Labankoff et al v. GMAC et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
FRED GEORGE LABANKOFF, 	No. 09-10970
Debtor(s).
______________________________________/
FRED GEORGE LABANKOFF, et al.,
Plaintiff(s),
v. 	A.P. No. 09-1048
GMAC, et al.,
Defendant(s).
_______________________________________/
Memorandum on Motion to Dismiss
_________________
The complaint in this matter is largely unintelligible, but enough can be gleaned to understand
that it seeks injunctive relief and damages under state and federal law arising out of real estate loan
which is now in default.
The complaint is patently defective in that it fails to comply with Rule 7008(a) of the Federal
Rules of Bankruptcy Procedure. That rule requires the plaintiff to state whether the action is core or
non-core and, if non-core, whether there is consent for the bankruptcy court to enter a final judgment.
Entered on Docket
September 04, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-01048 Doc# 25 Filed: 09/04/09 Entered: 09/04/09 13:41:31 Page 1 of 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1The court presumes plaintiff Labankoff would not consent to the court entering a final
judgment since he has tried anything he can think of to remove the undersigned from the case, not even
realizing he had the power to do so all along by merely declining consent.
2
The action is classically non-core, in that it arises out of pre-bankruptcy actions, is not based on
bankruptcy law, and could have been brought in a non-bankruptcy court. 	This court’s only has
jurisdiction by virtue of a pro se Chapter 11 case filed by one of the plaintiffs. There is no jurisdiction
at all over the claims of the non-debtor plaintiffs.
Plaintiffs attempted to effect service on defendant GMAC by serving its attorney, which is of
course not valid service. In re Villar, 317 B.R. 88, 93 (9th Cir. BAP 2004). 	GMAC has filed a motion
to dismiss the complaint for failure to state a cognizable legal theory pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. GMAC seeks dismissal with prejudice.
Plaintiffs object to the motion on grounds that GMAC has forfeited its right to defend because
its default has been entered. There is no merit to this argument, in that no default has been entered due
to plaintiffs’ failure to effect valid service.
The court agrees with GMAC that the complaint fails to articulate grounds for relief, and it is
painfully obvious that plaintiffs are incapable of presenting a cogent case, but the court cannot say for
certain that with the assistance of counsel a claim could not be made. It appears that dismissal
pursuant to abstention is more appropriate.
Since this matter is non-core, trial in the bankruptcy court would be pointless since the court
would have no power to enter a final judgment even if neither side requested a jury trial.1 The real
choice is whether the case should be tried in district court or state court. The district court can of
course hear the case if it wants to, but since the major thrust of the complaint seems to be grounded in
state law and since there are non-debtor plaintiffs, the state court seems more appropriate.
Accordingly, the court will abstain from hearing this adversary proceeding pursuant to 28 U.S.C
§1334(c)(1) and dismiss this adversary proceeding without prejudice.
An appropriate order will be entered.
Case: 09-01048 Doc# 25 Filed: 09/04/09 Entered: 09/04/09 13:41:31 Page 2 of 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Dated: September 4, 2009
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 09-01048 Doc# 25 Filed: 09/04/09 Entered: 09/04/09 13:41:31 Page 3 of 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
CERTIFICATE OF MAILING
The undersigned deputy clerk of the United States Bankruptcy Court for the Northern District of
California hereby certifies that a copy of the attached document was mailed to all parties listed
below as required by the Bankruptcy Code and Rules of Bankruptcy Procedure.
Dated: Sep 4, 2009
Fred George Labankoff
3828 Skyfarm Dr.
Santa Rosa, CA 95403
Case: 09-01048 Doc# 25 Filed: 09/04/09 Entered: 09/04/09 13:41:31 Page 4 of 4