BAP No.: CC-98-1400-KMeBUnited States Bankruptcy Appellate Panel, Ninth CircuitArgued and Submitted on January 20, 1999 at Pasadena, California
Filed February 2, 1999
Appeal from the United States Bankruptcy Court for the Central District of California Honorable Arthur A. Greenwald, Bankruptcy Judge, Presiding. BK Number: SV 96-15656-AG ADV Number: SV 98-01165-AG.
Before: KLEIN, MEYERS and BRANDT, Bankruptcy Judges.
[1] OPINIONKLEIN, Bankruptcy Judge:
[2] This appeal from the remand to state court of a removed lawsuit presents the problem of what happens when the appellant does not provide the record that the rules of procedure require. [3] The appellant hamstrung himself in his effort to show that the bankruptcy court erred when he failed to designate and provide us with the transcript of the oral findings of fact and conclusions of law required by Federal Rules of Bankruptcy Procedure 8006 and 8009. As the appellate record does not on its face suggest that the remand was infected by error, we AFFIRM. [4] Jurisdiction [5] Original subject-matter jurisdiction was founded on 28 U.S.C. § 1334(b). We have jurisdiction under 28 U.S.C. § 158. [6] Standard of Review [7] Decisions to remand under 28 U.S.C. § 1452(b) are committed to the sound discretion of the bankruptcy judge and are reviewed for abuse of discretion. See Bethlahmy v. Kuhlman (In re ACI-HDT Supply Co.), 205 B.R. 231, 234 (9th Cir. BAP 1997). [8] Facts [9] The debtor, Charles McCarthy, and his nondebtor spouse were sued in state court by a judgment creditor, Martha-Helen Prince (“Prince”), to recover a debt that the bankruptcy court had determined to be nondischargeable under 11 U.S.C. § 523(a)(4). [10] In the state court lawsuit, Prince asserted four causes of action: fraudulent transfer; liability under California Family Code § 1000; liability under California Code of Civil Procedure § 708.210; and declaratory relief. The goal of the action was to reach property in the hands of the nondebtor spouse. [11] The debtor removed the state court action to bankruptcy court pursuant to 28 U.S.C. § 1452(a). Prince filed a motion to remand the action to state court, citing both abstention under 28 U.S.C. § 1334(c) and remand under the “any equitable ground” standard of 28 U.S.C. § 1452(b). [12] The bankruptcy court ordered the action remanded to state court following a hearing at which it rendered findings of fact and conclusions of law orally on the record. Those findings have not been made part of the appellate record. The ensuing order directed a remand and made no mention of abstention. [13] The debtor appealed. [14] Discussion [15] This appeal smacks of ships passing in the night. The order remands a lawsuit to the state court whence it was removed under 28 U.S.C. § 1452, which permits remand on “any equitable ground.”28 U.S.C. § 1452(b). The appellant ignores § 1452(b) and, instead, attempts to debate mandatory abstention under 28 U.S.C. § 1334(c)(2) and to question Prince’s standing to pursue the fraudulent conveyance count. I
[16] The key procedural problem in this appeal is that the appellant failed to designate and provide record materials that are required by governing rules of procedure. The face of the remand order reflects that the court made findings of fact and conclusions of law orally on the record. No transcript of the court’s oral findings of fact and conclusions of law was designated for inclusion in the appellate record, and no copy was provided in the appendix to the appellant’s brief.
II
[24] The statutory standard for remand under 28 U.S.C. § 1452(b) is “any equitable ground.” 28 U.S.C. § 1452(b). And a bankruptcy court’s decision to remand under that provision can be reviewed only by a district court or a bankruptcy appellate panel, and not by a court of appeals or by the Supreme Court. Id.; Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995).
(E.D.Cal. 1989). [26] At bottom, the question is committed to the sound discretion of the bankruptcy judge. It follows that the standard of review is abuse of discretion. [27] Thus, in our review of the record, we look for abuse of discretion — handicapped as we are by the omission from the record of the court’s findings of fact and conclusions of law — and must affirm if we can find any plausible basis that would support the court’s exercise of discretion to remand. [28] Here, that task is easy. All counts in the four-count complaint are grounded upon state law. Two of them are purely statutory theories (California Family Code § 1000 and California Code of Civil Procedure § 708.210) that do not commonly arise in bankruptcy. Federal subject-matter jurisdiction over the counts is merely concurrent with state courts and is not exclusive. 28 U.S.C. § 1334(b) Fidelity Nat’l Title Ins. Co. v. Franklin (In re Franklin), 179 B.R. 913 (Bankr.E.D.Cal. 1995). To the extent they are asserted against a non-debtor party (Mrs. McCarthy), jurisdiction is more attenuated. State courts are, by definition, fully competent to resolve disputes governed by state law. Nor is the outcome of the action likely to impair the ability of the trustee to distribute the estate. [29] Any of these, and a host of other reasons, would justify an exercise of discretion to order remand under 28 U.S.C. § 1452(b). There is no hint of error. [30] Accordingly, we must affirm.
III
[31] The balance of the issues raised by the appellant lack substantial merit.