Monday, August 1, 2011


Motion for Remand: Tool for Counteracting the Notice of Removal


The form attached is from a pro se litigant whom I consider to be particularly savvy in the ways of Court and the issues at hand. I present it, not as the perfect model, but something that I think is well drafted and potentially successful as a vehicle for reversing the removal of a state court action to federal court. It goes without saying that every Judge wants to clear his docket. The removal notice takes the case off of the State Judge’s calendar, making him happy and places on the calendar of the assigned federal judge, which makes him/her unhappy.
Assumption is the enemy of good tactics. Most pro se litigants and lawyers alike see a notice of removal as the kiss of death in terms of the case ever being heard in state court. And most attorneys are a little more reluctant to take on a federal case, in which all motions and filings must be accompanied by a good memorandum of law, with a few exceptions. It is a fatal error in most instances if you Fail to attach a memorandum of law arguing (a) why what you are filing is the right thing to file and (b) arguing why the merits of the pending matter (not the whole case!) should be decided in your favor.
But the notice of removal while seemingly bulletproof is far from it. Reports from all over the country prove that point, where the Notice of removal is met with a Motion to Remand back to state court and the motion to remand is granted. Getting your case back to state court puts the pretenders at greater risk because the state court judges are more concerned with state laws than the federal judges, just by virtue of what they do every day.
The basis for removal is often specious (false). And like all the other pleadings and exhibits and proffering by lawyers it is often a fraud upon the court. Witness the case at hand where the lawyer who filed the notice stated in the notice that the other defendants were in agreement with removal, but they had already elected to file motions in the state court, thus waiving their right to removal.
In addition to being blatantly false (cause for a Rule 11 frivolous pleading), the filing also might be evidence of the fact that in truth, most pretenders’ lawyers don’t know who they represent. They say they do but they don’t. And that is because of the shell game being played out every day during the litigation process where one party pops up one place as the “creditor” and then another pops up when the first one is knocked down. It’s like a child’s game but the stakes are very high and the practice is contrary to the rules of ethics and discipline of every attorney.
The reason why the lawyers don’t know who they represent is because the banks themselves are confused and the command center, mostly out of Chicago, is poorly designed and works inefficiently. So a law firm gets a request from someone who is NOT the client or potential client in the case at bar, asking for them to defend the case, but the lawyer never actually hears from the actual client or anyone authorized to speak for the actual client. That is why I am a proponent of the Motion to Prove Authority to represent — which nails down the actual client, and prevents the lawyer from asserting representation of other pretenders who obviously have adverse interests. I have seen cases simply disappear when that motion is filed.
Lawyers who represent BOA and other such banks would do well to remember that these cases might come back  and haunt them for knowingly presenting false information and frivolous pleadings to the court. While it is true that only a handful of states have passed rules that require the lawyer to vouch for the proffers made in court and the actual evidence offered, it is already in the rules of ethics and conduct of every state that a lawyer may not present evidence or make any statement that he knows is false or that he would know if he had done the due diligence that is required of every lawyer before they go into court.
At this point it seems that lawyers for the pretender banks are ignoring the basic elements of their ethical duties and disciplinary rules and should be held tot ask administratively through the Bar Association grievance procedure as well as being held financially accountable by the Courts for having breached an element so basic to court procedure.

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