ORDER OVERRULING UNITED STATES' OBJECTION

PAUL G. HYMAN, Chief Judge.

THIS MATTER came before the Court upon the United States of America's ("United States" or "IRS") Objection to Bankruptcy Courts' Entry of Final Judgment in this Adversary Proceeding ("Objection") (ECF No. 107). Pursuant to the Court's Order Setting Briefing Schedule, Deborah C. Menotte ("Trustee") filed a Response to the IRS' Objection and the IRS filed a Reply.

I. Background

Custom Contractors, LLC (the "Debtor") filed a Chapter 7 petition on July 15, 2009. Brian Denson ("Denson") was the sole owner, manager, and officer of the Debtor. On July 29, 2010, the Trustee filed a Complaint to Avoid and to Recover Fraudulent Transfers and Other Relief (the "Complaint") seeking to recover allegedly fraudulent transfers from the Debtor to the IRS in the amount of $199,956.25 pursuant to 11 U.S.C. §§ 544, 548 & 550, and Fla. Stat. §§ 726.105(1)(a) & (b), 726.106(1), 726.108(1). The Trustee alleges that the transfers were in payment of Denson's personal tax liability to the IRS, at a time when the Debtor was struggling to pay its bills and had no liability to the IRS.

On September 7, 2010, after seeking and receiving an extension of time in which to file a response, counsel for the IRS filed a Motion to Dismiss Adversary Proceeding ("Motion to Dismiss") (ECF No. 7). The Motion to Dismiss argued, among other things, that because the United States did not waive its sovereign immunity for claims seeking the return of taxes that had been voluntarily paid, the Court lacked jurisdiction to determine the Trustee's claims based upon § 544 and applicable Florida law. On September 24, 2010, the Court conducted a hearing on the IRS' Motion to Dismiss and the Trustee's objection thereto. The Court denied the Motion to Dismiss, finding that Florida's voluntary payment rule did not apply to federal tax payments. The Court further found that Congress' abrogation of sovereign immunity under § 106 extended to actions under § 544 and applicable state law. Memorandum Order Denying Motion to Dismiss by United States of America (ECF No. 16).

Notwithstanding the Court's Order Denying Motion to Dismiss, on October 19, 2010, the IRS filed its Answer which continued to assert that the Court lacked jurisdiction over claims based upon § 544(b) and Florida fraudulent transfer statutes because the United States had not waived sovereign immunity with respect to such claims. However, in its Answer, the IRS admitted the Complaint's allegation that this adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (H), and (O).

On November 12, 2010, the IRS filed a Motion for Order Requiring Joinder of a Necessary Party ("Joinder Motion") (ECF No. 26), in which it sought joinder of Denson as a necessary party to this adversary proceeding. Following a hearing on November 30, 2010, the Court entered an order denying the Joinder Motion. On April 15, 2011, the IRS filed a Motion to Continue Pretrial Conference seeking a continuance until July 2011. Having previously granted five agreed motions to continue the pretrial conference in this matter, the Court conducted a hearing on this motion which it ultimately granted. On July 5, 2011, the Trustee filed a Motion to Compel Production of Documents which was heard by the Court on July 12, 2011.

On July 5, 2011, counsel for the IRS filed a Motion for Partial Summary Judgment ("Summary Judgment Motion") (ECF No. 73), arguing that the United States was entitled to judgment as a matter of law because: 1) the payments made to the IRS were not made with actual fraudulent intent; 2) the Debtor was not insolvent or operating with unreasonably small capital at the time of the 2007 payments; and 3) the IRS was not a transferee of the 2008 payments because the payments were refunded to Denson. As directed by the Court, the parties briefed the Summary Judgment Motion and filed a Joint Stipulation of Facts ("Joint Stipulation") (ECF No. 88). The Joint Stipulation, filed August 9, 2011, states that: 1) "[s]ubject to the continuing objection of the United States which this Court has rejected—that the Court lacks jurisdiction over Counts II and IV of the complaint because the United States has not waived sovereign immunity—the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334"; and 2) "[t]his adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (H), and (O)." The Court denied the Summary Judgment Motion based upon the existence of disputed issues of material fact.

On June 23, 2011, the Supreme Court handed down its decision in Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stern, the Supreme Court held that bankruptcy courts lack the constitutional authority to enter a final judgment on a counterclaim that neither stemmed from the bankruptcy itself nor would necessarily be determined in the claims allowance process. Id. at 2611, 2620. This Court thereafter entered a generic sua sponte Supplemental Order Setting Deadline for Objections to this Court's Entry of Final Orders in Pending Adversary Proceedings ("Generic Sua Sponte Order") in each of more than 500 pending adversary proceedings that were before the Court. The Generic Sua Sponte Order was entered in this case on September 8, 2011 (ECF No. 104). The United States subsequently filed its Objection to the treatment of this action as a core proceeding in which the Court has the power to issue a final judgment.

II. Parties' Arguments

The IRS argues that although it admitted in its Answer that this is a core proceeding, the intervening decision in Stern v. Marshall limits the Court's authority to enter a final order in this fraudulent transfer action. The IRS maintains that fraudulent transfer actions derive from the common law action of assumpsit and only an Article III judge may enter a final order on such a claim. The IRS further argues that the resolution of this action is not required for the claims allowance process because the IRS filed no claim in this case, this action does not stem from the bankruptcy itself but instead merely seeks to augment the estate, and the limited "public rights" exception does not apply.

The Trustee maintains that the IRS waived its argument that the suit is non-core by admitting that the instant adversary proceeding was a core proceeding in its Answer, fully litigating the case, and ultimately seeking summary judgment. The Trustee further argues that this case involves no state common law claims and that the IRS is essentially trying to amend its Answer one year after filing it and long after discovery has been closed.

As discussed below, the Court finds that it has authority to enter final judgment in this matter. The Court finds that the Supreme Court's ruling in Stern is a narrow holding limited to the facts of that case. Furthermore, the Court finds that the IRS, having actively litigated this action for more than a year, during which time its only objection to this Court's jurisdiction was sovereign immunity, consented to entry of final orders by this Court.

III. Discussion

A. Stern v. Marshall

Although 28 U.S.C. § 157(b)(2)(C) provided authority for bankruptcy courts to enter final orders on all counterclaims brought by the estate,1 the Stern Court held that this statutory allocation of judicial power from Article III judges to Article I bankruptcy judges was unconstitutional as to "a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim." Stern, 131 S.Ct. at 2608, 2620. Explaining jurisdiction in bankruptcy matters, the Stern Court noted, "[w]ith certain exceptions not relevant here, the district courts of the United States have `original and exclusive jurisdiction of all cases under title 11.'" Id. at 2603 (citing 28 U.S.C. § 1334(a)). District courts also have "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334(b). District courts may refer, and indeed all district courts have referred, "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11" to the bankruptcy judges of their district. 28 U.S.C. § 157(a). Under this division of labor, bankruptcy judges may hear and enter final orders in all cases under title 11, and all core proceedings "arising under title 11", or "arising in a case under title 11", subject to appellate review by the district court.2 28 U.S.C. §§ 157(b) & 158. "When a bankruptcy judge determines that a referred `proceeding . . . is not a core proceeding but . . . is otherwise related to a case under title 11,' the judge may only `submit proposed findings of fact and conclusions of law to the district court.'" Stern, 131 S.Ct. at 2604 (citing § 157(c)(1)). "It is the district court that enters final judgment in such cases after reviewing de novo any matter to which a party objects." Id. Pursuant to 28 U.S.C. § 157(b)(3), bankruptcy judges shall determine, on the judge's own motion or on timely motion of a party, whether a proceeding is a core proceeding in which final orders may be entered or a proceeding that is otherwise related to a case under title 11. "A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law." 28 U.S.C. § 157(b)(3). As discussed below, the Court finds that the fraudulent conveyance claims at issue are core proceedings that arise under the Bankruptcy Code for which the Court may enter final orders.

It is incumbent upon this Court to apply Stern's holding recognizing, as the Supreme Court stated, that the question presented in Stern was a "narrow" one. Stern, 131 S.Ct. at 2620; In re Safety Harbor Resort and Spa, 456 B.R. 703, 715 (Bankr.M.D.Fla.2011) ("The Supreme Court plainly intended to, and in fact did, narrowly limit the scope of its holding in Stern"). See also In re Salander O'Reilly Galleries, 453 B.R. 106, 115-16 (Bankr. S.D.N.Y.2011) ("Stern is replete with language emphasizing that the ruling should be limited to the unique circumstances of that case, and the ruling does not remove from the bankruptcy court its jurisdiction over matters directly related to the estate that can be finally decided in connection with restructuring debtor and creditor relations [.]"); In re Heller Ehrman LLP, 2011 WL 4542512, *5 n. 14 (Bankr. N.D.Cal. Sept. 28, 2011). The Stern Court did not directly address the authority of bankruptcy courts to enter final orders in fraudulent conveyance actions and explicitly intended its decision to be read narrowly. Among the many instances in which the Supreme Court indicated that its holding was a narrow one limited to the facts of the case are the following:

Stern, 131 S.Ct. at 2611 (emphasis added).

Id. at 2618 (emphasis added).

Id. (emphasis added).

Id. at 2620 (emphasis added).

Id. (emphasis added).

It is significant that the tortious interference counterclaim at issue in Stern, was "a state law action independent of the federal bankruptcy law[.]" Id. at 2611. While Stern held that bankruptcy judges lacked authority to enter final judgments on state law counterclaims not necessarily resolved in the claims allowance process, it did not hold that bankruptcy judges lack authority to enter final judgments on fraudulent transfer claims or any of the other fifteen types of matters identified in § 157(b)(2)'s non-exhaustive list of core proceedings. Safety Harbor, 456 B.R. at 715; In re Peacock II, 455 B.R. 810, 812 (Bankr.M.D.Fla.2011) ("The narrow holding in Stern, as just described, 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 Stern, the Supreme Court noted that Congress' ability to bypass Article III and confer jurisdiction on Article I courts raised the question of "whether the action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims allowance process." 131 S.Ct. at 2618 (emphasis added). The question is a disjunctive inquiry. In the case of fraudulent conveyance actions, the answer to the question—whether the action stems from the bankruptcy itself—is decidedly "yes". "In point of fact, the process of garnering fraudulently-transferred assets back into the bankruptcy estate—to the resultant benefit of all creditors—is one of those proceedings which is by its very nature essential to the adjustment and restructuring of the debtor-creditor relationships that is at the core of federal bankruptcy jurisdiction." Kelley v. JPMorgan Chase & Co., 2011 WL 4403289, *6 (D.Minn. Sept. 21, 2011) (quoting In re Wencl, 71 B.R. 879, 882 (Bankr.D.Minn.1987) (denying motion to withdraw the reference as premature)). "[A]nother important distinction between fraudulent transfer actions and state law claims like those at issue in Northern Pipeline3 and Stern: those claims cannot exist but for the debtor's insolvency, its inability to pay debts as they become due, or its unreasonably small capital—conditions which generally result in a bankruptcy." Heller Ehrman, 2011 WL 4542512 at *5 (citing In re Mankin, 823 F.2d 1296, 1307 n. 4 (9th Cir.1987)). While the contract suit in Northern Pipeline could have been brought whether or not the plaintiff was bankrupt, a fraudulent conveyance can only exist if the conveyor is insolvent or about to become insolvent, and thus is inextricably tied to the bankruptcy scheme. Id. "If a conveyor enjoys good financial health, a conveyance cannot harm its creditors, who would thus have no cause of action to recover [the fraudulent] transfer." Id. (quoting Mankin, 823 F.2d at 1307 n. 4 (9th Cir.1987)).

In addition, the claims asserted by the Trustee are authorized by, and arise under §§ 544(b) and 548 of the Bankruptcy Code. Such claims "may only be prosecuted by a bankruptcy trustee on behalf of a bankruptcy estate, and because a trustee and a bankruptcy estate are strictly creatures of the Bankruptcy Code, there would be no legal basis for this action were there no bankruptcy estate." In re Bujak, 2011 WL 5326038, *2 (Bankr.D.Idaho Nov. 3, 2011). These claims simply would not exist but for the bankruptcy. Heller Ehrman, 2011 WL 4542512 at *5. The analysis does not change because § 544(b) authorizes a trustee to avoid a transfer that could be recovered under state law by an actual creditor of the debtor. Bujak, 2011 WL 5326038 at *3. This action is not prosecuted by one of the debtor's creditors to avoid a transfer under state law, but by a bankruptcy trustee as the official representative of the bankruptcy estate to avoid prepetition transfers under the Bankruptcy Code. Id. Although § 544 incorporates state law to provide the "rules of decision," the claim still arises under § 544 which is a federal bankruptcy cause of action stemming from the bankruptcy itself. In re Universal Marketing, Inc., 2011 WL 5553280, *3 (Bankr.E.D.Pa. Nov. 15, 2011). In addition, "[a] determination that a proceeding is not a core proceedings shall not be made solely on the basis that its resolution may be affected by State law." 28 U.S.C. § 157(b)(3).

The Stern Court pointed out that the distinction in Granfinanciera v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), "between actions that seek to `augment the bankruptcy estate' and those that seek `a pro rata share of the bankruptcy res,' reaffirms that Congress may not bypass Article III simply because a proceeding may have some bearing on a bankruptcy case[.]" Stern, 131 S.Ct. at 2618 (emphasis in original).4 While some courts may view this language as a new limit on a bankruptcy court's authority to finally resolve core proceedings such as fraudulent conveyance or preference actions, Judge Williamson observed in Safety Harbor that the Stern Court's use of the word "reaffirm" makes clear than nothing has changed. Safety Harbor, 456 B.R. at 717. Neither Stern, nor Granfinanciera hold that bankruptcy courts lack authority to enter final judgments in fraudulent transfer actions. "In fact, the Supreme Court [in Granfinanciera] went to great lengths to emphasize that issue was not even before it in that case." Id. (citing Granfinanciera, 492 U.S. at 64 n. 19, 109 S.Ct. 2782). Indeed, the "sole issue in Granfinanciera was whether the Seventh Amendment conferred on petitioners a right to a jury trial in the face of Congress' decision to allow a non-Article III tribunal to adjudicate the claims against them." Id. Judge Williamson further noted in Safety Harbor, that "the language from Granfinanciera that some courts and commentators fear may limit bankruptcy courts' jurisdiction—language relied on by the Stern Court—has been the law for over twenty years." Id. Yet, neither Judge Williamson nor this Court is "aware of a single case during the twenty years preceding Stern challenging a bankruptcy court's authority to enter final judgments in fraudulent conveyance actions." Id.

This Court's job is not to extend Stern to fraudulent transfer actions based on Supreme Court dicta, and in so doing, upend the division of labor between district and bankruptcy courts that has been in effect for nearly thirty years. See Bujak, 2011 WL 5326038 at *2 ("While the Supreme Court in the future may explain its decision, and could conceivably expand the reach of Stern's constitutional analysis, as a bankruptcy court, this Court need not do so. Instead of attempting to predict the future, this Court should carefully apply Stern's holding in its cases, and refrain from extending that holding to facts different from those in Stern."); Heller Ehrman, 2011 WL 4542512 at *6 ("After Stern, some courts have concluded that they cannot hear fraudulent conveyance claims as core proceedings. They are focusing on the dicta of Stern, not its holding. I believe that this approach thrusts unnecessary burdens on already overworked district courts, especially when bankruptcy courts have a particular expertise in and familiarity with avoidance actions."). This Court concludes that the Trustee's fraudulent transfer claims are core proceedings stemming from the bankruptcy itself for which this Court has authority to enter final orders. Stern's narrow holding does not apply to the claims at issue.

B. Consent

Even if it were determined that the Court lacks authority to enter final orders because the Trustee's fraudulent transfer claims are merely "related to" the bankruptcy, § 157(c)(2) provides that a bankruptcy judge can issue final judgments in non-core proceedings if the parties consent. In this matter, the Court finds that the IRS explicitly and impliedly consented to this Court's final resolution of the claims at issue.

Specifically, the Complaint's allegation, the IRS' admission, and the IRS' stipulation5 that this action is a core proceeding serves as the IRS' explicit consent for the Court to treat this matter as a core proceeding in which it may enter a final order. See e.g., Mercury Cos., Inc. v. FNF Security Acquisition, Inc., 2011 WL 5127613, *2 (D.Colo. Oct. 31, 2011) (citing In re C.W. Mining Co., 2009 WL 4906702, *2 (D.Utah Dec.11, 2009)); In re St. Mary Hosp., 117 B.R. 125, 131 (Bankr.E.D.Pa. 1990) ("An admission that a proceeding is core accords irrevocable consent to a bankruptcy court to determine the proceeding, even if it is non-core"); In re Peacock II, 455 B.R. at 812 ("Authority exists for the proposition that consent may be implied and that even a mistaken admission of core jurisdiction acts as consent.").

Consent can also be implied from a litigant's course of conduct. Stern, 131 S.Ct. at 2608. Recognizing the value of waiver and forfeiture in complex cases, the Stern Court concluded that if the defendant believed the Bankruptcy Court lacked authority to decide his defamation claim, he should have said so and said so promptly. Id. The Court further noted that "[i]n such cases, as here, the consequences of `a litigant . . . "sandbagging" the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor,'—can be particularly severe." Id. (internal citations omitted). In this case, the IRS actively litigated this matter for more than a year. During this time the IRS filed a Motion to Dismiss in which it voiced only one objection to this Court's jurisdiction—sovereign immunity. The Court, finding the objection to be without merit, denied the Motion to Dismiss. Nearly one year after the Complaint was filed, the IRS filed a Motion for Partial Summary Judgment in which it argued that it was entitled to summary judgment based upon an argued lack of evidence establishing the elements of the claims. At no time did the IRS seek to withdraw the reference from this Court to the District Court. At no time prior to the Objection did the IRS advance any argument that the claims in this action should be adjudicated by an Article III court rather than this Article I Court.6 The IRS' course of conduct, actively litigating this proceeding for more than a year, demonstrates its implied consent to entry of final orders by this Court in this proceeding.

It should also be noted that final adjudication of non-core proceedings by consent is "a significant part of the efficiency of the bankruptcy process under which the role of the District Judge is usually that of adjudging appeals from the consensual final judgments." In re Olde Prairie Block Owner, LLC, 457 B.R. 692, 699 (Bankr. N.D.Ill.2011). "Just as parties in a federal civil case often consent to final adjudication by a Magistrate Judge, see 28 U.S.C. § 636(c), parties may seek final adjudication of non-core proceedings by a Bankruptcy Judge in order to resolve the proceeding faster without having to wait for time on a District Judge's very busy docket." Id. at 700. "The Supreme Court's opinion in Stern in no way altered the system of final adjudication by consent embodied in § 157(c)(2)." Id.

In re Olde Prairie Block Owner, LLC, 457 B.R. at 701 (listing ten Circuit decisions upholding the constitutionality of Magistrate Judges entering final orders in civil proceedings by consent); see also Sinclair v. Wainwright, 814 F.2d 1516 (11th Cir. 1987); In re Safety Harbor, 456 B.R. at 718 ("Although no court has addressed the constitutionality of [§ 157(c)(2)], ten circuit courts of appeal have upheld the constitutionality of the Federal Magistrate Statute.").

As stated in Stern, "[i]f [the defendant] believed that the Bankruptcy Court lacked the authority to decide his claim for defamation, then he should have said so—and said so promptly." Stern, 131 S.Ct. at 2608. Until now, the IRS' only stated objection to this Court's jurisdiction was based upon sovereign immunity, an argument this Court rejected. Counsel for the IRS now argues in its Reply that the "Article III limitation articulated by Stern was unanticipated, and therefore, the United States cannot be said to have relinquished a known right." Implicit in this argument is counsel's apparent belief that the IRS now has a legitimate basis for its Objection, whereas it did not have a legitimate basis for its Objection prior to Stern. However, the Court finds that Stern's narrow holding does not apply to the claims at issue. Therefore the Court will overrule the IRS' objection to entry of final orders by this Court.

CONCLUSION

For the reasons stated above the Court finds that the Trustee's claims are core proceedings stemming from this bankruptcy for which the Court may enter final orders. Even if were to be determined that this proceeding involves non-core claims that are merely related to the bankruptcy, the Court may still enter final orders because the IRS explicitly and impliedly consented to final resolution of these claims.

ORDER

The Court, having reviewed the submissions of the parties, the applicable law, and being otherwise fully advised in the premises, hereby OVERRULES the United States' Objection.