In Re Holly Flor and Rudolph Mangels, Debtors. Holly Flor and Rudolph Mangels, Debtors-Appellants v. Bot Financial Corp., Creditor-Appellee

79 F.3d 281, 1996 U.S. App. LEXIS 5138, 28 Bankr. Ct. Dec. (CRR) 1044
CourtCourt of Appeals for the Second Circuit
DecidedMarch 21, 1996
Docket448, Docket 95-5023
StatusPublished
Cited by241 cases

This text of 79 F.3d 281 (In Re Holly Flor and Rudolph Mangels, Debtors. Holly Flor and Rudolph Mangels, Debtors-Appellants v. Bot Financial Corp., Creditor-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Holly Flor and Rudolph Mangels, Debtors. Holly Flor and Rudolph Mangels, Debtors-Appellants v. Bot Financial Corp., Creditor-Appellee, 79 F.3d 281, 1996 U.S. App. LEXIS 5138, 28 Bankr. Ct. Dec. (CRR) 1044 (2d Cir. 1996).

Opinion

PER CURIAM:

Debtors Holly Flor and Rudolph Mangels (“Debtors”) appeal from a March 24, 1995 decision of the United States District Court for the District of Connecticut (Alfred V. Covello, Judge) affirming a May 4, 1994 order of the bankruptcy court (Robert L. Krechevsky, Chief Bankruptcy Judge) denying confirmation of Debtors’ Seventh Amended Plan of reorganization pursuant to Chapter 11 of the Bankruptcy Code. Debtors implore this court to consider a question of first impression in this circuit: whether debtors may voluntarily contribute a portion of their wages to the funding of a Chapter 11 plan. Although Debtors present an inter *283 esting question, the procedural posture of this matter requires us to dismiss the appeal for lack of jurisdiction.

Where, as here, a district court has ruled on a bankruptcy matter as an appellate court pursuant to 28 U.S.C. § 158(a), this court has jurisdiction to review the district court’s decision if the appeal meets the requirements of either 28 U.S.C. § 158(d) or 28 U.S.C. § 1292. See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Section 158(d) provides, in pertinent part, that “[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees.” Thus, while a district court has jurisdiction to hear bankruptcy appeals not only from orders that are final, but also from orders that are nonfinal if taken “with leave of’ the district court, see 28 U.S.C. § 158(a)(3), section 158(d) confers appellate jurisdiction in this court only over “final” district court orders. For purposes of § 158(d), a determination of the district court is not “final” unless the underlying order of the bankruptcy court is final. In re Fugazy Express, Inc., 982 F.2d 769, 775 (2d Cir.1992).

For purposes of appeal to this court, the concept of “finality” is more flexible in the bankruptcy context than in ordinary eivil litigation. In re Prudential Lines, Inc., 59 F.3d 327, 331 (2d Cir.1995). Immediate appeal is allowed of orders in bankruptcy matters that “finally dispose of discrete disputes within the larger case.” In re Sonnax Indus., 907 F.2d 1280, 1283 (2d Cir.1990) (emphasis, quotation, and citation omitted). The resolution of a “dispute” does not simply refer to the determination of a separable issue. Rather, a “dispute” in this context means at least an entire claim for which relief may be granted. Fugazy, 982 F.2d at 775. Therefore, the district court’s order denying confirmation of Debtors’ proposed plan is not a final decision unless it necessarily resolves all of the issues pertaining to a discrete claim.

Because the bankruptcy judge in this case neither dismissed the petition nor converted Debtors’ petition to a Chapter 7 petition, the district court’s order was not final. See Maiorino v. Branford Sav. Bank, 691 F.2d 89, 91 (2d Cir.1982) (denial of confirmation of Chapter 13 plan not “final” order); see also In re Pleasant Woods Assoc. Ltd. Partnership, 2 F.3d 837 (8th Cir.1993) (per curiam) (dismissing appeal from denial of confirmation of Chapter 11 plan); In re MCorp Financial, Inc., 139 B.R. 820 (S.D.Tex.1992) (same). That Debtors are free to propose an alternate plan demonstrates that all of the issues are not finally resolved.

Debtors argue that courts in other circuits have held that a district court order affirming a bankruptcy court’s denial of a Chapter 11 plan of confirmation is final for § 158(d) purposes, citing In re Blankemeyer, 861 F.2d 192, 193 (8th Cir.1988) (per curiam); In re Hardy, 755 F.2d 75, 76 (6th Cir.1985); and In re Foster, 670 F.2d 478 (5th Cir.1982). Those decisions reached the merits, but they neither addressed the issue of finality nor mentioned § 158(d). Because we believe that our reasoning in Maiorino, a chapter 13 case, applies with comparable force in this Chapter 11 ease, we conclude that denial of confirmation of a Chapter 11 plan is nonfinal.

In the alternative, Debtors maintain that they cannot fund a feasible plan without a contribution from their wages and argue that the bankruptcy court “effectively dismissed” their petition. Nothing in the record supports their contention that the order is ripe for review, however, and we cannot reasonably conclude that it is. At this juncture, we cannot rule out the possibility that an alternate plan may be confirmed, at which time Debtors may appeal. Ultimately, if Debtors are unable to propose a viable plan and the bankruptcy court either dismisses the petition or orders conversion to Chapter 7, the decision may be appealed at that time. In re Simons, 908 F.2d 643, 645 (10th Cir.1990) (per curiam); see 11 U.S.C. § 1112(b)(2). For the above reasons, we cannot exercise jurisdiction under § 158(d).

Of course, even in the absence of a final order, it is possible, in limited circumstances, for a circuit court to review an interlocutory order of a district court. 28 U.S.C. § 1292(b) provides for discretionary appel *284 late review of interlocutory decisions of the district court upon certification by the district court. In re Doe, 546 F.2d 498, 501 (2d Cir.1976). In this case, however, Debtors concede that this condition has not been met, because they failed to request certification by the district judge. Therefore, we cannot exercise appellate jurisdiction pursuant to 28 U.S.C. § 1292(b).

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79 F.3d 281, 1996 U.S. App. LEXIS 5138, 28 Bankr. Ct. Dec. (CRR) 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-holly-flor-and-rudolph-mangels-debtors-holly-flor-and-rudolph-ca2-1996.