The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Christopher M. Murphy ("Murphy"), filed a petition for bankruptcy in the Bankruptcy Court for the Western District of New York ("Bankruptcy Court") on July 31, 2006, and he received a discharge on August 22, 2007. During its pendency, Murphy initiated an adversarial proceeding in the Bankruptcy Court against defendant Chemung County ("the County") seeking to nullify an in rem tax lien foreclosure proceeding on the grounds of improper notice.
On March 5, 2009, Murphy, pro se, filed a motion to withdraw the referral of the adversary proceeding from the Bankruptcy Court to this Court, pursuant to 28 U.S.C. §157(d) and Rule 5011(a) of the Federal Rules of Bankruptcy Procedure. (Bankr. Adv. Proc. no. 06-2103, Dkt. #58). Respondent opposes the motion. On April 3, 2009, the motion was referred to this Court for adjudication. (Dkt. #1).
For the reasons set forth below, the plaintiffs' motion to withdraw reference of the adversary proceeding to the Bankruptcy Court (Dkt#1) is denied.
On August 13, 2005, plaintiff transferred certain real property ("the Property") to Wallace Williams ("Williams"). In October 2005, the County commenced an in rem tax foreclosure proceeding against the Property pursuant to Article 11 of the N.Y. Real Property Tax Law. The Property was reconveyed to Murphy by Williams on March 21, 2006, by then encumbered by the County's tax lien.
The complaint in the adversary proceeding asserts two causes of action: initially, Murphy asserts that the in rem tax lien foreclosure initiated by the County was invalid ab initio, due to the County's alleged failure to provide proper notice to Murphy, the property owner at the time the list of delinquent taxes was filed, and or Williams, the property owner at the time the in rem tax foreclosure proceeding was commenced, in violation of state law and the Due Process and Equal Protection clauses of the United States Constitution. See U.S. Const. Amend. V, XIV; 42 U.S.C. §1983; N.Y. R.P.T.L. §1125.1(a). As and for his second cause of action, Murphy claims that the County's pursuit of the foreclosure violated the automatic stay provisions of 11 U.S.C. §362(a).
I. Motions to Withdraw Reference to the District Court
Murphy has moved to withdraw the adversary proceeding to this Court from the Bankruptcy Court, on the grounds that it is not a core proceeding.
Pursuant to 28 U.S.C. §157(d), the district court has discretion to withdraw the reference of a case referred to the bankruptcy court "in whole or in part . . . on timely motion of any party, for cause shown." 28 U.S.C. §157(d). In determining whether "cause" has been demonstrated, the court "should first evaluate whether the claim is core or non-core." Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion), 4 F.3d 1095, 1101 (2d Cir. 1993).Core matters are those with which the bankruptcy court has superior familiarity and expertise. Id.; In re Bd. of Dirs. Of Telecom Argentina S.A., 2005 U.S. Dist. LEXIS 28640 at *6-*7 (S.D.N.Y. 2005).
After making the threshold determination of whether a matter is a core one, the court may then turn to other factors, including "whether the claim or proceeding . . . is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the ...