Moyer v. Livingston

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATION 1 granting Plaintiff's motion for default; the Clerk of Court shall enter Judgment ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re:
BANKRUPTCY CASE NO. 10-13202
RICHARD J. SUTTON,
d/b/a The Tool Guy,
Debtor.
_____________________________/
JEFF. A. MOYER,
Plaintiff,

ADVERSARY PROCEEDING NO. 11-80284

v.

DISTRICT COURT CASE NO. 1:12-CV-627

JAMES LIVINGSTON,

HON. ROBERT J. JONKER

Defendant.
_____________________________/
ORDER
This case comes before the Court on Report and Recommendation from the Bankruptcy
Court for the Western District of Michigan (docket # 1). Plaintiff, Jeff. A. Moyer, the Chapter 7
Trustee in this matter, filed a complaint to recover an account receivable due Debtor and seeking a
money judgment in the amount of $1,964.94, together with costs and attorney fees of $ 750.00, for
a total judgment of $2,714.94. (docket # 1-1, at 2 (citing 11 U.S.C. § 542(b).) Defendant failed to
answer the complaint, and Plaintiff subsequently filed a motion for entry of a default judgment
against Defendant. (Id.) The Bankruptcy Court held a hearing on November 3, 2011, and again on
January 5, 2012, to address Plaintiff’s motion, but Defendant did not appear. (Id.) The Bankruptcy
Court’s Report and Recommendation followed. (Id.)
In its Report and Recommendation, the Bankruptcy Court concluded that default judgment

against Defendant was appropriate. The Bankruptcy Court declined to enter final judgment in this
matter, however, because it believed it did not have constitutional authority to enter a final judgment
in this matter and therefore submitted its Report and Recommendation to this Court for the entry of
judgment. Id. (citing Moyer v. Koloseik (In re Sutton), ___ B.R. ___, 2012 WL 1605591 (Bankr.
W.D. Mich. 2012) and Meoli v. Huntington Nat’l Bank (In re Teleservices Group, Inc.), 456 B.R.
318 (Bankr. W.D. Mich. 2011).
After reviewing the Bankruptcy Court’s Report and Recommendation and the record below,
the Court grants Plaintiff’s motion for default and enters a money judgment in favor of Plaintiff
against Defendant in the amount of $2,714.94 as recommended by the Bankruptcy Court. While the
Court acknowledges the uncertainty Stern v. Marshall, ___ U.S. ___, 131 S. Ct. 2594 (2011), created
regarding the constitutional authority of bankruptcy courts to enter final judgment in certain
proceedings, the Court does not believe Stern affects the Bankruptcy Court’s authority to enter a
default judgment in this action. However, it is undisputed the Court has jurisdiction to enter
judgment in this matter, and the Bankruptcy Court’s reference of the matter to the Court does not
constitute reversible error. Cf. In re Burkman Supply, Inc., 217 B.R. 223, 223 (W.D. Mich. 1998)
(“[T]he fact that the bankruptcy judge in this matter took the additional step and submitted this
matter to the Court by way of a report and recommendation does not constitute reversible error.”).
Therefore, in order to resolve this matter in an expeditious, efficient, and cost-effective manner, the
Court adopts the Bankruptcy Court’s recommendation to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
The Clerk of Court shall enter Judgment.

Dated:

July 23, 2012

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE