Briney v. Burley (In Re Burley)

OPINION

KATZ, Bankruptcy Judge:

Appellants appeal from an order of the bankruptcy court denying their motion to vacate the order of discharge entered in the bankruptcy proceedings filed by the Bur-leys.

The salient facts are that the Burleys filed a Petition for Relief Under Chapter 7 of the Bankruptcy Code in the Central District of California.

The Brineys are creditors of the debtors as a result of a judgment having been entered in their favor in the state courts of Colorado and are the debtors’ only creditors.

Upon receiving notice of the filing of the bankruptcy, which advised them of the time within which to file complaints objecting to the discharge or to determine dischargeability of debt, the Brineys timely filed such a complaint in the bankruptcy court for the District of Colorado. The clerk of the bankruptcy court in the Central District of California was notified of the timely filing of the complaint.

Thereafter, the Burleys moved in the Colorado court to dismiss the complaint for improper venue or in the alternative to transfer the proceeding to the California court. The motions were denied and the matters were set for trial.

Subsequently the California bankruptcy court entered the discharge of the Burleys. A motion under F.R.C.P. 60(b) and Bankruptcy Rule 924 to vacate the order of discharge was made by appellants and denied. The court below denied the motion on the grounds that the Colorado court had no authority to retain the proceedings under applicable law.

In its decision, In re Burley, 11 B.R. 369, the court concluded that it was free to grant the debtors a discharge despite the timely filed complaints pending in Colorado. The court below recognized that the Colorado court had jurisdiction to accept, process and file the creditors’ complaint, but that venue was improper and therefore the Colorado court could not have retained the proceedings for ultimate disposition.

We agree with the trial court on the determination that the Colorado court had jurisdiction over the Brineys’ complaint. We disagree on the venue issue and therefore REVERSE and REMAND with instructions to grant the motion of appellants to vacate the Order of Discharge.

In determining the venue issue, one must look to 28 U.S.C. §§ 1473, 1475 and 1477, as well as legislative history.

28 U.S.C. § 1473 provides, in subdivision (a) thereof:

*605“Except as provided in subsections (b) and (d) of this section, a proceeding arising in or related to a case under title 11 may be commenced in the bankruptcy-court in which such case is pending.” [Emphasis added.]

The word “may” is permissive, indicating that while a proceeding may be filed in the court wherein the case is pending it may also be filed in another court.

The term “proceeding” in the Code is used in its broadest terms to include anything that occurs in a case. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 445 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787.

28 U.S.C. § 1477(a) states:

“The bankruptcy court of a district in which is filed a case or proceeding laying venue in the wrong division or district may, in the interest of justice and for the convenience of the parties, retain such case or proceeding, or may transfer, under section 1475 of this title, such case or proceeding to any other district or division.”

These matters, taken together, indicate that any proceeding which includes disputes relating to administrative matters may be heard in a bankruptcy court other than the court in which the case is pending if it is in the interest of justice and for the convenience of the parties to do so.

We do not have before us the record of the Colorado court of the hearing on the motion to dismiss filed by the Burleys. Hence, whether the Colorado court abused its discretion in not granting that motion, thereby retaining venue, is not before us.

What is before us is the question of whether the California court abused its discretion in refusing to set aside the discharge. In basing its ruling on its belief that venue was improper, we think the court below was in error.

REVERSED and REMANDED with instructions.