In re: Ahmed Olasunkanmi Salau, Debtor

Filing 15

MEMORANDUM OPINION AND ORDER: The court DENIES Appellant's 2 and 4 MOTION for Leave to File an Interlocutory Appeal. The remaining motions associated with this case: 7 and 13 MOTION for Leave to Designate Issues and Record on Appeal and for Leave to File Appellant's Brief Out of Time are DENIED as moot, and the Clerk is DIRECTED to remove this case from the court's docket. Signed by Senior Judge David A. Faber on 1/14/2016. (cc: counsel of record and appellant, pro se) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
In re. Ahmed Olasunkanmi Salau,
Debtor/Appellant.
Civil Action No.

1:15-11078

MEMORANDUM OPINION AND ORDER
Pending before the court are appellant’s motions for leave
to file an interlocutory appeal.

(Doc. Nos. 2, 4).

For the

reasons that follow, appellant’s motions are DENIED.
I.

Background

On January 8, 2015, appellant filed for Chapter 7
bankruptcy protection in this district.

(In re. Salau,

Bankruptcy Petition 1:15-bk-10001, Doc. No. 1).

On March 20,

2015, the Chapter 7 Trustee filed a notice of intent to abandon
certain property, namely all lawsuits listed on appellant’s
schedules and statement of financial affairs.1
Doc. No. 44).

(In re. Salau,

According to the Trustee, the property was

“encumbered by a valid security interest which render[ed] the
property as being of insignificant equity value to the estate,

1

The Trustee filed an amended notice on April 9, 2015, which was
the same as the original notice, but also included a mailing
matrix listing all creditors involved in the bankruptcy
petition. (In re. Salau, Doc. No. 49).

and/or burdensome to the estate, and/or not encumbered by any
valid security interest but of insignificant value to the
estate.”

Id.

On March 27, 2015, the bankruptcy court scheduled a hearing
on the Trustee’s notice of intent to abandon the specified
property.

(In re. Salau, Doc. No. 47).

The same day, appellant

moved the bankruptcy court to appear by telephone at the
scheduled hearing.

(In re. Salau, Doc. No. 48).

On April 9,

2015, appellant filed a notice of objection to the Trustee’s
proposed abandonment.

(In re. Salau, Doc. No. 53).

In his

objection, appellant argued that the Trustee’s amended notice
was deficient and did not prove that the property proposed for
abandonment presented no value to the estate.

Id.

On April 9, 2015, the bankruptcy court denied appellant’s
motion to appear by telephone at the scheduled hearing on the
Trustee’s proposed abandonment, but nonetheless rescheduled the
hearing for May 20, 2015.

(In re. Salau, Doc. Nos. 55, 56).

Less than a week before the hearing, appellant filed a motion to
continue.

(In re. Salau, Doc. No. 62).

The bankruptcy court

granted this motion and rescheduled the hearing for June 18,
2015, giving appellant roughly one month longer to prepare.
re. Salau, Doc. No. 63).

(In

Days before the rescheduled hearing,

appellant again moved the bankruptcy court for a continuance.
(In re. Salau, Doc. No. 66).

The bankruptcy court denied the
2 

motion and held the hearing as scheduled on June 18, 2015.
re. Salau, Doc. Nos. 67, 74).

Appellant did not appear.

(In

After

hearing the Trustee’s arguments and considering appellant’s
objections, the bankruptcy court granted the Trustee’s motion to
abandon.

(In re. Salau, Doc. Nos. 74, 77).

One week after the bankruptcy court entered an order
granting the Trustee’s motion, appellant filed the instant
motion for interlocutory appeal.
Doc. No. 79).

(Doc. No. 1; In re. Salau,

In his motion, appellant designates two issues

for review:
(1) whether the bankruptcy judge abused his discretion by
denying appellant’s motion to continue and denying leave to
appear at the hearing by telephone; and (2) whether the
bankruptcy judge committed clear error when he granted the
Trustee’s motion to abandon property.2

(Doc. No. 4 at 2).

2

Appellant filed two motions for interlocutory appeal on the
same day, initiating the instant case and In re. Salau, Civil
Action No. 1:15-cv-11080. Appellant has filed a number of
documents in this case, including two separate motions for leave
to appeal and notices to designate issues on appeal. (Doc. Nos.
2, 4). In these documents, appellant has listed different
issues for the court to consider. Document 2 lists the issues
for appeal as (1) “whether the Bankruptcy Court abused his
discretion in denying the Debtor a continuance and leave to
appear by telephone at the hearing” and (2) “whether the
Bankruptcy Court committed clear error when he granted the
Appellee’s motion to dismiss.” (Doc. No. 2 at 2). No party in
the bankruptcy proceeding filed a motion to dismiss. As a
result, the court will consider those issues raised in
appellant’s second motion for leave to appeal, Document 4.
3 

II.

Standard of Review

Federal district courts have jurisdiction to “hear appeals
from final judgments, orders, and decrees, and with leave of
court, from interlocutory orders and decrees, of bankruptcy
judges . . .”.

28 U.S.C. § 158(a) (2012).

However, parties do

not have an absolute right to appeal non-final orders or
decrees.

Coopers & Lybrand v. Livesay, 437 U.S. 473, 474 (1978)

(citing The Interlocutory Appeals Act of 1958, 28 U.S.C. §
1291(b)).

When seeking leave to appeal an interlocutory order

or decision, an appellant must demonstrate “that exceptional
circumstances justify a departure from the basic policy of
postponing appellate review until after the entry of a final
judgment.”

Coopers & Lybrand, 437 U.S. at 475 (citing Fisions,

Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)).
In addition, a district court’s analysis of a motion for
interlocutory appeal mirrors the analysis employed by our Court
of Appeals to certify interlocutory review under 28 U.S.C. §
1291(b).

See PKMG Peat Marwick, LLP v. Estate of Nelco, Ltd.,

Inc., 250 B.R. 74, 78 (E.D. Va. 2000); Atl. Textile Grp., Inc.
v. Neal, 191 B.R. 652, 652 (E.D. Va. 1996) (internal citations
omitted).

As part of this examination,

leave to file an interlocutory appeal should be granted
only when 1) the order involves a controlling question
of law, 2) as to which there is substantial ground for

4 

a difference of opinion, and 3) immediate appeal would
materially advance the termination of the litigation.
Id.

Under Fourth Circuit precedent, “the kind of question best

adapted to discretionary interlocutory review is a narrow
question of pure law whose resolution will be completely
dispositive of the litigation, either as a legal or practical
matter, whichever way it goes.”

Fannin v. CSX Transp., Inc. 873

F.2d 1438, 1438 (4th Cir. 1989) (unpublished).

Furthermore,

when considering the propriety of an appeal from a bankruptcy
court’s interlocutory order, the district court must accept the
bankruptcy court’s findings of fact unless such findings are
clearly erroneous.

In re. Johnson, 960 F.2d 396, 399 (4th Cir.

1992); see also KPMG Peat Marwick, 250 B.R. at 78 (“Put
differently, decisions as to fact made in the exercise of a
bankruptcy court’s discretion will not be set aside unless there
is plain error or an abuse of discretion.”) (internal citations
and quotation marks omitted).
III. Analysis
The first element for the court’s examination is whether
the order for which appellant seeks review is one that involves
a controlling question of law.

As noted above, a controlling

question of law is a narrow question that is completely
dispositive of the entire case.

See Fannin, 873 F.2d at 1438.

Appellant contends that the bankruptcy court’s grant of the
5 

Trustee’s motion “involves a controlling question of law in that
the [Trustee’s] amended notice was still deficient as a matter
of law and the [Trustee] had not met his burden of proving that
abandonment was appropriate herein.”

(Doc. No. 4 at 1).

However, it does not appear, and appellant does not argue,
that these issues were completely dispositive of the entire
case.

The court granted appellant a discharge soon after

entering the order to abandon certain property, but it does not
appear that the discharge hinged upon the issue of abandoned
property and that issue alone.

Nor does it appear that the

bankruptcy court’s denial of appellant’s motions to continue or
appear telephonically disposed of the substantive issues in this
bankruptcy proceeding.

As a result, the court cannot say that

the orders from which appellant seeks review involved a
controlling question of law.
Secondly, the court must consider whether a substantial
ground for difference of opinion exists regarding the issues
appellant has raised.

In cases where a court finds that a

controlling issue of law is not implicated, it follows that
substantial grounds for a difference of opinion do not exist.
See DSP Acquisition, LLC v. Free Lance-Star Publ’g Co. of
Fredericksburg, Va., 512 B.R. 808, 813 (E.D. Va. 2014)
(“Obviously, without a controlling question of law affected by
the appeal, there cannot be substantial grounds for a difference
6 

of opinion on that legal issue.”).

Appellant has not identified

any differing opinions on these legal issues and it does not
appear that any exist.

Instead, it is well established that the

bankruptcy court has the discretion to deny a motion to continue
or appear by telephone and to grant a Trustee’s motion for
abandonment.

See In re. Michael, 285 B.R. 553, 556–58 (Bankr.

S.D. Ga. 2002) (“Bankruptcy is a privilege, not a right. . . .
There is no constitutional right in play here, and Debtor has no
absolute right to appear telephonically.”); 11 U.S.C. § 554(a),
(b) (“On request of a party in interest and after notice and a
hearing, the court may order the trustee to abandon any property
of the estate that is burdensome to the estate or that is of
inconsequential value and benefit to the estate.”).

The court

cannot find substantial ground for difference of opinion on
either of these issues.
Finally, the court must consider whether immediate appeal
would materially advance the termination of the litigation and,
in this case, the court finds that it would not.

As stated

above, appellant received a discharge soon after the bankruptcy
court entered the orders of which he complains.

Before the

court could rule upon this appeal, the bankruptcy court
fashioned an appropriate remedy in this case.

Needless to say,

the bankruptcy court did not need this court’s intervention to
advance materially the termination of the litigation.
7 

None of

the three outlined elements support the consideration of an
interlocutory appeal and, therefore, the court must deny
appellant’s motion.
The court has also considered whether appellant’s case
presents those exceptional circumstances that would justify the
intrusion of appellate review before the entry of a final
judgment.

While a final judgment has issued in this case, even

if it had not, the court would nevertheless find that appellant
has not demonstrated exceptional circumstances.

As outlined

above, there is nothing exceptional in either appellant’s case
or the issues he has raised that warrants a departure from the
basic policy of postponing appellate review until after final
judgment.
Furthermore, even if interlocutory review was appropriate,
the court would nevertheless affirm the bankruptcy court’s
rulings.

It was neither unreasonable nor an abuse of discretion

for the bankruptcy court to deny appellant’s motion to continue,
having already given him an additional one month extension to
prepare for the hearing.

Appellant filed for the safe harbor of

bankruptcy relief; it was his responsibility to pursue the
relief he sought.

The court notes that appellant stated that he

did not have the funds to travel to Charleston, West Virginia
for the hearing, but this did not require the bankruptcy court
to grant him another continuance.
8 

Appellant initiated this

bankruptcy proceeding in the Bluefield Division of the Southern
District of West Virginia on January 8, 2015.

The following

day, appellant moved the court to transfer the case to the
Charleston Division, stating that the location was more
convenient for him.

(In re. Salau, Doc. No. 9).

Even though he

provided a Princeton, West Virginia address to the court,
appellant stated in his motion to continue that it was too
costly for him to travel to the hearing from his home in
Bloomington, Indiana.

(In re. Salau, Doc. No. 68).

Bankruptcy

Judge Pearson stated on the record that he had given appellant
every opportunity to attend the hearing, but was seriously
concerned about the progress of the bankruptcy case.

In light

of these concerns, the court cannot find that the bankruptcy
judge abused his discretion in denying appellant’s second motion
to continue.
Furthermore, it was not an abuse of discretion to deny
appellant’s motion to appear at the hearing by telephone.

As

stated above, a debtor does not have an absolute right to appear
at a hearing telephonically.

In re. Michael, 285 B.R. at 558.

It is clear from the record that Bankruptcy Judge Pearson was
seriously concerned about the progress of appellant’s case and
harbored sincere doubts concerning appellant’s efforts to pursue
faithfully his causes of action.

Notably, appellant failed to

file complete schedules and, furthermore, Bankruptcy Judge
9 

Pearson wanted to ensure that appellant remained a resident of
the Southern District of West Virginia.

It was not unreasonable

for Bankruptcy Judge Pearson to require appellant’s physical
presence, rather than a telephonic one.
Additionally, the bankruptcy court did not err when it
granted the Trustee’s motion to abandon certain property.

Under

11 U.S.C. § 554(a), “[a]fter notice and a hearing, the trustee
may abandon any property of the estate that is burdensome to the
estate or that is of inconsequential value and benefit to the
estate.”
A trustee enjoys certain rights upon commencement of a
bankruptcy case and is “in position to take control of the
litigation.”

Meyer v. Fleming, 327 U.S. 161, 165–66 (1946).

“If a trustee is appointed to oversee the debtor’s estate, the
trustee succeeds to the interests which the debtor had at the
time of his filing.”

In re. Wilson, 94 B.R. 886, 888 (Bankr.

E.D. Va. 1989) (citing 11 U.S.C. §§ 541, 542).

But a trustee

need not “accept onerous or unprofitable property surrendered as
part of the estate,” and may abandon that property pursuant to §
554(a).

Id. (internal citations omitted).

And, “[i]n keeping

with the goal of the bankruptcy reform movement to divorce
courts from ministerial duties, a trustee’s disposition of
estate property is reviewable only for the purpose of
determining whether the decision was made in an arbitrary or
10 

capricious manner.”

Id. (internal citations omitted).

A

bankruptcy court examining a motion to abandon “must focus its
examination upon the reasons underlying the trustee’s
determination and affirm a decision which reflects a business
judgment ‘made in good faith, upon a reasonable basis and with
the scope of his authority under the Code.’”

Id. (quoting In

re. Curlew Value Assoc., 14 B.R. 506, 513–14 (D. Utah)).

As

noted by the Meyer court,
the trustee in bankruptcy is not obliged to maintain or
continue every cause of action which the bankrupt may
have. . . . The relationship, therefore, between the
bankrupt and his trustee is for one and the same purpose
--to get out of the bankrupt’s property and claims enough
money to pay his debts and to relieve the bankrupt,
through his discharge, from further responsibility.
327 U.S. at 166 n.9.

Consequently, “it appears that the only

concern of the trustee in determining whether to abandon a claim
is whether such action would be in the best interest of the
estate.”

In re. Wilson, 94 B.R. at 889 (emphasis in original).

In this case, appellant listed on his schedules and
statement of financial affairs a number of lawsuits with unknown
value.

At the hearing on his motion to abandon, the Trustee

stated that appellant’s case was a “no asset case” and the
estate did not have the resources to investigate or pursue the
claims that appellant listed.

The Chapter 7 Trustee further

stated that many of the claims listed by the appellant, such as

11 

the lawsuits, were too speculative to support inclusion in the
estate.
The Chapter 7 Trustee in this case acted as the Bankruptcy
Code instructs:

he used his business judgment to act in the

best interest of the estate.

He determined that the estate did

not have sufficient funds to explore fully lawsuits that were,
on their face, speculative at best.

This business judgment

saved money for both appellant and his creditors by abandoning
lawsuits that only served to burden the estate while providing
scant hope of potential value.

Both by his actions and his

representations to the bankruptcy court, the Trustee met his
burden of proving burdensomeness or inconsequentiality of the
abandoned lawsuits, in contrast to appellant’s arguments.

On

this record, the court finds that the bankruptcy court did not
err in permitting the Trustee to abandon this property.
Finally, the court finds that the Trustee’s proposed intent
to abandon property was sufficiently detailed to support
abandonment.

A notice of abandonment need not be “a paragon of

grammatical beauty” in order to notify adequately those parties
affected by the abandonment and to cite specifically the
property proposed for abandonment.
263, 269 (D. Mass. 2011).

In re. Furlong, 450 B.R.

The notice in this case clearly

stated that the property proposed for abandonment was “[a]ll
lawsuits listed by the Debtor, on his schedules and statement of
12 

financial affairs.”

(In re. Salau, Doc. No. 49).

Obviously,

this notice was sufficient to inform appellant of the proposed
disposition of the property, as he filed an objection to the
notice.

Therefore, the court finds that the proposed notice of

abandonment was appropriately detailed and the bankruptcy court
did not err in permitting the abandonment of lawsuits from
appellant’s estate.

Upon review of the record in this case,

appellant is not entitled to relief.
IV.

Conclusion

Accordingly, appellant’s motions for leave to file an
interlocutory appeal, (Doc. Nos. 2, 4), are DENIED.

The

remaining motions associated with this case, (Doc. Nos. 7, 13),
are hereby DENIED as moot and the Clerk is DIRECTED to remove
this case from the court’s docket.
The Clerk is further DIRECTED to send copies of this Order
to all counsel of record and appellant, pro se.
IT IS SO ORDERED this 14th day of January, 2016.
Enter:
David A. Faber
Senior United States District Judge

13