Case No. 05-42189, Adversary No. 05-5004.United States Bankruptcy Court, N.D. Georgia, Rome Division.
October 31, 2006
ORDER DENYING MOTION TO TRANSFER VENUE [70]
PAUL BONAPFEL, Bankruptcy Judge
The Plaintiff has filed a Motion to Transfer the Venue of this adversary proceeding to the United States District Court for the Northern District of Mississippi pursuant to 28 U.S.C. § 1404(a). [70] Section 1404(a) permits the transfer of “any civil action to any other district or division where it might have been brought.”
Section 1404(a) does not apply here. This is a proceeding to determine whether debts are excepted from the discharge that the Debtors received in their bankruptcy case. As such, it is a proceeding arising under Title 11 of the United States Code. Section 1409(a) of Title 28 provides, with exceptions not relevant here, that a proceeding arising under the Bankruptcy Code may be commenced in the District Court in which the bankruptcy case is pending. Because the
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bankruptcy case is pending in this district, and because § 1409 does not provide any alternative district in which a proceeding to determine dischargeability of a debt could be filed, § 1404(a) provides no basis for a transfer of venue.
The Court will, however, construe the motion as requesting a transfer of venue under 28 U.S.C. § 1412, which permits transfer of a proceeding to another district in the interest of justice or for the convenience of the parties.
The motion asserts that venue should be transferred to Mississippi because the Plaintiff is a resident of Mississippi and because most witnesses are located in Mississippi. The Court in its September 22, 2006 Order [73] scheduled a hearing for October 18 to consider the motion’s contentions “in order to ensure that there is a full and complete record with regard to the Plaintiff’s motions to transfer venue and to dismiss for lack of subject matter jurisdiction.” Plaintiff did not appear at the hearing. Although the Plaintiff submitted an affidavit [79] in support of the motion, he did not present any evidence beyond its conclusory assertions. The Court cannot determine, therefore, whether, as the Plaintiff contends, the testimony of Mississippi witnesses is critical to the Plaintiff’s position, whether it is cost-prohibitive to arrange for them to testify in this district, and whether alternative methods of presenting their testimony are available.
A proceeding to determine the dischargeability of a debt goes to the heart of the “fresh start” policy of the Bankruptcy Code Local Loan Co. v. Hunt, 292 U.S. 234 (1934). This policy requires that debtors ordinarily be able to litigate dischargeability issues in the court in which they file their petition. Absent extraordinary circumstances, transfer of a dischargeability proceeding should not occur.
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No extraordinary circumstances that would justify a transfer of venue exist here. Accordingly, the Motion to Transfer Venue is DENIED.
The Clerk is directed to mail copies of this Order to the persons shown on the Distribution List.
IT IS SO ORDERED.
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