Beruflich Dokumente
Kultur Dokumente
LOUIS B. BULLARD,
Appellant,
v.
HYDE PARK SAVINGS BANK,
Appellee.
CAROLYN A. BANKOWSKI,
Trustee.
Before
Thompson, Stahl, and Kayatta,
Circuit Judges.
Accordingly, we
Hyde Park's claim into secured and unsecured portions per 11 U.S.C.
506(a), with the secured portion being reduced to the value of
the
property.
The
plan
called
for
paying
dividend
of
-2-
Hyde Park objected, arguing that the plan could invoke either the
modification provision of 1322(b)(2) or the cure-and-maintain
provision of 1322(b)(5), but not both.
Bullard
also
filed
motion
for
leave
to
appeal
the
(granting
bankruptcy
appellate
panels
discretionary
The BAP granted the motion and, on May 24, 2013, affirmed
-3-
This
court issued an order to show cause why the case should not be
dismissed
for
lack
of
jurisdiction
because
the
BAP's
order
After receiving
start
and,
Analysis
as
it
turns
out,
end
with
the
jurisdictional question.1
appeals
appeals
"jurisdiction
of
from
all
final
decisions,
28
bankruptcy
court's
orders
(final
or
interlocutory),
upon
'finality'
bankruptcy."
is
given
flexible
interpretation
in
158(d)(2)
certification from a district court order).
-5-
Props., LLC), 509 F.3d 15, 21 (1st Cir. 2007) (internal quotation
marks omitted).
even if it does not resolve all issues in the case, "but it must
finally dispose of all the issues pertaining to a discrete dispute
within the larger proceeding." Perry v. First Citizens Fed. Credit
Union (In re Perry), 391 F.3d 282, 285 (1st Cir. 2004).
We have
leaves
only
ministerial
Conversely, "[w]hen a
proceedings,
for
example,
have
previously
Id.
suggested
that
an
order
denying
order denying confirmation was not final, so this court did not
expressly rule on the issue.
Id. at 4.
even if the order was not final when issued, it became final when
the bankruptcy court entered an order dismissing the case.
5.
-6-
Id. at
A pair of
See Lindsey v.
Pinnacle Nat'l Bank (In re Lindsey), 726 F.3d 857, 859 (6th Cir.
2013). The Fourth Circuit, over a strong dissent, joined the Third
and Fifth Circuits in holding that such an order can be final, even
if the underlying bankruptcy case has not been dismissed. See Mort
Ranta v. Gorman, 721 F.3d 241, 248 (4th Cir. 2013).
Bullard urges us to eschew a rigid standard by which an
order denying confirmation is per se not a final order, and, more
expansively, to hold not only that such an order can be final, but
that it should be presumed to be final unless the appellee can show
otherwise. Hyde Park urges us to join the majority of the circuits
and hold that an order denying confirmation is not a final order if
the debtor may still propose an amended plan.
It argues in the
An order of an intermediate
The
appeal.
. . . ."
N.A. (In re Gordon), 743 F.3d 720, 723 (10th Cir. 2014) ("[T]he
bankruptcy court will have to give creditors notice of the new
amended plan, permit time for any objections, and then conduct
another confirmation hearing. All of which is to say, the district
court remanded the [debtors'] case to the bankruptcy court for
significant
omitted).
further
proceedings.")
"Essentially
everything
(internal
remains
quotation
unresolved
marks
in
the
advises
that
party
may
revise
its
own
court
at 248 (noting that the first option is inefficient and the second
risks loss of the automatic stay, and thus vulnerability to
-9-
(In re
Bartee), 212 F.3d 277, 28283 & n.6 (5th Cir. 2000) (same).
Bullard's options may be unappealing at this stage in the
game, but he ignores the fact that Congress laid out other options
for him -- options that he did not pursue.
suggests
that
requiring
him
to
propose
an
-10-
for
direct
appeal
of
an
interlocutory
order
under
Lindsey,
726 F.3d at 860; see also Mort Ranta, 721 F.3d at 258 (Faber, J.,
dissenting) ("[The debtor] seeks immediate resolution of what he
asserts is a novel legal issue.
his
case's
legal
novelty
makes
it
prime
candidate
for
eagerness to have this Court reach them, should not bend the
judicially-crafted 'flexible finality' concept such that it renders
the multiple avenues for interlocutory appeals unnecessary.").
Bullard cautions that not allowing immediate appeal of
the denial of confirmation will cause judicial inefficiency.7
Bullard cites Zahn v. Fink (In re Zahn), 367 B.R. 654 (B.A.P. 8th
Cir. 2007), as an example of a case in which a rule of non-finality
caused a "waste of judicial resources . . . [that] ought to give
this court pause." There, the bankruptcy court denied confirmation
of the debtor's original plan and the BAP dismissed her appeal as
interlocutory (she does not appear to have sought leave for an
interlocutory appeal under 158(a)(3)).
Id. at 655.
The debtor
then filed, and objected to, an unwanted plan, which the bankruptcy
court confirmed.
Id. at 65556.
disagreed on both counts, remanding the case back to the BAP for
On remand, the
BAP held that the bankruptcy court erred in not confirming the
original plan, vacated the confirmation of the unwanted plan, and
remanded to the bankruptcy court with instructions to confirm the
original plan.
(B.A.P.
8th
Cir.
2008).
While
this
series
of
events
was
Zahn
But
the
virtue
time-consuming
of
and
being
costly
easy
to
side
implement
shows
and
about
the
resistant
to
meaning
of
issue
that
merits-based.").
generally
should
not
be
fact-intensive
or
of
reorganization
plan
is
not
final
order
-14-
Conclusion
appeal.
So ordered.