Summary
holding that the petition for removal should have been filed with the bankruptcy clerk
Summary of this case from IN RE BE SMART KIDS, INC.Opinion
Civ. A. No. 3:88-0196. Bankruptcy No. 387-02785.
March 17, 1988.
Don L. Smith and James D. Kay, Manier, Herod, Hollabaugh Smith, Nashville, Tenn., for plaintiff.
James R. Kelley and Kelly M. Hundley, Dearborn Ewing, Nashville, Tenn., for defendant.
MEMORANDUM OPINION AND ORDER
Contractors Performance Corporation, a defendant in the civil action of Larry Carr, et al., plaintiffs, v. First Tennessee Bank, N.A., et al., defendants, case no. 57-180 in the Chancery Court of Tennessee for its 18th judicial district (comprising Sumner County) which aforenumbered action is pending in this (federal) District and Division, filed its petition timely with the clerk of this Court for removal of such action, as related to the above-titled bankruptcy case pending in the Bankruptcy Court of this District, 28 U.S.C. § 1452(a). The plaintiffs therein seek to setaside a certain sale of foreclosure as having been in violation of the automatic stay provision of 11 U.S.C. § 362.
As now revised, Rule 9027, Bankruptcy Rules, provides, inter alia:
An application for removal shall be filed with the clerk for the district and division within which is located the state * * * court where the civil action is pending.
"Clerk," as employed in such Rule 9027, supra, is defined as the "bankruptcy clerk, if one has been appointed, otherwise clerk of the district court." Rule 9001(3), Bankruptcy Rules (as revised).
This Court notices judicially, Rule 201(b)(1), F.R.Evid., that a clerk of the Bankruptcy Court of this District has been appointed. Therefore, the petition for removal herein should have been filed with the clerk of the Bankruptcy Court of this District and Division.
The Bankruptcy Court of this District, being "a unit of th[is] district court * * * known as the bankruptcy court for this district," 28 U.S.C. § 151, and, as this District Court is authorized to refer proceedings related to a case under title 11, U.S.C. to the bankruptcy judges for this District, 28 U.S.C. § 157(a), it hereby is
ORDERED that the clerk of this District Court refer forthwith the aforementioned petition for removal for proper filing to the clerk of the Bankruptcy Court for this District and Division.