Assoc. Builders & Contractors of Utah, Inc. v. United Bank (In re Lindsay)
UNPUBLISHED
Plaintiff corporation filed a state court action against bank, alleging that it had negligently issued a credit card to debtor, who was neither an officer nor a director of plaintiff, and had improperly collateralized the credit card debt using plaintiff's funds. Bank responded and counterclaimed against plaintiff for failure to pay card balances, and filed a third-party complaint against debtor. Debtor filed a chapter 7 petition, and bank removed the state court action and amended its complaint against debtor to allege non-dischargeability under 11 U.S.C. § 523(a)(2)(A). Plaintiff moved to remand the original action back to state court or, if the court would not remand, to abstain pursuant to 28 U.S.C. § 1334(c)(2). The bankruptcy court submitted its decision as a report and recommendation to the district court on the requested relief. The court first determined whether the case had been properly removed, and concluded that neither the initial state court action nor the third party action was a "core" proceeding, but that both claims sought to establish liability for debtor's pledge of plaintiff's property, and the matters in their entirety were therefore "related to" the bankruptcy and were subject to removal. The court also determined that plaintiff's claims against bank were "intertwined" with bank's claims against debtor, and, therefore, could not realistically be severed. Finally, although the court questioned applicability of § 1334(c)(2) to the remand issue, it determined that abstention was not required by that provision. The court recommended that plaintiff's motion be denied.