ELLEN LIPTON HOLLANDER, District Judge.
These two appeals arise from orders of the Bankruptcy Court entered in a Chapter 13 bankruptcy proceeding initiated by Luciano Prologo, appellant, and an adversary proceeding emanating from Prologo's bankruptcy case. On the dates that appellant's briefs were due in this Court, see Fed. R. Bankr.P. 8009(a)(1), appellant filed motions for a ninety-day extension of the briefing schedule in each case (ELH-12-54, ECF 3; ELH-12-55, ECF 3 & 4). I issued an Order in each case (ELH-12-54, ECF 4; ELH-12-55, ECF 5), holding sub curia appellant's motions for extension of time and questioning whether this Court has appellate jurisdiction. In particular, I directed appellant to brief whether the orders from which he appeals are final, appealable orders or, in the alternative, to file motions for leave to appeal. See Fed. R. Bankr.P. 8003. I also solicited the position of any other party as to whether the Court possessed appellate jurisdiction.
In February 2009, Mr. Prologo refinanced his home, consisting of real property located at 8908 Rusty Anchor Road, Unit No. 209, in Ocean City, Maryland (the "Property"). On or about February 19, 2009, pursuant to the refinancing, Prologo executed a Deed of Trust to the Property in favor of Flagstar Bank, FSB ("Flagstar"), appellee. See Adversary Complaint ¶ 7 (ELH-12-55, ECF 1-55); see also Deed of Trust, Ex. 1 to Complaint (ELH-12-55, ECF 1-54).
On or about April 27, 2010, Prologo initiated the underlying bankruptcy proceeding (Bankruptcy Case No. 10-19378) by filing a voluntary petition for relief under Chapter 7 of the Bankruptcy Code, and listed Flagstar as a creditor.
Prologo initiated the underlying adversary proceeding (Adversary No. 11-301)
Flagstar moved to dismiss the Adversary Complaint, see Motion to Dismiss (ELH-12-55, ECF 1-41), and also filed a motion in the underlying bankruptcy proceeding asking the court to allow Flagstar to file a late proof of claim with respect to the debt allegedly secured by the Deed of Trust (ELH-12-54, ECF 1-21). Prologo filed an objection to Flagstar's belated proof of claim (ELH-12-54, ECF 1-18). The Bankruptcy Court consolidated Prologo's objection into the adversary proceeding (ELH-12-54, ECF 1-13), and held a hearing on the objection and Flagstar's motions on October 18, 2011. See Proceeding Memo (ELH-12-55, ECF 1-19).
As to Count II of the Adversary Complaint, the Bankruptcy Court agreed with Prologo that Flagstar's "filing of this lien would be void because it was taken in violation of the automatic stay and without permission to file it." Id. at 53. However, the court reasoned that the fact that the recordation of the Deed of Trust was a "void action" did not "mean that ... the lender doesn't have a security interest in the property. It is just one that can't be enforced against the other creditors during the life of the [bankruptcy] plan." Id. Further, as the Bankruptcy Court saw it, "questions remain whether there are any damages that flow" from "the void act in filing the lien in violation of the automatic stay." Id. at 55. According to the Bankruptcy Court, "in this case it is difficult to focus on just what those damages are or might be," and "the Debtor has not clearly alleged what those damages are." Id. Therefore, it determined that the appropriate course was to dismiss Count II with leave to amend, so that Prologo could more clearly articulate his alleged damages. See id. at 55-56.
Finally, with respect to Flagstar's late-filed proof of claim, the Bankruptcy Court opined, id. at 66-67:
On October 31, 2011, the Bankruptcy Court entered an Order in Prologo's adversary proceeding ("Adversary Order") (ELH-12-55, ECF 1-18), dismissing Prologo's claims against the Trustee "with prejudice"; dismissing Count I of the Adversary Complaint against Flagstar "with prejudice"; and dismissing Count II of the Adversary Complaint against Flagstar "with leave to amend within thirty (30) days of the date of this Order." As grounds for the Adversary Order, the Bankruptcy Court identified "the reasons stated on the record on October 18, 2011."
The same day, the Bankruptcy Court entered an Order in the underlying Chapter 13 proceeding allowing Flagstar's late-filed proof of claim, again citing "the reasons stated at the hearing on October 18, 2011" ("Claim Order") (ELH-12-54, ECF 1-10). In the Claim Order, the Bankruptcy Court said that Flagstar's proof of claim was "deemed to have been timely filed." It stated: "[N]othing in this Order shall prevent the Debtor and any other creditors or party in interest from objecting to the Flagstar Proof of Claim on any basis, except that no objections may be filed on the basis that the Flagstar Proof of Claim was not timely filed."
On or about November 14, 2011, Prologo filed a notice of appeal as to each Order. See ELH-12-55, ECF 1; ELH-12-54, ECF 1.
In the midst of delays in designation of the contents of the record on appeal, which are unnecessary to catalog, Prologo filed a "Second Motion to Extend Time to Amend Count II of Adversary Proceeding" on December 15, 2011 (ELH-12-55, ECF 1-7), this time seeking an extension until January 15, 2012, to file an amended complaint. The Bankruptcy Court granted the second extension motion on December 19, 2011 (ELH-12-55, ECF 1-4).
The appeal from the Adversary Order was docketed in this Court on January 6, 2012, as Civil Action No. ELH-12-55. The appeal from the Claim Order was docketed on January 9, 2012, as Civil Action No. ELH-12-54.
On January 17, 2012, Prologo filed in the underlying adversary proceeding an "Amended Complaint for Violation of Automatic Stay Herein" ("Amended Adversary Complaint"). See Prologo v. Flagstar Bank, FSB, Adversary No. 11-301, ECF 51 (Bankr.D. Md., filed Jan. 17, 2012).
As noted, on the dates that appellant's briefs were due in this Court, Prologo filed a motion in each appeal seeking a ninety-day extension of time to file his brief. See ELH-12-54, ECF 3; ELH-12-55, ECF 3 & 4.
Indeed, Prologo had moved to convert the bankruptcy case to a proceeding under Chapter 11. See In re Prologo, Case No. 10-19378, ECF 156 (Bankr.D. Md., filed Jan. 6, 2012). Both Flagstar and the Trustee opposed conversion. See id. ECF 163 (filed Jan. 10, 2012); ECF 164 (filed Jan. 11, 2012). Thereafter, the Trustee filed a motion in her adversary action (i.e., Adversary Proceeding No. 11-808) and in the underlying bankruptcy case, asking the Bankruptcy Court to approve a proposed settlement between the Trustee and Flagstar that would resolve the avoidance of Flagstar's lien on the Property. See In re Prologo, Case No. 10-19378, ECF 167 (Bankr. D. Md., filed Jan. 13, 2012). Prologo opposed the Trustee's motion. See id. ECF 172 (filed Jan. 30, 2012).
On February 21, 2012, the Bankruptcy Court held a hearing on Prologo's motion to convert to Chapter 11 and the Trustee's motion to approve the settlement. No transcript of that hearing has been prepared, and no subsequent order has been filed in the Trustee's adversary proceeding regarding the Trustee's motion to approve the settlement. However, the Bankruptcy Court's notes from the hearing have been docketed. See Cosby v. Flagstar Bank, FSB, Adversary No. 11-808, ECF 21 (Bankr. D. Md., filed Feb. 21, 2012). They indicate that the court was inclined to approve the proposed settlement if it was modified to make two "clarifications." Id. First, the court reasoned that the settlement proceeds could not be distributed according to an agreed distribution to certain creditors, as the proposed settlement provided, but could only be distributed pursuant to a confirmed Chapter 13 plan, proposed by the debtor. See id. Second, the court opined that the settlement needed to include a specific statement that the settlement was without prejudice to Prologo's claims against Flagstar and Prologo's defenses, if any, against collection and foreclosure efforts on the mortgage. See id. Finally, the court noted: "N.B. This settlement proposal may be mooted by the subsequent conversion of the case to Chapter 11." Id.
On March 1, 2012, the Bankruptcy Court issued an Order in the bankruptcy proceeding,
The Bankruptcy Court's conversion of the underlying bankruptcy case to a proceeding under Chapter 11 has rendered moot both of the pending appeals. Moreover, even if the appeals are not moot, neither of the orders from which Prologo appealed are final, appealable orders, nor are they appropriate candidates for interlocutory appellate review. I shall explain.
"`[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction.... [A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" Townes v. Jarvis, 577 F.3d 543, 546 (4th Cir.2009) (citation omitted). "[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed," for federal courts have "no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal quotation marks omitted); accord Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007).
"The conversion of a [bankruptcy] petition from one chapter to another generally moots an appeal taken from an order in the original chapter." AmeriCredit Fin. Servs., Inc. v. Tompkins, 604 F.3d 753, 755 (2d Cir.2010). This is not so much a statement of an ironclad rule of law (because exceptions to the principle arise in a variety of circumstances, see, e.g., id. at 755-756 (holding that appeal from disallowance of unsecured claim was not rendered moot by conversion from Chapter 13 to Chapter 7)), as it is an acknowledgment of the reality that the changes entailed by conversion from one chapter of the Bankruptcy Code to another can often render a decision in the pre-conversion proceeding irrelevant.
After the underlying appeals were docketed, appellant's bankruptcy case was converted from a Chapter 13 proceeding to a Chapter 11 proceeding. "Both Chapter 11 (Reorganization) and Chapter 13 (Adjustment of Debts of an Individual With Regular Income) allow bankruptcy relief without liquidation." In re Bell, 225 F.3d 203, 220 n. 26 (2d Cir.2000). Certain distinctions between the two chapters are relevant here.
The Fourth Circuit explained the contours of a Chapter 13 bankruptcy proceeding in In re Litton, 330 F.3d 636, 640 (4th Cir.2003) (footnotes omitted):
Although it is ordinarily "more advantageous for an individual who is eligible to file under either chapter to file under Chapter 13," Bell, 225 F.3d at 220 n. 6, it is "settled that individuals may file [bankruptcy] petitions under Chapter 11, whether or not they are engaged in business as sole proprietors." Id. at 220 (citing Toibb v. Radloff, 501 U.S. 157, 161, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991)); see also Litton, 330 F.3d at 640 n. 3 ("Chapter 11, like Chapter 13, is available for use by individuals."). Nevertheless, Chapter 11 "was primarily intended for business reorganizations," and thus is often "not an attractive vehicle for individual consumer bankruptcies," because its "procedures are complex, requiring greater disclosure and reporting to court and creditors." In re Bell, 225 F.3d at 220; see also Litton, 330 F.3d at 640 n. 3 ("Chapter 11 is primarily used by business debtors.").
"The essence of Chapter 11 is to provide a mechanism for the reorganization of a financially distressed business or individual in the hope that a profitable and productive member of its economic community can once again emerge." 1 COLLIER ON BANKRUPTCY § 1.07[3], at 1-31 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. Dec. 2011 Supp.) ("COLLIER"). Although there are many differences between Chapter 11 and Chapter 13 proceedings, see, e.g. In re Regional Bldg. Sys., Inc., 254 F.3d 528, 532-33 (4th Cir.2001) (discussing differences), the most salient difference for present purposes is that "[t]rustees in chapter 11 cases are the exception rather than the rule," 7 COLLIER § 1101.1[2], at 1101-3, while appointment of a trustee is mandatory in Chapter 13 cases. See 11 U.S.C. § 1302(a); see also Smith v. Rockett, 522 F.3d 1080, 1084-85 (10th Cir.2008) ("Typically there is no trustee in a Chapter 11 case. A trustee is always appointed in a Chapter 13 case.") (internal footnote and citations omitted).
Rather than a trustee, the debtor ordinarily manages the bankruptcy estate in a Chapter 11 proceeding, acting as the "debtor in possession." 11 U.S.C. §§ 1101(1), 1107. To be sure, a "debtor-in-possession does not act in his own interests, but rather in the interests of the creditors." In re J.T.R. Corp., 958 F.2d 602, 605 (4th Cir.1992). The debtor in possession is a fiduciary to the creditors, and owes the same duties as a trustee. Id. at 604; accord In re Southeast Hotel Properties Ltd. P'ship, 99 F.3d 151, 152 n. 1 (4th Cir.1996). The Bankruptcy Code permits a trustee to be appointed in a Chapter 11 case, upon the filing of a motion, with notice and an opportunity to be heard, "for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management," or "if such appointment is in the interests of creditors." 11 U.S.C. § 1104(a)(1)-(2).
Ultimately, whether the standard has been met for appointment of a trustee in a Chapter 11 case is committed to the discretion of the bankruptcy court. See, e.g., In re G-I Holdings, Inc., 385 F.3d 313, 321 (3d Cir.2004); see also Cmte. of Dalkon Shield Claimants v. A.H. Robins Co., 828 F.2d 239, 242 (4th Cir.1987). Nevertheless, "[a]ppointing a trustee in a Chapter 11 case is an `extraordinary' remedy, and there is a corresponding `strong presumption' that the debtor should be permitted to remain in possession." Official Cmte. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 577 (3d Cir.2003)
The fact that the estate in a Chapter 11 proceeding is, unless otherwise ordered, managed by the debtor in possession, rather than a trustee, renders moot the Bankruptcy Court's dismissal of Count I of Prologo's Adversary Complaint, which is the subject of the appeal in Case No. ELH-12-55 (i.e., the appeal from the Adversary Order in Adversary No. 11-301). The Bankruptcy Court concluded that dismissal of Count I was appropriate because, as the Bankruptcy Court saw it, Prologo lacked standing to pursue what was, in essence, an action to avoid a lien, especially where the Chapter 13 Trustee had already initiated a separate adversary proceeding (Adversary No. 11-808) for the same purpose. The Bankruptcy Court reasoned that 11 U.S.C. § 544 vests the authority to avoid liens with the trustee. But, in a Chapter 11 proceeding, "a debtor in possession" has "all the rights ... and powers, and shall perform all the functions and duties ... of a trustee." 11 U.S.C. § 1107(a). See In re Maxway Corp., 27 F.3d 980, 983 (4th Cir.1994) ("Section 1107(a) confers upon a debtor in possession the power and authority of a Chapter 11 trustee."). Moreover, conversion of a proceeding from Chapter 13 to Chapter 11 automatically terminates the appointment of the Chapter 13 trustee, see 11 U.S.C. § 348(e), and a Chapter 11 debtor is the "debtor in possession," by definition, unless and until the debtor is replaced in that capacity by assignment of a trustee pursuant to 11 U.S.C. § 1104. See 11 U.S.C. § 1101(1).
Therefore, regardless of whether the Bankruptcy Court was correct that Count I of the Adversary Complaint was, in substance, a lien avoidance action under 11 U.S.C. § 544, and regardless of whether the court was correct that Prologo lacked standing to pursue such an avoidance claim in the context of a Chapter 13 proceeding, Prologo clearly has the authority, as debtor in possession, to pursue such a claim in the context of Chapter 11. See In re MS55, Inc., 477 F.3d 1131, 1134 (10th Cir. 2007) ("Under the bankruptcy code, a debtor-in-possession has the powers of a trustee and, as such, the authority to bring avoidance actions.") (internal citation omitted); see also In re PWS Holding Corp., 303 F.3d 308, 314 & n. 5 (3d Cir.2002); Gleischman Sumner Co. v. King, Weiser, Edelman & Bazar, 69 F.3d 799, 801 (7th Cir.1995); Indian Motocycle Assocs. III Ltd. P'ship v. Mass. Hous. Fin. Agency, 66 F.3d 1246, 1252 (1st Cir.1995); In re Maxway Corp., supra, 27 F.3d 980, 983 (4th Cir.1994); Zilkha Energy Co. v. Leighton, 920 F.2d 1520, 1523 (10th Cir. 1990). Accordingly, Prologo's appeal from the Bankruptcy Court's determination is now moot.
For all of the foregoing reasons, both appeals are moot. "The customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court's judgment." Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.2010); see also Alvarez v. Smith, ___ U.S. ___, 130 S.Ct. 576, 581, 175 L.Ed.2d 447 (2009) (explaining that courts "normally ... vacate the lower court judgment in a moot case because doing so clears the path for future relitigation of the issues between the parties") (internal quotation marks omitted). However, vacatur is warranted "`only where mootness has occurred through happenstance, rather than through the voluntary action of the losing party.'" Norfolk, 608 F.3d at 162 (quoting Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003)). Here, the case has been rendered moot because Prologo moved, successfully, to convert the underlying bankruptcy case to a proceeding under Chapter 11. Accordingly, in my view, dismissal and remand, without vacatur and without prejudice, is appropriate.
As an alternative basis for my ruling, it is clear that the orders from which Prologo noted his appeals are neither final, appealable orders nor orders as to which interlocutory review would be appropriate. Therefore, even if the appeals were not moot, they would still be subject to dismissal for lack of appellate jurisdiction.
A district court's appellate jurisdiction over orders of a bankruptcy court is established by 28 U.S.C. § 158(a). It provides, in relevant part, id. (emphasis added):
The district courts of the United States shall have jurisdiction to hear appeals
The Fourth Circuit recently discussed the appealability of bankruptcy court orders in McDow v. Dudley, 662 F.3d 284, 286-87 (4th Cir.2011):
Despite the "more pragmatic and less technical" conception of finality that applies with respect to a bankruptcy appeal, A.H. Robins Co., 788 F.2d at 1009, "an order must `conclusively determine[ ] a separable dispute over a creditor's claim or priority,'" in order to be considered final. In re Urban Broadcasting Corp., 401 F.3d 236, 247 (4th Cir.2005) (quoting In re Saco Local Dev. Corp., 711 F.2d at 445-46). In other words, a final, appealable order is one that "finally dispose[s] of discrete disputes within the larger case." In re Computer Learning Ctrs., 407 F.3d at 660.
The Adversary Order dismissed with prejudice only one count of Prologo's Complaint against Flagstar (Count I). As to Count II, the Adversary Order expressly permitted Prologo to file an amended complaint. The Fourth Circuit has stated:
Young v. Nickols, 413 F.3d 416, 418 (4th Cir.2005) (quoting Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993)); see also De'Lonta v. Angelone, 330 F.3d 630, 633 n. 3 (4th Cir.2003).
The Bankruptcy Court's express authorization to Prologo to file an amended complaint deprived the Adversary Order of finality. This is made clear by the fact that Prologo repeatedly sought, and was granted, extensions of time to file an amended complaint, and ultimately filed one. Thus, at least one of Prologo's claims against Flagstar in the adversary proceeding remains to be resolved. "An order dismissing some but not all claims is not final and not immediately appealable." Mathers v. Wright, 636 F.3d 396, 398 (8th Cir.2011). Moreover, the Bankruptcy Court dismissed Count I of Prologo's Complaint because the Chapter 13 Trustee had initiated a substantially similar avoidance action as to Flagstar's lien, concerning essentially the same dispute. That adversary proceeding (Adversary No. 11-808) was pending at the time Prologo noted his appeals and, like Prologo's adversary proceeding, remains pending as of this writing.
As Chief Judge Deborah K. Chasanow concluded in analogous circumstances in In re Rood, 426 B.R. 538, 547 (D.Md.2010) (citation omitted): "The fact that the adversary proceeding continued after the [order on appeal] was granted—indeed, it is still ongoing—demonstrates that the order did not finally determine the substantive rights of the [appellants] in the bankruptcy case, nor did it `finally dispose of discrete disputes within the larger case.'" In sum, the Adversary Order plainly did not finally dispose of the parties' discrete dispute regarding the validity or secured status of Flagstar's interest in the Property.
As to the Claim Order, it was limited by its terms to the timeliness of Flagstar's proof of claim. The Claim Order expressly stated that it was entered without prejudice to the right of Prologo or any other party to object to the claim on any ground other than timeliness. Ordinarily, an order permitting the late filing of a proof of claim in bankruptcy, without more, is not considered a final, appealable order, because such an order "can be reviewed after a determination on the merits of the claim, if the late filing is still an issue." In re Charter Co., 76 B.R. 191, 194 (M.D.Fla.1987); accord In re X-Cel, Inc., 68 B.R. 131, 133 (N.D.Ill.1986) (holding that order permitting late filing of claim was non-final, where bankruptcy court "explicitly left open the opportunity for X-Cel to contest the validity of IIC's proof of claim notwithstanding the denial of its procedural objection to the claim's filing"); see also In re Eagle Bus. Mfg., Inc., 62 F.3d 730, 733-34 (5th Cir.1995) (holding that order permitting late filing of claim in bankruptcy was appealable, and expressly distinguishing Charter and X-Cel, where
Thus, I am satisfied that neither of the orders at issue is a final order. Nevertheless, 28 U.S.C. § 158(a)(3) grants this Court appellate jurisdiction over interlocutory, non-final orders of the Bankruptcy Court, so long as this Court grants leave to appeal. Leave to appeal is governed by Rule 8003 of the Federal Rules of Bankruptcy Procedure. A request for leave to appeal ordinarily must be made by motion. See Fed. R. Bankr.P. 8003(a)-(b). In this case, no motion for leave to appeal has been filed. However, Rule 8003(c) provides, in part:
In other words, where a party has noted a timely appeal from an interlocutory order, but has not filed a motion for leave to appeal, "Rule 8003(c) requires the district court to make one of the following three choices: (1) grant leave to appeal, (2) order the party to file a motion for leave to appeal, or (3) deny leave to appeal after considering the notice of appeal as a motion for leave to appeal." In re Faragalla, 422 F.3d 1208, 1211 (10th Cir.2005). "The decision to deny leave to appeal an interlocutory bankruptcy order is purely discretionary." In re M & S Grading, Inc., 526 F.3d 363, 371 (8th Cir.2008).
Pursuant to Rule 8003, I directed Prologo to file a motion for leave to appeal. However, he did not do so, instead insisting (incorrectly) that the orders from which he appeals were final, appealable orders. Despite Prologo's failure to move for leave to appeal, I have considered Prologo's notices of appeal as motions for leave to appeal, pursuant to Rule 8003(c), and exercise my discretion to deny leave to appeal.
When a litigant seeks leave to appeal from an interlocutory order of a bankruptcy court, the district courts in this circuit have found guidance in the standard for certification of orders for interlocutory review by the circuit courts of appeal under 28 U.S.C. § 1292(b). See, e.g., Rood, supra, 426 B.R. at 548; KPMG Peat Marwick, LLP v. Estate of Nelco, Ltd., Inc., 250 B.R. 74, 78 (E.D.Va.2000); Atl. Textile Group, Inc. v. Neal, 191 B.R. 652, 653 (E.D.Va.1996); In re Swann Ltd. P'ship, 128 B.R. 138, 140 (D.Md.1991). That statute permits certification of an interlocutory appeal when (1) the "order involves a controlling question of law"; (2) "as to which there is substantial ground for difference of opinion"; and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Both of the orders from which Prologo appeals fail the first prong of the § 1292(b) test: they do not involve controlling questions of law. Accordingly, I need not consider whether there is a substantial ground for difference of opinion as to the orders, or whether immediate appeal would materially advance the termination of the litigation. "`An order involves a controlling question of law when either (1) reversal of the bankruptcy court's order would terminate the action, or (2) determination of the issue on appeal would materially affect the outcome of the litigation.'"
As to the Adversary Order, it merely held that the Chapter 13 Trustee, and not Prologo, was entitled to seek avoidance of Flagstar's lien. The controlling issue of law raised by Count I of the Adversary Complaint (i.e., whether the lien should be avoided, not who was entitled to seek avoidance) was not resolved. With regard to the Claim Order, it concerned only the timeliness of Flagstar's claim, not whether the claim ultimately had merit. Perhaps, if the Claim Order were reversed, it would be dispositive of the litigation in the sense of precluding Flagstar's claim, but the Claim Order certainly is not dispositive of the litigation "`whichever way it goes.'" Rood, 426 B.R. at 548 (quoting Fannin). Accordingly, neither Order is appropriate for interlocutory review.
For the foregoing reasons, Prologo's appeals will be dismissed, without prejudice, and these cases will be remanded to the Bankruptcy Court. Prologo's motions for extensions of time will be denied as moot. An Order implementing these rulings follows.
After consideration of the submissions of the parties, and for the reasons stated in the accompanying Memorandum Opinion, the Court has concluded that both of the above-captioned appeals (Case Nos. ELH-12-54 & ELH-12-55) have been rendered moot by conversion of the underlying bankruptcy case to a proceeding under Chapter 11 of the Bankruptcy Code. See In re Prologo, Case No. 19378, ECF 181 (Bankr. D. Md. Mar. 1, 2012). Moreover, and in the alternative, both of the appeals arise from non-final, interlocutory orders of the Bankruptcy Court and, therefore, are not appealable without leave of Court. Pursuant to Rule 8003(c) of the Federal Rules of Bankruptcy Procedure, the Court has considered appellant's notice of appeal in each case as a motion for leave to appeal, and has determined, in its discretion, that leave to appeal is not warranted.
Accordingly, it is, this 16th day of March, 2012, by the United States District Court for the District of Maryland, ORDERED:
