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In re Neumann Homes

April 27, 2009


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


This matter comes before the court on the motion of Defendants Kenneth Neumann and Jean Neumann ("Neumanns") to withdraw the reference of an adversary proceeding to the bankruptcy court, pursuant to 28 U.S.C. § 157(c) and Fed. R. Bankr. P. 5011(a). For the following reasons, the motion is denied.


On November 1, 2007, Neumann Homes, Inc. ("NHI") and certain of its affiliates filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. Thereafter on December 10, 2008, the Official Committee of Unsecured Creditors of NHI ("Committee") filed an adversary complaint against the Neumanns primarily seeking to avoid preferential and fraudulent transfers; the complaint additionally asserts state law claims of unjust enrichment, breach of fiduciary duty, constructive trust, equitable relief, and an accounting.

According to the allegations contained in the adversary complaint, on January 1, 1991, NHI elected to become a Subchapter S corporation for federal income tax purposes. Defendant Ken Neumann was the chief executive officer and sole shareholder of NHI from 1994 until his resignation on September 19, 2007. As a Subchapter S corporation, NHI's income tax liability flowed through to Ken Neumann as the sole voting shareholder and was taxed as if he was a member of a partnership. By September 21, 2007, NHI revoked its status as a Subchapter S corporation and became a Subchapter C corporation. As a Subchapter C corporation, NHI was responsible for paying its own federal income taxes.

In 2006 and 2007, NHI experienced net operating losses ("NOLs"). The Committee asserts that the Neumanns elected to carry back their NOLs from 2006 and 2007 to 2004 and 2005. Moreover, they contend that based on these NOL carry-backs for 2006 and 2007, the Neumanns have applied to the Internal Revenue Service ("IRS") for tax refunds worth approximately $25 million for the tax years of 2004 and 2005. It is the Committee's position that refunds derived from the NOLs should be made available to them as part of NHI's bankruptcy estate. The Neumanns filed the instant motion to withdraw the reference of the adversary proceeding.


Federal district courts have original jurisdiction over all bankruptcy proceedings arising out of title 11 of the Bankruptcy Code. See 28 U.S.C. § 1334. However, a district court may refer the case to the bankruptcy courts pursuant to 28 U.S.C. § 157(a). As a matter of course, this court refers all title 11 cases to the bankruptcy court. N.D. Ill. L.R. 40.3.1. The court derives the power to withdraw part of a case from the bankruptcy court from 28 U.S.C. § 157(d), which states the following:

The 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. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d)

The Seventh Circuit has interpreted the first sentence of Section 157(d) to be permissive withdrawal, while the second sentence requires mandatory withdrawal in certain situations. In re Vicars Ins. Agency, Inc., 96 F.3d 949, 952 (7th Cir. 1996).

The Neumanns move to withdraw the reference and present the court with arguments in favor of both mandatory and permissive withdrawal. The thrust of the Neumanns' argument is that their Seventh Amendment right to a jury trial establishes the requisite cause under permissive withdrawal. They also contend that mandatory withdrawal is necessary because the adversary complaint will require a significant interpretation of the Internal Revenue Code to resolve the underlying dispute. The Committee opposes the motion; it requests that the case remain in the bankruptcy court.

I. Permissive Withdrawal

The Neumanns move to withdraw the reference on the basis that they have established conclusive cause under permissive withdrawal. Although Congress did not expressly define "for cause shown," the courts have consistently adhered to a wide range of factors in ascertaining whether a movant has satisfied the burden of showing cause: (1) whether the claim or proceeding is core or non core; (2) judicial economy; (3) promotion of uniformity and efficiency in bankruptcy administration; (4) delay and costs to the parties; (5) the court's familiarity with the case; (6) reduction of forum shopping; and (7) whether the parties requested a jury trial. In re Edgwater Med. Ctr., 2004 U.S. Dist. LEXIS 25346, *2 (N.D. Ill. Dec. 14, 2004). While the court evaluates each of the cited factors, it is axiomatic that the most important factor is whether the claim is core or non-core because it is on this issue that questions of efficiency and uniformity will turn. In re Conseco Fin. Corp., 324 B.R. 50, 53 (N.D. Ill. 2005).

The Neumanns set forth two distinct arguments in support of permissive withdrawal. First, they request a jury trial on the basis that the Committee's claims involving avoidance of preferential and fraudulent transfers seek a legal remedy-money damages. Next, they contend that the majority of the counts contained in the complaint are non-core, therefore, ...

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