28 U.S.C.A. Sec. 1446(d) (1994) (emphasis added).

Thus, the clear language of the general removal statute provides that the state court loses jurisdiction upon the filing of the petition for removal. Ward, 972 F.2d at 198; Sweeney, 16 F.3d at 4.

In this case, the clear language of the California Appellate Court's order provided that the decision would not become final until at least October 21, 1991.6 The RTC removed the action on October 7, 1991, before the California Court of Appeals' decision was final. On the date that the RTC filed the notice of removal, the state court lost jurisdiction over the action pursuant to 28 U.S.C.A. Sec. 1446(d). Therefore, the district court properly concluded that the state appellate court opinion was not final at the time of removal.

Bayside cites numerous cases that define original jurisdiction by distinguishing it from appellate jurisdiction and argues that the intent of Congress in using the phrase "original jurisdiction" was to limit jurisdiction in Sec. 1441a. Bayside's argument is without merit because the jurisdiction exercised by the district court on removal is "original" jurisdiction, without regard to the status of the proceedings in state court prior to removal. As the Meyerland court stated:

[T]he modern view of removal is that it is more closely akin to original than to appellate jurisdiction because once the case is removed, it is treated as if it had commenced in federal court.

Meyerland, 960 F.2d at 516 n. 6; See also Jackson, 924 F.2d at 198 ("After removal, state court proceedings are treated as those of the district court and the district court naturally is able to reexamine its own proceedings."). Moreover, such restrictive interpretation would be in direct contrast to the clear intent of Congress to ensure that all cases involving the RTC be heard and decided by a federal court. See Hellon, 958 F.2d at 298; RTC v. Lightfoot, 938 F.2d 65, 67 (7th Cir.1991); Ward, 888 F.2d at 59. Therefore, the grant of "original jurisdiction" in Sec. 1441a(l )(1) is not a limitation on the federal district courts' authority.

Bayside argues that the RTC failed to file a timely petition for removal because it was required to remove within 90 days of the date that it was appointed receiver. However, Bayside cannot raise this procedural objection as it failed to raise it within the time period allowed in 28 U.S.C. Sec. 1447. Motions for remand for procedural defects must be filed no later than 30 days after the notice of removal. 28 U.S.C.A. Sec. 1447(c) (1994). The RTC filed its notice of removal on October 7, 1991. The thirty day period for remand motions lapsed on November 9, 1991 and Bayside did not move to remand until November 12, 1991, three days after the deadline. On December 10, 1991, prior to the transfer of this case to the Northern District of California, the District Court for the District of Columbia denied Bayside's motion to remand as untimely. Thus, Bayside cannot raise the claim at this time.7

Bayside argues, citing Barrow v. Hunton, 99 U.S. 80, 25 L. Ed. 407 (1879), that the RTC sought to only remove the California Court of Appeal action, not the trial court action, which was not a removable separate and independent claim. In Barrow, the Supreme Court held that a federal court cannot acquire removal jurisdiction over a state court action that seeks to set aside a prior state court judgment, where the second suit "is a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuance of it." Barrow, 99 U.S. at 82. Bayside argues in essence that an appeal is a "supplementary proceeding" insufficiently distinct from the lower court proceedings to permit removal. However, Bayside's argument is materially flawed. An appeal is not a "supplementary proceeding." It is a continuation of the same action. Modern case law establishes that the Barrow rule applies only when an action in federal court seeks to nullify or to enforce the judgment of a prior state court suit. Beighley v. FDIC, 868 F.2d 776, 781 (5th Cir.1989); MacKay v. Pfeil, 827 F.2d 540 (9th Cir.1987). In this case, the state court action that the RTC removed "does not follow any other state court proceeding" and is clearly an "independent action" within the meaning of Barrow. Beighley, 868 F.2d at 781. Therefore, Barrow does not apply to bar removal of this action. Beighley, 868 F.2d at 781.

In addition, to the extent the Barrow court expressed concern about federal courts acting as courts of appeal to actions in state court, the opinion was based on the notion that removal is like an appeal because the proceeding did not commence in federal court. However, the modern view is that removal jurisdiction is more like original jurisdiction because the case after removal is treated as if it had been commenced in federal court. Meyerland, 960 F.2d at 516 n. 6; FDIC v. Taylor, 727 F. Supp. 326, 329 (S.D.Tex.1989).

Bayside argues that the RTC's petition for rehearing filed in state court on the same date as the notice of removal constituted waiver of its right to remove. However, this argument is without merit because the petition was filed solely for the defensive purpose of preserving the status quo pending removal. A party, generally the defendant, may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum. See Baldwin v. Perdue, Inc., 451 F. Supp. 373, 375-76 (E.D.Va.1978); George v. Al-Saud, 478 F. Supp. 773, 774 (N.D.Cal.1979). "A waiver of the right of removal must be clear and unequivocal." Beighley, 868 F.2d at 782. In general, "the right of removal is not lost by action in the state court short of proceeding to an adjudication on the merits." Beighley, 868 F.2d at 782. Where, as here, a party takes necessary defensive action to avoid a judgment being entered automatically against him, such action does not manifest an intent to litigate in state court, and accordingly, does not waive the right to remove. See Ward, 972 F.2d at 198; Beighley, 868 F.2d at 782.

In this case, the RTC filed a petition for rehearing in the California Court of Appeal on the same date that it filed the notice of removal. The petition specifically stated that the RTC intended to remove and had made the petition solely for the defensive purpose of preserving the status quo pending removal. Thus, the RTC was taking a defensive action to avoid judgment in the state court during the removal process and did not waive federal court jurisdiction. Ward, 972 F.2d at 198; Beighley, 868 F.2d at 782.

The district court treated the RTC's alternative Rule 59 or 60 motion as a motion for new trial. A district court's decision concerning a motion for a new trial pursuant to Federal Rule of Civil Procedure 59 is reviewed for an abuse of discretion. Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 2921-22, 106 L. Ed. 2d 219 (1989).

A. California Code of Civil Procedure Sec. 726

Bayside argues, citing Walker v. Community Bank, 10 Cal. 3d 729, 733, 518 P.2d 329, 331, 111 Cal. Rptr. 897, 899 (1974), that the bank violated the "one form of action" rule of Sec. 726 of the California Code of Civil Procedure by filing an action for specific performance rather than a judicial foreclosure. Section 726(a) provides in relevant part:

There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter ...

West's Ann.C.C.P. Sec. 726(a) (West Supp.1994). Under Sec. 726, a creditor can bring only one lawsuit to enforce its security interest and collect its debt. This is referred to as the "one action rule." In Walker, the California Supreme Court stated that a creditor may violate Sec. 726 and lose its ability to foreclose nonjudicially by obtaining a personal money judgment on the underlying debt prior to a foreclosure:

[S]ince under section 726 "there can be but one form of action for the recovery of any debt secured by a mortgage or deed of trust on real property," where the creditor sues on the obligation and seeks a personal money judgment against the debtor without seeking therein foreclosure of such mortgage or deed of trust, he makes an election of remedies, electing the single remedy of a personal action, and thereby waives his right to foreclose on the security or to sell the security under a power of sale.

Walker, 10 Cal. 3d at 733, 518 P.2d at 331, 111 Cal. Rptr. at 899. The California Supreme Court further stated that Sec. 726 may be applied two ways:

(1) "[i]f the debtor successfully raises the section as an affirmative defense, the creditor will be forced to exhaust the security before he may obtain a money judgment against the debtor for any deficiency" OR

(2) "[i]f the debtor does not raise the section as an affirmative defense, he may still invoke it as a sanction against creditor on the basis that the latter by not foreclosing on the security in the action brought to enforce the debt, has made an election of remedies and waived the security."

Walker, 10 Cal. 3d at 734, 518 P.2d at 332, 111 Cal. Rptr. at 900.

In this case, the district court correctly found that the Bank obtained no prior personal money judgment or any judgment that would have allowed it to execute against Bayside's general assets. The Bank filed only one action. Thus, the district court did not abuse its discretion in finding that the Bank did not violate the one action rule of Sec. 726 and Walker.

Bayside argues, citing Security Pacific National Bank v. Wozab, 51 Cal. 3d 991, 800 P.2d 557, 275 Cal. Rptr. 201, (1990), that the Bank violated the "security first" rule of Sec. 726 of the California Code of Civil Procedure by causing8 the sale of the furniture and nine developed parcels as "rents issues and profits" before the sale of the primary security, the real property.

A creditor may violate the "security-first" rule of Sec. 726 by collecting from the debtor's non-collateral general assets prior to looking to its collateral. Wozab, 51 Cal. 3d at 999-1000, 800 P.2d at 561-62, 275 Cal. Rptr. at 205-06.9 In this case, the Bank did not get paid with non-collateral before being paid with collateral because the townhouses that were sold, the sale proceeds and the model home furniture were all part of the Bank's collateral.10 Thus, the district court did not abuse its discretion in finding that there was no violation of the "security first" rule.

B. Authority of the court appointed receiver

Bayside argues that the district court erred in holding that the superior court powers were not specifically limited to the prayer for relief in the complaint and the court did not exceed its authority in ordering the receiver to close the remaining escrows for the sale of the townhouses. However, the district court did not abuse its discretion in holding that the sale of the townhouses was within the authority of the court appointed receiver.

Under California law, the power of the court to appoint a receiver, over rents issues and profits or generally, is derived from California Code of Civil Procedure Sec. 564 (West Supp.1994). Under section 564(b)(8), receivers may be appointed in "cases where receivers have heretofore been appointed by the usages of courts of equity." West's Ann.C.C.P. Sec. 564 (West supp. 1994). Such cases encompass those where the trustor under a deed of trust has contractually consented to the appointment of a receiver upon default. Barclays Bank of California v. Superior Court, 69 Cal. App. 3d 593, 599-600, 137 Cal. Rptr. 743, 746-47 (1977). In this case, the complaint requested "appointment of a receiver to take possession of the property to conserve and manage it" and Bayside did not object to the appointment of a receiver. Thus, the court had authority to appoint the receiver.

Once the power to appoint exists and the receiver is in fact appointed, his "functions and powers are controlled by statute, by the order appointing him, and by the court's subsequent orders." Cal-American Income Property Fund VII v. Brown Dev. Corp., 138 Cal. App. 3d 268, 187 Cal. Rptr. 703 (1982). "Where the receiver's powers and duties are not directly prescribed by statute, they are dependent upon the court's order of appointment," Nulaid Farmers Assoc. v. LaTorre, 252 Cal. App. 2d 788, 791, 60 Cal. Rptr. 821, 823 (1967), "although they may be expanded or contracted by subsequent court order." Cal-American Income Property Fund VII, 138 Cal. App. 3d at 273, 187 Cal.Rptr. at 706.

The trial court's order appointing the receiver authorized it to "collect all rents from the subject property, manage said real property and from the rent proceeds protect, conserve and maintain said real property." To carry out this mandate, the order of appointment also specifically empowered the receiver to "perform all acts to protect conserve and maintain said real property in the same manner as would the owner protect the property's best interest." This order was consistent with the Bank's prayer for a receiver to conserve and manage the property and created more than a receivership limited to the "collection of rents, issues and profits." The broader scope of the receiver's authority to conserve, manage and protect as an owner necessarily encompassed the power to sell, to carry out the pending sales agreements and close the pending escrows because the goal of Bayside's condominium project was development and sale of the townhouses. Since the Bank's security encompassed the land, the townhouses, the furniture, the sale agreements and any proceeds from the real property, the monies held by the receiver at the time of the summary judgment, including the proceeds from the sales agreements and furniture and the real property, were the Bank's additional collateral.

Bayside appears to argue that the Bank violated Sec. 726 by collecting on its "additional" collateral before collecting on its "primary security." However, the escrow's disbursement of part of the proceeds from the sale of the townhouses was not the result of an action to collect on its security by the Bank. Thus, even assuming California law requires a creditor to look at its primary security before its additional security, no such rule has been violated. In addition, California law imposes no such requirement. Rather, a creditor is obliged under Sec. 726 to confine itself to one action to recover its debt. No violation of Sec. 726 occurred here. The Bank had the right to realize on this additional collateral, whether or not it was in the form of rents, issues or profits, following the nonjudicial foreclosure sale at which the amount bid was less than what the Bank was owed. Hatch v. Security-First National Bank, 19 Cal. 2d 254, 260, 120 P.2d 869, 873 (1942); Mortgage Guarantee Co. v. Sampsell, 51 Cal. App. 2d 180, 185-86, 124 P.2d 353, 355-56 (1942). The right of a secured creditor to realize on its additional collateral following a nonjudicial foreclosure sale of its real property security is not impaired by the anti-deficiency provisions of Cal.Civ.Proc.Code Secs. 580a, 580b or 580d (West Supp.1993), or by the one form of action defense or sanction of Cal.Civ.Proc.Code Sec. 726 (West Supp.1993). Mortgage Guarantee Co., 51 Cal. App. 2d at 186, 124 P.2d at 356. A nonjudicial foreclosure sale is not an action within the meaning of section 726 that bars subsequent recourse to additional collateral. Mortgage Guarantee Co., 51 Cal. App. 2d at 186, 124 P.2d at 356. There is no dispute that the outstanding debt owed to the Bank at the time of its nonjudicial foreclosure sale was in excess of $4,500,000. As the district court correctly held, the Bank was entitled to the remaining monies still held by the receiver following the Bank's nonjudicial foreclosure sale since those monies were additional collateral to which the Bank could look for payment of its outstanding debt. Hatch, 19 Cal. 2d at 260, 120 P.2d at 873; Mortgage Guarantee Co., 51 Cal. App. 2d at 185-86, 124 P.2d at 355-56.

Bayside argues that the district court erred in failing to make a finding on the issue of whether or not the funds collected in the trial court action were "rents, issues and profits." According to Bayside, the Bank's entitlement to the remaining monies held by the receiver at the time of the summary judgment turns on whether those monies were rents, issues and profits. However, the district court did not abuse its discretion. It was unnecessary for the district court to make that determination because it found that the receiver obtained his authority from the court order and acted within that authority. The order appointing the receiver, without objection from Bayside, specifically empowered the receiver to "close any escrows that are pending on the sales of any of the units." Thus, this case did not pose what the California Court of Appeal characterized as the "issue not reached" in Turner v. Superior Court, 72 Cal. App. 3d 804, 140 Cal. Rptr. 475 (1977) of whether a rents, issues and profits receiver can ever be authorized to sell the security.

The receiver also obtained additional advance permission from the Court for each sale. Accordingly, the Court of Appeal's conclusion that "this case is similar to Turner " overlooked the breadth of the receiver's appointment in this case and the fact that the receiver sold only property that was part of the Bank's security.

Even if this case had posed the "issue not reached" in Turner, the district court correctly found that the court of appeal overlooked the fact that Cal-American did decide that issue and held that, in an appropriate case, a rents, issues and profits receiver can be authorized to sell the security. Cal-American Income Property Fund VII, 138 Cal. App. 3d at 273-74, 187 Cal.Rptr. at 706. The appellate court in Cal-American held that on the narrow facts of that case the trial court had abused its discretion in confirming a sale over the objection of Cal-American. Cal-American, 138 Cal. App. 3d at 275-76, 187 Cal.Rptr. at 707-08. However, in this case, the security was intended to be sold; was sold without objection by Bayside and was sold pursuant to Bayside's own sales agreements and escrow instructions. In addition, because the model furniture was part of the Bank's security, the receiver's sale of it did not raise any problem under Turner, in which a receiver attempted to sell property that was not part of the creditor's collateral. Therefore, the district court did not abuse its discretion in reversing the California Appellate Court of Appeal's decision.

AFFIRMED.