In re: Ralph Dominic Vaccaro

Filing 8

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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 In re: No. C 13-5424 CW 5 RALPH DOMINIC VACCARO, Bk. Nos. 6 Debtor. 7 ________________________________/ 8 ORDER DENYING MOTION TO WITHDRAW THE REFERENCE RALPH VACCARO, 9 10 United States District Court For the Northern District of California 13-54338 ASW 13-05145 ASW 11 12 13 Plaintiff, v. LONG BEACH MORTGAGE COMPANY; SELECT PORTFOLIO SERVICING, INC.; DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendants. 14 15 ________________________________/ Defendants Select Portfolio Servicing, Inc. and Deutsche Bank 16 17 National Trust Company have filed a motion to withdraw the 18 reference to the bankruptcy court for this adversary proceeding. 19 Pro se Plaintiff and Debtor Ralph Vaccaro did not file a response 20 to the motion to withdraw. 21 Defendants and the record in the bankruptcy case, the Court DENIES 22 the motion to withdraw the reference. 23 Having considered the papers filed by BACKGROUND 24 On August 13, 2013, Debtor filed a voluntary Chapter 13 25 26 Petition. Defendant Deutsche Bank National Trust Company filed a 27 secured claim in the amount of $1,028,419.69. On October 18, 28 2013, Debtor filed an adversary proceeding against Long Beach 1 Mortgage Company, Select Portfolio Servicing, Inc., and Deutsche 2 Bank National Trust Company. 3 proceeding, Debtor seeks to enjoin foreclosure on his home, on 4 which Defendant Deutsche Bank holds a deed of trust. 5 alleges that Defendants “broke predatory lending laws and Truth in 6 In his complaint in the adversary Debtor Lending Act” and seeks damages for violation of the California 7 Consumers Legal Remedies Act, Cal. Civil Code §§ 1750, et seq. 8 9 Bankruptcy Court 13-54338, Docket No. 1 at ¶ 8. DISCUSSION United States District Court For the Northern District of California 10 11 Title 28 U.S.C. § 157 classifies matters in bankruptcy cases 12 as either “‘core proceedings,’ in which the bankruptcy court ‘may 13 enter appropriate orders and judgments,’ or ‘non-core 14 proceedings,’ which the court may hear but for which it may only 15 submit proposed findings of fact and conclusions of law to the 16 district court for de novo review.” Security Farms v. Int'l Bhd. 17 18 19 20 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 21 States Code are core proceedings. 22 F.3d 1431, 1435 (9th Cir. 1995). 23 In re Harris Pine Mills, 44 A claim arises under Title 11 if it involves “a cause of action created or determined by a 24 statutory provision of Title 11,” while a claim arises in Title 11 25 26 if it is an administrative matter that arises only in bankruptcy 27 cases. 28 1987)). Id. (quoting In re Wood, 825 F.2d 90, 96-97 (5th Cir. “If the proceeding does not invoke a substantive right 2 1 created by the federal bankruptcy law and is one that could exist 2 outside of bankruptcy it is not a core proceeding.” 3 In re Wood, 825 F.2d at 97). 4 withdrawal [of the reference to the bankruptcy court] in cases 5 requiring material consideration of non-bankruptcy federal law.” 6 Id. (quoting “Section 157 . . . mandates Security Farms, 124 F.3d at 1008 (citing 28 U.S.C. § 157(d)). 7 “The district court may withdraw, in whole or in part, any 8 9 case or proceeding referred under [§ 157], on its own motion or on United States District Court For the Northern District of California 10 timely motion of any party, for cause shown.” 11 “In determining whether cause exists, a district court should 12 consider the efficient use of judicial resources, delay and costs 13 to the parties, uniformity of bankruptcy administration, the 14 28 U.S.C. § 157(d). prevention of forum shopping, and other related factors.” 15 Security Farms, 124 F.3d at 1008 (citing In re Orion Pictures 16 Corp., 4 F.3d 1095, 1101 (2nd Cir. 1993)). “A district court 17 18 considering whether to withdraw the reference should first 19 evaluate whether the claim is core or non-core, since it is upon 20 this issue that questions of efficiency and uniformity will turn.” 21 In re Orion Pictures Corp., 4 F.3d at 1101. 22 23 The claims raised by Debtor in the adversary proceeding are not core claims. Rather, Debtor asserts a claim under 24 California’s Consumer Legal Remedies Act, and cites other 25 26 27 California law and the federal Truth in Lending Act. None of these claims depend on bankruptcy laws, and any of them could 28 3 1 2 3 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 4 supports a finding of cause because the bankruptcy court can only 5 render a final judgment on non-core proceedings if both parties 6 consent. 28 U.S.C. § 157(c). Defendants assert that Debtor does 7 not consent to entry of a final order of judgment by the 8 9 bankruptcy court. However, Defendants’ exhibit states that Debtor United States District Court For the Northern District of California 10 “does consent to entry of a final order of judgment by bankruptcy 11 court.” 12 (emphasis added). 13 consent to entry of judgment by the bankruptcy court. 14 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 15 cause to withdraw the reference. 16 Defendants also argue that the factor of delay and costs to 17 18 the parties favors withdrawal because the case was recently filed 19 and Defendants have not yet been served with the complaint. 20 Accordingly, Defendants argue that proceeding in this Court will 21 not result in any undue delay or costs. 22 any additional delay or cost to proceeding in this Court, 23 While there might not be Defendants also have not shown that there would be any delay or 24 cost to proceeding in the bankruptcy court. This factor does not 25 26 weigh in favor of a finding of cause to withdraw the reference. 27 28 4 1 The next factor is uniformity of bankruptcy administration. 2 This factor does not weigh in favor of a finding of cause to 3 withdraw the reference. 4 5 6 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. 7 However, this argument is based on Defendants’ erroneous 8 9 contention that Debtor does not consent to entry of judgment by United States District Court For the Northern District of California 10 the bankruptcy court. 11 a finding of cause to withdraw the reference. 12 13 14 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 15 withdrawal of the reference. Accordingly, the Court DENIES the 16 motion to withdraw the reference. 17 18 IT IS SO ORDERED. 19 20 21 Dated: 2/27/2014 CLAUDIA WILKEN United States District Judge 22 23 24 25 26 27 28 5

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