Consumer Bankruptcy Law and Practice: 14.2.4.4 Procedure in Non-Core Proceedings
If a proceeding is determined to be a non-core proceeding, it is still normally initiated in the bankruptcy court pursuant to the district court’s referral.
If a proceeding is determined to be a non-core proceeding, it is still normally initiated in the bankruptcy court pursuant to the district court’s referral.
Regardless of whether a matter is or is not a core proceeding, it may still come to be heard initially in the district court. The bankruptcy jurisdictional provisions provide that after the initial referral to the bankruptcy court a bankruptcy proceeding, or even the bankruptcy case itself in whole or in part, may be withdrawn back to the district court.81 Withdrawal is discretionary in some cases and mandatory in others.
In certain classes of cases or proceedings, including core proceedings, if a party timely86 moves for withdrawal to the district court, that motion must be granted.
The district court may also withdraw any case or proceeding at its discretion, either upon motion of a party or upon its own motion.
A special exception to the broad categories of core proceedings was created by Congress for all personal injury tort and wrongful death claims against the debtor or the estate.98 The 1984 amendments, in a provision probably designed to curb manufacturers seeking refuge in bankruptcy from asbestos and other product liability claims, require all such claims to be tried either in the district court in which the bankruptcy case is pending or the district court where the claim arose, as determined by the district court in which the bankruptcy is pen
Unlike the temporary emergency rule governing bankruptcy jurisdiction from 1982 to 1984, the current jurisdictional statutes contain no prohibition of jury trials conducted by the bankruptcy court.
In Taggart v. Lorenzen,124 the Supreme Court stated, without discussion, that the bankruptcy court could find an entity in contempt of court for violating the discharge injunction under the grant of equitable powers in Bankruptcy Code section 105.
In almost every case in which the debtor’s discharge rights are being violated, it is wise to take some type of protective action. Even though a judgment obtained on a discharged debt is void,1041 that judgment could also cause illegal but harmful garnishment of the debtor’s wages or seizure of the debtor’s property. Thus, it is good practice to assert the protections of discharge as early as possible.
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Depending on the circumstances, the bankruptcy court may be a preferable forum for the litigation of many types of cases that involve consumer debtors. When the debtor is in bankruptcy and has a choice of forums, a number of factors should be considered. But even if a client is not in bankruptcy, the litigation advantages offered by the federal bankruptcy forum may be so great that they justify filing a bankruptcy petition even if it otherwise might not be needed.
In specific cases, a bankruptcy proceeding may offer a way around a difficult procedural problem that could prove fatal in any other forum. Certain provisions governing bankruptcy litigation make it a useful way to avoid such problems.
Another extremely helpful feature of bankruptcy litigation is that nationwide service of process is permitted and can be made by first class mail in most bankruptcy proceedings.142 However, an exception to the general right to serve by first class mail was created by the Bankruptcy Reform Act of 1994,143 which amended Federal Rule of Bankruptcy Procedure 7004 to provide that service of process on an insured depository institution in a contested matter or adversary proceeding must be made by cert
The following sections of the Telecommunications Act of 1996 concern the federal telecommunications universal service programs. The complete text of the Telecommunications Act of 1996 is available at www.fcc.gov. Additional materials are available online as companion material to this treatise.
(a) Exceptions; temporary or emergency service or discontinuance of service; changes in plant, operation or equipment
(a) Procedures to review universal service requirements1
(1) Federal-State Joint Board on universal service
The following regulations concern the federal universal service program for low-income consumers. The regulations for all of the federal universal service programs are available online as companion material to this treatise.
TITLE 47—TELECOMMUNICATION
CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER B—COMMON CARRIER SERVICES
PART 54—UNIVERSAL SERVICE
SUBPART C—CARRIERS ELIGIBLE FOR UNIVERSAL SERVICE SUPPORT
47 C.F.R. sec.
* * *
54.201 Definition of eligible telecommunications carriers, generally.
(a) Carriers eligible to receive support.
(1) Only eligible telecommunications carriers designated under this subpart shall receive universal service support distributed pursuant to subparts D and E of this part. Eligible telecommunications carriers designated under this subpart for purposes of receiving support only under subpart E of this part must provide Lifeline service directly to qualifying low-income consumers.
(2) [Reserved]
(a) In order to be designated an eligible telecommunications carrier under section 214(e)(6), any common carrier in its application must:
(1)(i) Certify that it will comply with the service requirements applicable to the support that it receives.
(a) If no common carrier will provide the services that are supported by federal universal service support mechanisms under section 254(c) of the Act and subpart B of this part to an unserved community or any portion thereof that requests such service, the Commission, with respect to interstate services, or a state commission, with respect to intrastate services, shall determine which common carrier or carriers are best able to provide such service to the requesting unserved community or portion thereof and shall order such carrier or carriers to provi
(a) A state commission shall permit an eligible telecommunications carrier to relinquish its designation as such a carrier in any area served by more than one eligible telecommunications carrier. An eligible telecommunications carrier that seeks to relinquish its eligible telecommunications carrier designation for an area served by more than one eligible telecommunications carrier shall give advance notice to the state commission of such relinquishment.
(a) The term service area means a geographic area established by a state commission for the purpose of determining universal service obligations and support mechanisms. A service area defines the overall area for which the carrier shall receive support from federal universal service support mechanisms.
TITLE 47—TELECOMMUNICATION
CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER B—COMMON CARRIER SERVICES
PART 54—UNIVERSAL SERVICE
SUBPART E—UNIVERSAL SERVICE SUPPORT FOR LOW-INCOME CONSUMERS
47 C.F.R. sec.
54.400 Terms and definitions.
54.401 Lifeline defined.
54.403 Lifeline support amount.
As used in this subpart, the following terms shall be defined as follows:
(a) Qualifying low-income consumer. A “qualifying low-income consumer” is a consumer who meets the qualifications for Lifeline, as specified in § 54.409.
(b) Toll blocking service. “Toll blocking service” is a service provided by an eligible telecommunications carrier that lets subscribers elect not to allow the completion of outgoing toll calls from their telecommunications channel.
(a) As used in this subpart, Lifeline means a non-transferable retail service offering provided directly to qualifying low-income consumers:
(1) For which qualifying low-income consumers pay reduced charges as a result of application of the Lifeline support amount described in § 54.403; and