IN RE RUILOBA, (Bankr.S.D.Fla. 1986)

THOMAS C. BRITTON, Bankruptcy Judge.

The plaintiff's demand for jury trial in this adversary proceeding is denied.

The action is to determine dischargeability of a debt under 11 U.S.C. § 523(a). No right to a jury existed under the Common Law for such an action, which is a statutory remedy bottomed on principles of equity. Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Sibley v. Fulton Dekalb Collection Service, 677 F.2d 830 (11th Cir. 1982); Pennels v. Barnes ( In re Best Pack Seafood, Inc.), 45 B.R. 194 (Bankr.D.Me. 1984).

The plaintiff has no right to a jury trial on the dischargeability issue. Matter of Merrill, 594 F.2d 1064, 1066 (5th Cir. 1979). Plaintiffs did not pray for a judgment upon their claim. That would be the only issue triable as a matter of right before a jury. If this court determines that the debt is dischargeable, plaintiffs would not be entitled to a jury to prove the amount of their claim under the bankruptcy claims' procedure. If this court determines that the debt is non-dischargeable, this court will abstain from fixing the debtor's liability and plaintiffs' damages, in order that either party may claim a jury and try the matter before the state court.