Eastern Savings Bank v. Estate of Kirk, 821 F. Supp. 2d 543

Eastern Savings Bank filed a federal diversity foreclosure action on a mortgage encumbering property in Southampton, NY.
The mortgage and note were executed by Alexis Kirk on February 26, 2008 and recorded March 26, 2008.
Kirk died on May 17, 2010, and his will was offered for probate in the Surrogate’s Court on May 21, 2010.
Preliminary Letters Testamentary were issued June 7, 2010, naming Lisa Kirk and Alexia Kirk Andrus as co-executors.
Plaintiff alleges default on the note and mortgage from April 2010 onward and filed this action October 8, 2010 seeking foreclosure under NY RPAPL.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Remand or transfer authority	Bank contends no remand power since originally filed in federal court.	Defendants seek remand to Surrogate’s Court under § 1447(c).	Motion to remand denied; no remand power because action commenced in federal court.
Abstention under Colorado River	State proceedings could resolve the dispute; abstention warranted.	abstention preferable to avoid duplicative litigation.	Abstention denied; stay not appropriate; federal jurisdiction retained.

Colorado River Water Conservation District v. United States, 424 U.S. 800 (U.S. 1976) (establishes the exceptional, narrow basis for abstention)
Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1 (U.S. 1983) (framework for determining abstention factors)
Salomon v. Burr Manor Estates, Inc., 635 F. Supp. 2d 196 (E.D.N.Y. 2009) (enumerates abstention factors and their weights)
Dittmer v. Cnty. of Suffolk, 146 F.3d 113 (2d Cir. 1998) (parallel proceedings and abstention considerations)
Schiffman v. Epstein, 2009 WL 1787760 (S.D.N.Y. 2009) (removal/remand limitations discussed)
Hatheril v. Michael, 1993 WL 385754 (S.D.N.Y. 1993) (lack of authority to remove federal case to state court)
Keane v. Mixter, 202 Misc. 1025, 111 N.Y.S.2d 656 (N.Y. Misc. 1952) (Surrogate’s Court authority and lack of foreclosure judgment power discussed)