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FIRST NATL. BANK OF JOLIET v. PROMATEK MED. SYS.

December 13, 1994

FIRST NATIONAL BANK OF JOLIET, a National Banking Association, Plaintiff,
v.
PROMATEK MEDICAL SYSTEMS, INC., an Illinois Corporation, d/b/a/ ELECTROSTIM U.S.A., LTD., PROMATEK INDUSTRIES, LTD., a Canadian Corporation, ARTHUR LEVINE, Individually, HARVEY KOFSKY, Individually, and JUDAH ELIAHOO, Individually, Defendants.



The opinion of the court was delivered by: WAYNE R. ANDERSEN

 This case is before the court on the motion of plaintiff, First National Bank of Joliet, to remand this case to the Circuit Court of Will County, Illinois pursuant to 28 U.S.C. § 1447. For the reasons stated below, we deny the motion to remand.

 BACKGROUND

 Plaintiff, First National Bank of Joliet ("First National"), originally filed this action in the Circuit Court of Will County. Defendants removed the action to this court on July 20, 1994. First National is chartered under the laws of the United States. Defendants are Promatek Medical Systems, Inc. ("Promatek Medical"), an Illinois corporation; Promatek Industries, Ltd., ("Promatek Industries") a Canadian corporation; and Arthur Levine, Harvey Kofsky, and Judah Eliahoo, residents of Canada.

 In its complaint, First National alleges that Electrostim U.S.A., Ltd., now known as Promatek Medical, sought to obtain a revolving line of credit from First National in the amount of $ 300,000. First National established a line of credit to Promatek Medical which was memorialized from time to time by promissory notes given by Promatek Medical to First National. The last note, in the sum of $ 220,000, was dated June 28, 1992 with interest payable quarterly beginning on September 28, 1992 and principal payable on June 28, 1993. The loan was secured by a security interest in inventory, accounts receivable, equipment, and after acquired property.

 In addition to the security interest, First National further required a guaranty from Promatek Medical's parent corporation, Promatek Industries, a Canadian corporation with its principal place of business in Montreal, Quebec, Canada. The board of directors of Promatek Industries authorized the guaranty on June 11, 1987 through a resolution which was signed by defendant Arthur Levine, an officer and director of Promatek Industries.

 The Canadian parent corporation, Promatek Industries, also furnished irrevocable standby letters of credit to First National from the Canadian International Bank of Commerce through its affiliate Centre Bancaire International in Montreal, Quebec, Canada. A letter of credit which covered the last note in the amount of $ 220,000 was issued on July 9, 1991 with an expiration date of July 31, 1992. An amendment to the letter extended the expiration date to August 2, 1993.

 Promatek Medical defaulted on the $ 220,000 note on June 28, 1993, and First National demanded payment from both Promatek Medical and Promatek Industries. In late June and July, 1993, First National also advised Promatek Medical that, unless payment on the overdue note was immediately made, First National would draw on its letter of credit which covered the amount in default. First National, however, allegedly forbore on its right to draw on the letter of credit after receiving continuous assurances from defendant Judah Eliahoo, an officer and director of both Promatek Medical and Promatek Industries, that an extension on the letter of credit was forthcoming. Unknown to First National at the time, the Canadian International Bank of Commerce allegedly had already advised Promatek Industries and Eliahoo that the letter of credit would not be extended. The letter of credit then expired by its terms.

 First National further alleges that, beginning in late 1992 or early 1993, defendants Arthur Levine and Harvey Kofsky, both officers and directors of Promatek Industries, caused the transfer of the product lines of Promatek Medical to other subsidiaries of Promatek Industries, thereby impairing the security interests held by First National in the product lines. First National also alleges that Promatek Medical has operated with little or no capital and had insufficient means of meeting its obligations to creditors.

 First National has filed a six-count complaint in this action. Count I is for breach of contract against Promatek Medical. Count II is a cause of action on the guaranty agreement against Promatek Industries. Count III is against defendant Eliahoo for misrepresentation. Count IV is for tortious interference with contract against Kofsky and Levine. Count V is a promissory estoppel claim against Promatek Industries based upon its assurances regarding the renewal of the letter of credit. Count VI is a claim to pierce the corporate veil of Promatek Medical because Promatek Medical allegedly is the alter ego of Promatek Industries.

 In its Notice of Removal, defendants allege that this action is removable under the provisions of 12 U.S.C. § 632 because it is a civil action arising out of transactions involving international or foreign banking and at least one party is a corporation organized under the laws of the United States.

 In its motion to remand, First National alleges that this action is not removable and subject to the original jurisdiction of this court pursuant to 12 U.S.C. § 632 because the causes of action alleged by First National do not arise out of transactions involving international or foreign banking. First National claims that this action arises out of a local loan transaction between First National and Promatek Medical. First National claims that although the note was guaranteed by Promatek Industries, the line of credit was intended to finance the day to day operations of Promatek Medical, a predominantly local business.

 DISCUSSION

 The issue in this case is whether we have jurisdiction under 12 U.S.C. § 632. That provision ...


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