United States District Court, S.D. Georgia, Dublin Division
the Court is Appellant-Debtor Archie Joel Champion, Ill's
motion for certification of appeal pursuant to 28 U.S.C.
§ 158(d)(2), which governs the Court of Appeals'
jurisdiction to hear appeals from interlocutory orders. For
the reasons set forth below, the motion for certification of
appeal (doc. no. 17) is GRANTED.
Joel Champion, III ("Appellant") filed a Chapter 7
petition in the Bankruptcy Court for the Southern District of
Georgia, Dublin Division, on September 28, 2017. Morris Bank
and Merchant and Citizens Bank (collectively, the
"Banks") are creditor-appellees in this case. The
Debtor and the United States Trustee agreed by consent orders
that June 11, 2018 would be the deadline to file a motion to
dismiss or object to the Debtor's discharge. (Bankr. Doc.
Nos. 22, 40, 44. J The Banks were not parties to the consent
docket entry text summarizing the consent orders was entered
with an incorrect deadline of July 11, 2018. (Bankr. Doc. No.
44, Docket Entry Text.) Three days after the correct deadline
of June 11, 2018, but prior to Debtor receiving a discharge,
the Banks filed motions to dismiss under 11 U.S.C. §
707(a). (Bankr. Doc. Nos. 46, 47.) On June 18th,
Debtor filed a request for entry of discharge, arguing that
the Banks' motions were untimely and that Federal Rule of
Bankruptcy Procedure 4004(c) requires a discharge
"forthwith," or immediately upon the passing of the
objection deadline. (Bankr. Doc. No. 51.)
March 2019, the Bankruptcy Court denied Debtor's request
in an Order and Opinion which concluded that pending §
707 (a) motions preclude an entry of discharge under Rule
4004 (c). In doing so, the Bankruptcy Court interpreted Rule
4004(c)'s requirement that a discharge be entered
"forthwith" as meaning "as soon as
practicable" rather than immediately, an interpretation
consistent with the Eleventh Circuit's interpretation of
the word in In re Coggin, 30 F.3d 1443, 1449 (11th
Cir. 1994), abrogated on other grounds by Kontrick v.
Ryan, 540 U.S. 443 (2004). (Doc. No. 1-2, at 9-15.)
Debtor moved to appeal the Order and Opinion to this Court in
April of 2019, challenging the Bankruptcy Court's
definition of "forthwith." (Doc. No. 1.) This Court
heard the appeal but affirmed the Bankruptcy Court's
denial of Debtor's request for discharge. (Doc. Nos.
13-14.) Now Debtor seeks to appeal this Court's Order to
the Eleventh Circuit.
28 U.S.C. § 158(d), the courts of appeals have
jurisdiction to hear interlocutory appeals if the district
court involved certifies - on the request of a party or on
its own motion - that any one of the following grounds exist:
(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; and if the court of appeals
authorizes the direct appeal of the judgment, order, or
28 U.S.C. § 158(d)(2)(A).
factors are not the same as the factors which govern appeals
from a bankruptcy court to a district court. At that stage in
the process, "[b]ecause [Section 158(a)] does not
provide the district court any criteria for determining
whether to exercise [its] discretionary authority to grant
leave to appeal, the courts look to 28 U.S.C. §
1292(b)." Laurent v. Herkert, 196 Fed.Appx.
771, 772 (11th Cir. 2006) (citation and punctuation omitted).
Section 1292(b) requires the appealing party to demonstrate
that: "(1) the order presents a controlling question of
law; (2) over which there is a substantial ground for
difference of opinion among courts; and (3) the immediate
resolution of the issue would materially advance the ultimate
termination of the litigation." Id. Therefore,
despite Debtor's suggestion, this Court's review of
the Bankruptcy Court's decision pursuant to Section
1292(b) does not necessarily mean the Court of Appeals will
have jurisdiction to review this Court's decision under
instant motion, Debtor repeats the factors in 28 U.S.C.
§ 158(d) (2) (A) and declares their existence in this
case, referencing this Court's analysis in its Order
granting leave to appeal from the Bankruptcy Court (doc. no.
13) . Because the Debtor need demonstrate only one of the
factors to have ...