Holzhueter v. Groth (In re Holzhueter)

571 B.R. 812, 2017 Bankr. LEXIS 1983
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJuly 18, 2017
DocketCase No.: 16-13134-11; Adversary No.: 16-79
StatusPublished
Cited by7 cases

This text of 571 B.R. 812 (Holzhueter v. Groth (In re Holzhueter)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holzhueter v. Groth (In re Holzhueter), 571 B.R. 812, 2017 Bankr. LEXIS 1983 (Wis. 2017).

Opinion

MEMORANDUM DECISION

Hon. Catherine J. Furay, U.S. Bankruptcy Judge

The Debtor, Aaron Holzhueter (“Hol-zhueter” or “Debtor”), filed a voluntary Chapter 11 Petition on September 12, 2016. He filed an adversary complaint on September 14, 2016, against Defendants David J. and Gale I. Groth, David J; and [814]*814Judith A. Heinecke, James G. Pritchard, John W. and Patricia Tesch, and Barbara L. Wegner (collectively, the “State Court Plaintiffs”) seeking a declaratory judgment that he is not liable to the State Court Plaintiffs, that their claims1 be disallowed, and determining that any debt to them is dischargeable.

The State Court Plaintiffs filed an Answer and Counterclaim to the Debtor’s Adversary Complaint on October 17, 2016. They seek a determination under 11 U.S.C. §§ 523(a)(2), (a)(6), and (a)(19) that' certain debts are nondischargeable and request costs and actual attorneys’ fees.

Holzhueter and the State Court Plaintiffs agree this is a core proceeding. Nonetheless, the State Court Plaintiffs filed a motion requesting that this Court abstain from determining the issues related only to liability and dischargeability of their securities law claims under 11 U.S.C. § 523(a)(19).

STATEMENT OF FACTS

While the parties provide a full description of the alleged facts, the facts necessary to decide abstention are brief. The State Court Plaintiffs invested in a Ponzi Scheme run by the Debtor’s father, Loren Holzhueter (now deceased), through a company called Insurance Service Center (“ISC”). As the name suggests, ISC is an insurance agency that provides insurance and investment services to the public.

At the time the Debtor filed bankruptcy, the State Court Plaintiffs had each filed a separate state court action. These six actions were pending in three different Wisconsin county circuit courts. Those actions allege violations of Wisconsin’s state securities laws and common law fraud. The State Court Plaintiffs allege the Debtor, along with others,2 conspired to defraud each of the State Court Plaintiffs of their investments in the ISC-offered securities. The State Court Plaintiffs contend the Debtor’s debts are nondischargeable under 11 U.S.C. § 523(a)(2), (6), or (19) arising out of securities law violations contrary to Wis. Stat. §§ 551.509(7)(a), (b), or (c) or, alternatively, from common law fraud in connection with the sale of securities.

The Debtor disputes he is liable for securities fraud. The Securities and Exchange Commission filed the District Court Action. A receiver was appointed in that case and a stay of the state court proceedings was issued on October 20, 2016. The State Court Plaintiffs were named as interested parties and appeared in the District Court Action. They opposed imposition of the stay, opposed the appointment of a receiver, and filed various other pleadings in the District Court Action.

DISCUSSION

Federal district courts have “original and exclusive jurisdiction” over all cases under title 11 of the United States Code. 28 U.S.C. § 1334(a). Federal district courts also have “original but not exclusive jurisdiction” “of all civil proceedings arising under the Bankruptcy Code, or arising in or related to cases under the Bankruptcy Code.” In re Kimball Hill, Inc., 565 B.R. 878, 882 (Bankr. N.D. Ill. 2017); 28 U.S.C. § 1334(b). District courts may refer these cases to the bankruptcy judges in [815]*815their respective districts. 28 U.S.C. § 157(a). In accordance with section 157(a), the District Court for the Western District of Wisconsin has referred all of its bankruptcy cases to the Bankruptcy Court for the Western District of Wisconsin. W.D. Wis. Admin. Order 161 (July 12, 1984).

A bankruptcy court to whom a case has been referred may enter a final judgment on any “core” proceeding arising under the Bankruptcy Code or arising in a case under the Bankruptcy Code. 28 U.S.C. § 157(b)(1). Whether a debt is non-dis-chargeable in a debtor’s bankruptcy case is a “core” proceeding. 28 U.S.C. § 157(b)(2)(I). Similarly, whether a filed claim is allowed and the amount of that claim are also core proceedings. 28 U.S.C. § 157(b)(2)(B). The parties agree these are core proceedings. Thus, jurisdiction is both undisputed and established.

A. Abstention

Mandatory Abstention

Section 1334(c) provides two avenues for abstention: mandatory and permissive. The mandatory abstention provision reads:

Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.

28 U.S.C. $ 1334(c)(2). There are five elements that must be established for mandatory abstention: (1) a timely motion of a party, (2) relating to a cause of action arising under state law, (3) which is a non-core proceeding in bankruptcy court, (4) where the only basis for federal jurisdiction is section 1334, (5) that has also been commenced in a state forum of appropriate jurisdiction. Bennett v. Sveinsvoll (In re Bennett), 376 B.R. 918, 921 (Bankr. W.D. Wis. 2007).

Discussion of mandatory abstention in this case may begin and end with element one. No party has filed a motion arguing that mandatory abstention applies. Accordingly, in the absence of a timely motion and without further discussion, section 1334(c)(2) does not apply.

Permissive Abstention

Section 1334(c)(1) governs permissive abstention and provides the court may abstain from hearing a particular matter arising under title 11, or arising in or related to a case under title 11. 28 U.S.C. § 1334(c)(1). This provision recognizes that bankruptcy courts have exclusive and non-delegable control over the administration of an estate, but in exercising that control “may, where the interests of the estate and the parties will best be served ... consent to submission to State courts of particular controversies involving unsettled questions of state ... law and arising in the course of bankruptcy administration.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483, 60 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
571 B.R. 812, 2017 Bankr. LEXIS 1983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holzhueter-v-groth-in-re-holzhueter-wiwb-2017.