state court granted the application, which ordered that the FDIC as Receiver be substituted in as Plaintiff. On May 6, 2009, Plaintiff filed a Notice of Removal.

At the time of Plaintiff's May 6, 2009 removal, the state court action was at an advanced stage. Plaintiff FDIC had filed a Motion for Summary Judgment on February 2, 2009, which the state court denied in its entirety on April 15, 2009. On April 21, 2009, Plaintiff filed both its Motion in Limine No. 1 and its ex parte application to substitute FDIC as Receiver. When the FDIC removed on May 6, trial was 12 days away.

II. DISCUSSION

Pursuant to 28 U.S.C. § 1447(c), Azadzoy moves to remand and for attorneys' fees.

A. Timeliness of Removal

Within 30 days of the filing of the Notice of Removal, a party may move to remand "on the basis of any defect other than lack of subject matter jurisdiction," which may be challenged at any time. Azadzoy does not argue that the Court does not have subject matter jurisdiction: because FDIC is now a party to this lawsuit, the action is "deemed to arise under the laws of the United States," over which this Court has jurisdiction. 12 U.S.C. § 1819(b)(2)(A) ("[A]ll suits of a civil nature at common law or in equity to which the Corporation, in any capacity, is a party shall be deemed to arise under the laws of the United States."); 28 U.S.C. §§ 1331, 1441(b).

Although FDIC's presence as a party in any capacity is a basis for removal to this Court, the FDIC's right to remove is time- limited. Title 12, section 1819(b)(2)(B) of the United States Code provides:

(B) Removal. Except as provided in subparagraph (D),*fn1 the Corporation may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States district court before the end of the 90-day period beginning on the date the action, suit, or proceeding is filed against the Corporation or the Corporation is substituted as a party.

12 U.S.C. § 1819(b)(2)(B). The parties dispute whether, under § 1819(b)(2)(B), the substitution of FDIC as Receiver for the FDIC as ...


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