In re Jordan
| Decision Date | 10 August 2004 |
| Docket Number | No. 04-28437-K.,04-28437-K. |
| Citation | 313 B.R. 242 |
| Parties | In re Leonard W. JORDAN, Debtor. |
| Court | U.S. Bankruptcy Court — Western District of Tennessee |
Madalyn S. Greenwood, Asst. U.S. Trustee, Memphis, TN, U.S. Trustee.
Steven F. Bilsky, Esquire, Memphis, TN, for debtor.
Richard T. Doughtie, III, Esquire, Memphis, TN, Chapter 7 Trustee.
SUPPLEMENTAL MEMORANDUM*
AND ORDER RE "UNITED STATES TRUSTEE'S MOTION TO DISMISS OR TO TRANSFER [CASE] VENUE" AND DEBTOR'S "RESPONSE TO UNITED STATES TRUSTEE'S MOTION TO DISMISS OR TO TRANSFER VENUE"
This proceeding is before the court on the "United States Trustee's Motion to Dismiss or to Transfer [Case] Venue" and the "Response to United States Trustee's Motion to Dismiss or to Transfer Venue" filed thereto by the above-named debtor, Leonard W. Jordan ("Mr. Jordan"). By virtue of 28 U.S.C. § 157(b)(2)(A), this is a core proceeding. This also is a contested matter governed by FED. R. BANKR. P. 9014. The following shall constitute the court's findings of fact and conclusions of law in accordance with FED. R. BANKR. P. 7052.
The threshold issue presented for judicial determination here is whether the court has the authority, in its sound discretion, to retain a consumer (or business) bankruptcy case filed in a technically improper venue, provided retention is in the interest of justice or for the convenience of creditors and other parties in interest. If the answer to this question is in the negative, the court must either dismiss the case or transfer it to another district — retention of the case would not be an option. If the answer to this question is in the affirmative, the next question for judicial determination is whether consideration of the totality of the particular facts and circumstances warrant (1) dismissal of Mr. Jordan's chapter 7 case under 11 U.S.C. § 707(a), (2) a change of venue to another district under 28 U.S.C. § 1412, or (3) retention of the case, pursuant to the court's sound discretion under its inherent or implicit authority, for further administration and ultimate formal closing.
Based on practical considerations, Mr. Jordan asserts here that case venue is appropriate in the Western District of Tennessee at Memphis, but even if it is not technically proper as contemplated under 28 U.S.C. § 1408, nonetheless the court under the totality of the existing facts and circumstances and applicable law should retain this case for administration based on the convenience of his creditors and other parties in interest including him or in the interest of justice. The United States trustee for Region 8 (Tennessee and Kentucky)("U.S. trustee") timely moved to dismiss the above-referenced chapter 7 case or to change the venue to another district contending that the only remedies or options available to the court upon a determination of improper case venue are dismissal or transfer of the case to another district, and that, pursuant to FED. R. BANKR. P. 1014(a)(2), absolutely no judicial discretion exists to allow for retention of this case by the court. It is noted from the outset that retention by the court of a bankruptcy case, after it has been determined that case venue is improper, is not specifically authorized by statute; neither, however, is case retention specifically prohibited by the Bankruptcy Code and the accompanying title 28 venue provisions.1
The relevant background facts may be briefly summarized as follows: On June 2, 2004, Mr. Jordan, a financially distressed consumer debtor, filed an original, no-asset chapter 7 petition in the Western District of Tennessee, Western Division, at Memphis. The Judicial District at Memphis under the existing circumstances was the choice of case venue selected by Mr. Jordan and his attorney, Steven F. Bilsky, Esquire for their accommodation and also the accommodation of Mr. Jordan's creditors and other parties in interest. Mr. Jordan resides and currently works2 in Southaven, Mississippi, a so-called "bedroom community" or "suburb" of Memphis. Southaven is located immediately south of Memphis and is situated in the Northern District of Mississippi; actually, it is located just inside the Mississippi-Tennessee state line. In reality, Southaven, Mississippi, is literally one physical step away from Memphis, Tennessee (or vice-versa).
The Assistant U.S. trustee and Mr. Jordan's attorney entered into the following stipulation of facts ("Stipulation"):
• "The Debtor filed a voluntary petition under chapter 7 on June 2, 2004
• The Debtor's petition disclosed he resides at 2321 Ashland Drive, Southaven, Mississippi 38671, a city located in the Federal Judicial District for the Northern District of Mississippi.
• The Debtor checked the "venue" box asserting venue in the Western District of Tennessee was proper.3
• The Debtor's Schedule A lists the Debtor's ownership of real property located at 2321 Ashland Drive, Southaven, Mississippi 38671.
• The Debtor's Schedule C claimed exemptions under the statutes of Mississippi.
• The Debtor's Schedule D lists the address of the creditor that holds the mortgage on the Debtor's real property as Louisville, Kentucky.
• The Debtor's Schedule F lists eight national creditors with only one creditor having a Memphis address. The Memphis creditor holds 11.7% of the Debtor's unsecured debt.
• The Debtor's Schedule I lists a Mississippi employer.
• The Debtor answered in the negative to question No. 15 of the Statement of Financial Affairs regarding a prior address within two years immediately proceeding (sic) the commencement of the Debtor's bankruptcy case.
• The Debtor answered in the negative to question No. 18 of the Statement of Financial Affairs to having an interest in a business within six years immediately preceding the commencement of the Debtor's bankruptcy case.
• The Debtor's Schedules do not disclose any tangible assets located in the Western District of Tennessee.
• The United States Trustee filed a timely Motion to Dismiss or Transfer Venue on June 15, 2004.
• On July 2, 2004 the Court issued a Notice of Pre-Trial Conference for July 27, 2004 on the United States Trustee's Motion to Dismiss or Transfer Venue.
• On July 27, 2004, upon agreement of the Debtor and United States Trustee, the United States Trustee's Motion to Dismiss or Transfer Venue was continued to August 17, 2004.
• Upon written request for the Honorable David S. Kennedy on July 28, 2004, and at a telephonic conference held on July 29, 2004, the hearing on the United States Trustee's Motion to Dismiss or Transfer Venue was advanced to August 3, 2004."
The instant motion of the United States trustee correctly states that it was "timely" filed on June 15, 2004, in an effort to dismiss this case or alternatively to change the venue to another district alleging that "[a] review of the Petition does not support the Debtor's assertion that a venue in this district [the Western District of Tennessee] is appropriate." (Emphasis added). More specifically, the U.S. trustee seeks a dismissal of this case for asserted ,"4 or alternatively a "transfer of the instant case to a District in which venue jurisdiction would exist."5 It was orally stated at the hearing on the instant motion that the United States trustee's alternative relief specifically seeks a transfer of the case venue to the Northern District of Mississippi where Mr. Jordan lives and currently works. Mr. Jordan's Response filed on July 1, 2004, essentially asserts for practical reasons that case venue is appropriate in the Western District of Tennessee at Memphis because of the convenience of the parties or the interest of justice.
Interestingly, no creditor of Mr. Jordan or other party in interest has filed a similar motion seeking a case dismissal or transfer of venue to the Northern District of Mississippi or to any other judicial district; and no creditor or other party in interest has sought to intervene pursuant to FED. R. BANKR. P. 7024 in the U.S. trustee's instant motion seeking to dismiss the case or transfer the venue to another district. Perhaps understandably so; no Mississippi creditor exists as Mr. Jordan's Schedules and the parties' Stipulation list nine nationwide creditors as follows: Kentucky (3); Virginia (2); Delaware (1); Oregon (1); Memphis, Tennessee (1); and California (1). Mr. Jordan's attorney herein is located in Memphis, Tennessee.
Notwithstanding the proper/improper case venue dichotomy, there indeed are compelling practical reasons which support retention of the venue of this case in the Western District of Tennessee at Memphis (e.g., close proximity to a bankruptcy court). An individual could literally straddle the Tennessee/Mississippi line by having one leg placed in Southaven, Mississippi and the other leg placed in Memphis, Tennessee. Many Southaven residents are employed and have major creditors located in Memphis. The nearest Mississippi bankruptcy court duty station is located in the Northern District of Mississippi at Oxford, which is located approximately 75 miles southeast of Southaven/Memphis, or possibly Aberdeen, Mississippi, which is located approximately 130 miles southeast of Southaven/Memphis. Memphis is much closer and more readily accessible to Mr. Jordan's creditors, if they seek access to a bankruptcy court in this case.6 Additionally, the U.S. trustee for Region 8, the movant here, is actually located in the same private office building as the Memphis bankruptcy court. The Chapter 7 trustee appointed by the United States trustee for Region 8 in this case also is located in Memphis. Compared to Memphis, the bankruptcy bar in Southaven, Mississippi is quite small. Of course, practicalities, standing alone, are not sufficient reasons to justify this court's retention of this case.
It was repeatedly said under the former ...
To continue reading
Request your trial
-
In re Macdonald
...AFFIRMING BANKRUPTCY COURT'S JUDGMENT IN IN RE MACDONALD AND IN RE THOMPSON AND REVERSING AND REMANDING BANKRUPTCY COURT'S JUDGMENT IN IN RE JORDAN DONALD, District Before the Court are four appeals from the judgments of the United States Bankruptcy Court for the Western District of Tenness......
-
In re Brazzle
...dismissal or change of venue has the burden of proof and must carry that burden by a preponderance of the evidence. In re Jordan, 313 B.R. 242, 264 (Bankr.W.D.Tenn. 2004). The three other bankruptcy judges for the Western District of Tennessee have had occasion to issue a decision on their ......
-
Thompson v. Greenwood, 06-6430.
...convenience of the parties' or `in the interest of justice' even if a timely motion is filed to contest venue. . . ." In re Jordan, 313 B.R. 242, 264 (Bankr.W.D.Tenn.2004). In contrast, in the case of the Thompsons, Bankruptcy Judge Jennie D. Latta, relying on the reasoning of her prior dec......
-
In re Miles, 04-42238 JTL.
...its decision in Swinney in light of a case subsequently decided by Judge Kennedy in the Western District of Tennessee, In re Jordan, 313 B.R. 242 (Bankr.W.D.Tenn.2004). This court has already addressed the issues raised in the Jordan case in the Swinney decision. Further, this court's decis......