Getting a Case Out of Bankruptcy Court

29 May Getting a Case Out of Bankruptcy Court

Generally, there are two ways to get a case out of bankruptcy court.  They are called “remand” and “abstention.”

When a case is removed to bankruptcy court, the bankruptcy court does not have to keep the case.  The bankruptcy court may choose to remand.  28 U.S.C. 1452(b) provides that the court to which a case is removed may remand the case back to the court from which it came “on any equitable ground.”  The decision to remand is not reviewable by appeal.

Abstention is another way to send a case back to the original court.  There are two ways to abstention.  First, Section 305 of the Bankruptcy Code authorizes a bankruptcy judge to abstain from hearing an entire bankruptcy case.  Second, 28 U.S.C. 1334(c)(1) permits a judge to abstain from a case in “the interest of justice, or…the interest of comity with State courts or respect for State law.”  The Courts have generated factors to be considered in deciding whether a matter should be remanded or a judge should abstain.  The decision to abstain is not reviewable on appeal.

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