Opinion
No. 16-mc-00035-SHL-dkv
10-19-2016
MCARTHUR DAVIS, Plaintiff, v. ORION FEDERAL CREDIT UNION, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Bankruptcy Judge Jennie D. Latta ("Bankruptcy Judge") Report and Recommendation ("Report") filed on September 27, 2016. (ECF No. 1.) For the following reasons, the Report is ADOPTED.
The Report was entered on August 25, 2015, but was inadvertently not filed on the Court's docket until September 27, 2016. --------
The Bankruptcy Judge prepared this Report pursuant to Federal Rule of Bankruptcy Procedure 9033, reflecting that this proceeding alleges violations of the Tennessee Consumer Protection Act, the Fair Credit Reporting Act and common law, and that, at the time the Complaint was filed, Plaintiff was a debtor in possession in a bankruptcy case. (ECF No. 1.) Defendant Orion Federal Credit Union ("Orion") filed a Motion for Abstention, or, in the Alternative, to Dismiss Plaintiff's Complaint and Adversary Proceeding in favor of a pending suit for breach of contract in Shelby County Chancery Court. (Id.) In the Report, the Bankruptcy Judge recommends that this Court grant Defendant's Motion and dismiss Plaintiff's claims, rather than hold them in abstention, finding that there is no longer federal jurisdiction over Plaintiff's claims because it is not a "core" bankruptcy proceeding and there is "no possibility of augmentation of the bankruptcy estate . . [and] no effect on the bankruptcy estate of any kind." (Id. at 5.)
When "[a] bankruptcy judge [hears] a proceeding that is not a core proceeding but that is otherwise related to a case under title 11 . . . the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court." 28 U.S.C. §157(c)(1). Pursuant to this statute, Federal Rule of Bankruptcy 9033(b) provides that a party may, within 14 days after being served with a copy of the bankruptcy judge's proposed findings of fact and conclusions of law, "file with the clerk written objections which identify the specific proposed findings or conclusions objected to and state the grounds for such objection." A district court reviews de novo only those proposed findings of fact or conclusions of law to which a party objects. Fed. R. Bankr. P. 9033(d).
The deadline to object to the Report has passed, and neither party has filed any objections. The Court has reviewed the Report for clear error and finds none, warranting dismissal pursuant to 28 U.S.C. § 1334(b). Therefore, the Court hereby ADOPTS the Bankruptcy Judge's Report and Recommendation and GRANTS Defendant's Motion to Dismiss.
IT IS SO ORDERED, this 19th day of October, 2016.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE