UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE:

CHRISTOPHER D. WYMAN,

Case No. 14-13047

Debtor. Hon. Denise Page Hood

___________________________________

MICHAEL A. MASON, Trustee,

(Bankruptcy Case No. 12-32264)

Plaintiff, (Adv. Proc. No. 12-03348)

v.

MICHELLE PICHLER,

Defendant.

______________________________________/

ORDER GRANTING MOTION TO WITHDRAW THE REFERENCE

and

SETTING SCHEDULE

I. BACKGROUND

This matter is before the Court on Movant/Bankruptcy Trustee Michael A.

Mason’s Motion to Withdraw the Reference the Adversary Proceeding Case No. 12-

03348 (Bankruptcy Case No. 12-32264) before the Bankruptcy Court filed August 6,

2014. The Trustee also seeks to dismiss a defective notice of appeal and to dissolve

an invalid ex parte stay pending the appeal, or in the alternative for security and

supercedeas bond on appeal. Defendant Michelle Pichler filed a response and a

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 1 of 9 Pg ID 60
hearing held on the matter.

An Adversary Proceeding before the Bankruptcy Court was filed on September

20, 2012 with a five-count complaint by the Trustee against Defendants Michelle

Pichler and Edward Linck seeking recovery of preferential transfers under 11 U.S.C.

§ 547, fraudulent transfer under 11 U.S.C. § 544, and for damages under the Michigan

Uniform Fraudulent Transfer Act. The Bankruptcy Court entered an order

determining that Counts I and IV of the complaint were core proceedings, while

Counts II, III and V were non-core proceedings requiring entry of Judgment by the

District Court. (Bankr. DE 123) 

On Jun 25, 2014, the Bankruptcy Court entered a Consent Judgment against

Defendant Linck in favor of the Trustee. (Bankr. DE 206, 207) The Debtor Wyman,

according to the Trustee, has removed and concealed the machinery, equipment and

vehicles to prevent the Trustee from taking possession of the property pursuant to the

Consent Judgment. 

On July 15, 2014, the Bankruptcy Court entered a Default Judgment against

Defendant Pichler declaring title to certain real property commonly known as 1011

Jones Rd., Howell, MI and ordering the Trustee to take immediate possession of the

property. (Bankr. DE 227) The Default Judgment states that it did not resolve all

claims in the matter and that proposed findings of fact and conclusions of law were

2

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 2 of 9 Pg ID 61
to be submitted for entry of Judgment by the District Court as to Counts II, III and V. 

The Trustee claims no timely motion for reconsideration of the Default Judgment was

filed before the Bankruptcy Court, but that Defendant Pichler instead filed a Notice

of Appeal of Judgment on July 28, 2014.1

 (Bankr. DE 229, 230) The Trustee argues

that the Notice of Appeal is invalid since the Default Judgment is not appealable. 

The Trustee demanded immediate possession of the Jones Rd. property as

ordered in the Default Judgment, but both Defendant Pichler and Debtor Wyman

refused to turn over the property. The Jones Rd. property is titled in the name of

Defendant Pichler, but Debtor Wyman has been the sole occupant since 2010. The

Trustee claims no taxes have been paid and no insurance exists on the property. The

Trustee further claims that the property has depreciated in value by at least $100,000

and that the property is in violation of local health codes and standards.

On July 30, 2014, the Trustee evicted Debtor Wyman from the property. 

Defendant Pichler moved, ex parte and without notice to the Trustee, for a stay

pending appeal, which the Bankruptcy Court granted. (Bankr. DE, 237, 238) The

Trustee argues that the order staying the order is not appropriate since at that time,

1

 The appeal by Defendant Pichler was entered on the District Court’s docket on

September 5, 2014. (In re Wyman, Case No. 14-13451) The Court has issued an Order to Show

Cause Why the Case Should Not be Dismissed for Failure to Prosecute (Doc. No. 3) since no

appellate briefs have been filed pursuant to Bankr. Rule 8009 which requires an appellant’s brief

to be filed within 14 days after entry of the appeal on the docket. Bankr. Rule 8009(a)(1).

3

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 3 of 9 Pg ID 62
there was no valid appeal pending and because Defendant Pichler, as nominee of

Debtor Wyman, had no standing to seek a stay of possession. Defendant Pichler

convinced the local court officer that securing the property by locking the doors would

violate the stay. The Trustee filed a motion to set aside the stay order (Bankr. DE

296), which was denied by the Bankruptcy Court in an Order dated September 25,

2014. (Bankr. DE 301)

II. WITHDRAWAL OF REFERENCE

The Bankruptcy Rules provide that a motion for withdrawal of a case shall be

heard by a district judge. Bankr.R. 5011(a). Motions for withdrawal must be filed

pursuant to Rule 5005(a). The withdrawal statute, 28 U.S.C. § 157(d), provides

discretionary and mandatory withdrawal of cases or proceedings referred to the

bankruptcy court as follows: 

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 proceedings 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 burden of withdrawal is on the movant. In re Anderson, 395

B.R. 7, 9 (E.D. Mich. 2008). Local Rule 83.50 provides:

(a) Matters Referred to the Bankruptcy Judges

4

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 4 of 9 Pg ID 63
(1) Unless withdrawn by a district judge, all cases under

Title 11 of the United States Code and any or all

proceedings arising under Title 11 or arising in or related to

case under Title 11 are referred to bankruptcy judges. The

court intends to give bankruptcy judges the broadest

possible authority to administer cases and proceedings

properly within their jurisdiction. 

E.D. Mich. LR 83.50(a)(1). Based on the referral, this district court has referred “all

cases under Title 11 ... and any or all proceedings arising under Title 11” to the

bankruptcy court. The term “proceeding” is generally referred to in connection with

the terms “core” and “non-core” proceedings before the bankruptcy court. The term

“core proceeding” has been noted as “the restructuring of debtor-creditor relations, the

core of the federal bankruptcy power,” which is distinguished from the adjudication

of state-created private rights, which are “non-core” proceedings. See In re Depew,

51 B.R. 1010, 1013 (Bkrtcy. Tenn. 1985). The term “arising under” has a well

defined and broad meaning which gives bankruptcy courts jurisdiction to hear any

matter under which a “claim” is made under a provision of title 11, such as a claim of

exemptions. Id. Congress has provided a non-exhaustive list of “core” matters in §

157(b)(2), including: 1) matters concerning the administration of the estate; 2)

counterclaims by the estate against persons filing claims against the estate; 3)

proceedings to determine, avoid, or recover preferences and fraudulent conveyances;

4) orders to turn over property of the estate; and 5) confirmation of plans. 28 U.S.C.

5

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 5 of 9 Pg ID 64
§ 157(b)(2). A bankruptcy court may hear and determine a core proceeding, unless

a party demands a jury trial. 28 U.S.C. § 157(b)(1) and 28 U.S.C. § 157(e). Absent

consent of the parties, the bankruptcy judges will conduct hearings and file proposed

findings of fact and conclusions of law on non-core proceedings. E.D. Mich. LR

83.50(a)(3).

The Bankruptcy Court below determined that Counts II, III and V of the

Complaint in the Adversary Proceeding are non-core proceedings and that a Report

and Recommendation by the Bankruptcy Court would be issued to the District Court. 

(Bankr. DE 122, 123) In its July 15, 2014 Default Judgment, the Bankruptcy Court

entered Judgment against Defendant Pichler as to Counts I and IV of the Complaint

and ordered that a Proposed Findings of Fact and Conclusions of Law shall be

submitted for submission to the District Court. (Bankr. DE 227) The Bankruptcy

Court noted that Count III was resolved by a Consent Judgment entered previously. 

(Bankr. DE 227). The Trustee filed a Proposed Findings of Fact and Conclusions of

Law (Bankr. DE 228) before the Bankruptcy Court, but the Court has yet to receive

a Report and Recommendation by the Bankruptcy Court. At oral argument counsel

for the Trustee indicated that the Report and Recommendation had not issued because

of the filing of an appeal.

The remaining non-core issues are set forth in Count II of the Complaint for

6

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 6 of 9 Pg ID 65
Fraudulent Transfer in violation of 11 U.S.C. § 544(b) and M.C.L. § 566.34 and

Count V for consequential damages as to Count II. Based on the Bankruptcy Court’s

order, it appears that these two related claims are non-core proceedings which will be

withdrawn by the Court. The Court grants the Trustee’s Motion to Withdraw the

Reference. The Court directs the Bankruptcy Court to issue its Report and

Recommendation within 30 days from the entry of this Order.

III. OTHER RELIEF SOUGHT BY TRUSTEE

The Trustee also seeks to dismiss the Notice of Appeal filed by Defendant

Pichler and to dissolve the stay pending appeal. However, these two issues are not

properly before the Court on the Trustee’s Motion to Withdraw the Reference. These

two issues are related to Defendant Pichler’s Notice of Appeal, which is filed in Case

No. 14-13451. As noted in the footnote 1, the Court has issued an Order to Show

Cause Why the Case Should Not be Dismissed for Lack of Prosecution. The appellant

Defendant Pichler failed to file an appellant’s brief in accordance with Bankr. Rule

8009 within 14 days from the entry of the appeal, which was entered on the District

Court docket on September 5, 2014. Defendant Pichler did not seek an extension to

file the appellant’s brief.

In any event, if Defendant Pichler seeks to extend the time for filing the

appellant’s brief, Defendant may so move and the Trustee may file the appropriate

7

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 7 of 9 Pg ID 66
motion to dismiss the appeal and/or to dissolve the ex parte stay pending the appeal. 

These motions should be filed in the appeal Case No. 14-13451. 

IV. CONCLUSION 

For the reasons set forth above,

IT IS ORDERED that the Trustee’s Motion to Withdraw the Reference (Doc.

No. 1) is GRANTED and the Reference is WITHDRAWN as to the remaining claims

in the Complaint, Count II for Fraudulent Transfer in violation of 11 U.S.C. § 544(b)

and M.C.L. § 566.34 and Count V for consequential damages as to Count II.

IT IS FURTHER ORDERED that the Emergency Motion to Expedite Hearing

(Doc. No. 3) is MOOT.

IT IS FURTHER ORDERED that the following schedule governs this matter:

The Bankruptcy Court’s Report and Recommendation is to be

filed by November 18, 2014. Defendant Pichler may file Objections to

the Report and Recommendation by December 5, 2014. The Trustee

may file a Response to the Objections by December 19, 2014. An order

and judgment will then be issued by this Court. 

s/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: October 15, 2014

I hereby certify that a copy of the foregoing document was served upon counsel

8

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 8 of 9 Pg ID 67
of record on October 15, 2014, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

9

2:14-cv-13047-DPH-MKM Doc # 6 Filed 10/15/14 Pg 9 of 9 Pg ID 68