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BALENTINE v. UNION MORTG. CO.

June 29, 1992

ALBERT H. BALENTINE, WALLACE YOUNG, VIRGINIA YOUNG, ALLEN LEE DUNBAR, ETHEL LEE DUNBAR TOMIESEN JOHNSON, KAREN YOUNG, AND ERNESTINE MARSHALL, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
UNION MORTGAGE COMPANY, SKOPBANK, FIVE AVCO FINANCIAL SERVICE, INC., SECURITY PACIFIC FINANCIAL SERVICES, INC., FLEET FINANCE, INC., AND AMERICAN GENERAL FINANCE, INC., Defendants.


Rovner


The opinion of the court was delivered by: ILANA DIAMOND ROVNER

MEMORANDUM OPINION AND ORDER

 I. INTRODUCTION

 Named plaintiffs Albert H. Balentine, Wallace Young, Virginia Young, Allen Lee Dunbar, Ethel Lee Dunbar, Tomiesene Johnson, Karen Young, and Ernestine Marshall brought this class action lawsuit in the Circuit Court of Cook County to secure redress for the allegedly unfair and deceptive practices of defendants. Plaintiffs complain that defendant Union Mortgage Company ("Union") induced consumers to enter into home improvement contracts and failed to comply with the statutory requirement that a consumer be provided three days in which to cancel such a contract. Plaintiffs allege that Union's practices effectively bound consumers to the home improvement contracts before the final financing terms had been disclosed. Union is a wholly-owned subsidiary of defendant Skopbank, and plaintiffs allege that Skopbank controlled the Union practices of which they complain. The remaining defendants allegedly purchased the consumer credit contracts which were secured through Union's allegedly deceptive practices.

 On December 20, 1991, Skopbank removed the action to this Court pursuant to 28 U.S.C. § 1441(d), which permits removal by a defendant who qualifies as a "foreign state" under 28 U.S.C. § 1603(a). Skopbank maintains that it is a "foreign state" because it "is controlled, and the majority of its shares or other ownership interest is owned by, the National Central Bank of the Republic of Finland, the Bank of Finland, a political subdivision of the Republic of Finland." (Notice of Removal P 4.) On February 4, 1991, plaintiffs moved to remand this action to state court, contending that Skopbank did not qualify as a "foreign state" at the time of the filing of their complaint. Moreover, plaintiffs maintain that because the Bank of Finland's control of Skopbank is only temporary, the Court should refuse to exercise jurisdiction and should instead permit the action to proceed in state court. For the reasons set forth below, the Court finds that Skopbank qualifies as a "foreign state" and accordingly denies plaintiffs' motion to remand.

 II. FACTS

 Because the central issue raised by plaintiffs' motion is when Skopbank became a "foreign state" for purposes of § 1603(a), the Court describes the facts relevant to that determination. Defendant Skopbank is a banking corporation which is organized and exists under the laws of the Republic of Finland, with its principal place of business in Helsinki, Finland. (Aff. of Carl-Fredrik Londen P 2.) *fn1" Prior to September 19, 1991, a majority of Skopbank's stock was owned by the savings banks of Finland, for which Skopbank acted as the central bank and lender of last resort. (Id. at P 3.) The remainder of Skopbank's shares were owned by individuals in Finland. (Id.) On September 19, 1991, the Bank of Finland, a governmental institution controlled by the Finnish Parliament, announced that it would be taking control of Skopbank in cooperation with the Finnish Banking Supervision Office (the "BSO"). (Id. at P 4 & Exs. A, B & C; see also Aff. of Pekka Laajanen PP 2-3.) *fn2" In connection with this announcement, the Chairman of Skopbank's Board of Management, its Chief General Manager, and its Deputy Managing Director all resigned their positions. (Londen Aff. P 4 & Ex. B.) On September 20, 1991, the BSO appointed a supervisor to monitor the operations of Skopbank, and the Finnish Parliament's banking committee confirmed the takeover of Skopbank by Finland's national bank. (Id. at P 5.) Acting at the direction of the Bank of Finland and the BSO, Skopbank's Supervisory Board on September 30, 1991, appointed Kaarlo Jannari, formerly of the Bank of Finland, to the position of Chairman of the Board of Management and Chief General Manager of Skopbank. (Id. at P 6; Laajanen Aff. P 7.)

 On October 14, 1991, Skopbank's shareholders approved a capital increase as well as the establishment of a new category of Skopbank's stock, which would be subscribed by the Bank of Finland or its wholly-owned subsidiaries. (Londen Aff. P 8.) Moreover, the shareholders also approved a proposal which reduced the number of members seated on Skopbank's Supervisory Board and which allowed the Bank of Finland to appoint a majority of the members of that Board. (Id. at P 8 & Ex. E; Laajanen Aff. P 9.) On November 12, 1991, the Bank of Finland, through Scopulus Oy, its wholly-owned Finnish subsidiary, fully subscribed to the Skopbank equity issue, thereby providing the Bank with 52.91 percent of Skopbank's shares and 63.59 percent of its total voting rights. (Londen Aff. P 9; Laajanen Aff. P 6.) Although it is the Bank of Finland's intention ultimately to divest Skopbank once its operations have been stabilized, the Bank has not yet identified a prospective purchaser for Skopbank. (Id. at P 10.)

 Plaintiffs filed their complaint in the Circuit Court of Cook County on October 11, 1991. Skopbank was served with process on November 21, 1991. On December 20, 1991, Skopbank removed the action to this Court pursuant to 28 U.S.C. § 1441(d).

 III. ANALYSIS

 Section 1441(d) provides that "any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending." Section 1603(a) defines a "foreign state" as "a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b)." Subsection (b) then defines an "agency or instrumentality of a foreign state" as an entity:

 (1) which is a separate legal person, corporate or otherwise; and

 (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof; and

 (3) which is neither a citizen of a state of the United States as defined in section 1332(c) and (d) of this title, nor created ...


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