Opinion
CASE NO. 09-20932 ADV. NO. 11-06259
01-26-2012
In re: DEAN P. KRAMER, DEBTOR. DEAN P. KRAMER, PLAINTIFF, v. BRADLEY OIL COMPANY, DEFENDANT.
SO ORDERED.
___________
Dale L. Somers
United States Bankruptcy Judge
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT'S MOTION TO DISMISS
This is an action by Debtor for recovery of $6,000 alleged to be due Debtor for wages earned prepetition. The matter before the Court is the motion of Defendant Bradley Oil Company to dismiss for lack of subject matter jurisdiction.
Debtor alleges the matter is a core proceeding under 28 U.S.C. § 157(b)(2)(E) because he seeks an order to turnover property. Defendant moves to dismiss alleging the matter is not a core proceeding and the Court therefore lacks jurisdiction.
The Court denies the motion to dismiss. The action seeks to recover wages earned by the Debtor prepetition, contending that Defendant stopped payment of a payroll check for $3,000 and has refuses to pay $3,000 for an additional pay period. The prepetition wages are included in Debtor's Schedule B. Such wages constitute property of the estate under 11 U.S.C. § 541. Under 11 U.S.C. § 542, an entity that owes a debt that is property of the estate shall pay and turnover such debt to the trustee. Actions under 11 U.S.C. § 542 are included in core proceedings as defined by 28 U.S.C. § 157(b)(2)(E).
In a Chapter 13 case, except as provided in a confirmed plan or order confirming a plan, the debtor remains in possession of property of the estate. And, in the Tenth Circuit in a Chapter 13 case, the Debtor, on behalf of the estate, rather than the Trustee, has the authority to collect and reduce to money the property of the estate.
Smith v. Rockett, 522 F.3d 1080 (10th Cir. 2008).
Compare 11 U.S.C. § 704(a)(1) (Trustee shall collect and reduce to money the property of the estate) with 11 U.S.C. §1306(b) (Chapter 13 trustee does not have power granted by 11 U.S.C. §704(a)(1).
--------
The Court therefore has jurisdiction of the Debtor's turnover action. The motion to dismiss is denied.
IT IS SO ORDERED.