Bellinger v. Sydnor et al

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IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND, NORTHERN DIVISION
In Re: 	*
BESSIE THOMASINA HASKINS, 	* 	Bankruptcy No.: 06-12231-JS
Debtor, 	*
* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	*
JOSEPH J. BELLINGER, Trustee, *
Plaintiff, 	*
v. 	* 	Civil No.: WDQ-07-0033
DARRYN SYDNOR, et al., 	* 	Adversary No.: 06-01673
Defendants. 	*
* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
Joseph J. Bellinger, the appointed trustee in the above-
captioned Chapter 7 bankruptcy case, has sued Darryn and Kimberly
Sydnor, Stonecreek Funding Corporation (“Stonecreek”), Embassy
Mortgage, Inc. (“Embassy”), and Ron Hantz for violations of
Maryland’s Protection of Homeowners in Foreclosure Act (“PHIFA”),
Md. Code Ann., Real Prop. §§ 7-301 to -321. 	Pending is Embassy’s
unopposed “Motion to Modify or Withdraw Reference and/or for
Special Designation Pursuant to 28 U.S.C. § 157.” 	For the
following reasons, the motion will be denied.
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I. 	Background
On June 15, 2005, a foreclosure action was filed against
the Debtor’s real property at 3704 Nauset Place, Randallstown,
Maryland. 	Compl. ¶ 9. 	Bellinger alleges that Embassy and Hantz,
while purporting to refinance the Debtor’s mortgage, arranged for
the sale of her property to the Sydnors, who then rented the
property back to the Debtor with the intent of later reselling it
to her for a profit, with fees to be earned by Hantz, Embassy,
and Stonecreek, the Sydnor’s lender. 	Compl. ¶¶ 3-8, 10.
On September 15, 2006, Bellinger filed the Complaint,
claiming that the Defendants’ conduct violated PHIFA, and
seeking: (1) a confirmed cancellation of the Sydnor’s deed; and
(2) a declaration that the Sydnor’s lien against the Debtor’s
property is limited to the amount of debt that was paid off by
the Syndors. 	Compl. ¶¶ 17-24.
On October 18, 2006, Embassy filed a jury demand (06-01673
Paper No. 8); and, on November 6, it filed the pending motion.
II. 	Discussion
A. 	The Requested Relief
A motion “shall state with particularity the grounds
therefor, and shall set forth the relief or order sought.” 	Fed.
R. Civ. P. 7(b)(1).
The relief sought by Embassy’s motion is not clearly stated.
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1 28 U.S.C. § 157(d) provides in part that “[t]he district
court may withdraw, in whole or in part, any case or proceeding
referred under this section, on its own motion or on timely
motion of any party, for cause shown.”
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By the motion’s title, “Motion to Modify or Withdraw Reference
and/or for Special Designation Pursuant to 28 U.S.C. § 157,” one
could infer a request for a special designation of the bankruptcy
judge to hold a jury trial or, in the alternative, a motion to
withdraw the reference. 1 	Def.’s Mot. 1. 	But the motion’s four
sentences of supporting argument do not mention a withdrawal of
the reference. 	Embassy merely contends that “[i]t is appropriate
to modify the reference and/or specially designate the Bankruptcy
Judge to try a jury case.” 	Id. ¶ 3. 	The remaining outline
asserts without support that: (1) the matter is non-core; (2)
Embassy has a right to a jury trial; and (3) Embassy consents to
a special designation if the other parties consent. 	Id. ¶¶ 1, 2,
4. 	Embassy then “moves that the reference be modified and that
if consent is obtained, that the Bankruptcy Judge be specially
designated to conduct a jury trial and exercise such jurisdiction
by the District Court.” 	Def.’s Mot. 2 (emphasis added).
Rather than suggesting Embassy’s desire for the Court to
withdraw the reference, the motion’s language and lack of
supporting argument indicates only a want for a “modification” of
the reference so that the bankruptcy judge may conduct a jury
trial with the consent of the parties. 	As Embassy’s motion does
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not plainly request a withdrawal of the reference, or adequately
show cause for such an exercise of the Court’s power, deciding
whether to grant such relief would be inappropriate at this time.
Accordingly, the Court will only consider Embassy’s motion as one
to specially designate the bankruptcy judge to conduct a jury
trial.
B. 	Special Designation
1. 	Standard of Review
Generally, a Bankruptcy court is not authorized to conduct a
jury trial. 	In re Stansbury Poplar Place, Inc., 13 F.3d 122, 128
(4th Cir. 1993). 	The lone exception is provided by 28 U.S.C. §
157(e):
If the right to a jury trial applies in a proceeding that
may be heard under this section by a bankruptcy judge, the
bankruptcy judge may conduct the jury trial if specially
designated to exercise such jurisdiction by the district
court and with the express consent of all the parties.
28 U.S.C. § 157(e). 	Federal Rule of Bankruptcy Procedure 9015
states in part:
If the right to a jury trial applies, a timely demand has
been filed pursuant to Rule 38(b) F. R. Civ. P., and the
bankruptcy judge has been specially designated to conduct
the jury trial, the parties may consent to have a jury trial
conducted by a bankruptcy judge under 28 U.S.C. § 157(e) by
jointly or separately filing a statement of consent within
any applicable time limits specified by local rule.
Fed. R. Bankr. P. 9015(b). 	Local Rule 406.4 states that
“[p]ursuant to 28 U.S.C. 157(e), with the consent of the parties,
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a District Judge may designate a Bankruptcy Judge to conduct a
jury trial.” 	D. Md. R. 406.4. 	Local Bankruptcy Rule 9015-1
requires that “[a] statement of consent to have a jury trial
conducted by a bankruptcy judge under 28 U.S.C. § 157(e) must be
filed before the conclusion of the initial pretrial conference.”
Bankr. D. Md. R. 9015-1.
2. 	Analysis
In this case, the pretrial conference was concluded on
November 1, 2006, and no statement of the other parties’ consent
has been filed. 	Accordingly, Embassy’s motion for a special
designation under 28 U.S.C. § 157(e) will be denied.
III. 	Conclusion
For the reasons stated above, Embassy’s motion will be
denied. 	A separate order follows.
April 2, 2007 	/s/
Date 	William D. Quarles, Jr.
United States District Judge
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