Request to Appeal Non-Final Discharge Violation Order Denied Due to Failure to Address Existence of Substantial Ground for Difference of Opinion

Request to Appeal Non-Final Discharge Violation Order Denied Due to Failure to Address Existence of Substantial Ground for Difference of Opinion

Years after receiving a discharge, a debtor initiated an adversary proceeding against a pre-petition creditor to disallow the creditor’s claim of secured status and to remove a pending request for recordation

of a mortgage against the debtor’s property. The debtor claimed that the recordation request violated the discharge order, since such request was filed after his discharge.

The U.S. Bankruptcy Court for the District of Puerto Rico entered partial summary judgment in favor of the debtor and set for trial the issue of damages. The creditor then filed before the District Court a motion for leave to appeal the bankruptcy court’s interlocutory order, arguing that the appeal presented a controlling question of law which, if resolved, would materially advance the litigation.

The U.S. District Court for the District of Puerto Rico denied the motion. According to District Judge Delgado Colón, a party must establish the three elements required under 28 U.S.C. § 1292(b) when seeking to appeal a bankruptcy court’s interlocutory ruling.

As a result, the absence of briefing on whether a substantial ground for difference of opinion as to the alleged controlling question of law existed was fatal.