131 S. Ct. at 2618.13 The LBI Trustee has requested, in the event the District Court withdraws the reference, that it re-refer the Motion to Compel to the Bankruptcy Court so that it may make proposed findings of fact and conclusions of law pursuant to 28 U.S.C. § 157(c)(1). See Opposition at 4, 32.

We submit, the mere fact that a pre-Liquidation Order swap agreement and the Terms of Agreement are the foundation of the LBI Trustee’s affirmative claim and RBS N.V.’s defense is sufficient reason to withdraw the reference rather than take the chance that Article III rights will otherwise be eviscerated by being commingled with the LBI Trustee’s purported automatic stay claim. (2) The Underlying Policy Behind Mandatory Withdrawal of the Reference under 28 U.S.C. § 157(d) Supports Discretionary Withdrawal in this Instance As noted in the Summary of Argument, the Motion to Compel requires substantial consideration of English law, New York law, and the Bankruptcy Code. Although withdrawal of the reference is not mandatory in this instance because the applicable body of non-bankruptcy law is English, as opposed to federal, law, the policy underlying mandatory withdrawal of the reference, namely, that courts of general jurisdiction with no special affection for any particular field of law should determine matters implicating non-bankruptcy law, applies with equal force in this instance and supports RBS N.V.’s request for discretionary withdrawal of the reference.

In light of the foregoing, Defendant has not, and cannot, carry its burden. Because of the nature of the dispute, this adversary proceeding calls for only a straightforward application of settled law.9 As a consequence, mandatory withdrawal of the reference under 28 U.S.C. § 157(d) is not applicable here. 9 Defendant incorrectly asserts that "counsel for Delphi recognized years ago that the 1958 ruling [Revenue Ruling 58-145] was shaky precedent in the CBA ratification payment context, especially with respect to FICA taxes.

“We conclude today that Congress, in one isolated respect, exceeded that [Article III] limitation . . . .”[emphasis added]. This narrow holding “does not impact a bankruptcy court’s ability to enter a final judgment in any other type of core proceeding authorized under 28 U.S.C. §157(b)(2).” In re Peacock, 2011 WL 3874461 (Bankr. M.D. Fla. Sept. 2, 2011); In re Safety Harbor Resort and Spa, 2011 WL 3849639 (Bankr. M.D. Fla. 2011) (concluding that actions to recover preferential transfers remain core).

And, even if the preference claim were a matter of public right, the entire adversary proceeding should be withdrawn to the District Court because the non-Code claims and issues in this adversary proceeding predominate. For these reasons, Penson’s motion for an order pursuant to 28 U.S.C. § 157(d) withdrawing the reference should be GRANTED. Dated: September 20, 2011 MAYER BROWN LLP By: /s/ Mark G. Hanchet 1675 Broadway, 19th Floor New York, New York 10019 Tel: (212) 506-2500 Fax: (212) 262-1910 Attorneys for Defendant Penson Financial Services, Inc.

Similarly, the eighth cause of action objects to the Defendants’ claims and seeks disallowance under 11 U.S.C. § 502(d) and turnover under 11 U.S.C. § 542. This cause of action is plainly encompassed within 28 U.S.C. § 157(b)(2)(B), (E) and (O). 2.

Case 10-02976-PGH Doc 360 Filed 04/30/12 Page 9 of 14Case 9:12-mc-80546-KAM Document 1 Entered on FLSD Docket 05/18/20 2 Page 9 of 14 -10- S T E A R N S W E A V E R M I L L E R W E I S S L E R A L H A D E F F & S I T T E R S O N , P . A . M U S E U M T O W E R , 1 5 0 W E S T F L A G L E R S T R E E T , M I A M I , F L O R I D A 3 3 1 3 0 @ T E L E P H O N E ( 3 0 5 ) 7 8 9 - 3 2 0 0 27. The lesson of Stern is therefore simple: a bankruptcy court’s authority to finally adjudicate a claim is not determined by reference to the list of core proceedings in 28 U.S.C. § 157(b)(2). Rather, a court must analyze whether the claim to be adjudicated involves a “public” or “private” right.

V. Adv. No.10-00052 BAC HOME SERVICING Defendant(s). TO: CHARLES R. DIARD, JR., CLERK mc 11-7-CG-B UNITED STATES DISTRICT COURT MOBILE, ALABAMA Transmitted with this communication is the Motion for Withdrawal of Reference Pursuant to 28 U.S.C. Section 157 (d). These documents will be filed electronically after the opening of the case.

Additionally, most of the Trustee's non-core Investor Fraud Claims and each of his Avoidance Claims is subject to a right to trial by jury. The Bankruptcy Court may not constitutionally preside over a jury trial on the non-core claims, see Orion, 4 F. 3d at 1101; 28 U.S.C. § 157(e), and may not even preside over a jury trial on the core Avoidance Claims absent special designation by the District Court and the consent of Case 1:11-cv-00763-UA Document 2 Filed 02/03/11 Page 28 of 31 both parties, which will not be given by the HSBC Defendants. Furthermore, the Constitution requires that the jury trial on these claims be held prior to the resolution of related equitable claims.

Moreover, to the extent fact discovery is required, such discovery could be more quickly handled in the bankruptcy court. In sum, the motion for withdrawal of the reference should be denied because the requirements of 28 U.S.C. § 157(d) have not been met. As aforesaid, however, if the district court determines to withdraw the reference, we respectfully suggest that it be withdrawn subject to the bankruptcy court rendering the matter trial ready and proposing findings of fact and conclusions of law to the district court subject to de novo review.