Bittner v. Best (In re Best)

246 B.R. 806, 1999 Bankr. LEXIS 1818
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedNovember 29, 1999
DocketBankruptcy No. 99-04688-W; Adversary No. 99-80323-W
StatusPublished

This text of 246 B.R. 806 (Bittner v. Best (In re Best)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bittner v. Best (In re Best), 246 B.R. 806, 1999 Bankr. LEXIS 1818 (S.C. 1999).

Opinion

ORDER

JOHN E. WAITES, Bankruptcy Judge.

THIS MATTER comes before the Court upon Plaintiffs’ Motion to Transfer Venue to the United States Bankruptcy Court for the Northern District of Ohio, Eastern Division (the “Motion to Transfer Venue”). Based upon the pleadings presented to the Court and the arguments of counsel at the hearing, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Gregory J. Best (“Defendant”) filed for relief under Chapter 7 of the Bankruptcy Code on June 2,1999.

2. At the time of the filing of the petition, Defendant had resided in South Carolina for approximately seven months. Defendant’s schedules indicate that, from at least 1994 through 1998, Defendant resided in Mogadore, Ohio.

3. An overview of Defendant’s schedules indicates that he has minimal contacts with the State of South Carolina.

[808]*8084. In his schedules, Defendant listed 298 general unsecured creditors, 256 of which are located in Ohio and only two of which are located in South Carolina.

5. Defendant’s Schedule D lists the Ford Motor Credit Company and National City Bank as the only creditors holding secured claims; both secured creditors are located in Ohio.

6. Defendant’s schedules reflect that he owns no real property.

7. Defendant’s major assets listed in Schedule B consist of the following:

a. A $50,000,000.00 insurance bond from Ford Motor Credit Company subject to a court-appointed receiver in Summit County, Ohio (the “Receivership”), with deposits being made to KeyBank in Mansfiled, Ohio.
b. $ 8,387,500 for his ownership interest in Bodnar Financial Group, located in Summit County, Ohio; this asset also being subject to the Receivership.
c. $50,000 for his 50% ownership interest in Laurex Ltd., also located in Summit County, Ohio and subject to the Receivership.
d. Stocks having total value of $24,-337.00. Defendant’s schedules do not specify the location of the stocks nor do they indicate whether the stocks are subject to the Receivership.

8. Plaintiffs filed this adversary proceeding on August 31, 1999, challenging Defendant’s right to discharge pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), or (a)(6).

9. The Complaint alleges that, for many years, Defendant and others were involved in fraudulent investment schemes.

10. Multiple lawsuits have been commenced against Defendant and others alleging violations of various securities laws. Approximately thirty cases are presently pending against Defendant before courts within the Northern District of Ohio.

CONCLUSIONS OF LAW

Section 157(b)(1) of Title 28 provides bankruptcy judges with the authority to “hear and determine all cases under title 11 and all core proceedings arising under Title 11, or arising in a case under title 11.” 28 U.S.C. § 157(b)(1). Core proceedings include “matters concerning the administration of the estate.” 28 U.S.C. § 157(b)(2)(A). Many courts have held that a motion to change venue of a bankruptcy case falls within the category of “matters concerning the administration of the estate” and thus is a “core” proceeding under 28 U.S.C. § 157(b)(2)(A). See In re Baltimore Food Systems, Inc., 71 B.R. 795, 796-97 (Bankr.D.S.C.1986); see also Couri v. Fisher (In re JCC Capital Corp.), 147 B.R. 349, 356 (Bankr.S.D.N.Y.1992); Storage Equities, Inc. v. Delisle, 91 B.R. 616, 617 (N.D.Ga.1988); McLemore v. Thomasson (In re Thomasson), 60 B.R. 629, 631-32 (Bankr.M.D.Tenn.1986). The court in In re Thomasson noted that “[a] motion to change venue of a ‘core’ adversary proceeding partakes of the quality of the proceeding in which it arises and can be finally determined by the bankruptcy court.” The adversary proceeding in the case before this Court, like the adversary matter in In re Thomasson, involves a determination of discharge and discharge-ability, which is in itself a “core” proceeding; accordingly, the Motion to Transfer Venue is properly before this Bankruptcy Court.

Courts have the discretion to transfer cases to another district even where the original venue is proper. See In re Baltimore Systems, Inc., 71 B.R. at 801. Section 1412 of Title 28 provides: “A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” 28 U.S.C. § 1412. The movant bears the burden to prove that transferring the case to another district would be for the interest of justice or would be of more convenience to the parties involved. Id. In de[809]*809termining whether transfer of venue is appropriate, courts have considered the following factors:

1. the proximity of creditors of every kind to the Court;
2. the proximity of the bankrupt (debt- or) to the Court;
3. the proximity of the witnesses necessary to the administration of the estate;
4. the location of the assets;
5. the economic administration of the estate;
6. the necessity for ancillary administration if bankruptcy should result.

In re Baltimore Food Systems, Inc., 71 B.R. at 802.1

In In re Thomasson, 60 B.R. 629 (Bankr.M.D.Tenn.1986), the court was faced with a very similar factual situation. In that case, a lawsuit was filed in Chicago, Illinois, against the debtor, alleging that the debtor and others had violated securities laws and the Racketeering Influence Corrupt Organization statute. The debtor attempted to avoid the lawsuit by filing a Chapter 7 petition in Tennessee. An adversary proceeding was commenced to determine the dischargeability of certain debts. Plaintiffs moved to transfer venue from the Middle District of Tennessee to the Northern District of Illinois. In determining whether venue should be transferred, the court considered the fact that only two of the debtor’s creditors were located in Tennessee while sixty-nine of them were located in the Chicago area and that the debtor owned no assets in Tennessee. The court concluded:

These adversary proceedings involve litigation, transactions and witnesses all within the State of Illinois. Retaining venue in the Middle District of Tennessee will cause extreme hardship to the real parties in interest, to witnesses and to the trustee who would be forced to prosecute these actions at significant expense and without support from the estate. Delays in prosecution are likely if venue is retained in this district, in light of the distant physical location of witnesses and evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Weber
118 B.R. 441 (E.D. Virginia, 1990)
Couri v. Fisher (In Re JCC Capital Corp.)
147 B.R. 349 (S.D. New York, 1992)
Ford v. Ford (In Re Ford)
191 B.R. 233 (M.D. Florida, 1995)
Storage Equities, Inc. v. Delisle
91 B.R. 616 (N.D. Georgia, 1988)
In Re Baltimore Food Systems, Inc.
71 B.R. 795 (D. South Carolina, 1986)
McLemore v. Thomasson (In Re Thomasson)
60 B.R. 629 (M.D. Tennessee, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
246 B.R. 806, 1999 Bankr. LEXIS 1818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bittner-v-best-in-re-best-scb-1999.