UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
……………………………………………………………………..X
In re:
Chapter 7
ASHMEEN MODIKHAN, Case No.: 19-46591-jmm
Debtor.
……………………………………………………………………..X
ASHMEEN MODIKHAN,
Plaintiff,
v.
DARROW ARONOW, ESQ., HANIN R. SHADOOD, Adv. Pro. No: 21-01009-jmm
COURTNEY R. WILLIAMS, ESQ., FAY SERVICING
LLC, RUSHMORE LOAN MANAGEMENT SERVICES,
INC., MARIANNE DEROSA, THE UNITED STATES
OF AMERICA, DOES 1-100 INCLUSIVE
Defendants.
……………………………………………………………………..X
MOTION FOR REMOVAL
COMES NOW, Plaintiff ASHMEEN MODIKHAN pursuant to 28 U.S. Code § 1452 and
Rule 9027 of the Federal Rules of Bankruptcy Procedure, and files this Motion to remove the
case from this Court to the U.S. District Court, Eastern District of New York. In support of this
Motion, Plaintiff states as follows:
BACKGROUND
On or about January 29, 2021, the Plaintiff commenced the adversary proceedings in this
Honorable Court by filing a Complaint.
On August 20, 2021, the Plaintiff filed an Amended Complaint asserting causes of action
for fraud, misrepresentation, wire fraud, and replevin and seeking a temporary restraining order
and $86,500.00, representing the amounts expended by the Plaintiff in this bankruptcy case.
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On November 15, 2021, the Court issued a memorandum decision on various filings
namely Fay Servicing LLC’s Lift-Stay Motion to terminate the automatic stay as to the
Investment Property for cause under Bankruptcy Code section §362(d)(1) allegedly based on the
Plaintiff’s failure to remit two post-petition mortgage payments; Plaintiff’s Motion to strike
Exhibits by Rushmore Loan Management Services, LLC relating to transfers of proof of claim 6-
1; Plaintiff’s Objection to Proof Of Claim #6-1 Tiki Series IV; Objection to Motion for
Termination of Automatic Stay and Allowance of Proof of Claim; and the Motion for relief from
stay as to the property located at 8710 149th avenue, Howard Beach, N.Y. 11414. The Court
held that the Plaintiff’s claim objections are not wholly barred; the Plaintiff’s objections to the
proof of claim are overruled; and that the Plaintiff’s objections to the transfer of proof of claims
are overruled.
Between February 22, 2021 and September 22, 2022, the Defendants filed motions to
dismiss all claims for alleged failure to state a claim upon which relief can be granted.
On February 18, 2022, the Court issued a Memorandum decision on Defendant’s Motion
to Dismiss.
On February 21, 2022, the Plaintiff filed a Motion for an Extension of time to respond to
the motion to dismiss. A status conference was then held on February 22, 2022 to consider the
Plaintiff’s request. On February 23, 2022, the Defendant filed a Notice scheduling the hearing of
the motion to April 5, 2022. On March 7, 2022, the Court extended the deadline for Plaintiff to
file and serve a response to Defendant’s Motion to April 22, 2022.
On March 14, 2022, the Plaintiff sent a letter to the presiding Judge, Hon. Jil Mazer-
Marino, raising concerns that the extended date conflicted with Plaintiff’s mandatory jury duty
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on March 23 rd and the religious holiday of Ramada possibly from April 2 nd to May 2 nd . Plaintiff
therefore requested the Court to reschedule the date to later in May.
On March 6, 2022, the Court issued Orders granting Defendants’ Motions to Dismiss
Plaintiff’s adversary complaints, to wit:
i. The Court granted Defendant Darren Aronow’s Motion to Dismiss with prejudice
claims of fraud, negligent misrepresentation, wire fraud, breach of fiduciary duty,
replevin, and injunctive relief.
ii. The Court also dismissed with prejudice, all of the Plaintiff’s claims against
Defendant Courtney R. Williams Esq.
iii. The Court also dismissed Plaintiff’s First Amended adversary complaint as to
Secured Creditor Rushmore Loan Management Servicer, LLC as servicer for
U.S. Bank Trust National Association, as Trustee of Dwelling Series IV Trust,
with prejudice.
iv. The Court dismissed the adversary complaint against Marianne DeRosa and
Krista M. Preuss with prejudice.
v. The Court dismissed the adversary complaint against Defendant Fay Servicing
LLC with prejudice.
On March 7, 2022, the Court further issued Orders dismissing Plaintiff’s Complaint
against more Defendants to wit:
i. The Court dismissed the adversary complaint against Hanin R. Shadood, Esq.
with prejudice.
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ii. The Court dismissed the adversary complaint against Defendant Rushmore Loan
Management Services, Inc. as a servicer for US Bank National Association as
legal title trustee for Truman 2016 SC6 Title Trust, with prejudice.
On March 14, 2022, Plaintiff filed an Objection to the Defendant’s Motion to Dismiss
Debtors Adversary Complaint against all Defendants. In the said filing, the Plaintiff raising
concerns over the dismissal of the case with prejudice and lack of due process.
On May 11, 2022, Plaintiff filed a Motion for Extension of Time to Cure Deficiencies
with New Legal Counsel to Address Motion to Dismiss. In the said motion, the Plaintiff sought
an extension of sixty days to cure the deficiencies that prompted the Defendant’s Motion to
Dismiss.
The next date for the adversary proceeding is June 16, 2022. Plaintiff is also waiting for
the Transcript of the last hearing on May 12, 2022.
RELIEF REQUESTED
Plaintiff requests this Court issues an order removing this case from this Court to the U.S.
District Court. Plaintiff also requests this Court order an Accounting and a return of Plaintiff’s
exempt money.
BASIS OF THE RELIEFS REQUESTED
A. The District Court has jurisdiction over Plaintiff’s case
Section 1452 and Rule 9027 of the Bankruptcy Rules govern the removal of pending civil
actions. Specifically, Section 1452(a) provides:
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.
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Also, the district court "shall have exclusive jurisdiction of all of the property, wherever
located, of the debtor as of the commencement of [the] case, and of property of the estate." See
28 U.S.C. § 1334(e).
Further, the district courts have original and exclusive jurisdiction over all bankruptcy
"cases." 28 U.S.C. § 1334(a). The district courts have original jurisdiction over all "civil
proceedings" arising under the Code, or arising in or related to a bankruptcy case. See 28
U.S.C. § 1334(b). "[A]rising under" the Code means a proceeding seeking relief affordable only
under a substantive Bankruptcy Code provision. See Bethlahmy, IRA v. Kuhlman (In re ACI-
HDT Supply Co.), 205 B.R. 231 (B.A.P. 9th Cir. 1997); Ehrlich v. Am. Express Travel Related
Servs. Co. (In re Guilmette), 202 B.R. 9 (Bankr. N.D.N.Y. 1996); Artra Group, Inc. v. Salomon
Bros. Holding Co. (In re Emerald Acquisition Corp.), 170 B.R. 632, 640 (Bankr. N.D. Ill. 1994).
"[A]rising in" a case under the Code means a proceeding involving the administration
and structuring of the estate that would have no existence but for the bankruptcy case. See In re
Wood, 825 F.2d 90, 97 (5th Cir. 1987); Dall v. Bank One, Chicago (In re Dally), 202 B.R. 724
(Bankr. N.D. Ill. 1996).
"[R]elated to" a case under the Code means that most courts hold that a case is related to
bankruptcy if "the outcome of that proceeding could conceivably have any effect on the estate
being administered in bankruptcy. . . . An action is related to bankruptcy if the outcome could
alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively)
and which in any way impacts upon the handling and administration of the bankrupt estate."
Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984) (emphasis in original); accord New
Horizon of New York LLC v. Jacobs, 231 F.3d 143 (4th Cir. 2000), cert. denied, 121 S. Ct. 2192
(2001); In re Munford, Inc., 97 F.3d 449 (11th Cir. 1996); Specialty Mills, Inc. v. Citizens State
6
Bank, 51 F.3d 770, 774 (8th Cir. 1995); Walker v. Cadle Co. (In re Walker), 51 F.3d 562, 568-69
(5th Cir. 1995); Mich. Employment Sec. Comm'n v. Wolverine Radio Co. (In re Wolverine Radio
Co.), 930 F.2d 1132 (6th Cir. 1991); Robinson v. Mich. Consol. Gas Co., 918 F.2d 579, 583- 584
(6th Cir. 1990); Gardner v. United States (In re Gardner), 913 F.2d 1515, 1518 (10th Cir. 1990);
Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 and n.19 (11th Cir. 1990);
Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir. 1988); A.H. Robins Co. v.
Piccinin, 788 F.2d 994, 1002 n.11 (4th Cir. 1986); see also In re G.S.F. Corp., 938 F.2d 1467,
1475 (1st Cir. 1991).
In the instant action, Plaintiff asserts that nothing precludes this Honorable Court from
removing this case to the District Court. First, the district courts have jurisdiction over
Plaintiff’s property. See 28 U.S.C. § 1334(e). Plaintiff’s case also concerns the structuring and/or
handling of the Plaintiff’s estate that would have no existence but for the bankruptcy case.
B. There are equitable grounds to grant Plaintiff’s motion
28 U.S.C. § 1452 (b) allows the court to remand a case "on any equitable ground." An
"equitable" ground is one that is "fair and reasonable." In re Cathedral of the Incarnation in the
Diocese of Long Island, 99 F.3d 66, 69 (2d Cir. 1996). Congress apparently realized that, in
some in stances, a case over which the bankruptcy court has jurisdiction may nevertheless be
more appropriately litigated in another forum. Pacor v. Higgins, 743 F.2d 984, 993 (3rd Cir.
1984). "Conservation of judicial resources, avoidance of multiplicity of actions, and
considerations of comity are all grounds for remand." Midlantic National Bank v. Comtek Elec.,
Inc. (In re Comtek Elec., Inc.), 23 B.R. 449, 451 (Bankr. S.D.N.Y. 1982). In determining a
motion to remand, the court also considers whether the State court is "better able to respond" to a
suit involving State law. Id.
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In Drexel Burnham Lambert Group, Inc. v. Vigilant Insurance Co., the court listed a
number of factors that are frequently considered in determining a remand motion. See 130 B.R.
405, 407 (S.D.N.Y. 1991). These factors include: the effect on the efficient administration of the
bankruptcy estate, the extent to which issues of state law predominate, the difficulty or unsettled
nature of the applicable state law, comity, the degree of relatedness or remoteness of the
proceeding to the main bankruptcy case, the existence of the right to a jury trial, and prejudice to
the involuntarily removed parties.
In the instant action, the requested removal is necessitated by the Judge’s decision to lift
the motion for relief on the two properties owned by the Plaintiff. Further, Plaintiff has twice
been subjected to illegal foreclosures, which led to the filing of the chapter 7 adversary
proceeding.
Further, the trustee appointed in the case has done little to protect Plaintiff and his assets.
Plaintiff’s exempt money has been erroneously used, which is contrary to the law. Plaintiff
asserts that this amounts to a breach of trust under the fiduciary relationship.
In sum, Plaintiff maintains that there are sufficient equitable grounds to grant the removal
of this case to the District Court.
CONCLUSION
In light of the foregoing, Plaintiff prays that this Court should issue an Order removing
this case to the District Court; an order for an account of Plaintiff’s estate; and an order to return
Plaintiff’s exempt money that was erroneously used. Plaintiff further prays that this Court issues
any other order it deems just.
Date: _________________ Ashmeen Modikhan
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
Pro Se Debtor
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CERTIFICATE OF SERVICE
I certify that a copy of this Motion for Removal was served on [ENTER DATE] to the
Defendants in this action at the following addresses:
Courtney R. Williams
Gross Polowy, LLC
1775 Wehrle Drive, Ste 100
Williamsville, NY 14221
Pro Se Defendant
Marianne DeRosa
Office of the Chapter 13 Trustee
100 Jericho Quadrangle, Ste 127
Jericho, NY 11753
Pro Se Defendant
Darren Aronow
Aronow Law Firm P.C.
7600 Jericho Turnpike, Ste 115
Woodbury, NY 11797
Pro Se Defendant
Steven Amshen
Petroff Amshen, LLP
1795 Coney Island Ave, 3rd Floor
Brooklyn, NY 11230
Counsel for Hanin Shadood
Andrea M Roberts
Blank Rome LLP
1271 Avenue of Americas
New York, NY 10174
Counsel for Fay Servicing, LLC
Krista M Preuss
Krista M. Preuss, Chapter 13 Trustee
100 Jericho Quadrangle, Ste 127
Jericho, NY 11753
Pro Se Defendant
Jonathan M. Robbin
J. Robbin Law PLLC
9
200 Business Park Drive, Ste 103
Armonk, NY 10504
Counsel for Rushmore Loan Management Services, Inc.
DATE:
Ashmeen Modikhan
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
Pro Se Debtor