Residential Funding Co. v. UBS Real Estate Securities, Inc. (In re Residential Capital, LLC)Residential Funding Co. v. UBS Real Estate Securities, Inc. (In re Residential Capital, LLC)
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND
Dеbtor Residential Funding Company, LLC (“RFC”) filed this lawsuit against UBS Real Estate Securities, Inc. (“UBS”) in the New York State Supreme Court, seeking breach of contract damages and indemnification related to loans UBS sold to RFC. RFC then removed the action to this Court, and UBS now seeks to remand
The complaint filed in this action is substantially similar to complaints in 83 other lawsuits (the “RMBS Actions”) initiated by RFC or its successor in interest, the Res-Cap Liquidating Trust (the “Trust”). The majority of the RMBS Actions are currently pending in the U.S. District Court for the District of Minnesota. Thirteen adversary proceedings substantially similar to this action are currently pending before this Court, under the central docket In re ResCap Liquidating Trust Mortgage Purchase Litigation, Adv. No. 14-07900 (Bankr.S.D.N.Y.). At least ten defendants in those adversary proceedings have рending motions to withdraw the bankruptcy reference and/or transfer venue, each in front of a different district judge.
The RMBS Actions involve similar state law claims for breach of contract and indemnification related to the packaging and sale of residential mortgage backed securities (“RMBS”). What sets the UBS action apart is the fact that UBS filed a proof of claim against RFC in the bankruptcy case. That distinction is determinative of the outcome of this Motion. UBS’s proof of claim seeks contract breach damages and indemnification under a separate but similar contract governing the sale of loans
I. BACKGROUND
A. The Complaint
RFC asserts common law causes of action for breach of contract and contractual indemnification arising out of RFC’s purchase of loans from UBS (the “Loans”). {See Second Amended Complaint (“SAC”), ECF Doc. #33 ¶¶ 81-91). According to RFC, it purchased over 2,200 mortgage loans from UBS, with an original principal balance in excess of half a billion dollars. (Id. ¶¶ 18, 20.) In connection with that sale, the parties entered intо a Master Seller’s Purchase and Warranties Agreement dated May 12, 2005 (the “MSPA,” SAC Ex. A), under which UBS represented and warranted that the Loans would meet certain criteria and satisfy certain characteristics (the “Warranties”). {See SAC ¶ 25.) UBS also agreed to indemnify RFC against any liabilities and losses that RFC might incur if UBS’s Warranties were false. {See, e.g., MSPA § 3.03; SAC ¶ 28.)
After purchasing the Loans, RFC either securitized them by creating so-called “RMBS Trusts,” or sold them into whole loan pools. (SAC ¶¶ 22-24.) In doing so, RFC made certain representations to the RMBS or whole-loan purchasers concerning the characteristics of the Loans, relying on information provided by UBS and other mortgage originators. {Id. ¶¶ 26, 32.)
RFC alleges that the performance of the Loans revealed that the Loans contained a massive number of defects, in violation of
On May 14, 2012, RFC, Residential Capital, LLC, and numerous affiliates (the “Debtors”) filed for chapter 11 bankruptcy protection, due in part to their enormous potential exposure from these RMBS-re-lated lawsuits. (Id. ¶ 74.) RMBS investors, monoline insurers, whole-loan purchasers, indenture trustees, and others filed hundreds of proofs of claim in these bankruptcy proceedings, many of which mirrored pre-petition litigation, and all of which stemmed from allegedly defective mortgage loans. (Id. ¶ 75.) After protracted and contested proceedings, and through a lengthy mediation process, a global settlement was reached that provided for the resolution of all of the Debtors’ RMBS-related liabilities — including liability arising from the Loans purchased from UBS — in exchange for over $10 billion in allowed claims, allocated by various means to the RMBS Trusts, monoline insurers, FHFA, securities law claimants, and others (the “Global Settlement”). (Id. ¶ 78.)
On December 11, 2013, the Court entered an order (the “Confirmation Order,” Ch. 11 ECF Doc. # 6065)
RFC filed this action on December 17, 2013, after its RMBS-related liabilities became fixed through confirmation of the Plan. RFC asserts that
[p]ursuant to its express contractual obligations, UBS is obligated to compensate RFC for the portion of [the] Global Settlement associated with UBS’s breaches [of] its representations and warranties, as well as for the portion of RFC’s other liabilities and losses (including the tens of millions of dollars that RFC has paid in attorneys’ fees to defend against, negotiate, and ultimately settle claims relating to allegedly defective loans) associated with those same breaches.
(SAC ¶ 80.)
B. UBS’s Proof of Claim
On November 9, 2012 — before RFC filed this action — UBS timely filed proof of claim number 4200 (the “UBS Claim”) in RFC’s bankruptcy proceeding. The UBS
C. Procedural History and the Remand Motion
RFC filed this action against UBS in the New York State Supreme Court, New York County, on December 17, 2013. (See Compl., ECF Doc. # 1-2.) In its state court Complaint, RFC alleged that jurisdiction was proper in New York state court under CPLR sections 301 and 302, and that venue was proper under CPLR sections 501 and 503. (Compl. ¶¶ 13-14.)
On March 27, 2014, RFC removed this action under 28 U.S.C. § 1452(a) to the District Court for the Southern District of New York, invoking 28 U.S.C. § 1334 as its sole ground for federal jurisdiction and asserting that the action is a “core” bankruptcy proceeding. (See Notice of Removal, ECF Doc. #1-2 at 3-5; ¶ 13 (“The Removed Case is a core proceeding because it: concerns issues and claims similar and in some respects identical to those Defendant is asserting in its proof of claim in RFC’s bankruptcy case; is in substance and effect a counterclaim by the bankruptcy estate; relates to the administration of the estate and the Trust’s obligation to liquidate RFC’s assets; and may affect the allowance or disallowance of claims against the estate.”).) On April 1, 2014, the action was referred to this Court under 28 U.S.C. § 157(a) and the S.D.N.Y. Amended Standing Order of Reference. See Amended Standing Order of Reference (M-431), Case No.
In its Second Amended Complaint, RFC alleges that jurisdiction is proper in this Court since this action is a core proceeding under 28 U.S.C. § 157(b)(2)(C) as a counterclaim to UBS’s proof of claim, and also under § 157(b)(2)(A), (L), and (O) in that it
UBS’s Remand Motion seeks to remand this action to the New York State Supreme Court. UBS argues that (1) this Court has neither core nor “related to” jurisdiction over this proceeding, and (2) even if the Court does have jurisdiction, the Court should abstain from hearing the case. UBS also does not consent to the entry of final orders or judgment by this Court if it is determined that a bankruptcy judge, absent consent of the parties, cannot enter final orders or judgment consistent with Article III of the Constitution.
II. DISCUSSION
A. This Court Has Subject Matter Jurisdiction Over This Action Under 28 U.S.C. § 1334(b); It Is As a Core Proceeding Under 28 U.S.C. § 157(b)(2)(C)
The party seeking removal of an action from state to federal court bears the burden of proving federal jurisdiction. Kirschner v. Grant Thornton LLP (In re Refco, Inc. Sec. Litig.),
RFC asserts that this Court has jurisdiction over this action as a “core” proceeding since it is a counterclaim against UBS’s proof of claim. See 28 U.S.C. § 157(b)(2)(C) (stating that core proceedings include “counterclaims by the estate against persons filing claims against the estate”). UBS disagrees, arguing that counterclaims must relate to a proof of claim to be considered “core.” The Court rejects UBS’s argument; the connection between a counterclaim and a proof claim is irrelevant for establishing federal subject matter jurisdiction over the counterclaim. The relationship between the claim and counterclaim — and specifically, whether both will necessarily be resolved as part of the claims allowance process — is determinative only of whether a bankruptcy court may finally adjudicate the counterсlaim in question. See Stern v. Marshall, — U.S. -,
Courts have grappled with constitutional and statutory limits on bankruptcy jurisdiction since before the current bankruptcy court system was created in the Bankruptcy Act of 1978 (the “1978 Act”). The inquiry commonly focused on whether a bankruptcy estate’s affirmative claim against a third party involved the claims allowance process. For example, in Katchen v. Landy,
The contours of bankruptcy jurisdictiоn remained unclear after enactment of the 1978 Act. In a landmark decision, the Supreme Court struck down as unconstitutional the provisions of the 1978 Act that granted bankruptcy courts final adjudicative authority over certain state law claims brought against third parties who were not otherwise part of the bankruptcy proceeding. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
To address the constitutional issues raised in Marathon, Congress enacted the
Proceedings involving the “allowance or disallowance of claims” are listed as core proceedings under 28 U.S.C. § 157(b)(2)(B). Even after Marathon, it remained clear — as it had been since Katchen — that bankruptcy courts could constitutionally determine matters that were part of the claims allowance process. See, e.g., Langenkamp v. Culp,
The Supreme Court addressed this issue in Stern v. Marshall. In Stern, a creditor filed a proof of claim for defamation in the debtor’s bankruptcy case, and the debtor defended the complaint and filed a counterclaim for tortious interference. See Stern,
a counterclaim under § 157(b)(2)(C) is properly a core proceeding arising in a casе under the Code only if the counterclaim is so closely related to the proof of claim that the resolution of the counter*62 claim is necessary to resolve the allowance or disallowance of the claim itself. Such a construction of § 157(b)(2)(C) takes into account the whole of the statute, avoids rendering any terms superfluous, follows Katchen, and comports with the principles of Marathon and Congress’ desire to revise the Bankruptcy Code in a manner consistent with the Constitution.
Id. at 1058 (internal quotation marks omitted).
On appeal to the Supreme Court, one of the questions presented was “[w]hether the Ninth Circuit opinion, which rendered] § 157(b)(2)(C) surplusage in light of § 157(b)(2)(B), contravene[d] Congress’ intent in enacting § 157(b)(2)(C).” Petition for Writ of Certiorari at ii, Stem,
Against this backdrop, the Court turns to the issue presented in the Remand Motion — whether federal subject matter jurisdiction exists over the state law claims asserted in this action. As discussed above, the core/non-core distinction generally does not bear on the question of federal subject matter jurisdiction — federal courts have jurisdiction to hear both core matters and non-core matters. See 28 U.S.C. § 1334(b). But if the current proceeding qualifies as one of the core proceedings enumerated in section 157(b)(2), then it follows that the Court has subject matter jurisdiction over the action as one “arising in” a bankruptcy case, and the Court need not determine whether the claims are “related to” the bankruptcy proceeding.
RFC asserts that this action is core as a “eounterclaim[ ] by the estate against persons filing claims against the estate.” 28 U.S.C. § 157(b)(2)(C). Specifically, RFC contends that the claims it asserts against UBS in this action are the “mirror image” of the claims asserted against it in the UBS proof of claim. (Opp. at 8.) Even though the claims in this action and the UBS Claim are based on wholly distinct contracts, involving entirely different sets of loans, the Court agrees with RFC that the claims are counterclaims under Rule 13 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7013. See Fed.R.CivP. 13(c) (“A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party”).
UBS argues that the counterclaims asserted in this action are non-core, since they involve distinct issues and facts from its proof of claim and therefore do not qualify as counterclaims under section 157(b)(2)(C). (See Mem. at 11-12; Reply at 3-4.) UBS’s argument relies indirectly on a number of pre-Stem decisions by courts in this district that held that section 157(b)(2)(C) confers core bankruptcy jurisdiction over a state law counterclaim only when there is some connection between the counterclaim and the creditor’s proof of claim. See, e.g., Statutory Comm. of Unsecured Creditors v. Motorola, Inc. (In re Iridium Operating LLC),
UBS’s reliance on this line of reasoning is misplaced in light of the Supreme Court’s ruling in Stem. As the above discussion makes clear, before Stem, courts attempted to reconcile a bankruptcy court’s core jurisdiction with the Supreme Court’s earlier rulings that appeared to require a connection between a bankruptcy
The Court also rejects UBS’s argument that the Supreme Court’s recent decision in Arkison transforms counterclaims like the one asserted here into non-core claims. (See Reply at 4-5.) As explained above, “Stem made clear that some claims labeled by Congress as ‘core’ may not be adjudicated by a bankruptcy court in the manner designated by § 157(b). Stem did not, however, address how the bankruptcy court should proceed under those circumstances.” Arkison,
When a court identifies a claim as a Stem сlaim, it has necessarily “held invalid” the “application” of § 157(b) — i.e., the “core” label and its attendant procedures — to the litigant’s claim. Note following [28 U.S.C.] § 151_ With the “core” category no longer available for the Stem claim at issue, we look to § 157(c)(1) to determine whether the claim may be adjudicated as a non-core claim — specifically, whether it is “not a core proceeding” but is “otherwise related to a case under title 11.” If the claim satisfies the criteria of § 157(c)(1), the bankruptcy court simply treats the*66 claims as non-core: The bankruptcy court should hear the proceeding and submit proposed findings of fact and conclusions of law to the district court for de novo review and entry of judgment.
Id.
UBS argues that the above language from Arkison renders this action non-core. The Court disagrees. Writing for a unanimous court in Arkison, Justice Thomas did not specify which subsection of section 157(b) would be invalidly applied to a Stem claim. Under this Court’s reading of Stem and Arkison, a bankruptcy court is foreclosed from applying the procedures delinеated in section 157(b)(1) — i.e., final adjudication of core claims — to certain claims labeled as core by Congress in section 157(b)(2). Instead, adjudication of Stem claims is channeled to section 157(c), permitting the bankruptcy court to submit proposed findings of fact and conclusions of law, as if the claim was non-core.
For these reasons, the Court holds that this action is core as a counterclaim against the UBS proof of claim, and the Court therefore has core jurisdiction over the action as a matter “arising in” the bankruptcy proceeding. Accordingly, the Court need not address any of RFC’s al-tentative bases for establishing core jurisdiction. Further, because the action is core, mandatory abstention principles do not apply. See 28 U.S.C. 1334(c); see also Shipley Garcia Enters., LLC v. Cureton, No. 12-cv-0089,
B. Abstention is Not Warranted Under Permissive Abstention Principles
UBS argues that even if the Court concludes that it has core jurisdiction over this proceeding (which it does), the Court should nonetheless remand the action by exercising its discretion to abstain from hearing the case. See 28 U.S.C. § 1334(c)(1) (“[Njothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.”). The Court disagrees. Courts in this district
(1) the effеct or lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable state law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court, (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted “core” proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden [on] the court’s docket, (10) the likelihood that the commencement of the proceeding in a bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re WorldCom, Inc. Sec. Litig.,
Section 1334(c)(1) must be interpreted according to the principle that “federal courts have a ‘virtually unflagging obligation ... to exercise the jurisdiction given them,’ and may abstain only for a few ‘extraordinary and narrow exception[s].’ ” Id. (alterations in original) (quoting Colo. River Water Conservation Dist. v. United States,
First, the court rejects UBS’s argument that “this action will have — at best — a contingent and remote effect on the [bankruptcy [proceedings.” (Mem. at 18.) As UBS acknowledges, any recovery in this action will go to RFC’s creditors under the terms of the confirmed Plan. (See id.) Thus, the bankruptcy estate will benefit from any judgment RFC obtains, and the cases cited by UBS are therefore distinguishable. For example, in Allstate Insurance Co. v. CitiMortgage, Inc., the court applied permissive abstention in a proceeding between two non-debtors, where the defendant had filed an indemnification claim against the debtor. No. 11 Civ. 1927(RJS),
Second, although this action involves only state law claims, none of the issues are particularly complex, so comity does not require abstention. See Refco,
Third, the Court rejects UBS’s argument that it “will suffer prejudice absent remand by being subjected to unnecessary delay and duplicative proceedings.” (Mem. at 19.) The Court will not opine whether this action can be timely adjudicated by a New York state court. Suffice it to say that this Court is ready now to proceed with this action in an expeditious manner, coordinated with the other RMBS Actions pending before the Court. The Court has already entered two case management and scheduling orders in these cases.
The Court need not address thе other factors for permissive abstention, other than to say that it has considered all of
C. The Court Has Authority to Enter This Order, Which Is Not a Final Order
There is a split in authority whether a motion to remand is itself a “core” proceeding, or whether the “proceeding” referenced in 28 U.S.C. § 157 is the underlying lawsuit subject to a remand motion. See Residential Capital,
III. CONCLUSION
For all of the foregoing reasons, the Motion is DENIED.
IT IS SO ORDERED.
Notes
. The motion pending before the Court is the Motion of Defendant UBS Real Estate Securities Inc. to Remand This Action to New York State Supreme Court (the "Remand Motion,” ECF Doc. # 5). The Remand Motion is supported by a Memorandum of Law (the "Mem.,” ECF Doc. # 6) and the Declaration of Robert A. Fumerton (the "Fumerton Decl.,” ECF Doc. # 7). RFC filed an opposition (the "Opp.,” ECF Doc. # 18), and UBS filed a reply (the "Reply,” ECF Doc. # 22). The Court heard oral argument on the Remand Motion on June 26, 2014. At the hearing, the Court requested supplemental briefing from the parties. On July 25, 2014, UBS filed a Supplemental Memorandum of Law in Support of its Motion to Remand (the “UBS Supp.,” ECF Doc. # 34) and the Supplemental Declaration of Robert A. Fumerton (the "Fummerton Supp.,” ECF Doc. # 35). RFC filed a Supplemental Memorandum of Law in Opposition to Defendant's Motion to Remand (thе "RFC Supp.,” ECF Doc. # 36) and the Declaration of Isaac Nesser (ECF Doc. # 37).
. See Case No. 14-cv-03039 (GBD), ECF Doc. #12 (July 14, 2014) (Order Denying Motion to Withdraw Bankruptcy Reference); July 10, 2014 Hr'g Tr. 5:18-6:16.
. After Judge Daniels’ decision to await this Court’s decision on the instant Remand Motion, several other district judges with pending motions to withdraw the reference in RMBS Actions followed suit. See ResCap Liquidating Trust v. CMG Mortg., Inc., No. 14-cv-4950 (Pauley, J.); Rescap Liquidating Trust v. First Mariner Bank, No. 14-cv-5064 (Crotty, J.); Rescap Liquidating Trust v. Cadence Bank, N.A., No. 14-cv-5250 (Abrams, J.); Rescap Liquidating Trust v. PHH Mortg. Corp., No. 14-cv-5315 (Koetl, J.); Rescap Liquidating Trust v. Honor Bank, No. 14-cv-5415 (Schofield, J.); Residential Funding Co., LLC v. GreenPoint Mortg. Funding, Inc., No. 14-5452 (Castel, J.); Rescap Liquidating Trust v. Summit Fin. Mortg. LLC, No. 14-5453 (Gardephe, J.).
In one of the RMBS Actions, Judge Heller-stein granted a motion to withdraw the reference and transfer venue to the District of Minnesota, enforcing a contractual forum selection clause. See ResCap Liquidating Trust v. RBC Mortg. Co., No. 14-cv-04457 (AKH), ECF Doc. # 10 (S.D.N.Y. July 18, 2014). Judge Hellerstein’s decision was based, in part, on his holding that RFC’s claims in that action are non-core since a "breach-of-contract action by a debtor against a party to a prepetition contract, who has filed no claim with the bankruptcy court, is non-core.” Id. at 3 (quoting In re Orion Pictures Corp.,
. The Court will assume for purposes of this decision that it would not have authority to enter final orders or judgment on RFC’s counterclaims against UBS without the consent of the parties. The Court would still have authority to enter proposed findings of fact and conclusions of law whether the claims are core or non-core. See Executive Benefits Ins. Agency v. Arkison, - U.S. -,
. References to documents filed in the chapter 11 proceeding, Case No. 12-12020, will be notated as "Ch. 11 ECF Doc. # XX.”
. The POC Contracts are: (1) a Standard Terms and Provisions of Sale and Servicing Agreement dated May 30, 2006 (Fumerton Supp. Ex. 4); (2) a Reference Agreement, also dated May 30, 2006 (Fumerton Supp. Ex. 5); and (3) a Sale and Servicing Agreement (Fumerton Supp. Ex. 6).
. For a comparison of similar provisions in the POC Contracts and the MSPA, see RFC Supp. at 7-10.
. There is authority, including in the Second Circuit, that bankruptcy courts may exercise supplemental jurisdiction under 28 U.S.C. § 1367. See, e.g., In re Pegasus Gold Corp.,
. Section 157(b)(2) includes a non-exclusive list of core proceedings. While there may be
. This truism was not important until the Supreme Court's decisions in Stem and, in particular, Arkison, which, as discussed below, explains what a bankruptcy court may do in adjudicating Stem claims. Because the claims are bankruptcy-related, the Court may submit proposed findings of fact and conclusions of law to the district court under section 157(c)(1), even if the Court lacks constitutional authority to enter final judgment on the claims under section 157(b)(1). See Arkison,
. Courts have articulated that "[cjlaims ‘arise in' bankruptcy when, although not based on any right expressly created by Title 11, they ‘would have no practical existence but for the bankruptcy.' ” Lothian Cassidy, LLC v. Lothian Exploration & Dev. II, L.P.,
. In a different RMBS Action, Judge Abrams referred the action to this Court, finding that the action was "related to” RFC’s bankruptcy case. See Memorandum Opinion and Order, Residential Funding Co., LLC v. Suntrust Mortg., Inc., No. 13-cv-8938,
Some courts apply the "close nexus” test even when the debtor liquidates; other courts apply the “conceivable effect” test. See Allstate Ins. Co. v. CitiMortgage, Inc., No. 11 Civ.1927(RJS),
Judge Abrams did not decide the applicable standard because she found that the action satisfied the "close nexus” test. See J. Abrams Order at 4 ("The Court need not decide which standard applies, however, because the present action meets even the more onerous 'close nexus’ standard.” (citing Refco,
Since the Court finds it has core jurisdiction over this action as a counterclaim to the UBS Claim, the Court need not reach the question here. This issue may need to be addressed in the other similar RMBS Actions filed by RFC or the Trust where the defendant did not file a proof of claim against the Debtors. The Court will first have to determine whether the RMBS Actions are core (other than under section 157(b)(2)(C)), and, if not, whether the claims are “related to” the bankruptcy under the applicable test — either the conceivable effect or close nexus test.
. Additionally, “forum selection clauses,” such as those contained in some of the RMBS Actions, see supra n.3, are generally enforced in non-core cases but not in core cases. See Wachovia Bank N.A. v. Encap Golf Holdings,
. See also Leslie Fay Cos. v. Falbaum (In re Leslie Fay Cos.), No. 97 Civ. 2244(MGC),
. Conferring core jurisdiction over the counterclaims asserted here also comports with the policy of efficiency behind permissive counterclaims under the federal rules. See 6 Charles A. Wright, et at, Federal Practice and Procedure § 1420 (3d ed. 2014) (“Rule 13(b) simply encourages the parties to assert their independent and unrelated counterclaims in order to dispose of all points of controversy between the litigants in one action, thereby avoiding the cost of multiple suits.”). This holding also promotes "the strong public policy interest in centralizing all core matters in the bankruptcy court.” Breeden v. The Aegis Consumer Funding Grp. Inc. (In re The Bennett Funding Grp., Inc.),
. The result in Arkison supports the approach adopted by the U.S. District Court for the Southern District of New York in Amended Standing Order of Reference, M-431 (dated Jan. 31, 2012) ("If a bankruptcy judge or district judge determines that entry of a final order or judgment by a bankruptcy judge would not be consistent with Article III of the United States Constitution in a particular proceeding referred under this order and determined to be a core matter, the bankruptcy judge shall, unless otherwise ordered by the district court, hear the proceeding and submit proposed findings of fact and conclusions of law to the district court. The district court may treat any order of the bankruptcy court as proposed findings of fact and conclusions of law in the event the district court concludes that the bankruptcy judge could not have entered a final order or judgment consistent with Article III of the United States Constitution.”).