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#2253 signed 7-22-96

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS





In Re:

SOUTHWEST PUBLISHING CORP.,

DEBTOR(S)

NO. 90-42140-11

CHAPTER 11

SOUTHWEST PUBLISHING CORP.,

PLAINTIFF(S),

v.

AMERICAN HEART DISEASE PREVENTION FOUNDATION, INC.,

DEFENDANT(S)

ADV. NO. 91-7436



RECOMMENDATION THAT DISTRICT COURT

DENY MOTION TO WITHDRAW REFERENCE

This proceeding is before the Court on the plaintiff-debtor's motion to withdraw reference. The debtor appears by counsel Jan Hamilton. The defendant has not filed a response to the motion. The Court has reviewed the relevant pleadings and is now ready to rule

In January of this year, Congress amended 28 U.S.C.A. §1930(a)(6) to provide that the quarterly fees which a debtor must pay to the United States Trustee in a chapter 11 case must continue to be paid so long as the case remains open in chapter 11, even after a reorganization plan has been confirmed. The debtor alleges its bankruptcy case remains open solely because this adversary proceeding is being litigated, and contends its case could be closed so it can avoid the post-confirmation quarterly fees if the District Court would withdraw the proceeding from this Court. See 28 U.S.C.A. §157(a) & (d); D.Kan. Rule 83.8.6. Thus, the debtor suggests avoiding the quarterly fees constitutes "cause" under §157(d) and District of Kansas Rule 83.8.6(a)(6) for transferring this proceeding to the District Court.

This Court believes the debtor's motion should be denied. Federal Rule of Bankruptcy Procedure 3022 directs the Court to enter a final decree closing a chapter 11 case "[a]fter [the] estate is fully administered." The 1991 Advisory Committee Note to the Rule suggests a number of factors the Court should consider in determining whether the estate has been "fully administered," including "whether all motions, contested matters, and adversary proceedings have been finally resolved." Transferring this proceeding to the District Court would not resolve it, just reassign it to another decision-maker. In essence, the debtor suggests an out-of-sight-out-of-mind approach to determining whether the estate has been fully administered so the case can be closed. If the case can be closed before this proceeding has been resolved, it can be done with the proceeding still pending before this Court as well as with it pending before the District Court. Consequently, pursuant to District of Kansas Rule 83.8.6(f), the Court hereby recommends that the debtor's motion to withdraw reference be denied.

The bankruptcy clerk is directed to transmit the debtor's motion and this recommendation to the district clerk.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of July, 1996.









__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE
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