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PHILIP E. KOEBEL, Esq. [Cal. SBN 249899] Post Office Box 94799 Pasadena, CA 91109-4799 Ofc: 1015 N. Lake Ave., Ste. 210 Pasadena, CA 91104 Tel: (626) 629-8199 Fax: (626) 410-1149 Eml: LawOfPEK@gmail.com Attorney for Debtor and Defendant REUBEN JAMES MANNINGS UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION In re REUBEN JAMES MANNINGS, Debtor. Adversary No.: 2:13-ap-01968-NB Filed 09/26/2013 Removed Case: 13P00325 Filed 07/05/2013 LA PINTORESCA APTS., Plaintiff, v. REUBEN MANNING [SIC]; DOES 1 THROUGH 5, Defendants. Date: 11/12/2013 Time: 1:00 P.M. Ctrm: 1545 Hon. Neil W. Bason 255 E. Temple St. Los Angeles, CA 90012 NOTICE OF NON-OPPOSITION TO MOTION TO REMAND Bankruptcy No.: 2:13-bk-33034-NB Filed 08/13/2013

NOTICE OF NON-OPPOSITION TO MOTION TO REMAND

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PLEASE TAKE NOTICE AND NOTICE IS HEREBY GIVEN that the Debtor REUBEN JAMES MANNINGS, by and through his counsel, does not oppose the remand of this removed action if remand is even required. The action is moot because it is no longer related to a bankruptcy case or a bankruptcy estate since the court dismissed the bankruptcy case on or about October 4, 2013 and the period to appeal the courts dismissal order has now expired. More importantly, the action has been settled by mutual agreement of both parties. After the state court action was removed, both parties agreed to mediation. On October 31, 2013, the parties met with a state court approved mediator, which resulted in a confidential settlement mutually agreeable to both parties. For both of these reasons, the bankruptcy court must abstain from hearing the case if not dismiss the case altogether. In re Di Giorgio, 134 F.3d 971, 974 (9th Cir. 1998) (held: To qualify for adjudication in federal court, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Whenever an action loses its character as a present live controversy during the course of litigation, federal courts are required to dismiss the action as moot. Citations omitted.) Although it may be more in the Debtors interest to move to dismiss the removed action as moot, the Debtor in good faith agrees with Movant that the case may be remanded for simplicity in enforcement of the mutual settlement if any such enforcement becomes necessary. At this time, the Debtor does not support the only other remaining option of withdrawing the reference to the United States district court. Stern v. Marshall, 131 S.Ct. 2594, 2619-2620 (2011) (the framework Congress adopted in the 1984 Act already contemplates that certain state law matters in bankruptcy cases will be resolved by judges other than those of the bankruptcy courts. Section 1334(c)(2), for example, requires that bankruptcy courts abstain from hearing specified noncore, state law claims that can be timely adjudicated[] in a State forum of
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appropriate jurisdiction. Section 1334(c)(1) similarly provides that bankruptcy courts may abstain from hearing any proceeding, including core matters, in the interest of comity with State courts or respect for State law. [T]he current bankruptcy system also requires the district court to review de novo and enter final judgment on any matters that are related to the bankruptcy proceedings, 157(c)(1), and permits the district court to withdraw from the bankruptcy court any referred case, proceeding, or part thereof, 157(d). For the record, the removal was proper by statute 28 U.S.C. 1452(a) and rules 9027 and 9027-1 of the Federal Rules of Bankruptcy Procedure and Local Bankruptcy Rules, respectively because Debtors residential possessory interest was part of the bankruptcy estate and the unlawful detainer action related to the bankruptcy proceedings. For the record, the removal was constitutional under Article III of the United States Constitution because the Debtor expressly consented to entry of final orders or judgments by the bankruptcy court see Notice of Removal, Paragraphs 1.5 and 1.6 [2:13-ap-01968-NB, Docket #1] and provided notice to Movant that they must consent, expressly or impliedly, to the bankruptcy courts jurisdiction or the reference(s) of the adversary proceeding or the entire bankruptcy case could be withdrawn to the district court. In re Bellingham Insurance Agency Inc., 702 F.3d 553, 569-570 (9th Cir. 2012) (the Stern court applied the doctrine of litigant consent even when little authority existed to notify the litigant that a constitutional objection was there for the making. In Stern, Pierce Marshall propounded the novel argument that the bankruptcy court lacked jurisdiction to enter final judgment on his defamation claim because 157(b)(5) granted to district courts exclusive jurisdiction over personal injury tort claims. 131 S.Ct. at 2606. The Court held that Pierce consented to the bankruptcy courts jurisdiction over the claim when he failed to timely object. Id. at 2608. By contrast, Pierce voiced his objection to the bankruptcy courts jurisdiction over Vickies counterclaim from the outset of the
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litigation. See id. at 2601.); Stern v. Marshall, 131 S.Ct. 2594, 2620 (2011) (the current bankruptcy system permits the district court to withdraw from the bankruptcy court any referred case, proceeding, or part thereof, 157(d)), See also id. at 2629-2630 (Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN, join dissenting: Consider a typical case: A tenant files for bankruptcy. The landlord files a claim for unpaid rent. The tenant asserts a counterclaim for damages suffered by the landlords (1) failing to fulfill his obligations as lessor, and (2) improperly recovering possession of the premises by misrepresenting the facts in housing court. (These facts are close to the facts presented in In re Beugen, 81 B.R. 994 (Bkrtcy.Ct.N.D.Cal.1988).) This statelaw counterclaim does not ste[m] from the bankruptcy itself, ante, at 2618, it would not necessarily be resolved in the claims allowance process, ibid., and it would require the debtor to prove damages suffered by the lessors failures, the extent to which the landlords representations to the housing court were untrue, and damages suffered by improper recovery of possession of the premises, cf. ante, at 26172618. Thus, under the majoritys holding, the federal district judge, not the bankruptcy judge, would have to hear and resolve the counterclaim.) Finally, although Debtor does not believe it is germane to the analysis of proper removal under the bankruptcy removal statute Section 1452, the fact is that the lease agreement that gave rise to the state court unlawful detainer action relies upon a federal subsidy and therefore this removal by the defendant in a state court action would have been proper under the general removal statute 28 U.S.C. 1441 because of the federal question that undergirds the lease attached to the state court complaint. Debtor never acted in bad faith. Debtor asks the court to ignore Movants histrionics or risk making the courts remand order appealable. In conclusion, the Debtor respectfully requests the court to remand on the singular ground that the bankruptcy court no longer has subject-matter jurisdiction.
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Dated:

November 6, 2013

By:

/s/ PHILIP KOEBEL PHILIP E. KOEBEL, Esq. Attorney for Debtor REUBEN JAMES MANNINGS

NOTICE OF NON-OPPOSITION TO MOTION TO REMAND

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