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In re Christian

argued: September 18, 1986.

IN THE MATTER OF EDWARD S. CHRISTIAN, A/K/A E. SPENCER CHRISTIAN, AND DIANE C. CHRISTIAN, DEBTORS-APPELLEES; UNION CHELSEA BANK, APPELLANT


On Appeal From The United States District Court For The District of New Jersey, D.C. Civ. 85-4059.

Author: Seitz

Before: SEITZ, SLOVITER AND ROSENN, Circuit Judges.

Opinion OF THE COURT

SEITZ, Circuit Judge.

Appellant Union Chelsea Bank (the "Bank") appeals from an order of the district court affirming a bankruptcy court order denying the motions of the Bank, the Trustee in Bankruptcy (the "Chapter 7 Trustee"), and other creditors to dismiss under 11 U.S.C. § 707(b) the Chapter 7 petition of debtors Edward S. and Diane C. Christian. As discussed more fully below, this court has jurisdiction to review the district court's order under 28 U.S.C. § 158(d).

I.

On November 26, 1984, the Christians filed a joint petition for relief under Chapter 7 of the Bankruptcy Code. At a subsequent meeting of creditors conducted pursuant to 11 U.S.C. § 341(a), the Bank and other creditors examined the Christians. Based upon the petition and information revealed at the creditors' meeting, the Bank became convinced that granting Chapter 7 relief to the Christians would be a substantial abuse of the Bankruptcy Code.

The Bank thereafter moved to dismiss the Christian petition under 11 U.S.C. § 707(b). The Chapter 7 Trustee and other creditors joined in the Bank's motion. The bankruptcy court denied the motions of the Bank, the Chapter 7 Trustee and the other creditors on the ground that the court alone could move to dismiss under § 707(b).

Only the Bank appealed the bankruptcy court's order to the district court. That court affirmed the bankruptcy court "in all respects." This appeal followed.

II.

As a preliminary matter, this court must consider the Christians' contention that the court lacks jurisdiction to review the district court's order. The Christians argue that the order is interlocutory and therefore not appealable under 28 U.S.C. § 158(d). Section 158(d) grants this court jurisdiction of appeals from all final decisions, judgments, orders and decrees entered by a district court or a bankruptcy appellate panel on appeal from a bankruptcy court.

In In re Marin Motor Oil, 689 F.2d 445 (3rd Cir. 1982), cert. denied, 459 U.S. 1207, 103 S. Ct. 1196, 75 L. Ed. 2d 440 (1983), the bankruptcy court denied a motion of a creditor's committee to intervene in adversary proceedings instituted by a bankruptcy trustee. The district court reversed and ruled that the committee could intervene. Construing 28 U.S.C. § 1293(b), the predecessor of § 158(d), this court determined that the district court's order was appealable. The court approached finality pragmatically, looking at the effect of the district court's ruling. Id. at 447-49.

The same pragmatic approach was followed in In Re Comer, 716 F.2d 168 (3rd Cir. 1983), in which this court concluded it had jurisdiction to consider an appeal from a district court order reversing an order of a bankruptcy court refusing to life an automatic stay. This court noted that effective review of the order could not await final disposition of the case in the bankruptcy court. Id. at 172. See also In Re Amatex Corp., 755 F.2d 1034, 1036-41 (3rd Cir. 1985) (allowing appeal under 28 U.S.C. § 1291 from district court order denying appointment of a representative for future claimants in an asbestos textile manufacturer's bankruptcy proceeding).

If the order here is not now appealable the entire bankruptcy proceedings must be completed before it can be determined whether they were proper in the first place. We do not view such a resolution as either desirable or practical. In light of Marin Motor Oil, Comer and Amatex, we therefore conclude that the district court's order in this case is a final order ...


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