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The Circuit Court of Appeals of the 3rd Circuit recently issued its opinion in In re SCH Corp., et al, 2014 WL 2724606 involving the doctrine of "equitable mootness" in the bankruptcy context. The District Court had dismissed the appeal from the Bankruptcy Court as being "equitably moot" by applying the five-factor test set forth in In re Continental Airlines, 91 F.3d 553 (3rd Cir. 1996).   In making its decision, the 3rd Circuit reviewed that distinctions between the concepts of "mootness", "equitable mootness", and the "prudence doctrine".  

Constitutional MootnessThe Court explained that the mootness determination it was making in this case, was not that of mootness in the constitutional sense of the limits of the federal courts' authority under Article III, but rather that of  equitable mootness or the application of prudential factors. The Court noted that the Continental decision cited Supreme Court precedent that "an appeal is moot in the constitutional sense only if events have taken place during the pendency of the appeal that make it "impossible for the court to grant ‘any effectual relief whatever.’ ”  The Court noted that a case is not moot merely because a court cannot restore the parties to the status quo ante - but rather,  whether a  court can can fashion some form of meaningful relief, even if it only partially. Equitable Mootness The Court referred to a 7th Circuit decision that stated: “[t]here is a big difference between inability to alter the outcome (real Article III Constitutional mootness) and unwillingness to alter the outcome (‘equitable mootness') and that these concepts should not be confused.  The Court also noted that another court preferred not to ask whether a case is  "equitably moot", but rather whether it is "prudent" to upset a bankruptcy reorganization plan at a later date.  The Continental Court stated that these “equitable” or “prudential” considerations focus on the following five “concerns unique to bankruptcy proceedings”:  1.     whether the reorganization plan has been substantially consummated2.     whether a stay has been obtained3.     whether the relief requested would affect the rights of parties not before the court4.     whether the relief requested would affect the success of the plan5.     the public policy of affording finality to bankruptcy judgments

Statutory Mootness
The Court in SCH Corp. did not reach the concept of "statutory mootness".  This ABI article explains that the concept of statutory mootness is provided for in sections 363(m) and 364(e) of the Bankruptcy Code and are designed to protect capital providers, including purchasers and lenders. 

Further References
Other articles, here  and here, review the Supreme Court denial of cert. in a case involving the issue of equitable mootness in the case of  Law Debenture Trust Co. v. Charter Communications, Inc., No. 12-847.   The doctrine of equitable mootness as applied in the 2nd Circuit is also reviewed in this article by Hunton & Williams, LLP.  Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

Last week, the United States Supreme Court granted the writ of certiori in the case of Bullard v. Hyde
Park Savings Bank. The case presents the issue of whether an order denying confirmation of a chapter 13 plan of reorganization is a "final judgment" and therefore appealable.

Case Below - BAP and First Circuit 
In the case below, the chapter 13 debtor appealed the bankruptcy court's order first to the First Circuit's Bankruptcy Appellate Panel (BAP) under both 28 U.S.C. § 158(a)(1) [as to a "final order"] and (a)(3) [with leave of court for an interlocutory order].  The BAP agreed to hear the appeal under (a)(3) as an interlocutory appeal and upheld the Bankruptcy Court's order denying confirmation of the chapter 13 plan. 
The debtor next filed a notice of appeal to the First Circuit and also requested that the BAP certify the matter for a direct appeal to the First Circuit pursuant to 28 U.S.C. § 158(d)(2).  The BAP denied the motion for a direct appeal and the First Circuit issued an order to show cause why the appeal should not be dismissed on the basis the BAP's order affirming the Bankruptcy Court's order was not a final order as required by 28 U.S.C. § 158(d)(1). The Court noted that it had previously held that a BAP's order could not be a final order unless the underlying bankruptcy court order was a final order. 

The First Circuit, dismissed the appeal for lack of statutory jurisdiction pursuant to 28 U.S.C. § 158(d)(1) based on its holding that an order denying confirmation of a chapter 13 plan is not a final order. The First Circuit explained that the issue presented was an issue of statutory jurisdiction and not an Article III Constitutional issue. 

Circuit SplitIn its decision, the First Circuit noted that the Sixth, Second, Eighth, Ninth, and Tenth Circuits previously that an order denying confirmation is not final if the bankruptcy case has not been dismissed and the debtor remains free to propose another plan.  On the other hand, it noted that the Fourth, Third, and Fifth Circuit held otherwise - that such an order can be final even if the underlying bankruptcy case has not been dismissed.

ReferencesA Primer on the Jurisdiction of the U.S. Courts of Appeals - Federal Judicial Center 2009
Final Analysis: Determining Appealability of a Judgment or Order

Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

Most commentators suggest that the days of lien stripping in chapter 7 bankruptcy cases is soon to end. Yesterday the U.S. Supreme Court granted Bank of America's writ of certiorari which will allow it to address the issue of lien stripping in chapter 7 cases. 

The numerous recent appellate decisions out of the 11th Circuit have been suggesting that the issue would be considered by the 11th Circuit en banc or by the Supreme Court. The 11th Circuit Courts were forced by the "prior precedent rule" to apply its Foledore decision, which allowed lien stripping in chapter 7.  Under the "prior precedent rule", the 11th Circuit held that the Supreme Court's landmark decision in Dewsnup was not explicit enough to overrule Folendore. 

The Supreme Court's DocketDocketed: August 13, 2014 No. 14-163
Title: Bank of America, N.A., Petitioner v. Edelmiro Toledo-Cardona
Lower Court: United States Court of Appeals for the Eleventh Circuit, Case Nos. (13-15855)
Decision Date: May 5, 2014

~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~Aug 13 2014Petition for a writ of certiorari filed. (Response due September 12, 2014)Aug 25 2014Order extending time to file response to petition to and including October 14, 2014.Oct 6 2014Brief of respondent Edelmiro Toledo-Cardona in opposition filed.Oct 21 2014Reply of petitioner Bank of America, N.A. filed.Oct 22 2014DISTRIBUTED for Conference of November 7, 2014.Nov 10 2014DISTRIBUTED for Conference of November 14, 2014.Nov 17 2014Petition GRANTED The petition for a writ of certiorari in No. 13-1421 is granted. The cases are consolidated and a total of one hour is allotted for oral argument.Jordan E. Bublick - Miami Bankruptcy Lawyer - North Miami & Kendall Offices - (305) 891-4055 - www.bublicklaw.com

A new announcement has just been submitted by the Clerk of the United States bankruptcy Court for the Northern District of Illinois. Going forward in the post-Covid future, the outlying collar county court calls will no longer be heard in those collar counties. The matters will be heard via Zoom for Government or a party+ Click Here For Read More
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