Tag: Abstention

Bankr. E.D.N.C.: Mitchell v. Keesee- Permissive Abstention


Prior to her bankruptcy, Ms. Mitchell and the defendant, Mr. Keesee, were involved in divorce litigation in the District Court for New Hanover County, North Carolina, wherein they agreed to an equitable distribution of their property which provided that Ms. Mitchell transfered her interest in specific property to Mr. Keesee, who agreed to pay Ms. Mitchell $750,000 from any future sale of that property. Following filing her Chapter 11 bankruptcy, Ms. Mitchell brought an adversary proceeding against Mr. Keesee alleging he failed to make payment to her following the sale of a portion of the property and also purchased the mortgage note securing the property, in an attempt to preclude her from obtaining any proceeds and unjustly enriching himself.… Read More

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Bankr. E.D.N.C.: New Bern Riverfront Development v. Weaver Cooke Construction et al.- Mandatory and Permissive Abstention


New Bern Riverfront Development filed suit in state court against nine defendants, but, after New Bern Riverfront Development filed Chapter 11, the state court action was remanded to the bankruptcy court. One of the nine defendants, Davis Architects, filed a third party complaint against McKim, who (after its motions to dismiss were denied) sought to have the bankruptcy court abstain or remand the proceeding to state court.

Pursuant to 28 U.S.C. § 1334(c)(2)l, abstention is mandatory when all of following the elements are present:
(1) a timely motion to abstain is filed,
(2) the removed proceeding is based on a state law claim or state law cause of action,
(3) the removed proceeding is “related to” a bankruptcy case, but does not “arise under” Title 11 or “arise in” a case under Title 11,
(4) the action could not have been commenced in a United States court absent jurisdiction under 28
U.S.C.… Read More

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