Joseph E Bateman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re: Joseph E. Bateman, Jr. :
Timothy P. Branigan, Trustee 	:
v. 	: Civil Action No. DKC 2006-1309
:
Joseph E. Bateman, Jr.
:
* * * * * *
In re: Naveed A. Khan 	:
Timothy P. Branigan, Trustee 	:
v. 	: Civil Action No. DKC 2006-1330
Naveed A. Khan 	:
MEMORANDUM OPINION
Timothy 	P. 	Branigan, 	Chapter 	13 	Trustee, 	has 	filed 	a 	motion
for leave to appeal the denial of motions to dismiss in these two
cases and has indicated that similar motions to dismiss are either
pending 	or 	have 	been 	denied 	in 	other 	cases. 	The 	question
presented 	is 	whether 	a 	debtor 	may 	be 	a 	debtor 	in 	a 	case 	under
Chapter 	13 	when 	that 	debtor 	may 	not 	receive 	a 	discharge 	upon
consummation of a confirmed plan.
The 	Chapter 	13 	Trustee 	contends 	that 	the 	appeals 	involve 	a
controlling issue of law, as to which there is a substantial ground
for 	difference 	of 	opinion, 	and 	resolution 	may 	materially 	advance
the ultimate termination of the cases. 	The only argument as to why
there is substantial ground for difference of opinion is that the
issue 	is 	one 	of 	first 	impression 	concerning 	amendments 	to 	the
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Bankruptcy 	Code 	made 	by 	the 	Bankruptcy 	Abuse 	Prevention 	and
Consumer Act of 2005. 	The Chapter 13 Trustee also asserts that he
is raising the issue in many cases.
Pursuant 	to 	Local 	Rule 	403.5, 	the 	Bankruptcy 	Court 	was
requested to submit a written certification stating whether, in its
opinion, the interlocutory order involves a controlling question of
law 	as 	to 	which 	there 	is 	substantial 	ground 	for 	difference 	of
opinion 	and 	whether 	an 	immediate 	appeal 	of 	it 	may 	materially
advance 	the 	ultimate 	termination 	of 	the 	case. 	Judge 	Mannes
responded 	that 	although 	the 	interlocutory 	order 	does 	involve 	a
controlling question of law, there is less than substantial ground
for 	difference 	of 	opinion, 	and 	an 	immediate 	appeal 	would 	not
materially advance ultimate termination of this case.
Two other bankruptcy courts that have resolved the issue, in
addition 	to 	Judge 	Mannes, 	in 	opinions 	available 	on 	Westlaw 	agree
that the fact that a debtor may not be eligible for discharge does
not affect eligibility to file. 	Judge Mannes cited to In re Lewis,
339 B.R. 814 (Bankr. S.D. Ga. 2006). 	See also, In re McGhee, 342
B.R. 256 (Bankr. W.D. Ky. 2006). 	The Chapter 13 Trustee does not
cite 	to 	any 	contrary 	rulings. 	Judge 	Mannes’ 	certification 	also
refers to the Opposition to the Motion to Dismiss filed by the U.S.
Trustee in In re Loop, No. 05-90537-PM. 	It appears that the U.S.
Trustee 	asserts 	that 	the 	Chapter 	13 	Trustee’s 	view 	of 	the 	bar 	to
discharge 	in 	that 	particular 	case 	was 	incorrect. 	Thus, 	there
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appear to be more interpretive issues than the simple one raised by
the Chapter 13 Trustee at this time.
The 	procedural 	and 	factual 	differences, 	along 	with 	the 	many
interpretive issues to be resolved concerning the new law, counsel
against 	allowing 	these 	matters 	to 	be 	appealed 	piecemeal.
Accordingly, 	the 	motions 	for 	leave 	to 	appeal 	will 	be 	denied 	by
separate order.
/s/
DEBORAH K. CHASANOW
United States District Judge
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