In re Stillman, Bankruptcy No. 81-1-0964

Decision Date13 January 1983
Docket NumberBankruptcy No. 81-1-0964,Adv. No. 82-0073A.
Citation26 BR 834
PartiesIn re Irving M. STILLMAN, M.D., Debtor. Charles A. DOCTER, Trustee, Plaintiff, v. Dennis A. GLEICHER, M.D., Lewis B. Newberg, M.D. The Howard County Doctors' Building Limited Partnership, Defendants.
CourtU.S. Bankruptcy Court — District of Maryland

Marcia Docter, Kensington, Md., for trustee.

Harvey Lebowitz, Baltimore, Md., for defendants.


PAUL MANNES, Bankruptcy Judge.

On January 4, 1983, defendants, Dennis A. Gleicher, M.D., Lewis B. Newberg, M.D., and The Howard County Doctors' Building Limited Partnership, filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction. For the reasons set forth herein, the court has signed an order denying the motion. Defendants urge that the United States District Court for the District of Maryland likewise lacks subject matter jurisdiction. This court need not resolve that question and, therefore, does not address it in this opinion.

Statement of the Case

This is an action filed by Charles A. Docter, trustee of the estate of Irving M. Stillman, M.D., against Dennis A. Gleicher, M.D., Lewis B. Newberg, M.D., and The Howard County Doctors' Building Limited Partnership. The amended complaint recites that Drs. Stillman, Gleicher, and Newberg were general partners of The Howard County Doctors' Building Limited Partnership, each holding a 25% interest in the limited partnership as general partners. The sole asset of the partnership is said to be an office building located in Howard County, Maryland. The amended complaint further alleges that in August, 1978, Dr. Stillman owed $7,000.00 to the partnership for rent. The others each loaned him $3,500.00 which he endorsed to the partnership for the back rent. In addition, Dr. Stillman signed a Promissory Note and Security Agreement and a Financing Statement whereby he gave Drs. Gleicher and Newberg a security interest in his 25% share of the partnership as security for the $7,000.00 loan. Plaintiff alleges that the value of the 25% interest was $150,000.00 over and above the outstanding liens and encumberances.

On April 3, 1979, Drs. Gleicher and Newberg filed an amended partnership certificate purporting to forfeit Dr. Stillman's 25% interest as general partner. At that time, the interest was said to be worth $150,000.00. Plaintiff contends that the forfeiture did not comply with UCC § 9-505, Md.Com. Law Code Ann. § 9-505 (1975), and that § 9-505 did not apply to the transaction.

In Count I, the plaintiff/trustee seeks the redemption of Dr. Stillman's interest and the sale of the partnership property with remittance of the share of the debtor to the trustee. In the alternative, the trustee seeks the sale of the property and the distribution of Dr. Stillman's share to the trustee, minus any amounts due Drs. Gleicher and Newberg. In Count II, the trustee seeks a declaration that the transfer of Dr. Stillman's share to Drs. Gleicher and Newberg was a fraudulent conveyance under Md.Com.Law Code Ann. § 15-204 (1975) (The Maryland Uniform Fraudulent Conveyance Act).

Defendants' Contentions

Defendants argue:

The Supreme Court of the United States, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), held that the broad grant of jurisdiction to the bankruptcy courts set forth in 28 U.S.C. § 1471 (1976 ed., Supp. III) violates Article III of the Constitution. Although the Supreme Court stayed its judgment until December 24, 1982, to permit Congress to enact remedial legislation, Congress has taken no action to reconstitute the bankruptcy courts.
In Marathon, the debtor\'s complaint for breach of contract and misrepresentation was based solely on state law. 102 S.Ct. at 2878. Similarly, in the instant proceeding, the trustee\'s causes of action are derived entirely from state law. 102 S.Ct. at 2878. Similarly, in the instant proceeding, the trustee\'s causes of action are derived entirely from state law. Specifically, the trustee seeks in Count I of the amended complaint to redeem, and then to sell, collateral that was forfeited following the debtor\'s default under a security agreement. The trustee\'s cause of action under Count I is governed by Article 9 of the Uniform Commercial Code, as enacted in Maryland (Md. Com.Law Code Ann. § 9-101 et seq.) In Count II, the trustee seeks to avoid the forfeiture as a fraudulent conveyance, pursuant to Md.Com. Law Code Ann. § 15-204.
The Supreme Court held that, `at the very least, the new bankruptcy judges cannot constitutionally be vested with the jurisdiction to decide this state-law contract claim. . . .\' Id. 102 S.Ct. at 2880 n. 40. Both the plurality and the concurring justices agreed that the broad grant of authority to the bankruptcy courts to decide solely state law issues was not readily severable from the remaining grant of authority. See id., id. 102 S.Ct. at 2882. As a result, the bankruptcy courts have no jurisdiction over any cases under title 11 of the United States Code, or civil proceedings arising under title 11 or arising in or related to cases under title 11. Accordingly, this Court has no subject matter jurisdiction over the adversary proceeding herein, and must dismiss the trustee\'s amended complaint."
Conclusions of Law

Pursuant to the judgment of the Supreme Court in Marathon, supra, this court was divested of all jurisdiction granted it by § 241(a) of the Bankruptcy Act of 1978, Pub.L. 95-598, 92 Stat. 2549. This court would therefore be without jurisdiction to try any matter but for the fact that on December 20, 1982, the Judicial Council of the Fourth Circuit, acting pursuant to 28 U.S.C. § 332(d), directed the District Courts of the Fourth Circuit to adopt a model emergency resolution for the administration of the bankruptcy system in the circuit. That resolution was adopted on December 22, 1982, (and amended January 5, 1983, nunc pro tunc) by the Judges of the United States District Court for the District of Maryland in the independent exercise of their discretion as Local Rule No. 51-A.1

Defendants would have this court declare the model rule unconstitutional as being inconsistent and in conflict with the holding of the Supreme Court in Marathon. This court declines to do so.

It is agreed among all commentators that the model rule is not the permanent remedy to the jurisdictional vacuum created by Marathon. At the Senate Hearings, National Conference on the Resolution of the Bankruptcy Crisis, held January 7, 1983, the draftsmen of the model rule and its proponents noted that the rule is a temporary, interim, stop-gap measure. It is not perfect, but it is a "band-aid" designed to facilitate the handling of the large majority of the cases filed under Title 11, the consumer no-asset liquidation bankruptcies. As was suggested at the conference by Judge Robert L. Ordin of the United States Bankruptcy Court for the Central District of California, the need of the public in the existing emergency is served best by making the rule work as well as it can until Congress acts. This court is committed to that effort. While it is true that the model rule has been the subject of criticism by the Department of Justice,2 it would be an act of judicial anarchy for this court not to follow a rule adopted unanimously by the judges of its appellate court. That rule must be given effect. Cf. Mesa Farm Co. v. United States, 475 F.2d 1004, 1007-1008 (9th Cir.1973); see also, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Disobedience of the rule would be a dereliction of duty. Bankruptcy Act of 1978, Section 404(d) making applicable Section 34 of the old Bankruptcy Act, 11 U.S.C. § 62 (1976) (Repealed 1978).

An order will be entered in accordance with this opinion.


Upon consideration of the motion to dismiss the trustee's amended complaint for lack of subject matter jurisdiction and the memorandum of law in support thereof filed herein by Dennis A. Gleicher, M.D., Lewis B. Newberg, M.D., and The Howard County Doctors' Building Limited Partnership, and for the reasons stated in open court, and in accordance with the opinion filed today, it is, this 13th day of January, 1983, by the United States Bankruptcy Court for the District of Maryland,

ORDERED, That the said motion filed January 4, 1983, be and hereby is, denied.

1 Local Rule 51-A(c) and (d) of the United States District Court for the District of Maryland, provides:

(c) Reference to Bankruptcy Judges

(1) All cases under Title 11 and all civil proceedings arising under Title 11 or arising in or related to cases under Title 11 are referred to the bankruptcy judges of this district.

(2) The reference to a bankruptcy judge may be withdrawn by the district court at any time on its own motion or on timely motion by a party. A motion for withdrawal of reference shall not stay any bankruptcy matter pending before a bankruptcy judge unless a specific stay is issued by the district court. If a reference is withdrawn, ...

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