In re: Case No. A95-00757-DMD | ) | |
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EDGAR JAMES MUHLHAUSER, | ) | |
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Debtor. | ) | |
___________________________________ | ) | |
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JOSEPH J. STUDNEK, | ) | Adv. No. A95-00757-001-DMD |
) | Bancap No. 96-3011 | |
Plaintiff, | ) | |
) | Chapter 7 | |
v. | ) | |
) | ||
EDGAR J. MUHLHAUSER, individually | ) | |
and as trustee of The Muhlhauser | ) | |
Family Irrevocable Trust; THE | ) | |
MUHLHAUSER FAMILY IRREVOCABLE TRUST, | ) | |
a/k/a Edgar J. Muhlhauser Irrevocable | ) | |
Trust, a/k/a Muhlhauser Children's | ) | |
Irrevocable Trust; KAREN READ; ACTIVE | ) | |
REALTY, INC.; and KAREN MUHLHAUSER, | ) | |
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Defendants. | ) | |
___________________________________ | ) | |
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EDGAR J. MUHLHAUSER, | ) | |
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Counterclaim-Plaintiff | ) | |
And Third Party Plaintiff, | ) | |
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v. | ) | |
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JOSEPH J. STUDNEK, | ) | |
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Counterclaim-Defendant, | ) | |
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and | ) | |
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ROBERT L. MARTIN, | ) | |
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Third-party Defendant. | ) | |
___________________________________ | ) |
1. The motion to remand is granted. This matter is remanded to the state court for determination;
2. Joseph Studnek's request for sanctions is denied; and,
3. The joint motion for settlement conference is denied.
(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.These provisions must be read along with 28 U.S.C. § 157 and the 4 ABR 477 district court's reference of "core proceedings" to the bankruptcy courts. Together they represent Congress's response to the Marathon jurisdictional problems.
(2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. . . .
(a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.
(b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject review under section 158 of this title.
(2) Core proceedings include, but are not limited to--
(A) matters concerning the administration of the estate;
 . . . .
(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or equity security holder relationship, except personal injury tort or wrongful death claims.
While there can be no serious dispute that claims filed in bankruptcy are within the bankruptcy court's core jurisdiction, the filing of a claim does not consolidate it with the pending state law case (into the claim) even though they are based on the same transaction. Both continue to exist, and must be considered, separately.
(1) the motion to abstain is timely; (2) the proceeding is based on a state law cause of action; (3) the proceeding is related to a case under Title 11 but does not arise under Title 11; (4) the action could not have been commenced in federal court absent jurisdiction under 28 U.S.C. § 1334; (5) the state court action has commenced; and (6) the state court action can be timely adjudicated.
BY THE COURT |
DONALD MacDONALD IV |
United States Bankruptcy Judge |