Nicholson v. Hyundai Capital America, Inc. et al
Filing
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MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 5/2/2017 denying 1 Motion to Withdraw Reference cc: Counsel, USBC LV(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00208-TBR
CHERI NICHOLSON
DEBTOR/PLAINTIFF
v.
HYUNDAI CAPITAL AMERICA, INC., et al.
DEFENDANTS
Memorandum Opinion and Order
This matter is before the Court upon Debtor/Plaintiff Cheri Nicholson’s
motion to withdraw the Court’s general referral of Count 5 of her complaint to
Bankruptcy Court. [DN 1.] Defendant Hyundai Capital America, Inc. responded,
[DN 2], and the time for filing a reply has passed.
This matter is ripe for
adjudication.
Nicholson is currently in Chapter 13 bankruptcy. She began an adversarial
proceeding against Hyundai and Relic LLC, alleging that they engaged in certain
wrongful acts during the process of repossessing her vehicle. Among other things,
Nicholson claims in Count 5 that Hyundai violated the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227.
[DN 1-3 at 15.]
Hyundai moved in
bankruptcy to dismiss Count 5, arguing that the court had no jurisdiction to
entertain Nicholson’s TCPA claim because it is not a “core proceeding” under Title
11. [DN 1-3 at 17.]
Nicholson now moves this Court to withdraw its referral of Count 5 to
Bankruptcy Court. She states that she “would like to proceed with Count 5 in
Federal District Court, rather than litigate whether the bankruptcy court has
jurisdiction or not.” [DN 1 at 1.] Hyundai opposes Nicholson’s motion, stating that
Nicholson has stipulated to bankruptcy jurisdiction, so her motion is “superfluous.”
[DN 2 at 1.] Further, Hyundai says that the parties have entered into an agreed
order tolling the statute of limitations should the Bankruptcy Court dismiss Count
5 of her complaint. [Id.]
The Court agrees with Hyundai that the Bankruptcy Court should have the
first bite at the apple. The Bankruptcy Court’s jurisdiction is set out in 28 U.S.C. §
157.
District courts are permitted to refer cases arising under title 11 to
bankruptcy, and “[b]ankruptcy 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.” Id. § 157(b)(1). Further, the statute provides that “[t]he bankruptcy
judge shall determine, on the judge's own motion or on timely motion of a party,
whether a proceeding is a core proceeding under this subsection or is a proceeding
that is otherwise related to a case under title 11.” Id. § 157(b)(3). In this case,
subsection (b)(3) makes clear that the bankruptcy judge has jurisdiction in the first
instance to determine whether a matter is a “core proceeding” such that it may be
heard in bankruptcy. See Wellness Int’l Network, Ltd. v. Sharif, ___ U.S. ___, 135 S.
Ct. 1932 (2015) (assuming without question that bankruptcy court determines
whether or not a proceeding is “core”); In re Boyer, 93 B.R. 313, 318 (Bankr.
N.D.N.Y. 1988) (same)
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It is true that “[t]he district court may withdraw, in whole or in part, any
case or proceeding referred under this section, on its own motion or on timely
motion of any party, for cause shown.” Id. § 157(d). But here, Nicholson makes no
showing of cause beyond her own inclination as to why Count 5 should be
withdrawn.
Allowing the Bankruptcy Court to determine whether Nicholson’s
TCPA claim is a “core proceeding” should prove more efficient and will avoid
duplicitous litigation. Additionally, Nicholson does not contest Hyundai’s assertion
that she has already stipulated to Bankruptcy Court jurisdiction. While it might be
within this Court’s power to withdraw its referral of Count 5, it sees no reason to do
so at this time.
Order
For the foregoing reasons, IT IS HEREBY ORDERED:
Debtor/Plaintiff Cheri Nicholson’s motion to withdraw referral [DN 1] is
DENIED. The Clerk is directed to close the above-captioned case.
May 2, 2017
CC: Counsel of Record
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