Bank of New York Mellon v. Nicholas Lee Watt, et al
FILED OPINION (MARSHA S. BERZON, PAUL J. WATFORD and JOHN B. OWENS) DISMISSED. Judge: MSB Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF NEW YORK MELLON,
NICHOLAS LEE WATT; PATRICIA
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted July 11, 2017
Filed August 16, 2017
Before: Marsha S. Berzon, Paul J. Watford,
and John B. Owens, Circuit Judges.
Opinion by Judge Berzon
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BNYM V. WATT
The panel dismissed for lack of jurisdiction debtors’
appeal from the district court’s order vacating the bankruptcy
court’s confirmation of their chapter 13 plan and remanding
the matter to the bankruptcy court.
The panel held that under Bullard v. Blue Hills Bank, 135
S. Ct. 1686 (2015), the district court’s order was not final and
appealable because it did not finally dispose of a discrete
dispute within the bankruptcy case. The panel wrote that the
parties could have sought circuit review by requesting
certification of an interlocutory appeal under 28 U.S.C.
§ 1292(b) or § 158(d)(2) or could have appealed a more
recent plan confirmation.
Michael D. O’Brien, Jr. (argued) and Theodore J. Piteo,
Michael D. O’Brien & Associates P.C., Portland, Oregon, for
Crystal S. Chase (argued) and Oren B. Haker, Stoel Rives
LLP, Portland, Oregon, for Plaintiff-Appellee.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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BNYM V. WATT
Britte E. Warren and Matthew D. Colley, Black Helterline
LLP, Portland, Oregon, for Amicus Curiae Meritage
BERZON, Circuit Judge:
We address whether we have jurisdiction over an appeal
from a district court order vacating the bankruptcy court’s
confirmation of a Chapter 13 plan. We conclude that we do
not, and accordingly dismiss.
In 2006, Nicholas and Patricia Watt purchased a second
home in a planned community in Newport, Oregon (“the
Property”). Like the other houses in the community, the
Property was subject to covenants, conditions, and
restrictions (“CCRs”) enforced by the Meritage Homeowners’
Association. Oregon corporation Mortgage Trust, Inc. loaned
the Watts $296,940 to finance their purchase; later, Mortgage
Trust transferred its security interest to the Bank of New York
Mellon (“BNY Mellon”).
Beginning in 2007, the financial crisis left many
homeowners unable to meet their mortgage payments and
other financial obligations. The Watts were among such
homeowners. By the time they filed for bankruptcy, there
were several liens on their Property. BNY Mellon, owed at
least $346,000, held a first position lien. Bank of America
NA held a second consensual mortgage lien, in the amount of
approximately $34,000. Meritage Homeowners’ Association
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BNYM V. WATT
held a judgment lien against the property for approximately
$225,000, as well as a statutory lien arising under the
Meritage CCRs and the Oregon Planned Community Act for
unpaid assessments and charges.
In March 2014, the Watts filed a Chapter 13 bankruptcy
petition, seeking to reorganize their personal finances over a
five-year period. There was no equity in the Property: its
value, reported as $271,220, was significantly less than the
amount of secured claims against it. After proposing two
initial plans, to which Meritage objected, the Watts filed an
amended plan (“Plan”) in June 2014. The Plan included a
nonstandard provision1 mandatorily vesting title to the
Property in BNY Mellon, but specifying that “vesting shall
not merge or otherwise affect the extent, validity, or priority
of any liens on the property.” BNY Mellon opposed the
mandatory vesting provision and objected to confirmation of
Following an evidentiary hearing, the bankruptcy court
confirmed the Plan. The court concluded that a plan vesting
title in a secured creditor could properly be confirmed over
that creditor’s objection. BNY Mellon appealed to the district
court, which disagreed with the bankruptcy court and held
that a Chapter 13 plan cannot require an unconsenting
creditor to take title to property. The Watts requested a
rehearing, but the district court denied the request. The Watts
then appealed to this Court.
A “nonstandard” provision in a Chapter 13 bankruptcy plan is a
special provision, not otherwise included in the Official Form, that is
applicable to the particular circumstances of the debtor.
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BNYM V. WATT
While this appeal was pending, the Watts proposed to the
bankruptcy court a sale of the Property to BNY Mellon, as
authorized by 11 U.S.C. § 363(b), and submitted an amended
bankruptcy plan. The bankruptcy court approved the § 363
sale and confirmed the new plan.
A. The district court order vacating confirmation is not
a final appealable order.
Both parties submit that the order on appeal is final.
Nonetheless, we have “an independent duty to examine our
own subject matter jurisdiction.” In re Bonner Mall P’ship,
2 F.3d 899, 903 (9th Cir. 1993). We have jurisdiction to
determine our jurisdiction. See, e.g., Blausey v. U.S. Trustee,
552 F.3d 1124, 1128 (9th Cir. 2009).
In ordinary civil litigation, parties typically have a right
to appeal only “final decisions of the district courts.”
28 U.S.C. § 1291. In bankruptcy, the rules are somewhat
relaxed: appeals are permitted not only from final judgments
but also from orders that “finally dispose of discrete disputes
within the larger case.” Bullard v. Blue Hills Bank, 135 S. Ct.
1686, 1692 (2015) (quoting Howard Delivery Serv., Inc. v.
Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006)). Still,
proceedings must be to that degree final to be appealable;
without additional authorization, parties may appeal only
“final decisions, judgments, orders, and decrees” entered by
a district court or a bankruptcy appellate panel. 28 U.S.C.
§ 158(d). Because the district court did not “finally dispose
of [a] discrete dispute” when it vacated the order confirming
the plan and remanded to the bankruptcy court, we conclude
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that the district court’s order was not “final” for purposes of
The Supreme Court recently clarified the meaning of
finality in the context of § 158 jurisdiction. Under 28 U.S.C.
§ 158(a)(1), district courts have jurisdiction to hear appeals
from “final judgments, orders, and decrees” entered by
bankruptcy courts. The Court held in Bullard that a
bankruptcy court’s denial of confirmation of a proposed
Chapter 13 repayment plan was not a final appealable order
for the purposes of § 158(a)(1) because it did not “finally
dispose of [a] discrete dispute.” 135 S. Ct. at 1692. When the
bankruptcy court in Bullard rejected one particular proposed
plan, it did not “alter the status quo” or “fix the rights and
obligations of the parties.” Id. “The relevant ‘proceeding’
. . . is the entire process of considering plans, which
terminates only when a plan is confirmed or . . . when the
case is dismissed.” Id. Until plan confirmation or a
dismissal, the confirmation proceeding remains ongoing and
there is no final order to appeal.
Although Bullard concerned the jurisdiction of the district
court under § 158(a) rather than the jurisdiction of the court
of appeals under § 158(d), the logic of Bullard does not turn
on whether the bankruptcy court or the district court declared
the plan unconfirmable. “Th[e] interpretation of finality in
bankruptcy cases determines the scope of the district court
and [bankruptcy appellate panel]’s authority to hear appeals
‘from final judgments, orders, and decrees’ under § 158(a)(1)
as well as our authority to hear ‘appeals from all final
decisions, judgments, orders, and decrees’ of bankruptcy
judges entered by the district court and BAP under
§ 158(d)(1), which are governed by the same constraints.” In
re Gugliuzza, 852 F.3d 884, 893 (9th Cir. 2017).
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Before Bullard, this Court sometimes exercised
jurisdiction over appeals from district court decisions
addressing purely legal questions and remanded to the
bankruptcy court for further fact-finding. See, e.g., In re
Bonner Mall P’ship, 2 F.3d 899. Bullard, however, raised the
bar for finality. As we recently held, after Bullard, district
court orders remanding to bankruptcy courts for further factfinding are rarely final appealable orders; one exception is
when the “remand order is limited to ‘purely mechanical or
computational’” or similarly “ministerial tasks.” In re
Gugliuzza, 852 F.3d at 895, 897; see also In re Landmark
Fence Co., 801 F.3d 1099, 1103 (9th Cir. 2015) (internal
quotation and citation omitted).
In this case, the district court vacated the bankruptcy
court’s confirmation of the Watts’ Chapter 13 plan and
remanded to the bankruptcy court, requiring the parties to
propose a different solution for disposal of the Property.
Unlike confirmation of a plan, the district court’s
determination that the plan was not confirmable did not “fix
the rights and obligations of the parties.” Bullard, 135 S. Ct.
at 1692. Rather, the district court’s order prompted
negotiations between the parties to continue until a new form
of disposition of the Property was approved and carried out,
and a new determination entered by the district court as to
whether to confirm that plan.
Because the district court order here appealed was not
final, appellate jurisdiction does not lie.
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BNYM V. WATT
B. The Watts had other opportunities to seek circuit
We do not doubt that the validity of a mandatory vesting
provision is an important and recurring legal question.2 We
emphasize that the finality requirement for appellate
jurisdiction does not preclude appellate review of such
questions. But the parties in this case had alternative
channels for seeking appellate court review which were not
Both the certification methodologies in the general
interlocutory appeals statute, 28 U.S.C. § 1292(b), and the
bankruptcy-specific certification procedures, 28 U.S.C.
§ 158(d)(2), allow for interlocutory review of questions of
law with the requisite court permissions.
In the wake of the mortgage foreclosure crisis, several courts have
been confronted with the question of whether a debtor may require a
creditor to take title to collateral, over that creditor’s objection. See, e.g.,
In re Sagendorph, 562 B.R. 545 (D. Mass. 2017); In re Brown, 563 B.R.
451 (D. Mass. 2017); In re Zair, 550 B.R. 188 (E.D.N.Y. 2016), appeal
dismissed Nov. 15, 2016; In re Tosi, 546 B.R. 487 (Bankr. D. Mass.
2016); In re Arsenault, 456 B.R. 627 (Bankr. S.D. Ga. 2011).
Commentators have noted the lack of legal clarity on this question. See,
e.g., Andrea Boyack & Robert Berger, Bankruptcy Weapons to Terminate
a Zombie Mortgage, 54 Washburn L.J. 451, 469–73 (2015) (stating that
“[t]he Code’s provisions and the general equitable powers of a bankruptcy
court can perhaps force a lender to take title”) (emphasis added); David
P. Weber, Zombie Mortgages, Real Estate, and the Fallout for the
Survivors, 45 N.M. L. Rev. 37, 58 (2014) (describing the “creative
attempts” that borrowers have made to “flee their zombie mortgages,”
which have given rise to legal disputes); Amanda McQuade, Comment,
The Antidote to Zombie Foreclosures: How Bankruptcy Courts Should
Address the Zombie Foreclosure Crisis, 32 Emory Bankr. Dev. J. 507, 526
(2016) (stressing the need for courts “to clarify the inconsistencies within
the case law” regarding the validity of forced vesting).
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Section 1292(b) offers a general discretionary exception
to the finality rules, permitting circuit courts to exercise
jurisdiction over an appeal from an order that “involves a
controlling question of law as to which there is substantial
ground for difference of opinion” when the district court has
so requested and when “an immediate appeal from the order
may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b); see Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254 (1992) (holding that § 1292
applies also to bankruptcy jurisdiction and is not displaced by
§ 158(d)). With the passage of the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005, Congress
elaborated the certification procedure in light of bankruptcy’s
two-tiered appellate structure. Section 158(d)(2)(A) confers
discretionary jurisdiction on the circuit courts if the
bankruptcy court, district court, or bankruptcy appellate
panel, or all the appellants and appellees acting jointly,
“certify that—(i) the judgment, order, or decree involves a
question of law as to which there is no controlling decision of
the court of appeals for the circuit or of the Supreme Court of
the United States, or involves a matter of public importance;
(ii) the judgment, order, or decree involves a question of law
requiring resolution of conflicting decisions; or (iii) an
immediate appeal from the judgment, order, or decree may
materially advance the progress of the case or proceeding in
which the appeal is taken.” 28 U.S.C. § 158(d)(2)(A). When
any of those criteria is met, we may exercise our discretion to
take jurisdiction, as we have previously done. See, e.g.,
Blausey, 552 F.3d at 1131–32.
These various certification methodologies were all
foregone here. Neither party requested that the bankruptcy
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BNYM V. WATT
court or district court certify the case, nor did the parties
jointly certify the case.3
In addition to certification, another review mechanism
was also available to the parties and was foregone: appeal
from the most recent plan confirmation. Following the postremand § 363 sale of the Property to BNY Mellon, the
debtors proposed a new bankruptcy plan. In October 2016,
the bankruptcy court issued an order confirming that new
Bullard specifically permits debtors seeking appellate
review to propose an amended plan and appeal its
confirmation, even when “confirmation [may] have
immediate and irreversible effects,” as the § 363 sale
arguably did here. 135 S. Ct. at 1695; see also In re O&S
Trucking, Inc., 811 F.3d 1020, 1024 (8th Cir. 2016) (holding
that a debtor could have standing to appeal confirmation of a
plan under the “person aggrieved” standard, provided the
debtor registered his objection during plan confirmation). If
the Watts believed that the October 2016 plan did not give
them the debt relief to which they were entitled, they could
have objected to confirmation; assuming the bankruptcy court
confirmed the plan over their objection, they could have
subsequently appealed the confirmation. The confirmation
order provided fifteen days in which to object before the plan
became effective. The Watts did not register an objection to
Section 158(d)(2)(B) provides that if a bankruptcy court, district
court, or bankruptcy appellate panel determines that any one of the
§ 158(d)(2)(A) criteria is satisfied, or receives a request to make the
certification from a majority of the appellants and a majority of the
appellees, then the court “shall make the certification.” 28 U.S.C.
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BNYM V. WATT
confirmation of the amended plan, nor did they appeal the
final order confirming that plan to the district court or to a
bankruptcy appellate panel. See Fed. R. Bankr. P. 8002(a)(1)
(establishing a fourteen-day window within which to file
appeals of bankruptcy court orders).4
In short, the Watts had several ways to seek this Court’s
approval of a mandatory vesting provision in a Chapter 13
They bypassed the available
opportunities for review and instead sought improperly to
appeal a non-final district court order. We have no
jurisdiction over the appeal they brought before us.
When a district court vacates a bankruptcy court order
confirming a bankruptcy plan and remands for further
proceedings, there is no final order sufficient to confer
jurisdiction under 28 U.S.C. § 158(d). We therefore
DISMISS the debtors’ appeal for lack of jurisdiction.
We do not address whether an appeal following the § 363 sale would
have been equitably moot. The prudential doctrine of equitable mootness
may apply when bankruptcy cases “present transactions that are so
complex or difficult to unwind.” In re Lowenschuss, 170 F.3d 923, 933
(9th Cir. 1999). To determine whether a case is equitably moot, we apply
a four-factor test, looking to (1) whether a stay was sought; (2) if a stay
was sought and not gained, whether substantial consummation of the plan
has occurred; (3) what effect a remedy would have on third parties not
before the court; and (4) whether the bankruptcy court can fashion
effective and equitable relief. See In re Transwest Resort Props., Inc., 801
F.3d 1161, 1167–68 (9th Cir. 2015); In re Thorpe Insulation Co., 677 F.3d
869, 881 (9th Cir. 2012).
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