Fishkin Lucks scored another victory today on behalf of our client, Banco Popular North America (“BPNA”), in the United States District Court for the Eastern District of New York (Garaufis, J.). Plaintiff brought suit in the Supreme Court of New York (Kings County Commercial Division) alleging breach of fiduciary duty, breach of contract and fraud claims against BPNA arising from a construction loan issued to an LLC of which Plaintiff was a member. Several months later, the LLC filed for bankruptcy protection under Chapter 11 of Title 11 of the Bankruptcy Code, and Plaintiff removed the action pursuant to 28 U.S.C. §§ 1334(b) and 1452(a) on the ground that it related to the bankruptcy proceeding. Once removed, Plaintiff moved the Eastern District to refer the action to the bankruptcy court. Our Firm opposed referral to the bankruptcy court and moved the Eastern District to abstain and remand the action to the Kings County Commercial Division pursuant to 28 U.S.C. §§ 1334 (c)(1), (c)(2), or 1452(b). Agreeing with our argument that the action is a non-core, but related to, proceeding, accepting Plaintiff’s stipulation that BPNA met five of the six elements necessary to apply mandatory abstention under 28 U.S.C. § 1334(c)(2), and finding over Plaintiff’s objection that BPNA showed the sixth and final element, the Eastern District denied Plaintiff’s motion to refer the action to the bankruptcy court and granted BPNA’s motion to abstain and remand the matter to the Kings County Commercial Division. Immediately after receiving the Eastern District’s decision, we filed a motion for summary judgment on BPNA’s behalf in Kings County.
