Mashburn v. Matassini (In re Matassini)
Mashburn v. Matassini (In re Matassini)
Opinion of the Court
ORDER ON MOTION FOR REMAND
THIS CAUSE came on to be heard upon Plaintiff Mashburn, et al’s, Motion For Remand of this proceeding back to the Circuit Court for Hillsborough County, Florida. In April, 1987, Plaintiff Mashburn sued the Debtor in a pre-petition action in the Circuit Court. The lawsuit was a two-count complaint, asserting in Count I replevin of two items of personal property, a safe and 166% shares of stock as evidenced by a stock certificate. Plaintiff Mashburn claimed a right to these items in that he had sold his interest in a restaurant to Debtor Matassini, took back a second mortgage on the property, and retained a security interest in the vault and in the stock. Count II of the state court action was for declaratory judgment as regards whether or not Plaintiff Mashburn indeed had a security interest in the personal property, or whether he was the absolute title owner.
Subsequently, Debtor Matassini filed a Voluntary Petition in Chapter 11. The lawsuit which was pending at the time in the Hillsborough County Circuit Court was stayed by Section 862(a) of the Bankruptcy Code. In April, 1988, Plaintiff Mashburn sought relief from the automatic stay to proceed in the Circuit Court action as regards his right to possession of the stock. Relief from stay was granted. In May, 1988, the state court ruled Mr. Mashburn had a right to possession of the stock and the Debtor was required to deliver the stock to Plaintiff Mashburn. Simultaneously, the Debtor filed a motion in the state court action to set aside the order which determined Mr. Mashburn’s right in that an application for removal to the bankruptcy court had been filed prior to the court’s ruling. This particular application may have been defective and an amended application was filed on the same date the court ruled on Mashburn’s right to possession of the stock. In any case, on May 17, 1988, an order on the application for removal was entered by this Court. Thereafter, Mr. Mashburn filed the Motion for Remand.
When a motion for remand is filed in the bankruptcy court, Bankruptcy Rule 9027(e) seeks to deal with the issue. Unfortunately, this Rule may be inconsistent with the other parts of the U.S.Code dealing with remand. Further, the Rule is not always practical, logical, or consistent with the general reference of bankruptcy cases by the district court to this bankruptcy court.
Rule 9027(e) requires the bankruptcy court to file a “report and recommendation” regarding the resolution of a motion for remand. The Clerk serves a copy of this report and recommendation on the parties, who have ten days to object. These objections are filed pursuant to Rule 9033, Review of Proposed Findings of Fact and Conclusions of Law in Non-Core Matters. See, Paxton National Insurance v. British American Associates (In re Pacor, Inc.), 72 B.R. 927 (Bankr.E.D.Pa. 1987), aff'd, 86 B.R. 808 (E.D.Pa. 1987). Simply put, the district court would now be stuck with a de novo review of a motion to remand a proceeding like the case at bar which was initiated in the state court, stayed by the filing of the bankruptcy petition, sent back to the state court when the automatic stay was lifted, heard by the state court, removed to the bankruptcy court, and when a motion for remand is filed the bankruptcy court is required to give a report and recommendation to the district court to start the whole process over again without any resolution of the ease on the merits. To allow this expenditure of judicial energies on a state court case, admitted to be a core matter in each of the adversary proceedings, is simply absurd. No member of a Rules committee, Congress, or the judiciary would ever envision such a non-productive and time consuming procedure. This Court is quite confident that Rule 9027(e) must be read in para-materia with 28 U.S.C. § 1452(b) and 28 U.S.C. § 151. Section 1452(b) of Title 28 provides that the court to which a case has been removed has the power to determine a motion for remand and such a determination is non-reviewable. 28 U.S.C. § 151 states “in each judicial district, the bankruptcy judges in regular active service shall constitute a unit of the district court to be known as the bankruptcy court for that district.” In July, 1984, pursuant to Section 104(a) of the Bankruptcy Amendments and Federal Judgeship Act of 1984, the United States District Court for the Middle District of Florida ordered “that all cases pending under Title 11 U.S.C., and all cases filed hereafter under Title 11 arising in or related to a case under Title 11 shall immediately be transferred and referred to the appropriate division of the bankruptcy court of this district.” It is without question the court referred to in Section 1452(b) of Title 28 must include the bankruptcy court established pursuant to 28 U.S.C. § 151 when bankruptcy cases are referred to it. Lieber Enterprises, Inc. v. Morris (In re Morris), 55 B.R. 615 (Bankr.N.D. Tex. 1985); Marine Bank Appleton v.
The claims in the Plaintiff’s adversary proceeding and the removed case are the same. Each cause of action directly affects the administration of the estate as well as property of the estate and allowance of claims associated with the estate. It would be an anomaly to find a bankruptcy court had jurisdiction over an adversary proceeding which raised the same issues in a case which had been removed to this Court, but would not have jurisdiction over the removed case. In re L.T. Ruth Coal Company, Inc., supra. In addition, since Plaintiff Mashbum initially sought this Court’s jurisdiction in the adversary proceeding, this Court finds Plaintiffs have waived any objection to similar matters which have arisen in the removed case.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Remand filed by Plaintiff Mashbum, et al, be, and the same is hereby, denied. By separate order of the Court, this adversary proceeding shall be set for final hearing with the adversary proceeding R.W. Mashburn, Lamas Oriental Foods, Inc., and Lamas, Inc., Plaintiff, v. Pasquale Matassini, Defendant, Adv.Pro. No. 87-298.
DONE AND ORDERED.
Reference
- Full Case Name
- In the Matter of Pasquale MATASSINI, Debtor. R.W. MASHBURN, Lamas Oriental Foods, Inc., a corporation and Lamas, Inc., a corporation v. Pasquale MATASSINI
- Status
- Published