In re: Ralph Dominic Vaccaro
Filing
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ORDER DENYING MOTION TO WITHDRAW THE REFERENCE. ***Civil Case Terminated.*** Signed by Judge Claudia Wilken on 2/27/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 2/27/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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In re:
No. C 13-5424 CW
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RALPH DOMINIC VACCARO,
Bk. Nos.
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Debtor.
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________________________________/
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ORDER DENYING MOTION TO
WITHDRAW THE REFERENCE
RALPH VACCARO,
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United States District Court
For the Northern District of California
13-54338 ASW
13-05145 ASW
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Plaintiff,
v.
LONG BEACH MORTGAGE COMPANY;
SELECT PORTFOLIO SERVICING, INC.;
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendants.
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________________________________/
Defendants Select Portfolio Servicing, Inc. and Deutsche Bank
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National Trust Company have filed a motion to withdraw the
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reference to the bankruptcy court for this adversary proceeding.
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Pro se Plaintiff and Debtor Ralph Vaccaro did not file a response
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to the motion to withdraw.
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Defendants and the record in the bankruptcy case, the Court DENIES
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the motion to withdraw the reference.
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Having considered the papers filed by
BACKGROUND
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On August 13, 2013, Debtor filed a voluntary Chapter 13
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Petition.
Defendant Deutsche Bank National Trust Company filed a
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secured claim in the amount of $1,028,419.69.
On October 18,
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2013, Debtor filed an adversary proceeding against Long Beach
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Mortgage Company, Select Portfolio Servicing, Inc., and Deutsche
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Bank National Trust Company.
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proceeding, Debtor seeks to enjoin foreclosure on his home, on
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which Defendant Deutsche Bank holds a deed of trust.
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alleges that Defendants “broke predatory lending laws and Truth in
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In his complaint in the adversary
Debtor
Lending Act” and seeks damages for violation of the California
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Consumers Legal Remedies Act, Cal. Civil Code §§ 1750, et seq.
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Bankruptcy Court 13-54338, Docket No. 1 at ¶ 8.
DISCUSSION
United States District Court
For the Northern District of California
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Title 28 U.S.C. § 157 classifies matters in bankruptcy cases
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as either “‘core proceedings,’ in which the bankruptcy court ‘may
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enter appropriate orders and judgments,’ or ‘non-core
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proceedings,’ which the court may hear but for which it may only
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submit proposed findings of fact and conclusions of law to the
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district court for de novo review.”
Security Farms v. Int'l Bhd.
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of Teamsters, 124 F.3d 999, 1008 (9th Cir. 1997) (quoting 28
U.S.C. § 157).
Claims “arising under” or “arising in” Title 11 of the United
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States Code are core proceedings.
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F.3d 1431, 1435 (9th Cir. 1995).
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In re Harris Pine Mills, 44
A claim arises under Title 11 if
it involves “a cause of action created or determined by a
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statutory provision of Title 11,” while a claim arises in Title 11
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if it is an administrative matter that arises only in bankruptcy
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cases.
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1987)).
Id. (quoting In re Wood, 825 F.2d 90, 96-97 (5th Cir.
“If the proceeding does not invoke a substantive right
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created by the federal bankruptcy law and is one that could exist
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outside of bankruptcy it is not a core proceeding.”
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In re Wood, 825 F.2d at 97).
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withdrawal [of the reference to the bankruptcy court] in cases
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requiring material consideration of non-bankruptcy federal law.”
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Id. (quoting
“Section 157 . . . mandates
Security Farms, 124 F.3d at 1008 (citing 28 U.S.C. § 157(d)).
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“The district court may withdraw, in whole or in part, any
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case or proceeding referred under [§ 157], on its own motion or on
United States District Court
For the Northern District of California
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timely motion of any party, for cause shown.”
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“In determining whether cause exists, a district court should
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consider the efficient use of judicial resources, delay and costs
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to the parties, uniformity of bankruptcy administration, the
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28 U.S.C. § 157(d).
prevention of forum shopping, and other related factors.”
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Security Farms, 124 F.3d at 1008 (citing In re Orion Pictures
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Corp., 4 F.3d 1095, 1101 (2nd Cir. 1993)).
“A district court
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considering whether to withdraw the reference should first
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evaluate whether the claim is core or non-core, since it is upon
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this issue that questions of efficiency and uniformity will turn.”
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In re Orion Pictures Corp., 4 F.3d at 1101.
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The claims raised by Debtor in the adversary proceeding are
not core claims.
Rather, Debtor asserts a claim under
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California’s Consumer Legal Remedies Act, and cites other
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California law and the federal Truth in Lending Act.
None of
these claims depend on bankruptcy laws, and any of them could
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proceed in another court.
Accordingly, the Court finds that
Debtor’s claims are not core issues.
Defendants argue that the efficient use of judicial resources
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supports a finding of cause because the bankruptcy court can only
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render a final judgment on non-core proceedings if both parties
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consent.
28 U.S.C. § 157(c).
Defendants assert that Debtor does
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not consent to entry of a final order of judgment by the
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bankruptcy court.
However, Defendants’ exhibit states that Debtor
United States District Court
For the Northern District of California
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“does consent to entry of a final order of judgment by bankruptcy
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court.”
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(emphasis added).
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consent to entry of judgment by the bankruptcy court.
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Defendants’ Request for Judicial Notice, Exhibit G at 3
Defendants do not state that they do not
Accordingly, this factor does not weigh in favor of a finding of
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cause to withdraw the reference.
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Defendants also argue that the factor of delay and costs to
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the parties favors withdrawal because the case was recently filed
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and Defendants have not yet been served with the complaint.
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Accordingly, Defendants argue that proceeding in this Court will
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not result in any undue delay or costs.
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any additional delay or cost to proceeding in this Court,
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While there might not be
Defendants also have not shown that there would be any delay or
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cost to proceeding in the bankruptcy court.
This factor does not
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weigh in favor of a finding of cause to withdraw the reference.
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The next factor is uniformity of bankruptcy administration.
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This factor does not weigh in favor of a finding of cause to
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withdraw the reference.
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Finally, Defendants argue, “because the district court will
be involved in this case regardless of whether the reference is
withdrawn, there is no forum shopping.”
Defendants’ Motion at 6.
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However, this argument is based on Defendants’ erroneous
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contention that Debtor does not consent to entry of judgment by
United States District Court
For the Northern District of California
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the bankruptcy court.
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a finding of cause to withdraw the reference.
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This factor also does not weigh in favor of
The Court finds that Plaintiff’s claims are not core claims.
However, none of the factors to be considered when determining
whether cause exists to withdraw the reference weigh in favor of
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withdrawal of the reference.
Accordingly, the Court DENIES the
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motion to withdraw the reference.
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IT IS SO ORDERED.
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Dated:
2/27/2014
CLAUDIA WILKEN
United States District Judge
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