Because Bullard v. Blue Hills Bank,135 S. Ct. 1686 (2015), narrowed the notion of finality, the Ninth Circuit held that its opinion in Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899 (9th Cir. 1993), is no longer good law with regard to decisions by district courts remanding cases to bankruptcy courts for further fact findings.
In Bonner Mall and its progeny, the Ninth Circuit had held that final orders appealable as of right to the circuit court under 28 U.S.C. § 158(d) included remands for additional fact findings if the appeal raised a purely legal question or would materially aid the bankruptcy court’s decision-making process.
In the case at bar, the bankruptcy court had granted a motion for summary judgment excepting a debt from discharge under Section 523(a)(2)(A) based on prior litigation in district court, finding that the debtor had engaged in deceptive trade practices that violated the Federal Trade Commission Act. On appeal, the district court affirmed in part, reversed in part, and remanded.
The district court ruled that the prior litigation collaterally estopped the debtor from relitigating four of the five nondischargeability elements under Section 523(a)(2)(A). The district court remanded for the bankruptcy court to make findings of fact on the debtor’s intent to deceive.
The debtor appealed, but the Ninth Circuit dismissed the appeal in an opinion on March 24 by Circuit Judge Sandra S. Ikuta.
Judge Ikuta focused on language in Bullard saying that an order is final if it “alters the status quo and fixes the rights and obligations of the parties.” In the case before the Supreme Court, an order denying confirmation of a chapter 13 plan was not final because the debtor could propose another plan. Since the chapter 13 case was not also dismissed, the Supreme Court said that denial of confirmation with leave to amend the plan “changes little.”
Judge Ikuta said that Bonner Mall was no longer good law in part because the Supreme Court rejected the notion that orders are final if the appeal presents a pure question of law “that is important to the parties.” She cited the Supreme Court for intending to ensure “a meaningful constraint on the availability of appellate review.”
Since Bonner Mall “is inconsistent with Bullard,” it is “therefore no longer binding,” Judge Ikuta said.
Applying Bullard to the facts, Judge Ikuta had no difficulty concluding that the remand was not a final order because the bankruptcy court was given more than purely mechanical or computational tasks.
Because Bullard v. Blue Hills Bank,135 S. Ct. 1686 (2015), narrowed the notion of finality, the Ninth Circuit held that its opinion in Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899 (9th Cir. 1993), is no longer good law with regard to decisions by district courts remanding cases to bankruptcy courts for further fact findings.