Abstention or Remand: Factors to Consider

30 May Abstention or Remand: Factors to Consider

Courts have developed factors to consider in deciding whether to remand or abstain.  (Searcy v. Knstman, In re Tomlinson Interests, 155 B.R. 699 (Bankr. S.D. Miss, 1993).  They are:

  • The effect, or lack thereof, on the efficient administration of the bankruptcy estate
  • The extent to which state law issues predominate over bankruptcy issues
  • The difficulty or unsettled nature of th applicable law
  • The presence of related proceedings in state court
  • The jurisdictional basis, if any, other than 28 U.S.C. 1334
  • The degree of relatedness ore remoteness to the main bankruptcy case
  • The feasibility of severing state law claims from core bankruptcy matters to allow judgment to be entered in state court with enforcement to the bankruptcy court
  • The burden of the bankruptcy court’s docket
  • The likelihood that the case in bankruptcy court is a result of forum shopping by one of the parties
  • The existence of a right to a jury trial
  • The presence in the proceeding of non debtor parties
  • Comity; and
  • The possibility of prejudice to other parties in the action.
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