Eric Thomas Bolin and Laura Corrine Bolin

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In re: 	ERIC B OLIN
LAURA B OLIN,
Debtors
Case No. 	05-40424
Judge Waldron
Chapter 7
DECISION ON ORDER
DETERMINING ABSTENTION
DATED AT DAYTON, OHIO this 27th Day of January, 2006:
Pending before the Court are the Debtors’ Motion For Lien Avoidance Under 11
U.S.C. § 506(d) (Doc. 18) and the Creditors Equity Trust Company and Arthur D.
Paradise’s Memorandum Opposing Debtors’ Motion for Lien Avoidance (Doc. 21).
Upon review of these filings, the Court entered an Order Fixing Filing Dates
Regarding Abstention (Doc. 23) which established January 17, 2006 as the date for the
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: January 27, 2006
____________________________________________________________
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parties to file memoranda containing arguments and citations of authority in support of
their positions on the issue of abstention.
Thereafter, 	only 	counsel 	for 	the 	Debtors 	filed 	a 	response. 	See 	Debtors’
Memorandum In Opposition To Abstention On Debtors’ Motion For Lien Avoidance
(Doc. 26).
This Court has previously considered the issue of abstention.
Permissive abstention authorized by § 1334(c)(1) permits a bankruptcy
court to exercise its discretion to abstain in favor of another court in certain
circumstances. Specifically, section 1334(c)(1) provides as follows:
28 U.S.C. § 1334 refers to the United States district courts
but, “the section refers to the bankruptcy court when the
district 	court 	has 	referred 	a 	case 	or 	proceeding 	to 	the
bankruptcy court.” See In re Cash Currency Exchange, Inc.,
37 B.R. 617 (Bankr.D.C.Ill.1994) aff'd762 F.2d 542, cert.
denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985).
Nothing in this section prevents a district court in the interest of justice, or
in the interest of comity with State courts or respect for State law, from
abstaining from hearing a particular proceeding arising under title 11 or
arising in or related to a case under title 11.
The decision whether to abstain is within the sound discretion of the
bankruptcy judge. Carver v. Carver, 954 F.2d 1573 (11th Cir.1992), cert.
denied, 506 U.S. 986, 113 S.Ct. 496, 121 L.Ed.2d 434 (1992). Permissive
abstention is not limited to non-core matters, but is applicable in core
proceedings, including a complaint to determine dischargeability of a debt,
In re Mitchell, 132 B.R. 585 (Bankr.S.D.Ind.1991), and can be raised by a
bankruptcy court on its own motion so long as the parties are given an
opportunity to be heard. In re Costa, 172 B.R. 954 (Bankr.E.D.Cal.1994).
In re Tremaine, 188 B.R. 380, 384 (Bankr. S.D. Ohio 1995).
Additionally, this Court has noted the factors that assist a court in determining
whether discretionary abstention is appropriate.
The decision to abstain or not is aided by an analysis of all relevant
factors, including a non-exclusive list of thirteen (13) decisional criteria set
forth by this court in Nationwide Roofing & Sheet Metal, Inc. v. Cincinnati
Ins. Co. (In re Nationwide Roofing & Sheet Metal, Inc.), 130 B.R. 768
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(Bankr.S.D.Ohio 1991). Specifically, the following factors were identified:
1) the effect or lack of effect on the efficient administration of the estate if
a court abstains; 2) the extent to which state law issues predominate over
bankruptcy issues; 3) the difficulty or unsettled nature of the applicable
state law; 4) the presence of a related proceeding commenced in state
court or other non-bankruptcy court; 5) the jurisdictional basis, if any, other
than 28 U.S.C. § 1334; 6) the degree of relatedness or remoteness of the
proceeding to the main bankruptcy case; 7) the substance rather than
form of an asserted “core” proceeding; 8) the feasibility of severing state
law claims from core bankruptcy matters to allow judgments to be entered
in state court with enforcement left to the bankruptcy court; 9) the burden
of this court's docket; 10) the likelihood that the commencement of the
proceeding in bankruptcy court involves forum shopping by one of the
parties; 11) the existence of a right to a jury trial; 12) the presence in the
proceeding of nondebtor parties; and, 13) any unusual or other significant
factors. Nationwide, 130 B.R. at 780 (citations omitted).
This non-exclusive list does not require a mechanical application of each
factor, but provides a starting point for a permissive abstention analysis.
Id at 384-85.
Although counsel for the Debtors analyzed these factors in his Memoranda (Doc.
26), the Court notes there are several significant factors which persuade the Court that
discretionary abstention is appropriate in this case.
First, it is essential to recognize that this is a Chapter 7 case and, on October 27,
2005, the Chapter 7 Trustee, after conducting the Meeting of Creditors, completed a
Report of No Distribution, in which he reported that there are no assets available to
administer for the benefit of Creditors in this estate.
While 	this 	determination 	by 	the 	Trustee, 	standing 	alone, 	would 	not 	be 	an
outcome determinative factor, since the Debtors have additional rights and benefits
available to them pursuant to provisions of the Bankruptcy Code, it is clear that one of
the central concerns of a bankruptcy proceeding is notably absent. 	That is, whatever
the result of the litigation between the Debtors and this particular Creditor, it will have no
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impact on the future administration of this estate for the benefit of any creditors. 	An
additional factor is that there is little if any “bankruptcy” law involved in this dispute;
rather, the Debtors assert, pursuant to applicable non-bankruptcy law, both state and
federal, that the Debtors are entitled to relief. 	In such circumstances, non-bankruptcy
courts are both more competent and better able to determine such issues.
It must be recognized that there are certain unique judicial determinations that
only the bankruptcy court can render. These are most obvious in connection with
reorganization cases under chapters other than Chapter 7. 	As a result of the existing
case load in this court (9,000+ case and additional adversary proceedings), this Court’s
judicial time must be directed primarily to matters which can only be determined by the
bankruptcy court and not by other courts.
In the circumstances of this case, including the fact that the result of this dispute
will only involve this Creditor and the Debtors and will have no impact on the distribution
of assets to creditors in this case, the existence of applicable non-bankruptcy law
asserted as a basis for the Debtors’ relief, the availability of other courts possessing the
familiarity and greater ability to determine such issues and the requirement that this
Court primarily devote its judicial resources to bankruptcy issues, which can only be
determined by the bankruptcy court, the Court determines that it is appropriate to
exercise discretionary abstention and to abstain from all issues presented by the
Debtors’ Motion For Lien Avoidance Under 11 U.S.C. § 506(d) (Doc. 18) and the
Creditors Equity Trust Company and Arthur D. Paradise’s Memorandum Opposing
Debtors’ Motion for Lien Avoidance (Doc. 21).
An order in accordance with this decision is simultaneously entered.
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SO ORDERED.
c:
Eric Thomas Bolin and Laura Corrine Bolin, 5270 Upperton Drive, Miamisburg, Ohio
45342 (Debtors)
Thomas G. Eagle, Esq., 3386 North State Route 123, Lebanon, Ohio 45036 (Atty. for
the Debtors)
Martin A. Beyer, Esq., 1900 Kettering Tower, Dayton, Ohio 45423 (Atty. for Equity Trust
Company)
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