Priority Mail: USPS Consistently Loses Time Sensitive Federal Court Filings for Weeks, Not Days

SNEED, Senior Circuit Judge:

Appellant Thera Querner challenges a district court judgment affirming a bankruptcy court’s division of the probate estate of deceased debtor Jimmie L. Querner, Sr., after the close of Chapter 13 proceedings.

Because the bankruptcy court abused its discretion in retaining jurisdiction over the probate estate, we reverse and remand.

I. [2] FACTS AND PRIOR PROCEEDINGS

As daughter and legal guardian of Jimmie L. Querner, Sr., Thera Querner (Thera) filed for bankruptcy on her father’s behalf in March 1989.

Querner, Sr., died before the reorganization was complete.

Pursuant to his will, the Probate Court of Bexar County, Texas, appointed Thera and her brother, Jimmie L. Querner, Jr., (Jimmie) co-independent executors of their father’s estate.

Meanwhile, the bankruptcy court proceeded with the reorganization of Querner, Sr.’s bankruptcy estate.

In January 1990, the bankruptcy court confirmed a Chapter 13 Plan.

In March the court established dispute resolution procedures and appointed an intermediary to resolve disputes between Jimmie and Thera regarding their duties as executors.

Finally, on September 27, 1990, the bankruptcy court entered the Order to Close Chapter 13, subject to the bankruptcy Trustee completing certain payments and filing a final report.

Bankruptcy Rule 1016 gives a bankruptcy court discretion to dismiss or continue a bankruptcy case after the death of a debtor.

Bankr. R. 1016.

Despite the entry of the Order to Close the bankruptcy proceeding, the bankruptcy court replaced the original intermediary and appointed a substitute intermediary to “expeditiously conclude the probate aspects” of the case on October 2, 1990.

The Trustee filed his Final Report and Account the following day.

Nonetheless, on November 7, more than a month after the Order to Close the Chapter 13 case, the court entered an order granting Jimmie’s motion to retain jurisdiction for a limited purpose.

On December 17, 1990, in an effort to quell continuing disputes between the Querners, the court sua sponte expanded the substitute intermediary’s authority, giving him broad power to make recommendations concerning the expeditious closing of the probate estate and the disposition and division of assets.

The primary point of dispute between Thera and Jimmie was the partition of the Q Bar Q Ranch (the Q Bar Q), a 900-acre ranch in Gillespie and Kerr counties in Texas.

In a report concerning the partition of the Q Bar Q, the substitute intermediary made two proposals, one of which he favored over the other.

In an effort to evaluate the two proposals,  the bankruptcy judge, together with two U.S. marshals, visited the Q Bar Q.

Ultimately, the judge accepted the proposal that the substitute intermediary did not favor.

On August 16, 1991, the bankruptcy court entered an order dividing the property and relieving the substitute intermediary of further duties.

Unhappy with the court’s division, Thera filed a motion for new trial and a motion to dismiss for lack of subject matter jurisdiction.

The bankruptcy court subsequently modified its August 16 order dividing the property: the court denied Thera’s motion for a new trial, granted additional fees to both the substitute intermediary and his attorney, and granted additional fees to Jimmie’s attorney.

Thera appealed to the United States District Court for the Western Division of Texas, San Antonio Division.

The district court affirmed the bankruptcy court’s order.

From this judgment and order, Thera appeals.

II. [8] DISCUSSION

The only issue on appeal is whether the bankruptcy court properly retained jurisdiction over the probate assets of the deceased debtor after the close of the Chapter 13 case.

Because the bankruptcy court abused its discretion in retaining jurisdiction, we reverse and remand this case to the district court with instructions.

A.

Bankruptcy courts are courts of limited jurisdiction, whose scope is statutorily defined. In re Majestic Energy Corp., 835 F.2d 87, 89 (5th Cir. 1988).

Where a federal court lacks jurisdiction, its decisions, opinions, and orders are void. Id.

A district court has original, but not exclusive, jurisdiction of matters “arising under,” “arising in,” or “related to” a case under Title 11. 28 U.S.C. § 1334(b).

Because section 1334(b) defines jurisdiction conjunctively, a district court has jurisdiction over the subject matter if it is at least related to the underlying bankruptcy.

835 F.2d at 90.

A matter is “related to” a case under Title II if the outcome “could conceivably have any effect on the estate being administered in bankruptcy.”

In re Wood, 825 F.2d 90, 93 (5th Cir. 1987).

B.

In the instant case, the bankruptcy court clearly had jurisdiction over matters affecting the deceased debtor’s estate while the Chapter 13 case was proceeding.

The court had discretion under Bankruptcy Rule 1016 to continue the Chapter 13 case after the death of the debtor, and it had exclusive jurisdiction over the debtor’s property during the pendency of those proceedings.

Because ongoing disputes during active reorganization of the debtor’s estate could conceivably have affected the handling and administration of the bankruptcy estate, the court’s initial appointment of an intermediary to resolve disputes over the disposition of the deceased debtor’s assets was “related to” the Chapter 13 case.

C.

The issue whether a bankruptcy court may retain jurisdiction over related matters after the underlying bankruptcy case is closed is a question of first impression in this circuit.

We hold, in accord with the Third, Ninth, and Eleventh Circuits, that as a general rule the dismissal or closing of a bankruptcy case should result in the dismissal of related proceedings.

See In re Carraher, 971 F.2d 327 (9th Cir. 1992); In re Morris, 950 F.2d 1531 (11th Cir. 1992); In re Smith, 866 F.2d 576 (3d Cir. 1989).

The general rule favors dismissal because the court’s jurisdiction over the related proceedings depends upon the nexus between the underlying bankruptcy case and the related proceeding.

Smith, 866 F.2d at 580.

D.

Notwithstanding the general rule, however, nothing in the statute governing bankruptcy jurisdiction mandates automatic dismissal of related proceedings upon termination of the underlying bankruptcy case.

See 11 U.S.C. § 349 (listing the effects of  dismissal of the underlying bankruptcy case); Morris, 950 F.2d at 1534.

The decision to retain jurisdiction over related proceedings rests within the sound discretion of the bankruptcy court.

Absent abuse of that discretion, we will not reverse the bankruptcy court’s decision.

See id. In determining whether the bankruptcy court abused its discretion by retaining jurisdiction over related proceedings after dismissal of the underlying bankruptcy case, other circuits have analogized to cases concerning the authority of federal district courts to retain pendent state claims after federal claims have been dismissed.

Carraher, 971 F.2d at 328; Smith, 866 F.2d at 580.

The Supreme Court has held that a federal district court must consider four factors in deciding whether to retain jurisdiction over pendent state claims after the dismissal of federal claims: economy, convenience, fairness, and comity.

See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 353, 108 S.Ct. 614, 620-21, 98 L.Ed.2d 720 (1988).

E.

Applying these factors here, we find that the bankruptcy court abused its discretion.

The record indicates that judicial economy did not favor retention of jurisdiction at the time the underlying bankruptcy case terminated.

Although the bankruptcy court was familiar with the assets of the bankruptcy estate, the bankruptcy judge had no special knowledge regarding the disputes between Thera and Jimmie.

Other than the initial appointment of an intermediary, the bankruptcy judge expended few judicial resources on the probable proceedings prior to the closure of the Chapter 13 case.

It was only after the bankruptcy judge decided to retain jurisdiction over the probate estate that he appointed a substitute intermediary, heard proposals for the division of the Q Bar Q, and ultimately visited the ranch. Cf.

In re Stardust Inn, Inc., 70 B.R. 888, 891 (Bankr. E.D.Pa. 1987)

(retaining jurisdiction where the related matter had “already been fully tried with all parties simply awaiting the decision” of the court).

Moreover, the resolution of the disputes between Thera and Jimmie and the subsequent division of the probate estate could have had no possible effect on the bankruptcy case.

Upon confirmation of the Chapter 13 Plan, the bankruptcy estate revested in the debtor, and the creditors were entitled to no proceeds out of the probate estate.

No motion was made to reopen the estate.

The efforts of the substitute intermediary are not necessarily lost if the assets are divided by a probate court rather than a bankruptcy court.

The probate court can still make use of the substitute intermediary’s proposals in dividing the probate estate.

Section 1327 provides that “[e]xcept as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.”

11 U.S.C. § 1327.

Appellee’s contention that the bankruptcy court properly retained jurisdiction to preserve a res in its custody is without merit.

The bankruptcy court did not have constructive or actual possession of the probate assets after the Chapter 13 case closed in September of 1990.

Likewise, any inconvenience to Thera and Jimmie resulting from the bankruptcy court’s refusal to retain jurisdiction would have been slight.

Prior to the closing of the bankruptcy case, the probate court had admitted Querner, Sr.’s will to probate, appointed Thera and Jimmie co-independent executors, and issued letters testamentary.

The probate case never was removed from the probate court.

As to fairness, there is no evidence that remanding the proceedings to the probate court would have resulted in undue delay.

Furthermore, the probate court presumably had greater expertise in probate matters than did the bankruptcy court.

Finally, as a matter of comity, the bankruptcy court should have left the division of the deceased debtor’s probate estate to the probate court.

Considerations of judicial economy, convenience, fairness, and comity do not support the bankruptcy court’s retention of jurisdiction over the probate estate.

 Therefore, the  bankruptcy court abused its discretion in retaining jurisdiction over the probate estate after the close of the underlying bankruptcy case.

Consequently, we reverse the district court order and instruct the district court to direct the bankruptcy court to transfer the assets of the probate estate to the Probate Court of Bexar County, Texas.

The transferred assets are to be calculated as the amount of the estate as it existed on September 27, 1990, less costs necessary to preserve the assets since that date, but exclusive of any costs incurred in the effort to resolve disputes between Thera and Jimmie Querner, Jr., that continued after the closing of the bankruptcy estate.

The facts of the instant case are distinguishable from those of Smith, Morris, and Carraher.

In those cases, judicial economy and convenience favored retention of jurisdiction, where the related matters had been pending for four or more years at the time the underlying bankruptcy cases were dismissed.

In re Carraher, 971 F.2d 327 (9th Cir. 1992) (six years);

In re Morris, 950 F.2d 1531 (11th Cir. 1992) (six years);

In re Smith, 866 F.2d 576 (3d Cir. 1989) (four years).

Here, a little over a year elapsed between the time of the debtor’s death and the close of Chapter 13 proceedings.

REVERSED and REMANDED.

Brooks v. Rosebar (In re Rosebar), No. 20-00006, at *3 (Bankr. D.D.C. Oct. 20, 2020)

(“However, the dismissal of the main bankruptcy case did not terminate the adversary proceeding. Porges v. Gruntal Co. (In re Porges), 44 F.3d 159, 162 (2d Cir. 1995) (“[N]othing in the Bankruptcy Code requires a bankruptcy court to dismiss related proceedings automatically following the termination of the underlying case.”).”)

In re Porges, 44 F.3d 159, 162 (2d Cir. 1995)

(“This issue presents a question of first impression in this Circuit. We join several other circuits in adopting the general rule that related proceedings ordinarily should be dismissed following the termination of the underlying bankruptcy case. This general rule favors dismissal because a bankruptcy court’s jurisdiction over such related proceedings depends on the proceedings’ nexus to the underlying bankruptcy case.

See In re Querner, 7 F.3d 1199, 1201-02 (5th Cir. 1993);

In re Morris, 950 F.2d 1531, 1533 (11th Cir. 1992); In re Smith, 866 F.2d 576, 580 (3d Cir. 1989).

Notwithstanding this general rule, however, nothing in the Bankruptcy Code requires a bankruptcy court to dismiss related proceedings automatically following the termination of the underlying case. See, e.g., In re Querner, 7 F.2d at 1201-02;

In re Carraher, 971 F.2d 327, 328 (9th Cir. 1992) (per curiam); In re Morris, 950 F.2d at 1534; In re Roma Group, 137 B.R. 148, 150 (Bankr.S.D.N.Y. 1992); In re Pocklington, 21 B.R. 199, 202 (Bankr. S.D.Cal. 1982).

Indeed, section 349 of the Bankruptcy Code authorizes bankruptcy courts to alter the normal effects of the dismissal of a bankruptcy case if cause is shown.

See 11 U.S.C. § 349 (setting forth consequences of dismissal “unless the court, for cause, orders otherwise”).

Accordingly, we hold that the dismissal of an underlying bankruptcy case does not automatically strip a federal court of jurisdiction over an adversary proceeding which was related to the bankruptcy case at the time of its commencement.

The decision whether to retain jurisdiction should be left to the sound discretion of the bankruptcy court or the district court, depending on where the adversary proceeding is pending.”)

Andover Senior Care, LLC v. Called To Care Invs. Kan. LLC (In re Andover Senior Care), No. 22-10139, at *35 n.122 (Bankr. D. Kan. Mar. 14, 2024)

(“Johnson v. Smith(In re Johnson), 575 F.3d 1079, 1083-84 (10th Cir. 2009) (though chapter 13 bankruptcy case was dismissed for debtors’ failure to make plan payments, bankruptcy court retained jurisdiction over debtors’ adversary proceeding for willful violation of the automatic stay and debtors were not required to move to reopen the case to pursue the adversary proceeding).

See also Menk v. Lapaglia (In re Menk), 241 B.R. 896, 904 (stating that there is no explicit requirement that a case be opened for a court to act in a ‘civil proceeding’ under § 1334(b)).”)

Sequatchie Mountain Creditors v. Lile (In re Detweiler), No. 09-63377, at *12 (Bankr. N.D. Ohio Feb. 16, 2017) (“Accordingly, the court will retain jurisdiction over the adversary proceeding after the dismissal of the main bankruptcy case.”)

PHH MORTGAGE CORPORATION’S MOTION FOR WITHDRAWAL OF THE REFERENCE

Defendant PHH Mortgage Corporation (“PHH”) respectfully moves to withdraw the Reference pursuant to 28 U.S.C. §157(d) and Rule 5011 of the Federal Rules of Bankruptcy Procedure, and would respectfully show the Court as follows:

I.

Basis for Withdrawal

1.                  Joanna Burke (“Plaintiff” or “Burke”) has engaged in a scorched earth campaign against her mortgagee and mortgage servicer for the past decade. Plaintiff’s campaign has included no less than four appeals to the Fifth Circuit, with each appeal being rejected.1

2.                  After recent approval to proceed with foreclosure by the Fifth Circuit, Plaintiff’s real property was posted for foreclosure.

See, Deutsche Bank Nat’l Trust Co. v. Burke, 902 F.3d

1 See: (1) Deutsche Bank National Trust Company v. Burke, 655 Fed. Appx. 251 (5th Cir. 2016); (2) Deutsche Bank National Trust Company v. Burke, 902 F.3d 548 (5th Cir. 2018); (3) Burke v. Ocwen Loan Servicing, L.L.C., 855 Fed. Appx. 180 (5th Cir. 2021); and (4) Burke v. Ocwen Loan Servicing, L.L.C., No. 22-20504, 2023 WL 6374190 (5th Cir. Apr. 25, 2023).

548 (5th Cir. 2018) (“Given nearly a decade of free living by the Burkes, there is no injustice in allowing [the] foreclosure to proceed”).

3.                  In response to the foreclosure posting, Plaintiff elected to file yet another lawsuit in state court seeking temporary relief. Plaintiff’s request for a temporary restraining order to stop the foreclosure was denied by the state court.

Thereafter, Plaintiff filed consecutive bankruptcies, both bankruptcies being dismissed for Plaintiff’s failure to comply with a Deficiency Order.

See, In Re Burke, Case No. 23-35083, In the United States Bankruptcy Court for the Southern District of Texas. [ Doc. 15].

Also, In Re Burke, Case No. 24-30885, In the United States Bankruptcy Court for the Southern District of Texas. [Doc. 24].

4.                  While the second bankruptcy was pending, PHH removed the state district court lawsuit to the United States District Court for the Southern District of Texas.

The case is pending before the federal district court as Case No. 4:24-cv-00897 (“Federal Suit”).

Also pending in that suit is PHH’s motion to have Plaintiff declared a vexatious litigant. Id. [Doc. 11].

5.                  Despite the pendency of the Federal Suit, Plaintiff brought this adversary proceeding re-asserting all of her claims already set out in the Federal Suit.

See [Doc. 1, P. 11]

(“This complaint integrates the pleadings, exhibits and order as docketed in the Removed State Case”) (emphasis added).

In addition to re-asserting herein all of her “non-core” claims, Plaintiff also advances claims in her adversary complaint that PHH violated the automatic stay when it removed Plaintiff’s state court suit to federal court as well as that PHH foreclosed on the subject real property in violation of the stay.

See [Doc. 1].2

PHH liberally construes the additional claims to be core claims, resulting in “arising under” jurisdiction.

2 No foreclosure occurred, yet Plaintiff asserts that the sale occurred without having any basis in fact. Also, PHH’s removal of Plaintiff’s state court suit was not done in violation of the automatic stay. The automatic bankruptcy stay only works to stop suits “against bankrupt debtors, not suits filed by bankrupt debtors.”

See, McMillian v. MBank Fort

6.                  Good cause warrants permissive withdrawal of the Reference because procedural and practical reasons dictate that the District Court should handle this case. 28 U.S.C. §157(d).

Every matter pending before the Court, as set out in the adversary complaint, is already pending before the District Court; withdrawal of the reference would foster the economic use of judicial resources in only having one suit advancing the same claims.

Withdrawal of the Reference would also reduce Plaintiff’s efforts at forum shopping.

Additionally, Plaintiff has made a jury demand, and her case involves both non-core issues that the Bankruptcy Court cannot finally decide. As detailed below, the statutory standard for permissive withdrawal is plainly met.

II.

Argument

7.                  The predicates for withdrawing the reference of a case to a bankruptcy court are found in 28 U.S.C. § 157(d). Section 157(d) provides:

… [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 a timely motion of any party, for cause shown.

The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.

28 U.S.C. § 157(d).

The statute contains two provisions. One sets forth a mandatory withdrawal requirement when the case requires consideration of both the Bankruptcy Code and other federal laws “regulating organizations or activities affecting interstate commerce.” Id.

The other provides for permissive withdrawal upon a showing of “cause.” Id.

As set forth below, the requirements of the permissive withdrawal provisions are met here.

Further, this motion is timely brought within

90 days of the complaint being filed in this adversary proceeding. See, In re Bankruptcy Jurisdiction, Gen. Order 2011-12 (S.D. Tex. Nov. 29, 2011).

Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993). The issue of whether PHH’s removal was proper is already briefed and pending resolution by the district court. See, Case No. 4:24-cv-00897. [Doc. 8].

8.                  A district court has discretion to withdraw a case referred to the bankruptcy court “on timely motion of any party, for cause shown.” 28 U.S.C. § 157(d).

The Fifth Circuit has held that district courts should decide “cause” for permissive withdrawal of the reference by considering a series of factors, those factors being whether:

(1) the underlying lawsuit is a non-core proceeding;

(2) uniformity in bankruptcy administration will be promoted;

(3) forum shopping and confusion will be reduced;

(4) economical use of the debtors’ and creditors’ resources will be fostered;

(5) the bankruptcy process will be expedited;

and

(6) a party has demanded a jury trial.

See, Holland Am. Co. v. Succession of Roy, 777 F.2d 992, 999 (5th Cir. 1985); In re Align Strategic Partners, LLC, 2019 Bankr. LEXIS 1906 *5, 2019 WL 2524938 (Bankr. S.D. Tex. 2019).

A.                First Factor: The Underlying Suit Contains Both Core and Non-Core Matters.

9.                  Plaintiff’s complaint in this adversary proceeding incorporates her Second Amended Complaint (the complaint on file at the time of removal) in the pending Federal Suit.

Therein, Plaintiff asserts claims for violation of the Texas Constitution, Malicious Use of Process, Conspiracy, Fraud, Intentional Infliction of Emotional Distress, Mental Anguish (as an affirmative claim), Texas Debt Collection Practices Act violations, Declaratory Relief, and Injunctive Relief.

The foregoing claims largely do not invoke substantive rights created by federal bankruptcy law and could exist outside of the bankruptcy context and constitute “non-core” claims.”

See generally, Longhorn Partners Pipeline L.P. v. KM Liquids Terminals, L.L.C, 40 B.R. 90, 96 (Bankr. S.D. Tex. 2009).

However, the complaint filed in this adversary proceeding also asserts claims against PHH that PHH violated the automatic bankruptcy stay (which it did not).

This type of claim is a “core” claim.

See In re Lopez, 2015 Bankr. LEXIS 4017, 2015 WL 7572097

(providing that claims pertaining to violations of §362 are core claims).

10.              While containing both core and non-core claims, non-core claims predominate the complaint. This factor weighs in favor of withdrawing the reference.

When analyzing this factor, the court must consider how a “bankruptcy judge’s authority … differs depending on whether the subject matter is ‘core’ or ‘non-core.’”

Lopez v. Portfolio Recovery Assocs. LLC, 2017 Bankr. LEXIS 2221 *38 (Bankr. S.D. Tex. 2017).

Specifically, bankruptcy courts are limited in power over referred matters and issues that are “non-core.” Id. §157(b).

If a proceeding is not a core proceeding, the bankruptcy judge may only submit proposed findings of fact and conclusions of law to the district court; only the district court may enter a final order, “after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.”

28 U.S.C. §157(c)(i); Vela, 2007 U.S. Dist. LEXIS 38997 at *9.

11.              Because a district court must review de novo a bankruptcy court’s findings on non- core matters, a finding that a proceeding is non-core strongly favors a withdrawal of reference.

See, Waldron v. Nat’l Union Fire Ins. Co (In re Ebaseone Corp.), Adv. No. No. 06-3197, 2006 Bankr. LEXIS 1861, *12 (Bankr. S.D. Tex. June 14, 2006).

B.                 Second Factor: Uniformity in Bankruptcy Administration Will Be Promoted.

12.              Regarding uniformity, nothing can be gained by having the Court preside over an adversary proceeding related to a bankruptcy that was dismissed within thirty days of its filing for non-compliance with Court’s Deficiency Order.

As examined by the Court in prior cases, “If the Bankruptcy Court maintains an ‘intimate familiarity’ with the case and has dedicated a large amount of time and resources to the adversary proceeding, [then] this factor weighs heavily in favor of denying the withdrawal of the reference.”

In re Doctors Hosp. 1997, L.P., 351 B.R. 813, 868 (Bankr. S.D. Tex. 2006) (internal quotes omitted).

Conversely, this factor favors withdrawal when a motion to withdraw the reference is filed shortly after a complaint and the court has not reached a significant level of familiarity with the case.

In re EbaseOne Corp.,2006 Bankr. LEXIS 1861, 2006 WL 2405732 *4 (Bankr. S.D. Tex. 2006).

Given that the adversary proceeding was only filed about forty-five days ago, with no party having yet to answer (save this motion), this factor weighs heavily in favor of the reference being withdrawn.

C.                Third Factor: Forum Shopping.

13.              PHH has the right to defend the merits of Plaintiff’s suit in the United States District Court for the Southern District of Texas. Removal was proper and much of the prior litigation between the parties has occurred within the United States District Court for the Southern District of Texas.

Through this adversary proceeding Plaintiff is attempting to do nothing more than obtain a second bite at the apple in the event the District Court rules against her on her claims.

A major consideration in favor of withdrawal of the reference is if there is an appearance of forum shopping by a party, as is the case here.

Levine v. M&A Custom Home Builder & Developer, LLC, 400 B.R. 200, 205 (S.D. Tex. 2008).

D.                Fourth Factor: Economical Use of Resources Will Be Fostered.

14.              It would be economical for PHH and Plaintiff to litigate Plaintiff’s dispute in one forum.

District Court is the most economical forum for the dispute to be resolved given the existence of non-core issues as well as Plaintiff’s jury demand.

Further, as displayed by the contents of PHH’s Motion to Declare Joanna Burke a Vexatious Litigant, Burke has elected to sue repeatedly, appeal constantly, and attempt to intervene in cases in other venues throughout the United States.

Decisions by the Bankruptcy Court as to non-core issues will most likely be appealed, and further appealed to the Fifth Circuit.

15.              Withdrawing the reference will eliminate at least one level of likely appeal – from the bankruptcy court to the district court – whereby, saving judicial resources and speeding up final resolution.

Faced with the high likelihood of eventual appeals, other courts have withdrawn the reference to avoid the extra layer of appellate review potentially arising from bankruptcy cases.

See, e.g., Abondolo v. GGR Holbrook Medford Inc., 285 B.R. 101, 113 (E.D.N.Y. 2002)

(granting a motion to withdraw the reference “because any appeal they would take of the bankruptcy court’s ruling on those motions would ultimately be presented to this Court anyway”).

PHH asserts that economy of resources weighs in favor of withdrawal of the reference.

E.                 Fifth Factor: The Bankruptcy Process Will Be Expedited.

16.              “A district court should consider the importance of the proceeding to the bankruptcy case and refuse to withdraw the reference if the withdrawal would unduly delay the administration of the bankruptcy case.”

Lopez v. Portfolio Recovery Assocs. LLC, 2017 Bankr. LEXIS 2221 *38 (Bankr. S.D. Tex. 2017);

relying on In re Doctors Hosp., 351 B.R. at 869.

As the bankruptcy has been dismissed, the withdrawal of the reference will neither expedite the bankruptcy nor hinder the bankruptcy.

As such, this factor appears to be neutral.

See, Lopez v. Portfolio Recovery Assocs. LLC, 2017 Bankr. LEXIS 2221 *42 (Bankr. S.D. Tex. 2017).

F.                 Sixth Factor: A Party Has Demanded a Jury Trial

17.              Plaintiff’s complaint demands a trial by jury.

When analyzing the jury demand factor, the Court must consider whether a jury demand is pending. Fed. R. Bankr. P. 9015 (incorporating Fed. R. Civ. P. 38).

The existence of a jury demand weighs in favor of withdrawal of the reference.

Lopez v. Portfolio Recovery Assocs. LLC, 2017 Bankr. LEXIS 2221 *43 (Bankr. S.D. Tex. 2017).

As observed by the Bankruptcy Court, “If there is a valid demand made for a jury trial and the Bankruptcy Court is unable to conduct the trial through consent, the appropriate course

of action is for the District Court to withdraw the reference so that it may conduct a jury trial.”

In re Align Strategic Partners, LLC, 2019 Bankr. LEXIS 1906 *5, 2019 WL 2524938 (Bankr. S.D. Tex. 2019). Given the foregoing, this factor weighs heavily in favor of withdrawal of the reference.

III. CONCLUSION

Based on the foregoing, the District Court should withdraw the reference of this adversary matter from the Bankruptcy Court and take Jurisdiction over this matter in its capacity as a court of original jurisdiction.

Respectfully submitted,

By:      /s/ Mark D. Hopkins

Mark D. Hopkins

State Bar No. 00793975 Shelley L. Hopkins State Bar No. 24036497

HOPKINS LAW, PLLC
2802 Flintrock Trace, Suite
B103 Austin, Texas 78738
(512) 600-4320
mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com

Counsel for
PHH MORTGAGE CORPORATION CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of June, 2024, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF filing system, and will send a true and correct copy to the following:

Joanna Burke

46 Kingwood Greens Drive
Kingwood, Texas 77339
joanna@2dobermans.com
Pro Se Plaintiff

/s/ Mark D. Hopkins
Mark D. Hopkins

LIT’s compiling a list…stay tuned for updates.

Who Owns USPS?

The United States Postal Service (USPS) is an independent establishment of the executive branch of the United States federal government.

It is not owned by any private entity or corporation.

Instead, it operates as a self-sustaining agency under the jurisdiction of the U.S. government, specifically mandated to provide postal services to all Americans, regardless of geography, at uniform price and quality.

The USPS is overseen by a Board of Governors, which is similar to a board of directors, and the Postmaster General.

– Response from ChatGPT