PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1195

OTERIA Q. MOSES,

 Plaintiff - Appellee,

v.

CASHCALL, INC.,

 Defendant - Appellant,

------------------------------

NATIONAL ASSOCIATION OF CHAPTER 13 TRUSTEES; NATIONAL 

ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS,

 Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Terrence W. Boyle, 

District Judge. (4:13-cv-00223-BO)

Argued: October 30, 2014 Decided: March 16, 2015

Before NIEMEYER and GREGORY, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part and reversed in part and remanded by per curiam 

opinion. Judge Niemeyer wrote the opinion for the court in 

Parts I, II.A, and III, in which Judge Gregory joined. Judge 

Niemeyer wrote a separate opinion in Part II.B dissenting from 

the judgment in part. Judge Gregory wrote a separate opinion, 

concurring in the judgment. Judge Davis wrote a separate 
2

opinion, concurring in the judgment in part and dissenting in 

part. 

ARGUED: Hayden J. Silver, III, WOMBLE CARLYLE SANDRIDGE & RICE, 

LLP, Raleigh, North Carolina, for Appellant. Matthew W.H. 

Wessler, PUBLIC JUSTICE, P.C., Washington, D.C., for Appellee. 

ON BRIEF: Raymond M. Bennett, Jesse A. Schaefer, WOMBLE CARLYLE 

SANDRIDGE & RICE, LLP, Raleigh, North Carolina, for Appellant. 

Adrian M. Lapas, STRICKLAND, LAPAS, AGNER & ASSOCIATES, 

Goldsboro, North Carolina; Leah M. Nicholls, PUBLIC JUSTICE, 

P.C., Washington, D.C., for Appellee. John Fletcher Logan, 

Chapter 13 Standing Trustee, Eastern District of North Carolina, 

OFFICE OF THE CHAPTER 13 TRUSTEE, Raleigh, North Carolina, for 

Amicus National Association of Chapter 13 Trustees. Tara Twomey, 

Geoff Walsh, NATIONAL CONSUMER BANKRUPTCY RIGHTS CENTER, San 

Jose, California, for Amicus National Association of Consumer 

Bankruptcy Attorneys.
3

PER CURIAM:

This bankruptcy appeal presents the issue of whether two 

claims, one for declaratory relief and one for money damages, 

asserted by debtor Oteria Moses in an adversary proceeding, are 

subject to arbitration. The bankruptcy court retained 

jurisdiction over the first claim and denied the motion of 

CashCall, Inc. to compel arbitration. With respect to the 

second claim, it made recommended findings of fact and 

conclusions of law, likewise to retain jurisdiction over the 

claim and deny the motion to compel arbitration. On appeal from 

the bankruptcy court, the district court affirmed the bankruptcy 

court’s denial of the motion to compel arbitration as to the 

first claim and, itself, denied the motion to compel arbitration 

with respect to the second claim.

On appeal, we hold, for the reasons given by Judge Niemeyer 

in Parts I, II.A, and III of his opinion, in which Judge Gregory 

joined, that the district court did not err in affirming the 

bankruptcy court’s exercise of discretion to retain in 

bankruptcy Moses’ first claim for declaratory relief. We also 

hold, however, that the district court erred in retaining in 

bankruptcy Moses’ claim for damages under the North Carolina 

Debt Collection Act and denying CashCall’s motion to compel 

arbitration of that claim. Judge Gregory and Judge Davis wrote 
4

separate opinions concurring in that judgment. Judge Niemeyer 

wrote a separate opinion on that issue, dissenting. 

Accordingly, the judgment of the district court is affirmed 

in part and reversed in part, and this matter is remanded to the 

district court with instructions to grant CashCall’s motion to 

compel arbitration on Moses’ second claim for damages.

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED WITH INSTRUCTIONS
5

NIEMEYER, Circuit Judge, writing for the court in Parts I, II.A, 

and III; and writing separately in Part II.B dissenting from the 

judgment in part:

To overcome financial difficulties, Oteria Moses of 

Goldsboro, North Carolina, borrowed $1,000 from Western Sky 

Financial, LLC, signing a consumer loan agreement in which she 

promised to repay Western Sky $1,500 and 149% interest, for an 

effective interest rate of 233.10% per annum. In signing the 

loan agreement, she agreed to make payments totaling $4,893. 

While such a loan agreement was clearly illegal under North 

Carolina law, as it provided for an interest rate nearly 

15 times the maximum allowable rate, Western Sky specified in 

the agreement that Indian tribal law would apply and that any 

dispute under the agreement would be resolved by arbitration 

conducted by a representative of the Cheyenne River Sioux Tribe. 

When Moses sought protection in a Chapter 13 bankruptcy 

proceeding, CashCall, Inc., the loan servicer, filed a proof of 

claim, which Moses opposed on the ground that the loan was 

illegal and void. Moses also filed an adversary proceeding 

against CashCall (1) to declare the loan illegal and void and 

(2) to obtain damages for CashCall’s allegedly illegal debt 

collection activities. In a strategic attempt to avoid the 

bankruptcy court’s adjudication of Moses’ claims, CashCall 

sought to withdraw its proof of claim, but the bankruptcy court 

denied its request. CashCall simultaneously sought to dismiss 
6

the adversary action or to stay the proceeding and compel 

arbitration, which the bankruptcy court also denied. The 

district court refused to review the bankruptcy court’s 

interlocutory order denying CashCall’s motion to withdraw its 

proof of claim but agreed to review the bankruptcy court’s order 

denying CashCall’s motion to dismiss or compel arbitration. 

From the district court’s order affirming, CashCall filed this 

appeal.

We conclude that resolution of Moses’ claim for a 

declaratory judgment that the loan is illegal under North 

Carolina law could directly impact the claims against her estate 

and that sending this claim to tribal arbitration would 

substantially interfere with Moses’ efforts to reorganize. 

Thus, we hold that the district court did not err in affirming 

the bankruptcy’s court’s exercise of discretion to retain in 

bankruptcy Moses’ claim for a declaratory judgment.

Writing separately for myself in Part II.B, I would also 

affirm the district court’s exercise of discretion to retain in 

bankruptcy Moses’ claim to obtain damages for CashCall’s efforts 

to collect an allegedly illegal debt. That claim presents the 

exact same question as Moses’ claim for a declaratory judgment 

-- namely, whether the loan agreement is invalid. Consequently, 

splitting the damages claim from the declaratory judgment claim 

and sending it to arbitration will be extremely inefficient, 
7

will present collateral estoppel concerns, and will waste 

resources that Moses could otherwise use to repay her debts. 

Such concerns are heightened in light of the fact that courts

have called the tribal arbitration procedure specified in the 

loan agreement “illusory,” “a sham,” and “unconscionable.” See, 

e.g., Jackson v. Payday Fin., LLC, 764 F.3d 765, 768, 778-79 

(7th Cir. 2014). Therefore, I believe that the district court 

did not abuse its discretion in declining to send Moses’ damages 

claim to arbitration.

I

Facing financial difficulties, Moses signed a Western Sky 

Consumer Loan Agreement (the “Loan Agreement”) on May 10, 2012, 

promising to pay Western Sky “or any subsequent holder” $1,500, 

together with 149% interest. Upon signing the Loan Agreement, 

Western Sky gave her $1,000 in cash and “retained” $500 as a 

“prepaid finance charge/origination fee.” In the Loan 

Agreement’s “Truth in Lending Act Disclosure Statement,” Western 

Sky stated that the annual percentage rate for the loan was 

233.10% and that the amount of all payments that would be made 

“as scheduled” would be $4,893.14. The 233.10% interest rate 

disclosed in the Loan Agreement far exceeded the 16% maximum 

rate allowed by North Carolina law.

Western Sky, which gave its address in the Loan Agreement 

as a post office box in Timber Lake, South Dakota, was not 
8

licensed to make loans in North Carolina, as required by North 

Carolina law. The Loan Agreement provided, however, that it was 

“governed by the Indian Commerce Clause of the Constitution of 

the United States of America and the laws of the Cheyenne River 

Sioux Tribe” and that “no United States state or federal law 

applies to this Agreement.”

The Loan Agreement also provided that any disputes relating 

to it were to be resolved by arbitration, “which shall be 

conducted by the Cheyenne River Sioux Tribal Nation by an 

authorized representative” (emphasis added), and it gave Moses 

the right to designate either the American Arbitration 

Association or JAMS “to administer the arbitration” in 

accordance with its rules and procedures “to the extent that 

those rules and procedures do not contradict either the law of 

the Cheyenne River Sioux Tribe or the express terms of this 

Agreement to arbitrate.” In signing the Agreement, Moses also 

agreed that she could elect to have the arbitration take place 

either on tribal land or within 30 miles of her residence, but 

she agreed that if she elected the latter, this “accommodation” 

would not “relinquish[] or waive[] . . . the Cheyenne River 

Sioux Tribe’s sovereign status or immunity.” Courts that have 

considered loan agreements similar to the one at issue here have 

found that the Cheyenne River Sioux Tribe has no laws or 

facilities for arbitration and that the arbitration procedure 
9

specified is a “sham from stem to stern.” Jackson, 768 F.3d at 

779; see also Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1354 

(11th Cir. 2014); Heldt v. Payday Fin., LLC, 12 F. Supp. 3d 

1170, 1191 (D.S.D. 2014). 

Three days after signing the Loan Agreement, Moses received 

a notice from Western Sky that the Agreement had been sold to WS 

Funding, LLC, a subsidiary of CashCall, Inc., and would be 

serviced by CashCall.

On August 1, 2012, less than three months after signing the 

Loan Agreement and after having made only one payment on it, 

Moses filed a Chapter 13 bankruptcy petition in the Eastern 

District of North Carolina to reorganize her financial affairs. 

One week later, CashCall filed a proof of claim in the 

bankruptcy proceeding, asserting that Moses owed it $1,929.02 as 

of August 1. Moses objected to the proof of claim, contending 

that “the loan obligation was void and not enforceable in North 

Carolina” pursuant to two North Carolina statutes that prohibit 

unlicensed lending, see N.C. Gen. Stat. § 53-166(a), and limit 

interest rates to 16% per annum, see id. § 24-1.1(c). She also 

initiated an adversary proceeding by filing a two-count 

complaint seeking, in her first count, a declaratory judgment 

that the loan was “void ab initio” under North Carolina law and, 

in her second, damages against CashCall under the North Carolina 
10

Debt Collection Act, id. §§ 75-50 to 75-56, for taking actions 

“to collect a debt that was not permitted under law.” 

On October 25, 2012, the bankruptcy court confirmed Moses’ 

Chapter 13 plan without objection. The approved plan called for 

Moses to repay fully all secured, priority unsecured, and 

administrative claims over a five-year period but did not 

anticipate that there would be sufficient funds to repay any 

general unsecured claims.

After approval of the plan, but while the adversary 

proceeding was pending, CashCall filed simultaneous motions in 

the bankruptcy court to withdraw its proof of claim with 

prejudice and to dismiss Moses’ adversary proceeding without 

prejudice or, in the alternative, to stay the proceeding and 

compel Moses to arbitrate her claims pursuant to the Loan 

Agreement’s arbitration clause. In its motion to withdraw its 

proof of claim, CashCall stated that it “no longer wish[ed] to 

pursue its Proof of Claim and voluntarily abandon[ed] its claim 

for the outstanding balance of the loan to the Debtor.” But it 

did not consent to a finding that its loan was illegal and void 

under North Carolina law, as Moses alleged in her objection to 

the proof of claim and in her complaint in the adversary 

proceeding. Because Moses had already filed an adversary 

proceeding against CashCall, CashCall was not authorized to 

withdraw its proof of claim without court approval. See Fed. R. 
11

Bankr. P. 3006. Moses objected to CashCall’s motion to withdraw 

its proof of claim, maintaining that CashCall, which had filed 

118 similar proofs of claim in the Eastern District of North 

Carolina to recover unsecured debts, sought to withdraw its 

proof of claim in her case only after she had challenged its 

practices “in an attempt to divest [the bankruptcy court] of 

jurisdiction” to hear her claims against it. 

Following a hearing, the bankruptcy court entered two 

separate orders dated January 3, 2013. In the first, it denied 

CashCall’s motion to dismiss the complaint or to stay and compel 

arbitration. In doing so, the court concluded that Moses’ first 

claim in the complaint, which requested a declaratory judgment 

that CashCall’s loan was void, was a core bankruptcy proceeding, 

as it involved the “allowance or disallowance of claims against 

the estate,” citing 28 U.S.C. § 157(b)(2)(B). As to Moses’ 

second claim, which sought damages under the North Carolina Debt 

Collection Act, the court concluded that the claim was non-core, 

over which it “lack[ed] constitutional authority to enter final 

judgment” and could therefore only recommend findings of fact 

and conclusions of law for a decision by the district court, 

citing id. § 157(c)(1). In the second order of January 3, the 

bankruptcy court denied CashCall’s motion to withdraw its proof 

of claim, finding that withdrawal “would cause prejudice to the 
12

Debtor by eliminating this Court’s jurisdiction over any causes 

of action related to the claim.”

CashCall sought leave from the district court to file 

interlocutory appeals with respect to both January 3 orders, as 

required by 28 U.S.C. § 158(a)(3), acknowledging that the 

district court had “discretionary jurisdiction to hear appeals 

from interlocutory rulings of the Bankruptcy Courts.” The 

district court granted CashCall leave to appeal the 

interlocutory order denying its motion to dismiss or compel 

arbitration, but it denied CashCall leave to appeal the 

interlocutory order denying its motion to withdraw its proof of 

claim. On the appeal of the order denying CashCall’s motion to 

dismiss or compel arbitration, the district court affirmed the 

bankruptcy court’s order by order dated February 4, 2014.

CashCall filed a notice of appeal to this court “from the 

judgment and order of the District Court . . . entered in this 

case on February 4, 2014, affirming an order of the Bankruptcy 

Court for the Eastern District of North Carolina that denied 

CashCall’s motion to dismiss or stay and compel arbitration of 

the underlying adversary proceeding.”

II

In her complaint in the adversary proceeding, Moses 

asserted two claims for relief. In the first, she sought a 

declaratory judgment that CashCall’s loan was illegal and 
13

unenforceable, in violation of N.C. Gen. Stat. § 24-1.1(c) and 

§ 53-166(a). In her second claim, she sought damages for 

CashCall’s alleged violation of the North Carolina Debt 

Collection Act, N.C. Gen. Stat. §§ 75-51, 75-54, asserting that 

CashCall sought to enforce a debt that was void under North 

Carolina law. 

The district court ruled that the bankruptcy court had 

jurisdiction over Moses’ first claim because it was 

“constitutionally core under Stern v. Marshall, 131 S. Ct. 2594 

(2011),” and “CashCall [did] not challenge this finding.” The 

district court then exercised its discretion to keep Moses’ 

second claim -- that CashCall violated the North Carolina Debt 

Collection Act -- in the bankruptcy case because sending it to 

arbitration “would frustrate, rather than facilitate, the 

efficiency favored by arbitration and could potentially lead to 

inconsistent results.” The court noted that “[t]he 

countervailing policy of the bankruptcy code is . . . greatly 

served by allowing the bankruptcy court to consider both claims 

together and to enter findings of fact and conclusions of law on 

Moses’ non-core claim.”

CashCall challenges the district court’s conclusions, 

contending on appeal that both the core and non-core claims 

should be sent to arbitration. This is an expansion of the 

position that it took in the district court, where it argued 
14

only that Moses’ claim for damages under the North Carolina Debt 

Collection Act was a non-core proceeding and that “non-core 

proceedings are subject to arbitration, even in bankruptcy.” It 

now maintains that if both claims are sent to arbitration, “none 

of the matters to be decided will delay or diminish [Moses’] 

opportunity for a discharge, alter the Chapter 13 Plan, or 

increase the payments she is required to make.” Thus, it 

argues, arbitration would not conflict with the policies 

underlying the Bankruptcy Code.

Moses argues to the contrary, noting that both of her 

claims are premised on the invalidity of the Loan Agreement and 

contending that the resolution of those claims would “directly 

impact[] the claims on the estate and the plan for [her] 

financial reorganization -- the raison d’etre of Chapter 13 

bankruptcy proceedings.” She maintains therefore that 

arbitration would conflict with the Bankruptcy Code’s purposes.

The underlying principles that are applicable here are not 

in dispute. Bankruptcy courts may decide core bankruptcy 

claims, which include the “allowance or disallowance of claims 

against the estate” and “counterclaims by the estate against 

persons filing claims against the estate.” 28 U.S.C. 

§ 157(b)(2)(B)-(C). A bankruptcy court may also hear related 

non-core claims, but it cannot finally resolve them and must 
15

instead submit proposed findings of fact and conclusions of law 

to the district court. Id. § 157(c)(1).

The Supreme Court has modified these statutory assignments 

of responsibility, holding that Article III of the Constitution 

prohibits bankruptcy courts from issuing final orders regarding 

statutorily core claims unless they “stem[] from the bankruptcy 

itself or would necessarily be resolved in the claims allowance 

process.” Stern, 131 S. Ct. at 2618. And the Court has 

subsequently held that when a bankruptcy court is faced with a 

claim that is statutorily core but constitutionally non-core --

a so-called “Stern claim” -- it must treat the claim as if it 

were statutorily non-core, submitting proposed findings of fact 

and conclusions of law to the district court for de novo review. 

Exec. Benefits Ins. Agency v. Arkison, 134 S. Ct. 2165, 2173 

(2014).

Here, there is no dispute that Moses’ first claim, which 

seeks to declare that CashCall’s loan is unenforceable, is a 

statutorily core claim because such an action involves the 

“allowance or disallowance of claims against the estate.” 

28 U.S.C. § 157(b)(2)(B). It is also constitutionally core, 

because the validity of the Loan Agreement would “necessarily be 

resolved” in adjudicating CashCall’s proof of claim and Moses’ 

objections thereto. Stern, 131 S. Ct. at 2618; see also, e.g., 

TP, Inc. v. Bank of Am., N.A. (In re TP, Inc.), 479 B.R. 373, 
16

385 (Bankr. E.D.N.C. 2012) (holding that “a counterclaim by the 

estate based in state law” will necessarily be resolved in 

ruling on a proof of claim if it “seek[s] to directly reduce or 

recoup the amount claimed”); Pulaski v. Dakota Fin., LLC (In re 

Pulaski), 475 B.R. 681, 687 (Bankr. W.D. Wis. 2012) (holding 

that an objection to a proof of claim based on violations of 

state law was constitutionally core); In re Olde Prairie Block 

Owner, LLC, 457 B.R. 692, 698 (Bankr. N.D. Ill. 2011).

Moses’ second claim, which seeks damages for CashCall’s 

violation of the North Carolina Debt Collection Act, is also 

statutorily core because it is a “counterclaim[] by the estate 

against [a] person[] filing [a] claim[] against the estate.” 

See 28 U.S.C. § 157(b)(2)(C); see also, e.g., Burns v. Dennis 

(In re Southeast Materials, Inc.), 467 B.R. 337, 360 (Bankr. 

M.D.N.C. 2012) (holding that a cause of action seeking damages 

for a creditor’s unfair or deceptive trade practices, which had 

no bearing on the allowance or disallowance of a proof of claim, 

was a counterclaim by the estate); SJI, Inc. v. Staehnke (In re 

SJI, Inc.), 442 B.R. 690, 693 (Bankr. D. Minn. 2010) (holding 

that a cause of action seeking damages for a creditor’s breach 

of contract was a counterclaim by the estate). But the second 

claim is not constitutionally core. Even if a bankruptcy court 

were to determine that the underlying Loan Agreement was 

illegal, it would still need to determine whether an effort to 
17

collect an illegal debt would inherently violate the North 

Carolina Debt Collection Act, as Moses alleges. Thus, Moses’ 

claim would not “necessarily be resolved in the claims allowance 

process.” Stern, 131 S. Ct. at 2618; see also id. at 2616-17 

(distinguishing the case before the Court, in which “the 

Bankruptcy Court was required to and did make several factual 

and legal determinations that were not ‘disposed of in passing 

on objections’ to [a] proof of claim,” id. at 2617 (quoting 

Katchen v. Landy, 382 U.S. 323, 332 n.9 (1966)), from a case 

where the legal elements of the claim and counterclaim were so 

overlapping that once the bankruptcy judge ruled on the 

creditor’s proof of claim “nothing remain[ed] for adjudication,” 

id. at 2616 (quoting Katchen, 382 U.S. at 334) (internal 

quotation marks omitted)). Therefore, Moses’ second claim must 

be treated as if it were statutorily non-core. See Exec. 

Benefits Ins. Agency, 134 S. Ct. at 2173.

In sum, while the two claims in Moses’ complaint in the 

adversary proceeding are statutorily core claims, only the first 

claim is constitutionally core.

CashCall’s argument that both Moses’ core and non-core 

claims should be sent to arbitration rests essentially on its 

argument that the strong policy favoring arbitration outweighs 

the conflicting policies of the Bankruptcy Code in this case.
18

To be sure, the arbitration policies implemented by the 

Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-14, are to be 

robustly followed. See, e.g., CompuCredit Corp. v. Greenwood, 

132 S. Ct. 665, 669 (2012) (“[The FAA] establishes ‘a liberal 

federal policy favoring arbitration agreements’” (quoting 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

24 (1983))); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 

221 (1985) (“The preeminent concern of Congress in passing the 

[FAA] was to enforce private agreements into which parties had 

entered, and that concern requires that we rigorously enforce 

agreements to arbitrate . . .”). At the same time, however, 

“Congress intended to grant comprehensive jurisdiction to 

bankruptcy courts so that they might deal efficiently and 

expeditiously with all matters connected with the bankruptcy 

estate.” Celotex Corp. v. Edwards, 514 U.S. 300, 308 (1995) 

(internal quotation marks and citation omitted). And in cases 

where tension arises between the FAA and another statute, the 

Supreme Court has provided a framework for resolving it, holding 

that the party seeking to prevent enforcement of an applicable 

arbitration agreement must show that “Congress has evinced an 

intention to preclude a waiver of judicial remedies for the 

statutory rights at issue.” Green Tree Fin. Corp. v. Randolph, 

531 U.S. 79, 90 (2000). That intent must be deducible from 

(1) the statute’s text; (2) its legislative history; or (3) “an 
19

inherent conflict between arbitration and the statute’s 

underlying purposes.” Shearson/Am. Express, Inc. v. McMahon, 

482 U.S. 220, 227 (1987); see also Gilmer v. Interstate/Johnson 

Lane Corp., 895 F.2d 195, 197 (4th Cir. 1990), aff’d, 500 U.S. 

20 (1991). Where such an intent can be deduced, the court of 

first impression has discretion to decide whether to withhold 

arbitration, a decision that is subject to review for abuse of 

that discretion. See Cont’l Ins. Co. v. Thorpe Insulation Co. 

(In re Thorpe Insulation Co.), 671 F.3d 1011, 1019-20 (9th Cir. 

2012); Mintze v. Am. Gen. Fin. Servs., Inc. (In re Mintze), 434 

F.3d 222, 228 (3d Cir. 2006); Gandy v. Gandy (In re Gandy), 299 

F.3d 489, 494 (5th Cir. 2002). As to the constitutionally core 

claim in this case -- Moses’ claim for a declaratory judgment --

the bankruptcy court is the court of first impression to 

exercise discretion whether to withhold arbitration, but as to 

the non-core claim -- Moses’ claim for damages -- the district 

court is the court of first impression to exercise such 

discretion.

Moses does not contend that the Bankruptcy Code or its 

surrounding legislative history demonstrates an intent to create 

an exception to the FAA. Rather, she argues that sending her 

claims to arbitration would inherently conflict with the 

Bankruptcy Code’s purposes. Because Moses’ complaint contains 
20

both a constitutionally core and a non-core claim, each claim is 

analyzed separately.

A

With respect to Moses’ first claim, the constitutionally 

core claim, we conclude that sending it to arbitration would 

pose an inherent conflict with the Bankruptcy Code and that the 

district court did not err in affirming the bankruptcy court’s 

exercise of discretion in retaining it in bankruptcy.

While arbitration agreements are to be rigorously enforced, 

bankruptcy too represents a fundamental public policy. Grounded 

in the Constitution, bankruptcy provides debtors with a fresh 

start and creditors with an equitable distribution of the 

debtor’s assets. To those ends, a principal purpose of the 

Bankruptcy Code is to provide debtors and creditors with “the 

prompt and effectual administration and settlement of the 

[debtor’s] estate.” Katchen, 382 U.S. at 328; see also Celotex, 

514 U.S. at 308. Similarly, a principal purpose of the 

Bankruptcy Code is also to centralize disputes over the debtor’s 

assets and obligations in one forum, thus protecting both 

debtors and creditors from piecemeal litigation and conflicting 

judgments. See Phillips v. Congelton, L.L.C. (In re White 

Mountain Mining Co.), 403 F.3d 164, 169-70 (4th Cir. 2005); A.H. 

Robbins Co. v. Piccinin, 788 F.2d 994, 998 (4th Cir. 1986). 

“Ease and centrality of administration are thus foundational 
21

characteristics of bankruptcy law.” French v. Liebmann (In re 

French), 440 F.3d 145, 154-55 (4th Cir. 2006) (Wilkinson, J., 

concurring).

Inherently invoking these policies, Moses filed a 

Chapter 13 petition under the Bankruptcy Code and a five-year 

plan to reorganize her financial affairs, which the bankruptcy 

court approved in October 2012. In any Chapter 13 plan, even 

after the debtor proposes and the court approves a specific 

schedule of payments over a period of years, the plan “remains 

subject to modification for reasons including a debtor’s 

decreased ability to pay according to plan, as well as the 

debtor’s increased ability to pay,” Carroll v. Logan, 735 F.3d 

147, 151 (4th Cir. 2013), until the completion of plan payments, 

Pliler v. Stearns, 747 F.3d 260, 266 (4th Cir. 2014).

It is thus apparent that resolution of Moses’ claim that 

the Loan Agreement she entered into with Western Sky was illegal 

could directly impact claims against her estate and her plan for 

financial reorganization, notwithstanding the fact that the plan 

was confirmed in October 2012. If a tribunal were to hold that 

CashCall’s loan is valid, CashCall could petition the bankruptcy 

court as an “allowed unsecured creditor” to share in Moses’ 

assets. See Murphy v. O’Donnell (In re Murphy), 474 F.3d 143, 

148 (4th Cir. 2007) (noting that plan modification can be 

initiated by “the debtor, the Chapter 13 trustee, or an allowed 
22

unsecured creditor”). And the fact that unsecured creditors are 

currently anticipated to receive nothing under Moses’ confirmed 

plan does not mean that they never will. See Pliler, 747 F.3d 

at 265 (noting that creditors may gain from a debtor’s 

Chapter 13 reorganization “even if the debtor[] ha[s] zero or 

negative disposable income at the time of plan confirmation,” 

because “Chapter 13 debtors can and do benefit from windfalls 

such as inheritances or other unforeseeable income after plan 

confirmation but before their Chapter 13 proceedings are 

closed”). Under these circumstances, ordering arbitration of a 

dispute that directly pertains to Moses’ plan for reorganization 

would “substantially interfere with [her] efforts to 

reorganize.” Phillips, 403 F.3d at 170; see also id. at 169 

(holding that “[a]rbitration is inconsistent with [the 

Bankruptcy Code’s policy of] centralized decision-making because 

permitting an arbitrator to decide a core issue would make 

debtor-creditor rights contingent upon an arbitrator’s ruling 

rather than the ruling of the bankruptcy judge assigned to hear 

the debtor’s case” (emphasis added) (internal quotation marks 

and citation omitted)).

Therefore, we conclude that forcing Moses to arbitrate her 

constitutionally core claim would inherently conflict with the 

purposes of the Bankruptcy Code and that the district court did 

not err in affirming the bankruptcy court’s exercise of 
23

discretion in denying CashCall’s motion to dismiss or stay and 

compel arbitration of that claim.

NIEMEYER, Circuit Judge, writing separately and dissenting from 

the judgment in part in this Part II.B.

B

Nevertheless, the majority concludes that the district 

court erred in declining to send Moses’ non-core claim to 

arbitration. Judge Gregory concludes that Moses failed to meet 

her burden of showing that CashCall’s statutory right to the 

enforcement of arbitration agreements should be trumped by 

adjudication of her non-core claim in a bankruptcy court and 

therefore that the bankruptcy court “ha[d] no discretion to 

refuse to arbitrate [the] non-core claim.” Post, at 49. He

insists that splitting Moses’ core and non-core claims -- so 

that the bankruptcy court can adjudicate her core claim and a 

representative of the Cheyenne River Sioux Tribe can adjudicate 

her non-core claim -- would not substantially interfere with 

Moses’s efforts to reorganize, despite the fact that the main 

element of Moses’ non-core claim, the legality of the Loan 

Agreement, will necessarily be determined by the bankruptcy 

court in ruling on Moses’ core claim and on her objection to 

CashCall’s proof of claim. Writing separately, Judge Davis 

would hold that CashCall’s abandonment of its proof of claim 

renders Moses’ core claim moot and eliminates any justification 
24

for retaining jurisdiction over Moses’ non-core claim in the 

bankruptcy proceedings, despite the fact that because we lack 

jurisdiction to revisit the denial of CashCall’s motion to 

withdraw its proof of claim, as we hold in Part III, post, 

at 34-45, the proof of claim remains to be decided by the 

bankruptcy court.

I believe that splitting Moses’ closely related claims and 

sending Moses’ non-core claim to a questionable and perhaps 

illusory arbitration proceeding would inherently conflict with 

the purposes of the Bankruptcy Code, and therefore I dissent 

from the court’s judgment insofar as it holds that the district 

court abused its discretion in retaining jurisdiction over 

Moses’ non-core claim.

Even though non-core claims are ancillary to 

reorganization, it is apparent that they can nonetheless affect 

a debtor’s efforts to reorganize and that sending non-core 

claims to arbitration can, in given circumstances, interfere 

with the debtor’s chance to complete a fair and efficient 

Chapter 13 reorganization. Therefore, with core and non-core 

claims alike, courts are required to inquire into the nature of 

the claim and the facts of the specific bankruptcy to determine 

whether enforcing arbitration would inherently conflict with the 

purposes of the Bankruptcy Code. See Cont’l Ins., 671 F.3d 

at 1021 (“[T]he core/non-core distinction, though relevant, is 
25

not alone dispositive”); Mintze, 434 F.3d at 229 (“The core/noncore distinction does not . . . affect whether a bankruptcy 

court has the discretion to deny enforcement of an arbitration 

agreement”). In addition, when a court is presented with both a 

core claim and a non-core claim in a single adversary 

proceeding, the discretion to retain the non-core claim can 

depend on the strength of its relationship with the core claim.

Here, if a separate tribunal were to award Moses damages 

for CashCall’s efforts to collect an illegal loan, the increase 

in Moses’ ability to pay should accrue to the other unsecured 

creditors. See Arnold v. Weast (In re Arnold), 869 F.2d 240, 

243 (4th Cir. 1989) (“When a debtor’s financial fortunes 

improve, the creditors should share some of the wealth”). But 

the many questions surrounding the Loan Agreement’s arbitration 

procedure raise doubts that arbitration would conclude in time 

for Moses’ creditors to seek modification of Moses’ Chapter 13 

plan so that they could share in any recovery.

The Loan Agreement provides that arbitration “shall be 

conducted by the Cheyenne River Sioux Tribal Nation by an 

authorized representative in accordance with its consumer 

dispute rules.” It also provides that arbitration shall be 

administered by the American Arbitration Association, JAMS, or 

another organization agreed upon by the parties. Thus, before 

arbitration could even begin, litigation over the arbitration 
26

procedure would seem likely. Accord Heldt, 12 F. Supp. 3d 

at 1191 (noting that because no party had identified an 

“‘authorized representative’ of the Cheyenne River Sioux Tribal 

Nation [who] is an arbitrator in the [American Arbitration 

Association] or JAMS system,” the arbitration agreement left a 

“conundrum” as to who would perform the arbitration). In 

addition, courts reviewing Western Sky loan agreements with 

language similar to that in the Loan Agreement in this case have 

found that the Cheyenne River Sioux Tribe does not authorize 

arbitration and consequently has no authorized arbitrators or 

consumer dispute rules. See Jackson, 764 F.3d at 779 (“The 

arbitration clause here is void not simply because of a strong 

possibility of arbitrator bias, but because it provides that a 

decision is to be made under a process that is a sham from stem 

to stern”); Inetianbor, 768 F.3d at 1354 (similar); Heldt, 12 F. 

Supp. 3d at 1192 (“[T]he unique circumstances of this case could 

give rise to . . . [a] ‘procedural nightmare’ and [a] lack of 

‘orderly administration of justice’” (quoting Nat’l Farmers 

Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856 

(1985))).

My colleagues suggest that the record is not sufficiently 

developed for us to make conclusions about the specified tribal 

arbitration. I submit, however, that we need not make findings 

on that issue. Rather, the doubt already expressed by other 
27

courts about the legitimacy and adequacy of the Loan Agreement’s 

tribal arbitration mechanism indicates at the very least that 

the issue will be the subject of additional litigation. See

Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 

1989) (“[F]ederal courts, in appropriate circumstances, may take 

notice of proceedings in other courts, . . . if those 

proceedings have a direct relation to matters at issue” 

(internal quotation marks and citation omitted)). Thus, it 

might be years before any resolution of Moses’ non-core claim 

can be obtained. Indeed, it is not hard to imagine scenarios in 

which an arbitral award would come after October 2017, when 

Moses’ Chapter 13 plan will have terminated, preventing Moses’ 

creditors from petitioning for plan modification. Such delays 

with respect to the determination of the validity of a claim 

made against one of Moses’ creditors will not only interfere 

with the “the prompt and effectual administration and settlement 

of the [debtor’s] estate,” a principal purpose of the Bankruptcy 

Code, Katchen, 382 U.S. at 328, but also prejudice the rights of 

creditors to share in any increase in Moses’ estate. In 

addition, it hardly undermines the policy favoring arbitration 

to deny arbitration where there are “no rules, guidelines, or 

guarantees of fairness.” Jackson, 764 F.3d at 779.
28

More importantly, Moses’ non-core claim is directly tied to 

her core claim.1 Moses alleges in her non-core claim that 

CashCall’s efforts to collect the debt violated the North 

Carolina Debt Collection Act because the underlying loan 

obligation was illegal, the very issue presented by her core 

claim. Therefore, separating her two claims will force an 

arbitrator and the bankruptcy judge separately to decide the 

validity of the underlying debt. That scenario inherently 

conflicts with the purposes of the Bankruptcy Code for several 

reasons.

First, having two tribunals adjudicate the identical issue 

is inefficient. CashCall argues that efficiency concerns are 

not a valid basis for ignoring the FAA, noting that the Supreme 

Court has held that the FAA “requires district courts to compel 

arbitration of pendent arbitrable claims . . . even where the 

 

1 Judge Gregory argues that “[t]he non-core litigation will 

likely require detailed and time-consuming findings regarding 

CashCall’s conduct in trying to collect on the loan,” post at 

54, noting that Moses’ complaint alleges that CashCall “has 

willfully engaged in other and further violations” of the North 

Carolina Debt Collection Act, “as may be shown through discovery 

and proved at trial.” But the only factual claims that Moses 

makes in support of damages are that CashCall “threaten[ed] to 

draft funds from [her] account on a loan obligation that was 

illegal”; that CashCall “ma[de] telephone calls and threaten[ed] 

to take other actions to collect a debt that was not permitted 

under law”; and that CashCall “deceptively represent[ed] . . . 

that the alleged debt owing was a valid debt when such ‘contract 

for loan’ was . . . void ab initio.” (Emphasis added).
29

result would be the possibly inefficient maintenance of separate 

proceedings in different forums,” because the FAA is not chiefly 

concerned with “promot[ing] the expeditious resolution of 

claims,” Dean Witter Reynolds, 470 U.S. at 217, 219 (emphasis 

added); see also KPMG LLP v. Cocchi, 132 S. Ct. 23, 26 (2011)

(per curiam) (similar). While this analysis governs in other 

contexts, intervening concerns of bankruptcy change the analysis

here, because the Supreme Court’s McMahon framework directs 

courts to consider whether there is an “inherent conflict 

between arbitration and the statute’s underlying purposes,” 

482 U.S. at 227, and the “expeditious resolution of claims” is

at the heart of the Bankruptcy Code. Thus, as other courts of 

appeals have recognized, the arbitration calculus is different

when bankruptcy is involved, requiring courts to consider

efficiency concerns. See Ins. Co. of N. Am., 118 F.3d at 1069 

n.21 (“[I]nsofar as efficiency concerns might present a genuine 

conflict between the Federal Arbitration Act and the 

[Bankruptcy] Code -- for example where substantial arbitration 

costs or severe delays would prejudice the rights of creditors 

or the ability of a debtor to reorganize -- they may well 

represent legitimate considerations”); Cont’l Ins., 671 F.3d 

at 1023 n.9 (observing that the general proposition that 

“judicial economy and centralization of disputes are not 

sufficient bases for nonenforcement of an otherwise applicable 
30

arbitration clause . . . does not hold in the bankruptcy 

context”); Gandy, 299 F.3d at 499 (“[E]fficiency concerns may be 

legitimate considerations in the bankruptcy context, where 

efficient resolution of claims and conservation of the 

bankruptcy estate assets are integral purposes of the Bankruptcy 

Code” (citing Ins. Co. of N. Am., 118 F.3d at 1069 n.21)). In 

sum, while efficiency is not considered in determining whether 

to withhold arbitration in other contexts, it is relevant where, 

as here, the Bankruptcy Code is involved. Accord Ackerman v. 

Eber (In re Eber), 687 F.3d 1123, 1131 (9th Cir. 2012)

(distinguishing KPMG because it “was not a bankruptcy case”). 

To be sure, the efficiency from “centralization [may] not, in 

and of itself, [be] a valid reason to deny arbitration,” as 

Judge Gregory observes, post, at 56, but where, as here, 

decentralization would be particularly inefficient, an 

arbitration agreement should give way.

Second, bifurcating Moses’ claims will inherently conflict 

with the purposes of the Bankruptcy Code because an arbitration 

proceeding could come to a judgment before the bankruptcy court 

ruling and inappropriately bind the bankruptcy court on the 

validity of CashCall’s Loan Agreement, a constitutionally core 

issue for the bankruptcy court to decide. See Phillips, 403 

F.3d at 169 (“[P]ermitting an arbitrator to decide a core issue 

would make debtor-creditor rights ‘contingent upon an 
31

arbitrator’s ruling’ rather than the ruling of the bankruptcy 

judge assigned to hear the debtor’s case” (quoting Note, 

Jurisdiction in Bankruptcy Proceedings: A Test Case for Implied 

Repeal of the Federal Arbitration Act, 117 Harv. L. Rev. 2296, 

2307 (2004))); Ackerman, 687 F.3d at 1131 (“We find unpersuasive 

[the creditors’] argument that the bankruptcy court 

inappropriately denied them the opportunity to arbitrate because 

it was concerned about being collaterally stopped by the 

arbitrator’s decision”). And even if collateral estoppel were 

not to apply, bifurcation “could yield different results and 

subject parties to dichotomous obligations.” Gandy, 299 F.3d 

at 499. Judge Gregory’s suggestion that the district court 

could stay arbitration until it has ruled on Moses’ core claim, 

post, at 55, only highlights further the inefficiencies 

associated with bifurcating Moses’ claims.

Third, the additional litigation costs inherent in being 

forced to litigate claims before two separate tribunals will 

harm Moses’ creditors by reducing the amount of income that 

Moses has available to pay her debts. See Phillips, 403 F.3d 

at 170 (holding that “ordering arbitration and staying the 

adversary proceeding would substantially interfere with White 

Mountain’s efforts to reorganize” because arbitration would 

“impose additional costs on the estate and divert the attention 

and time of the debtor[],” whereas “allowing the adversary 
32

proceeding to go forward would ‘allow all creditors, owners and 

parties in interest to participate [in a centralized proceeding] 

at a minimum of cost’” (second alteration in original)); see 

also Kent L. Richland, Stern v. Marshall: A Dead End Marathon?, 

28 Emory Bankr. Dev. J. 393, 413 (2012) (“Particularly where the 

bankruptcy estate is relatively small, keeping the entire matter 

in the bankruptcy court may be the only way to preserve the 

estate against excessive costs”).

Moreover, at a more general level, courts have regularly 

refused to bifurcate related core and non-core matters. In 

Gandy, the debtor initiated an adversary proceeding alleging 

causes of action created by the Bankruptcy Code as well as 

state-law causes of action for breach of fiduciary duty, 

negligence, fraud, constructive trust, and breach of contract. 

The Fifth Circuit affirmed the district court’s refusal to 

divide the debtor’s case by sending some claims to arbitration 

because “[p]arallel proceedings would be wasteful and 

inefficient, and potentially could yield different results and 

subject parties to dichotomous obligations.” Gandy, 299 F.3d 

at 499.2 Similarly, in Ackerman, the Ninth Circuit refused to 

 2 Judge Gregory argues that Gandy is distinguishable because 

the state-law claims in that case were “peripheral” or 

“inconsequential relative to the bankruptcy causes of action.” 

299 F.3d at 497, 500. But the facts of this case are no 

different. Here, at the heart of Moses’ non-core claim is her
33

compel arbitration of a creditor’s claims for breach of 

contract, fraud, and breach of fiduciary duty because “allowing 

an arbitrator to decide issues that are so closely intertwined” 

with the creditor’s core claim that the underlying debt was not 

dischargeable “would ‘conflict with the underlying purposes of 

the Bankruptcy Code.’” 687 F.3d at 1130-31 (quoting Cont’l 

Ins., 671 F.3d at 1021). And in Continental Insurance, the 

Ninth Circuit held that because a creditor’s non-core breach of 

contract claim challenging actions that the debtor took in 

bankruptcy was “inextricably intertwined” with the debtor’s 

bankruptcy plan confirmation, “adjudication of [the creditor’s] 

claim in any other forum other than a bankruptcy court would 

conflict with ‘fundamental bankruptcy policy.’” 671 F.3d 

at 1022 (internal quotation marks omitted). 

At bottom, I simply cannot see how the district court 

abused its discretion by keeping Moses’ non-core claim together 

 

allegation that the underlying loan agreement is unenforceable. 

If the district court agrees with that allegation, it need only 

resolve one simple legal question: Does the effort to collect 

an illegal debt inherently violate the North Carolina Debt 

Collection Act? If the answer to that question is yes, Moses is 

entitled to monetary damages, and her creditors are entitled to 

share in her newfound wealth. If the answer is no, Moses’ noncore claim must fail, because Moses has pleaded no facts 

suggesting that CashCall’s debt collection practices were 

otherwise unfair, deceptive, coercive, or unlawful. Thus, as in 

Gandy, a core bankruptcy matter -- here, the validity of loan 

agreement -- predominates.
34

with the core claim for adjudication in the bankruptcy court in 

the circumstances of this case. I would therefore affirm. 

NIEMEYER, Circuit Judge, writing for the court:

III

To support his argument that the district court erred in 

keeping the related core and non-core claims in bankruptcy, 

Judge Davis, in his separate opinion concurring in the judgment 

in part and dissenting in part, would have us review the 

unappealed and unappealable interlocutory January 3, 2013 order 

issued by the bankruptcy court denying CashCall’s motion to 

withdraw its proof of claim. He finds this approach necessary 

in order to conclude that the district court erred in affirming 

the bankruptcy court’s order denying the motion to dismiss or 

compel arbitration because, as he reasons, “once CashCall 

abandons its proof of claim and releases Moses from her 

obligations under the loan agreement, the sine qua non of the 

bankruptcy court’s justification for retaining jurisdiction over 

Moses’s non-core claim evaporates; there is no core claim to 

remit to arbitration, and the only question is whether to compel 

arbitration on Moses’s non-core claim.” Post, at 68. But the 

only issue that CashCall has appealed -- and, indeed, that it 

could appeal -- is whether the district court erred in entering 

its order of February 4, 2014, affirming the bankruptcy court’s 
35

ruling that the related core and non-core claims be decided 

together in the bankruptcy court and, to that end, denying 

CashCall’s motion to dismiss or compel arbitration of those 

claims. This is also the only issue that the parties briefed. 

Because we have no jurisdiction to review the bankruptcy court’s 

January 3 order and therefore no power to allow CashCall to 

withdraw its proof of claim, Moses’ core claim is not moot.

In bankruptcy cases, courts of appeals have jurisdiction 

only over (1) “final decisions, judgments, orders, and decrees” 

of district courts, pursuant to 28 U.S.C. § 158(d)(1); 

(2) interlocutory appeals from district courts under the 

collateral-order doctrine of Cohen v. Beneficial Industrial Loan 

Corp., 337 U.S. 541 (1949); (3) appeals from interlocutory or 

final orders of the bankruptcy court in which the bankruptcy 

court, the district court, or the parties acting jointly, 

certify an appeal and the court of appeals authorizes a direct 

appeal, pursuant to § 158(d)(2); and (4) interlocutory appeals 

in which a district court states in writing “[i] that an order 

not otherwise appealable . . . involves a controlling question 

of law as to which there is substantial ground for difference of 

opinion and [ii] that an immediate appeal from the order may 

materially advance the ultimate determination of the 

litigation,” 28 U.S.C. § 1292(b). See Legal Representatives for 

Future Claimants v. Aetna Cas. & Sur. Co. (In re Wallace & Gale 
36

Co.), 72 F.3d 21, 24 (4th Cir. 1995). In addition, Congress has 

created limited exceptions to the final-judgment rule for orders 

implicating certain subjects. See, e.g., 9 U.S.C. 

§ 16(a)(1)(A).3

As CashCall itself recognized, the bankruptcy court’s order 

denying its motion to withdraw its proof of claim was 

interlocutory. Pursuant to § 158(a)(3), an interlocutory order 

of a bankruptcy court is reviewable by a district court only 

with that court’s permission. The district court here

specifically denied CashCall permission to appeal the bankruptcy 

court’s order to it and accordingly the district court never 

reviewed the bankruptcy court’s order on the merits. Thus, the 

 3 To justify jurisdiction over an unappealed and 

unappealable order, Judge Davis relies on Dart Cherokee Basin 

Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014). That case, 

however, is inapposite. There, after the Tenth Circuit declined 

to hear a discretionary appeal from an order denying a motion to 

remand a class action, the Supreme Court found no jurisdictional 

barrier to granting review of the denial of the leave-to-appeal 

application. But unlike the closely circumscribed grounds for 

courts of appeals’ jurisdiction in bankruptcy cases, the Supreme 

Court has jurisdiction to hear any “[c]ase[] in the courts of 

appeals.” 28 U.S.C. § 1254(1). As the Court explained, the 

leave-to-appeal application was at some point “in” the court of 

appeals, so the Supreme Court had jurisdiction over what the 

court of appeals did. Dart Cherokee Basin, 135 S. Ct. at 555. 

Our jurisdiction is not so plenary. Moreover, the Court 

emphasized not once, but twice, that neither party had 

questioned its jurisdiction and that it was addressing the issue 

only at the behest of an amicus curiae. Here, by contrast, 

neither party believed that the bankruptcy court’s order denying 

CashCall’s motion to withdraw its proof of claim was before this 

court on appeal.
37

district court proceedings never gave rise to a reviewable final 

order of the district court that we could review under 

§ 158(d)(1) or to an interlocutory order of the district court

that we could review under the collateral-order doctrine or 

§ 1292(b). And no court ever made a certification under 

§ 158(d)(2). Indeed, CashCall has not suggested that the 

bankruptcy court’s order is appealable under any possible 

formulation.

Moreover, even if there were any question as to our lack of 

jurisdiction over the order denying CashCall’s motion to 

withdraw, CashCall did not appeal that order. A court of 

appeals only has jurisdiction over an order that has actually 

been appealed and presented to it. See Fed. R. App. P. 3–4; 

Smith v. Barry, 502 U.S. 244, 248 (1992) (“[Federal Rule of 

Appellate Procedure] 3’s dictates are jurisdictional in nature, 

and their satisfaction is a prerequisite to appellate 

review. . . . [N]oncompliance is fatal to an appeal.”); cf.

Bowles v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely 

filing of a notice of appeal in a civil case is a jurisdictional 

requirement”). CashCall’s notice of appeal did not even 

reference the bankruptcy court’s January 3 order, instead 

carefully limiting the scope of the appeal to the district 

court’s February 4 order:
38

Defendant CashCall, Inc. appeals to the United States 

Court of Appeals for the Fourth Circuit from the 

judgment and order of the District Court for the 

Eastern District of North Carolina, entered in this 

case on February 4, 2014, affirming an order of the 

Bankruptcy Court for the Eastern District of North 

Carolina that denied CashCall’s motion to dismiss or 

stay and compel arbitration of the underlying 

adversary proceeding.

(Emphasis added). And unsurprisingly, CashCall never addressed 

the merits of the bankruptcy court’s January 3 order in its 

briefing before this court. Cf. Bogart v. Chapell, 396 F.3d 

548, 555 (4th Cir. 2005) (recognizing that in order to 

demonstrate that the appellee “had notice of [an] issue and the 

opportunity to fully brief it,” the appellant “needs to address 

the merits of a particular issue in her opening brief” (emphasis 

added)); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 

(4th Cir. 1999) (stating that failure to raise a claim and the 

reasons therefore in the opening brief “triggers abandonment of 

that claim on appeal”).

Despite the clear absence of any power to review the 

interlocutory order of the bankruptcy court, Judge Davis would 

hold that the doctrine of pendent appellate jurisdiction gives 

us jurisdiction over that order. That doctrine, however, is not 

applicable to the circumstances presented here for several 

reasons.

First, there is no final judgment to which review of the 

bankruptcy court’s order could be appended. In Swint v. 
39

Chambers County Commission, 514 U.S. 35 (1995), the Supreme 

Court refused to apply the doctrine of pendent appellant 

jurisdiction to consider an unappealable issue where the order 

to which that issue would be appended was an interlocutory order 

appealable only under the collateral-order doctrine. The Court 

explained that “[i]f courts of appeals had discretion to append 

to a Cohen-authorized appeal from a collateral order further 

rulings of a kind neither independently appealable nor certified 

by the district court, then the two-tiered arrangement § 1292(b) 

mandates would be severely undermined.” Id. at 47; see also id.

at 49-50 (“[A] rule loosely allowing pendent appellate 

jurisdiction would encourage parties to parlay Cohen-type 

collateral orders into multi-issue interlocutory appeal 

tickets”). To safeguard Congress’ mandate, the Swint Court held 

that in appeals authorized by the collateral-order doctrine, 

courts only have jurisdiction to consider claims that “fall 

within Cohen’s collateral-order exception to the final-judgment 

rule.” Id. at 49 (quoting Abney v. United States, 431 U.S. 651, 

663 (1977)) (internal quotation marks omitted). Here, the 

district court’s order affirming the denial of CashCall’s motion 

to dismiss or compel arbitration was an interlocutory order, and 

appellate jurisdiction over that order was authorized solely by 

9 U.S.C. § 16(a)(1)(A), which permits an interlocutory appeal of 

an order refusing to stay an action pending arbitration. See
40

Thomson McKinnon Sec., Inc. v. Salter, 873 F.2d 1397, 1399 (11th 

Cir. 1989) (“Under [§ 16(a)(1)], interlocutory orders refusing 

to compel arbitration now are appealable -- even though they are 

not final within the meaning of 28 U.S.C. § 1291”); see also, 

e.g., Campbell v. Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546, 

550 (1st Cir. 2005); Arnold v. Arnold Corp. -- Printed 

Communc’ns for Bus., 920 F.2d 1269, 1274 (6th Cir. 1990). To 

apply the doctrine of pendent appellate jurisdiction in this 

context would be to sanction the conversion of a narrow, 

statutorily authorized interlocutory appeal into a full-blown 

appeal, precisely the effect that the Swint Court sought to 

avoid -- i.e., the practical and flexible approach to pendent 

appellate review that Judge Davis would have us adopt. See

Swint, 514 U.S. at 45 (noting that such an approach would be 

incompatible with “the statutory instructions Congress has given 

to control the timing of appellate proceedings”).

Second, the concerns expressed in Swint are magnified in 

this case because the district court, acting under 28 U.S.C. 

§ 158(a)(3), specifically denied CashCall leave to appeal the 

bankruptcy court’s interlocutory order to the district court. 

As the Second Circuit recognized in Gibson v. Kassover (In re 

Kassover), 343 F.3d 91, 95 (2d Cir. 2003), “[i]n requiring that 

a district court grant leave to appeal before rendering a 

decision on the merits [in § 158(a)(3)], Congress surely 
41

intended to make the declining of such leave the end of the 

matter, save perhaps for the seeking of an extraordinary writ.” 

Were it otherwise, appellate review would proceed “without the 

benefit of a district court’s findings of fact and conclusions 

of law.” Id. Indeed, courts of appeals have regularly held 

that they lack jurisdiction to review issues in the analogous 

situation where a district court has declined to certify a 

question for interlocutory appeal to a court of appeals under 

§ 1292(b). See Taylor v. Robertson, 879 F.2d 863 (4th Cir. 

1989) (unpublished) (“As the district court expressly declined 

to issue the required certification, we deny the petition for an 

interlocutory appeal under § 1292(b)”); see also, e.g., In re 

Ford Motor Co., 344 F.3d 648, 654 (7th Cir. 2003) 

(“Certification by the district court is a jurisdictional 

prerequisite to interlocutory review under § 1292(b) . . .”); 

Mason v. Stallings, 82 F.3d 1007, 1010 (11th Cir. 1996) (“The 

district court in this case denied a § 1292(b) certification.

Therefore, it is not open to us to reverse the denial of summary 

judgment . . . .”); Green v. Occidental Petrol. Corp., 541 F.2d 

1335, 1338 (9th Cir. 1976) (“Concurrence of both the district 

court and the appellate court is necessary and we are without 

power to assume unilaterally an appeal under section 1292(b)”); 

In re Master Key Antitrust Litig., 528 F.2d 5, 8 (2d Cir. 1975)

(“[The district court’s] refusal to certify the interlocutory 
42

appeal of [its] rulings is, of course, not appealable . . .”); 

United States v. 687.30 Acres of Land, 451 F.2d 667, 670 (8th 

Cir. 1971) (“We have no jurisdiction to review the trial court’s 

denial of the § 1292(b) certificate”). In short, applying 

pendent appellate jurisdiction -- “an exception [to the finaljudgment requirement] of limited and narrow application,” Rux v.

Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006) -- to 

review an issue that the district court expressly refused to 

consider itself under § 158(a)(3) and that was never certified 

to us under § 158(d)(2) or § 1292(b) would circumvent the clear 

intent of Congress.

Third, the bankruptcy court’s January 3 interlocutory order 

is not, as Judge Davis contends, inextricably intertwined with 

the district court’s February 4 order affirming the denial of 

CashCall’s motion to dismiss the adversary complaint or compel 

arbitration. Although the doctrine of pendent appellate 

jurisdiction is available “when an issue is ‘inextricably 

intertwined’ with a question that is the proper subject of an 

immediate appeal,” Rux, 461 F.3d at 475 (quoting Swint, 514 U.S. 

at 51), separate rulings are inextricably intertwined only if 

“the same specific question will underlie both the appealable 

and the non-appealable order,” Scott v. Family Dollar Stores, 

Inc., 733 F.3d 105, 111 (4th Cir. 2013) (emphasis added) 

(quoting Ealy v. Pinkerton Gov’t Servs., Inc., 514 F. App’x 
43

299, 309 (4th Cir. 2013) (per curiam)), cert. denied, 134 S. Ct. 

2871 (2014). Here, CashCall’s motion to dismiss or compel 

arbitration presents the question of whether arbitration of 

Moses’ claim would substantially interfere with the purposes of 

the Bankruptcy Code. By contrast, review of CashCall’s motion 

to withdraw its proof of claim would require a court to consider 

the distinct question of whether withdrawal would cause Moses to 

suffer prejudice.

Judge Davis, also recognizing that CashCall never included

the bankruptcy court’s January 3 interlocutory order in its 

notice of appeal, asserts nonetheless that we have “discretion” 

to review that order, post, at 62, because notices of appeal are 

to be liberally construed, post, at 69 (citing Powell v. Symons, 

680 F.3d 301, 306 n.2 (3d Cir. 2012)). But this case does not 

allow for any construction of the notice of appeal. CashCall’s 

notice of appeal was clear and explicit in limiting the appeal 

to the February 4 order. CashCall did not appeal the bankruptcy 

court’s January 3 interlocutory order, stating in its brief that 

it “simply cannot appeal that issue yet.” We cannot invoke the 

policy of liberal construction to create an entirely new 

document. That policy applies only when “a party files a notice 

of appeal ‘that is technically at variance with the letter of a 

procedural rule, . . . [but] the litigant’s action is the 

functional equivalent of what the rule requires.’” United 
44

States v. Little, 392 F.3d 671, 681 (4th Cir. 2004) (quoting 

Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)); 

see also Gunther v. E.I. du Pont de Nemours & Co., 255 F.2d 710, 

717 (4th Cir. 1958) (“When it appears that adequate information 

is given by the notice, the appeal should not be dismissed for 

mistakes which do not mislead or prejudice the appellee”).

Somehow reaching the merits of the bankruptcy court’s 

unappealed and unappealable January 3 order, Judge Davis would 

conclude that the bankruptcy court abused its discretion in 

denying CashCall’s motion to withdraw its proof of claim 

because, as he views it, Moses would not be prejudiced by the 

withdrawal. Post, at 64-65. He fails, however, to consider the 

more relevant equitable considerations presented to the 

bankruptcy court. For instance, CashCall issued a loan at 

nearly 15 times the maximum allowable interest rate under North 

Carolina law and then filed a proof of claim to collect Moses’ 

unpaid debt, just as it had done in 118 other cases in the 

Eastern District of North Carolina. Had Moses not objected to 

CashCall’s claim, CashCall would have been more than happy to 

use the federal courts to collect $1,929.02, which amounted to a 

92.9% return on its investment over a period of less than three 

months. But as soon as Moses fought back, alleging that the 

Loan Agreement was issued in violation of state usury laws and 

seeking damages for CashCall’s efforts to collect an illegal 
45

debt, CashCall attempted to withdraw its proof of claim in an 

effort to divest the bankruptcy court of jurisdiction and shunt 

Moses’ claims into tribal arbitration, causing additional costs 

and delays.

CashCall’s gamesmanship could not have been clearer. 

Denying Moses the benefit of the bankruptcy forum and requiring 

her, with her meager funds, to challenge the questionable and 

perhaps even illusory tribal arbitration process and to try her 

case in another forum, only to bring back any proceeds to the 

bankruptcy court, would hardly serve equity. Bankruptcy courts 

are courts of equity, see IRS v. Levy (In re Landbank Equity 

Corp.), 973 F.2d 265, 271 (4th Cir. 1992), and as such, they 

should not be required to give effect to this inequitable 

practice. While Judge Davis states that he is not “blink[ing]” 

at the underlying motivations of CashCall’s transparently 

tactical decision to withdraw its proof of claim in this case as 

a means to pretermit the adversary proceeding, post, at 76, his 

stated position reveals precisely the opposite.

At bottom, it is clear that the bankruptcy court’s order 

denying CashCall’s motion to withdraw its proof of claim is not 

before us and that the bankruptcy court still has jurisdiction 

to decide CashCall’s proof of claim and Moses’ objection to it.
46

GREGORY, Circuit Judge, concurring in the majority opinion in 

part, and concurring in the judgment:

 I agree with Judge Niemeyer’s majority opinion upholding the 

bankruptcy court’s exercise of jurisdiction over Moses’ core 

claim for declaratory judgment.1

 Sending such a claim to 

arbitration would indeed present an “inherent conflict” with the 

Bankruptcy Code insofar as the claim seeks to determine the 

validity of a demand on Moses’ estate. See Shearson/Am. Express, 

Inc. v. McMahon, 482 U.S. 220, 227 (1987) (allowing the nonenforcement of an arbitration agreement when the arbitration of a 

claim would present an “inherent conflict” with a “statute’s

underlying purposes”).

The same, however, cannot be said for Moses’ non-core 

claim, which demands money damages for CashCall’s alleged 

violations of the North Carolina Debt Collection Act (NCDCA), 

NC. Gen. Stat. §§ 75-50 to 56 (2012). Although the success or 

failure of the non-core claim may have ancillary effects on 

Moses’ bankruptcy – primarily through the enlargement of the 

underlying estate due to any damages received – any such results 

are simply too attenuated, and indeed extrinsic to the 

bankruptcy, to constitute an “inherent conflict” with the 

 1 I also join Part III of Judge Niemeyer’s opinion holding 

that we have no jurisdiction to review the bankruptcy court’s 

interlocutory order denying CashCall’s motion to withdraw its 

proof of claim.
47

Bankruptcy Code’s purpose of facilitating an efficient 

reorganization. As the bankruptcy judge himself observed 

regarding the non-core claim, “[t]hese damages are unrelated to 

the Defendant’s proof of claim and are only related to the 

bankruptcy case in that if successful, the bankruptcy estate 

will recover any non-exempt funds and disburse them to claims in 

accordance with the bankruptcy code.” J.A. 87. In such 

circumstances, Moses has failed to meet her burden of showing 

“that Congress intended to preclude a waiver of judicial 

remedies for the statutory rights at issue.” McMahon, 482 U.S. 

at 227; see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 

213, 221 (1985) (observing that courts must “rigorously enforce 

agreements to arbitrate, . . . at least absent a countervailing 

policy manifested in another federal statute”); Moses H. Cone 

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) 

(describing the “federal policy favoring arbitration 

agreements”).

I would thus reverse the district court’s decision allowing 

Moses’ non-core claim to remain in the bankruptcy court.

I.

To begin with the obvious, a claim is constitutionally noncore because it is ancillary to the underlying bankruptcy. In 

recognition of that fact, a bankruptcy judge’s dominion over 

non-core claims is limited by Article III, § 1 of the 
48

Constitution to submitting “proposed findings of fact and 

conclusions of law to the district court, for that court’s 

review and issuance of final judgment.” Stern v. Marshall, 131 

S. Ct. 2594, 2602 (2011); see also id. at 2620 (holding that a 

bankruptcy judge’s authority is likewise limited for claims that 

are statutorily core but constitutionally non-core); see also N. 

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71 

(1982) (describing the enforcement of non-core state-created 

private rights as separate and apart from “the restructuring of 

debtor-creditor relations”). Further, the Bankruptcy Code 

itself limits a bankruptcy judge’s authority to hear certain 

state law matters, even when the resolution of those matters may 

affect the underlying estate. See 28 U.S.C. § 1334(c)(2) 

(requiring that bankruptcy courts “abstain from hearing” certain 

non-core state law claims); 28 U.S.C. § 1334(c)(1) (providing 

that bankruptcy courts may “abstain[] from hearing a particular 

proceeding,” including core and non-core matters, “in the 

interest of comity with State courts or respect for State law”); 

see also Stern, 131 S. Ct. at 2619-20.

The core/non-core distinction, however, is not mechanically 

dispositive in deciding whether a bankruptcy judge may refuse to 

send a claim to arbitration. See Cont’l Ins. Co. v. Thorpe 

Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011, 

1021 (9th Cir. 2012) (“We agree that the core/non-core 
49

distinction, though relevant, is not alone dispositive.”); In re 

Mintze, 434 F.3d 222, 229 (3d Cir. 2006) (“The core/non-core 

distinction does not . . . affect whether a bankruptcy court has 

the discretion to deny enforcement of an arbitration 

agreement.”). Instead, what matters fundamentally is whether 

compelling arbitration for a claim would inherently undermine

the Bankruptcy Code’s animating purpose of facilitating the 

efficient reorganization of an estate through the 

“[c]entralization of disputes concerning a debtor’s legal 

obligations . . . .” Phillips v. Congelton, LLC (In re White 

Mountain Mining Co.), 403 F.3d 164, 170 (4th Cir. 2005).

Although the mere designation of a claim as non-core does 

not end the inquiry, I agree with our sister circuits that 

bankruptcy courts generally have no discretion to refuse to 

arbitrate a non-core claim. As the Ninth Circuit has observed, 

surveying other circuits:

The core versus non-core distinction has been 

articulated by our sister circuits as follows: 

generally, bankruptcy judges do not have discretion to 

refuse to compel arbitration of non-core matters 

because they are generally only tangentially related 

to a bankruptcy case. Bankruptcy courts may, however, 

exercise discretion to refuse to compel arbitration of 

core bankruptcy matters, which implicate more pressing 

bankruptcy concerns. Yet, even as to core 

proceedings, the bankruptcy court will not have 

discretion to override an arbitration agreement unless 

it finds that the proceedings are based on provisions 

of the Bankruptcy Code that inherently conflict with 

the Arbitration Act or that arbitration of the claim 
50

would necessarily jeopardize the objectives of the 

Bankruptcy Code.

Ackerman v. Eber (In re Eber), 687 F.3d 1123, 1130 n.6 (9th Cir. 

2012) (internal citations and quotation marks omitted); see also

Crysen/Montenay Energy Co. v. Shell Oil Co. & Scallop Petroleum 

Co. (In re Crysen/Montenay Energy Co.), 226 F.3d 160, 166 (2d 

Cir. 2000) (embracing the conclusion “that bankruptcy courts 

generally must stay non-core proceedings in favor of 

arbitration”); Hays & Co. v. Merrill Lynch, Pierce, Fenner & 

Smith, Inc., 885 F.2d 1149, 1150, 1160 (3d Cir. 1989) (same); 

Whiting-Turner Contracting Co. v. Elec. Mach. Enters., Inc. (In 

re Elec. Mach. Enters., Inc.), 479 F.3d 791, 796 (11th Cir. 

2007) (same); see also Fred Neufeld, Enforcement of Contractual 

Arbitration Agreements Under the Bankruptcy Code, 65 Am. Bankr. 

L.J. 525, 526 (1991) (arguing in support of the Third Circuit’s 

conclusion in Hays, 885 F.2d at 1150, that “bankruptcy courts do 

not have the discretion to deny enforcement of arbitration 

clauses in noncore adversary proceedings brought by the 

trustee”).

Dissenting from the majority’s conclusion that Moses’ noncore claim should be sent to arbitration, Judge Niemeyer cites 

the Fifth Circuit’s decision in Gandy v. Gandy (In re Gandy), 

299 F.3d 489 (5th Cir. 2002), as supporting the proposition that 

“courts have regularly refused to bifurcate related core and 
51

non-core matters.” In Gandy, however, the Fifth Circuit went so 

far as to observe that “bankruptcy courts generally do not have 

discretion to decline to stay proceedings involving non-core 

matters.” Id. at 495 (emphasis added) (also observing that it 

is “universally accepted” that bankruptcy courts generally do 

not have such discretion); see also Hays, 885 F.2d at 1150, 

1160. Instead, Gandy determined that a bankruptcy judge’s 

discretion primarily extends “to refuse to enforce an otherwise 

applicable arbitration agreement when the underlying nature of a 

proceeding derives exclusively from the provisions of the 

Bankruptcy Code and the arbitration of the proceeding conflicts 

with the purpose of the Code.” 299 F.3d at 495; see also

Crysen/Montenay, 226 F.3d at 166 (“[T]he presumption in favor of 

arbitration generally will trump the lesser interest of 

bankruptcy courts in adjudicating non-core proceedings that 

could otherwise be arbitrated.”). Factually, Gandy involved 

“three causes of action that derive[d] entirely from the federal 

rights conferred by the Bankruptcy Code” and were thus not 

available outside of bankruptcy to the debtor. 299 F.3d at 495, 

497. The debtor’s complaint, the court found, also implicated 

“non-bankruptcy contractual and tort issues in only the most 

peripheral manner.” Id. at 497 (internal quotation marks 

omitted). Such non-bankruptcy causes of action, the court 

concluded, were simply “inconsequential relative to the 
52

bankruptcy causes of action.” Id. at 500. As discussed further 

below, the same cannot be said of Moses’ state-law claim under 

the NCDCA.

II.

A bankruptcy judge’s discretion to deny arbitration of noncore matters is thus necessarily narrow. As we suggested in 

Phillips in the context of a core proceeding, the discretion to 

deny arbitration should be limited to cases where arbitration 

would “substantially interfere[] with the debtor’s efforts to 

reorganize.” Phillips, 403 F.3d at 170. Paradigmatically, 

substantial interference occurs when the resolution of the claim 

will necessarily affect reorganization in a significant way, and 

arbitration will thus inherently conflict with the purposes of 

Bankruptcy Code. See id. In Phillips, for example, we 

confronted whether an individual was owed money by a debtor – a 

classic core claim. The debtor’s bankruptcy plan had yet to be 

approved, the core claim was “critical to . . . the plan of 

reorganization,” and sending the proceeding to arbitration would 

have jeopardized the reorganization process. Id.

No such danger is present here, however, regarding Moses’ 

non-core claim under the state debt collector statute. Moses’ 

Chapter 13 bankruptcy plan has already been approved, and 

unsecured creditors like CashCall will likely receive nothing. 

See J.A. 42-50. Nonetheless, the district court affirmed the 
53

bankruptcy court’s refusal to send the claim to arbitration, 

reasoning that the non-core claim was essentially one for 

damages arising out of the core proceeding and was thus 

“inextricably intertwined” with it. J.A. 127.

It is true that Moses’ core and non-core actions share one 

common question. The core action seeks a declaration that 

CashCall’s proof of claim was void under the North Carolina 

Consumer Finance Act. The non-core claim is based, in part, on 

an allegation that CashCall sought to collect on an invalid 

debt, while also alleging that CashCall “has willfully engaged 

in other and further violations of the North Carolina Prohibited 

Acts by Debt Collector as may be shown through discovery and 

proved at trial.” J.A. 39.

But the fact that the claims may share a question does not 

mean that arbitrating one of them will pose an inherent conflict 

with the efficient reorganization of a debtor’s estate. 

Although the district court itself provided no reasons why it 

believed such a conflict was inevitable, it suggested in one 

sentence that the potential for inefficiency and “inconsistent 

results” justified the bankruptcy court’s actions. J.A. 128. 

As for any potential inefficiency and delay, if the bankruptcy 

court retained jurisdiction over Moses’ non-core claim, it could 

only issue findings of fact and recommendations of law, which 

would then be subject to de novo review by the district court 
54

before a final order could be entered. But if the claim went to 

arbitration, the arbitrator’s order would simply be subject to 

enforcement by the district court, with any proceeds then 

distributed as part of the estate.2 See Hays, 885 F.2d at 1158.

Furthermore, Moses’ non-core claim shares little overlap 

with the core claim, apart from the question whether the 

underlying loan was void in the first place. The non-core 

litigation will likely require detailed and time-consuming 

findings regarding CashCall’s conduct in trying to collect on 

the loan, other violations of the state statute, and damages 

like emotional distress. As the bankruptcy judge observed 

regarding the non-core claim, “[t]hese damages are unrelated to 

the Defendant’s proof of claim and are only related to the 

bankruptcy case in that if successful, the bankruptcy estate 

will recover any non-exempt funds and disburse them to claims in 

accordance with the bankruptcy code.” J.A. 87. Although the 

core and non-core claims may overlap in one respect, they cannot 

be said to be inextricably intertwined such that the denial of 

arbitration was proper.

 2 As discussed further below, it is possible that the 

arbitration agreement is entirely unenforceable on its face, as 

Moses now argues, because of its tribal choice of law and forum 

selection provisions. Neither the bankruptcy court nor district 

court, however, made factual findings about the effect of those 

provisions in the loan agreement, and we cannot reach the issue 

on the record before us.
55

Moses additionally argues that arbitration of the non-core 

claim could substantially interfere with the bankruptcy 

proceedings by allowing an arbitrator to decide an issue 

inextricably interrelated with the core claim (the validity of 

the loan agreement) and thus potentially bind a bankruptcy judge 

through collateral estoppel. Such a danger, however, is 

speculative at best. As the Supreme Court has held, 

“arbitration proceedings will not necessarily have a preclusive 

effect on subsequent federal-court proceedings.” Dean Witter, 

470 U.S. at 223 (citing McDonald v. West Branch, 466 U.S. 284 

(1984)); see also Hays, 885 F.2d at 1158-59 (applying Dean 

Witter to a bankruptcy context). Further, the Court in Dean 

Witter noted that “courts may directly and effectively protect 

federal interests by determining the preclusive effect to be 

given to an arbitration proceeding.” Dean Witter, 470 U.S. at 

223; see also Hays, 885 F.2d at 1158-59. Finally, to the extent 

that any danger of preclusion remains, a court may simply stay 

arbitration proceedings for some brief period until it has ruled 

on the underlying core claim.

There is thus no reason to believe that arbitration in 

these circumstances will substantially interfere with Moses’ 

bankruptcy and present an inherent conflict with the purposes of 

the Bankruptcy Code. Indeed, the mere possibility of generic 

litigation-related exigencies, inherent in the act of litigating 
56

in another forum, cannot justify the refusal to arbitrate a noncore claim. As the Third Circuit observed in Hays, Congress’ 

decision to restrict a bankruptcy court’s jurisdiction over noncore claims, and to require that certain claims be heard in 

state court, shows that centralization is not, in and of itself, 

a valid reason to deny arbitration. 885 F.2d at 1159-60. The

court further concluded that “even if there were some potential 

for an adverse impact on the core proceeding [as a result of 

arbitration], such as inefficient delay, duplicative 

proceedings, or collateral estoppel effect, Hayes [sic] has not 

shown that it would be substantial enough to override the policy 

favoring arbitration.” Id. at 1158.

I reach the same conclusion about three additional possible 

rationales for a refusal to send a claim to arbitration in these 

circumstances. First, the Fifth Circuit in Gandy determined 

that a bankruptcy judge may refuse to arbitrate state-law claims 

when those claims are “inconsequential” compared with any coreclaims. Gandy, 299 F.3d at 500. Without embracing Gandy’s

legal conclusion about the arbitrability of such claims, I 

believe that Moses’ non-core claim cannot be called 

inconsequential. Whereas Moses’ declaratory judgment action 

seeks invalidation of an alleged $1,929.02 debt owed to 

CashCall, her state NCDCA claim seeks substantial damages, 

including those for emotional distress and anxiety, and 
57

statutory penalties up to $4,000 per violation of the Act. J.A. 

39, 87. As previously described, the state cause of action 

requires a court to make detailed determinations regarding 

CashCall’s conduct before Moses declared bankruptcy – apart from 

the single shared question regarding the illegality of the 

underlying loan - including allegations that CashCall “has 

willfully engaged in other and further violations of the [Act]” 

that go beyond attempting to collect an invalid debt. J.A. 39. 

Against that backdrop, the state-law action is not 

inconsequential, or entirely peripheral to the core claim.

Second, Judge Niemeyer suggests that the bankruptcy court 

may have been justified because Moses’ estate could be enriched 

or depleted as a result of litigation. If Moses prevailed, the 

estate could potentially benefit from any damages received – a 

result that certainly would not frustrate creditors who could 

share in the spoils. And if she lost, the costs of unsuccessful 

litigation could partly deplete the estate. But if such generic 

considerations were enough to justify a denial of arbitration, 

there would be little limit to a bankruptcy judge’s discretion.

Neither Phillips nor the Federal Arbitration Act countenance 

that result. As previously observed, Phillips instead approved 

the bankruptcy court’s refusal to send a core claim to 

arbitration only after finding that “the arbitration would have 

substantially interfered with the debtor’s efforts to 
58

reorganize.” 403 F.3d at 170. There has been no such showing 

here.

Third, Judge Niemeyer argues that our holding pays 

insufficient attention to the 800-pound gorilla lurking in the 

litigation, namely, the enforceability of the arbitration 

agreement itself. For the first time on appeal, Moses argues 

that the tribal arbitration provisions specified in the 

agreement are illusory. She specifically maintains that “there 

is no such thing as arbitration conducted by the Cheyenne River 

Sioux Tribe, there are no tribal representatives authorized to 

conduct arbitration, and there are no tribal consumer dispute 

rules.” Br. of Appellee 2. CashCall’s strategy, as Moses 

alleges, is thus to “shield its illegal scheme from any American 

court and any American law” by sending claims into “a legal 

black hole called tribal arbitration.” Id. at 2 (citing Heldt 

v. Payday Fin., LLC, No. CIV 13-3023-RAL, 2014 WL 1330924, at 

*21 (D.S.D. Mar. 31, 2014)).

The choice of law and arbitration provisions in question 

indeed appear similar to others used by CashCall that have been 

increasingly scrutinized, and at times derided, by the courts. 

See Jackson v. Payday Fin., LLC, 764 F.3d 765, 774-76 (7th Cir. 

2014) (refusing to compel arbitration under similar provisions); 

Inetianbor v. CashCall, Inc., 962 F. Supp. 2d 1303, 1308-09 

(S.D. Fla. 2013) (finding a similar arbitration agreement to be 
59

void); Heldt, 2014 WL 1330924, at *17-20 (enumerating pervasive 

problems with enforcement of a similar agreement).

Moses, however, did not raise the issue before the district 

court or bankruptcy court, and those courts did not make any 

relevant factual findings about the nature of the loan agreement 

or its arbitration provisions. Further, CashCall argues in its 

reply brief that the provisions governing Moses’ agreement are 

substantially different from those that other courts have 

considered – an argument that Moses could not respond to and 

that we are not equipped to resolve. See In re Under Seal, 749 

F.3d 276, 285 (4th Cir. 2014) (“Our settled rule is simple: 

[a]bsent exceptional circumstances, . . . we do not consider 

issues raised for the first time on appeal.” (internal quotation 

marks omitted, alterations in original)). Without more fulsome 

briefing and a more developed record, we simply cannot reach the 

enforceability of the agreement.

Judge Niemeyer nonetheless argues that the mere prospect of 

additional litigation over enforceability may itself help 

justify the decision not to send Moses’ non-core claim to 

arbitration. In essence, such cart-preceding-horse logic would 

reject an arbitration agreement because the agreement may be 

challenged. The dissent “imagine[s] scenarios” in which the 

length of time it may take to litigate a challenge of the 

arbitration agreement could prevent Moses’ creditors from 
60

sharing in any augmentation of the estate through damages 

received. But imagined conflicts are not enough to 

substantially and inherently interfere with a debtor’s 

reorganization. That is particularly the case here where Moses’ 

bankruptcy plan has already been approved.

III.

In sum, the refusal to send a non-core claim to arbitration 

requires more than a finding that arbitration would potentially 

conflict with the purposes of the Bankruptcy Code. Rather, the 

conflict must be inherent and “sufficient to override by 

implication the presumption in favor of arbitration.” U.S. 

Lines, Inc. v. Am. Steamship Owners Mut. Prot. & Indemnity Ass’n 

(In re U.S. Lines), 197 F.3d 631, 640 (2d Cir. 1999). On the 

facts before us, I conclude that Moses has failed to carry her 

burden to show such a conflict.
61

DAVIS, Senior Circuit Judge, concurring in the judgment in part 

and dissenting in part:

The district court allowed a bankruptcy court to protect 

its jurisdiction over a state law claim by refusing to 

acknowledge that a proof of claim in the bankruptcy case had 

become moot by virtue of its abandonment and withdrawal by the 

creditor. I am constrained to reject this jurisdictional 

sleight of hand.

Appellee Oteria Moses, faced with severe financial 

difficulties, obtained from Western Sky Financial, LLC (“Western 

Sky”) a $1,500 loan; Appellant, CashCall, Inc. (“CashCall”) is 

Western Sky’s successor-in-interest. Upon Moses’s filing of a

bankruptcy petition, CashCall filed a proof of claim, seeking 

nearly $2,000 from Moses’s estate. Moses objected and filed an 

adversary proceeding in which she requested (1) a judgment 

declaring the loan agreement void under the North Carolina 

Consumer Finance Act (“NCCFA”) and (2) money damages for 

CashCall’s alleged violation of North Carolina’s Prohibited Acts 

by Debt Collectors statute (“North Carolina Debt Collection Act” 

or “NCDCA”). 

CashCall, explaining that it was abandoning its claim for 

the outstanding balance of the loan, filed a motion to withdraw 

its proof of claim and then, shortly after that, a motion to 

compel arbitration of the adversary proceeding. The bankruptcy 
62

court denied both motions. Upon CashCall’s appeal, the district 

court denied CashCall’s motion for leave to appeal the denial of 

its motion to withdraw its proof of claim, and the court 

affirmed the bankruptcy court’s order refusing to compel 

arbitration. 

On appeal to this Court, CashCall challenges the bankruptcy 

court’s denial of its motion to compel arbitration. CashCall 

did not, however, note an appeal from the district court’s 

denial of leave to appeal the bankruptcy court’s order 

disallowing withdrawal of its proof of claim. At oral argument 

before this panel, while reiterating that it has abandoned its 

proof of claim, CashCall explained that it did not believe it 

could appeal to this Court the district court’s denial of leave 

to appeal. 

For the reasons stated below, I would elect to exercise our 

discretion to review the bankruptcy court’s denial of the motion 

to withdraw the proof of claim, reverse in part, vacate in part, 

and remand with instructions that the district court reverse the 

bankruptcy court’s denial of the motion to compel arbitration.

I.

When reviewing a district court’s judgment affirming a 

bankruptcy court’s order, we “consider directly the bankruptcy 

court’s findings of facts and conclusions of law.” In re 

Alvarez, 733 F.3d 136, 140 (4th Cir. 2013). We review the 
63

bankruptcy court’s (as well as the district court’s) legal 

conclusions de novo. Id. Findings of fact are reviewed for 

clear error. Id.

II.

A.

I look first to the bankruptcy court’s denial of CashCall’s 

motion to withdraw its proof of claim. Moses suggests that, 

despite CashCall’s representations to the bankruptcy court and 

to this Court that it has abandoned its claim on the loan, the 

bankruptcy court nevertheless properly denied the motion to 

withdraw the proof of claim. I cannot agree.

Federal Rule of Bankruptcy Procedure 3006 provides that:

If after a creditor has filed a proof of claim an 

objection is filed thereto or a complaint is filed 

against that creditor in an adversary proceeding, 

. . . the creditor may not withdraw the claim except 

on order of the court after a hearing on notice to the 

trustee or debtor in possession . . . . 

A motion to withdraw a proof of claim under Rule 3006 has been 

analogized to a motion under Federal Rule of Civil Procedure 

41(a), and thus similar considerations govern both motions. 

See, e.g., In re Varona, 388 B.R. 705, 726 (E.D. Va. 2008); In 

re Kaiser Group Int’l, Inc., 272 B.R. 852, 855 (D. Del. 2002); 

In re 20/20 Sport, Inc., 200 B.R. 972, 979 (S.D.N.Y. 1996). “As 

with a [] motion [to voluntarily dismiss a civil action], a 

motion to withdraw a proof of claim is left to the court’s 
64

discretion, which is ‘to be exercised with due regard to the 

legitimate interests of both [parties].’” In re Ogden New York 

Servs., 312 B.R. 729, 732 (S.D.N.Y. 2004) (quoting 20/20 Sport, 

Inc., 200 B.R. at 979). “In general, withdrawal should be 

granted unless the party opposing the motion can demonstrate 

that it would be legally prejudiced by the withdrawal.” Id.; 

see also In re Lowenschuss, 67 F.3d 1394, 1399–1400 (9th Cir. 

1995). 

Here, Moses failed to demonstrate that she would be 

“legally prejudiced” by the withdrawal of CashCall’s proof of 

claim. The bankruptcy court reached the opposite conclusion by 

reasoning that “allowing CashCall to withdraw its claim would . 

. . eliminat[e] [the court’s] jurisdiction over any cases of 

action related to the claim,” and force Moses “to file an action 

in the General Court of Justice for the State of North Carolina 

or proceed with arbitration as required by the loan agreement.” 

J.A. 92. This was legal error; the bankruptcy court is simply 

incorrect that Moses would suffer cognizable prejudice by 

litigating her claims in state court or following the 

arbitration procedures set out in her loan agreement (as 

supplemented by the availability of judicial review after any 

arbitration proceedings). Cf. In re Armstrong, 215 B.R. 730, 

732 (E.D. Ark. 1997); In re Cnty. of Orange, 203 B.R. 977, 982 

(C.D. Cal. 1996). I would decline to hold, at least on the 
65

record here, that it constitutes “prejudice” not to have a 

United States bankruptcy judge (as opposed to some other 

adjudicator) decide a state law claim between private parties. 

Given the absence of any legally cognizable prejudice to Moses 

should CashCall’s proof of claim be withdrawn, the bankruptcy 

court committed legal error and thereby abused its discretion in 

denying CashCall’s motion. See Dart Cherokee Basin Operating 

Co., LLC v. Owens, 135 S. Ct. 547, 555 (2014) (“A court ‘would 

necessarily abuse its discretion if it based its ruling on an 

erroneous view of the law.’” (quoting Cooter & Gell v. Hartmarx 

Corp., 496 U.S. 384, 405 (1990))); Koon v. United States, 518 

U.S. 81, 100 (1996) (“A district court by definition abuses its 

discretion when it makes an error of law.”).

In so concluding, I observe that, although the district 

court denied leave to file an interlocutory appeal of the 

bankruptcy court’s order disallowing withdrawal of the proof of 

claim, and although CashCall did not include in its notice of 

appeal to this Court a challenge to the district court’s denial 

of leave to appeal the withdrawal motion, we may nevertheless 

assess the propriety of the bankruptcy court’s order. Cf. Dart 

Cherokee, 135 S. Ct. at 555–56 (finding “no jurisdictional 

barrier” to review of a district court’s order, even though the 

court of appeals denied leave to appeal that order). While the 

court must “rely on the parties to frame the issues for 
66

decision,” Greenlaw v. United States, 554 U.S. 237, 243 (2008), 

the Supreme Court has long recognized that “a court may consider 

an issue ‘antecedent to . . . and ultimately dispositive of’ the 

dispute before it, even an issue the parties fail to identify 

and brief.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of 

Am., Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v. Ohio 

Power Co., 498 U.S. 73, 77 (1990) (alterations in original)). 

Under the pendent appellate jurisdiction exception to the 

final judgment requirement, “we retain the discretion to review 

issues that are not otherwise subject to immediate appeal when 

such issues are so interconnected with immediately appealable 

issues that they warrant concurrent review.” Rux v. Republic of 

Sudan, 461 F.3d 461, 475 (4th Cir. 2006). “Pendent appellate 

jurisdiction is an exception of limited and narrow application 

driven by considerations of need, rather than of efficiency,” 

and “is available only (1) when an issue is ‘inextricably 

intertwined’ with a question that is the proper subject of an 

immediate appeal; or (2) when review of a jurisdictionally 

insufficient issue is ‘necessary to ensure meaningful review’ of 

an immediately appealable issue.” Id. (quoting Swint v. 

Chambers Cnty. Comm’n, 514 U.S. 35, 50–51 (1995)).1 

 1 Judge Niemeyer, relying on Swint, claims that pendent 

appellate jurisdiction is unavailable in this case, because 

“there is no final judgment to which review of the bankruptcy 
67

Here, we undoubtedly have jurisdiction to review the 

district court’s affirmance of the bankruptcy court’s final 

order refusing to compel arbitration. See In re Wallace & Gale 

Co., 72 F.3d 21, 24 (4th Cir. 1995) (generally describing 

appealable orders in bankruptcy proceedings); see also Noohi v. 

Toll Bros., Inc., 708 F.3d 599, 604 (4th Cir. 2013) (“In short, 

a party may appeal the denial of a motion to stay an action 

concerning a matter that a written agreement has committed to 

arbitration.”). The question, then, is whether we may exercise 

pendent appellate jurisdiction to concurrently review for legal 

error the bankruptcy court’s order denying withdrawal of the 

proof of claim. The answer is yes.

 

court’s order could be appended.” Ante, at 38 (emphasis in 

original). But Swint simply refused to recognize “‘pendent 

party’ appellate jurisdiction.” 514 U.S. at 51. In Swint, the 

Court concluded that “[t]he Eleventh Circuit’s authority 

immediately to review the District Court’s denial of the 

individual police officer defendants’ summary judgment motions 

[based on their alleged immunity from suit] did not include 

authority to review at once the unrelated question of the county 

commission’s liability.” Id. (emphasis added). In any event, 

the district court’s order affirming the bankruptcy court’s 

refusal to compel arbitration is, in function, a final order. 

The district court’s ruling pretermitted all arbitration 

proceedings, conclusively resolving a specific dispute within 

the larger case. See Mort Ranta v. Gorman, 721 F.3d 241, 246 

(4th Cir. 2013) (“As we have recognized on many occasions, the 

concept of finality in bankruptcy traditionally has been applied 

in a ‘more pragmatic and less technical way’ than in other 

situations. . . . [W]e have held final and appealable a variety 

of orders that resolve a specific dispute within the larger case 

without dismissing the entire action or resolving all other 

issues.” (citations and internal quotation marks omitted)).
68

Whether the bankruptcy court properly denied leave to 

withdraw the proof of claim is “inextricably intertwined” with 

whether it properly refused to compel arbitration. This could 

not be more clear, because as both the bankruptcy court 

(explicitly) and the district court (implicitly) recognized, 

CashCall’s abandonment of its proof of claim and consequent 

release of Moses from her obligations under the loan agreement

altogether moots Moses’s core claim. And, once CashCall 

abandons its proof of claim and releases Moses from her 

obligations under the loan agreement, the sine qua non of the 

bankruptcy court’s justification for retaining jurisdiction over

Moses’s non-core claim evaporates; there is no core claim to 

remit to arbitration, and the only question is whether to compel 

arbitration on Moses’s non-core claim. Cf. EQT Prod. Co. v. 

Adair, 764 F.3d 347, 364–65 (4th Cir. 2014) (suggesting that 

pendent appellate jurisdiction is available when resolution of a 

pendent issue is necessary to resolve an issue properly before 

the court on appeal). Accordingly, I would elect to exercise 

pendent appellate jurisdiction over the bankruptcy court’s order 

denying withdrawal of the proof of claim.2

 2 Judge Niemeyer disagrees that the bankruptcy court’s order 

denying withdrawal of the proof of claim is inextricably 

intertwined with the district court’s order affirming the 

bankruptcy court’s refusal to compel arbitration. Ante, at 42–

43. I cannot reconcile this conclusion with his determination 
69

Turning to whether CashCall properly designated this order 

for appeal, I note that “[n]otices of appeal . . . are liberally 

construed, and we can exercise jurisdiction over orders not 

specified in a notice of appeal if (1) there is a connection 

between the specified and unspecified orders; (2) the intention 

to appeal the unspecified order is apparent; and (3) the 

opposing party is not prejudiced and has a full opportunity to 

brief the issues.” Powell v. Symons, 680 F.3d 301, 306 n.2 (3d 

Cir. 2012) (citation and internal quotation marks omitted); see

United States ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 

F.3d 103, 108 n.1 (3d Cir. 2007) (exercising discretion to 

review an order not specified in the notice of appeal, as there 

was a “definite connection” between that order and an order that 

had been specified); see also MLC Auto., LLC v. Town of Southern 

Pines, 532 F.3d 269, 279–80 (4th Cir. 2008) (recognizing that 

notices of appeal are to be liberally construed, and that a 

party may demonstrate an intent to appeal an order not specified 

in the notice of appeal, as long as the appellee is not 

prejudiced by the appellant’s failure to specifically note that 

order). 

 

that Moses’s core and non-core claims are so closely intertwined 

that they dare not be disaggregated.
70

As already discussed above, there is undoubtedly a close 

connection between the bankruptcy court’s order on CashCall’s 

motion to withdraw its proof of claim and its order on 

CashCall’s motion to compel arbitration. Additionally, CashCall 

made clear its desire to appeal the bankruptcy court’s order on 

its withdrawal motion, as it stated time and again that it had 

abandoned its proof of claim and sought leave before the 

district court to appeal the denial. Moses, therefore, was on 

notice that we may take up this issue and, indeed, argued before 

this panel that the denial of leave to appeal the bankruptcy 

court’s order precluded our review.

In any event, to conclude that we may not review the 

bankruptcy court’s order on CashCall’s motion to withdraw 

suborns its abuse of discretion and permits it, in essence, to 

solve a problem that does not exist: by denying the motion to 

withdraw the proof of claim, the bankruptcy court insisted on 

deciding the abstract question of the validity and 

enforceability of an abandoned loan agreement, and relatedly, 

whether CashCall may receive an award from Moses’s estate, 

despite the fact that CashCall indicated it was no longer 

seeking any such award. Cf. Dart Cherokee Basin Operating, 135 

S. Ct. at 556 (recognizing that, should the Supreme Court refuse 

to review a district court order, which the court of appeals 

denied leave to appeal, the district court’s incorrect statement 
71

of the law would remain impermissibly “frozen in place”); see 

also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)

(recognizing a court’s fundamental obligation to ascertain 

controlling law).

In sum, I cannot, as Moses would have us do, ignore 

CashCall’s representations to the bankruptcy court, to the 

district court, and to us, by way of its counsel’s binding 

judicial admission, that it has abandoned its claim for the 

outstanding balance of the loan. Having recognized that 

CashCall released Moses from her obligations under the loan 

agreement, I would conclude that Moses’s core claim has been 

rendered moot. Under this reasoning, we need not decide whether 

the bankruptcy court erred in refusing to compel arbitration on 

Moses’s core claim, and are instead left with the narrow 

question of whether her non-core claim must be referred to 

arbitration.

B.

I agree with CashCall that Moses’s non-core claim must be 

remitted to arbitration, as doing so would not substantially 

interfere with her efforts to reorganize. 

1.

The FAA “establishes ‘a federal policy favoring 

arbitration.’” Shearson/American Exp., Inc. v. McMahon, 482 

U.S. 220, 226 (1987) (quoting Moses H. Cone Mem’l Hosp. v. 
72

Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Simply put, it 

requires courts to “‘rigorously enforce agreements to 

arbitrate’” by compelling arbitration of all claims contemplated 

by the arbitration agreement. Id. (quoting Dean Witter 

Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)).

“Like any statutory directive,” however, the FAA “may be 

overridden by a contrary congressional command.” Id. 

Congressional intent to override the FAA’s policy favoring 

arbitration may be ascertained from (1) the text of the statute, 

(2) its legislative history, or (3) “an inherent conflict 

between arbitration and the statute’s underlying purposes.” Id.

at 227 (emphasis added).3 The party opposing arbitration has the 

burden of showing “Congress intended to preclude a waiver of 

judicial remedies for the statutory rights at issue.” Id.

Applying McMahon, we have considered whether there is an 

“inherent conflict” between arbitration and the bankruptcy laws 

justifying the bankruptcy court’s refusal to compel arbitration. 

In In re White Mountain Mining Co., L.L.C., 403 F.3d 164 (4th 

Cir. 2005), Joseph Phillips initiated an adversary proceeding in 

bankruptcy court against White Mountain Mining Company, L.L.C. 

(“White Mountain”), claiming, inter alia, that money he advanced 

 3 Moses does not assert that either the text of the 

Bankruptcy Code or its legislative history demonstrates 

congressional intent to limit the FAA. See Moses Br. 13.
73

to the company was a debt owed to him.4 Id. at 167. In 

response, one of the owners of White Mountain—who asserted that 

Phillips’s advances to White Mountain were contributions to 

capital rather than loans—moved the bankruptcy court to compel 

arbitration of Phillips’s claims, citing an arbitration 

agreement the parties had signed. Id. at 166–67.

The bankruptcy court denied the motion. Id. at 167. It 

reasoned that, “because Phillips’s complaint sought ‘a 

determination that [he] is owed money by the Debtor,’ it 

entailed a core proceeding under 28 U.S.C. § 157(b)(2)(B).” Id. 

This core proceeding, the bankruptcy court determined, 

“presented issues that were ‘critical to [White Mountain’s] 

ability to formulate a Plan of Reorganization,” and therefore 

“trumped the arbitration.” Id.

In a comprehensive opinion by Judge Michael, we affirmed. 

The court determined that “[t]he inherent conflict between 

arbitration and the purposes of the Bankruptcy Code is revealed 

clearly in this case, in which both the adversary proceeding and 

the [] arbitration involved the core issue of whether Phillips’s 

advances to the debtor were debt or equity.” Id. at 170 

(emphasis added). As found by the bankruptcy court, 

 4 Phillips also sought a judgment declaring that he did not 

have to advance any additional money to White Mountain. White 

Mountain, 403 F.3d at 167.
74

an ongoing arbitration proceeding . . . would (1) make 

it very difficult for the debtor to attract additional 

funding because of the uncertainty as to whether 

Phillips’s claim was debt or equity, (2) undermine 

creditor confidence in the debtor’s ability to 

reorganize, (3) undermine the confidence of other 

parties doing business with the debtor, and (4) impose 

additional costs on the estate and divert the 

attention and time of the debtor’s management . . . . 

Id. The bankruptcy court’s findings, we reasoned, were not 

clearly erroneous and, indeed, confirmed that arbitration would 

be “inconsistent with the purpose of the bankruptcy laws to 

centralize disputes about a chapter 11 debtor’s legal 

obligations so that reorganization can proceed efficiently.” 

Id. Because “arbitration would have substantially interfered 

with the debtor’s efforts to reorganize,” the bankruptcy court 

did not err in refusing to compel arbitration. Id.

2.

Applying White Mountain to Moses’s case, arbitration of her 

non-core claim under the NCDCA would not substantially interfere 

with her ability to reorganize. The only way in which the noncore claim is even related to the bankruptcy proceedings is 

that, if it is successful, the bankruptcy estate will recover 

additional funds. Moses offers no explanation—and I can 

conceive of none—as to how an enlargement of the assets in the 

bankruptcy estate would frustrate creditor distribution or 

otherwise interfere with the bankruptcy proceedings. Thus, in 
75

sum, I agree with CashCall that Moses must arbitrate her noncore claim.

C.

Finally, I note Moses’s argument, made for the first time 

on appeal, that her claims may not be referred to arbitration, 

as no arbitral forum actually exists. Moses claims in 

particular that “there is no such thing as arbitration conducted 

by the Cheyenne River Sioux Tribe, there are no tribal 

representatives authorized to conduct arbitration, and there are 

no tribal consumer dispute rules.” Moses Br. 2. Tribal 

arbitration, she asserts, is a “legal black hole,” created “to 

shield [CashCall’s] illegal lending scheme from any American 

court and any American law.” Moses Br. 2.

These assertions are not without support; this is hardly 

the first time that CashCall’s practices have been called into 

serious question. Most recently, in Inetianbor v. CashCall, 

Inc., 768 F.3d 1346 (11th Cir. 2014), the Eleventh Circuit held 

that CashCall could not enforce a tribal arbitration agreement, 

as the agreement required the involvement of the Cheyenne River 

Sioux Tribe, yet the Tribe would not participate in any 

arbitration proceedings. Id. at 1350–54; see also id. at 1354–

56 (Restani, J., concurring) (explaining that she would refuse 

to compel arbitration because the agreement to arbitrate was

both procedurally and substantively unconscionable). Likewise, 
76

in Jackson v. Payday Fin., LLC, 764 F.3d 765 (7th Cir. 2014), 

the Seventh Circuit held that CashCall, along with other payday 

lenders, could not enforce a tribal arbitration agreement, 

calling it a “sham.” Id. at 768, 779. The Seventh Circuit 

determined that the agreement was procedurally and substantively 

unconscionable because the Cheyenne River Sioux Tribe “has 

neither a set of procedures for the selection of arbitrators nor 

one for the conduct of arbitral proceedings” and there “was no 

prospect ‘of a meaningful and fairly conducted arbitration.’” 

Id. at 778–79; see also National Association of Consumer 

Bankruptcy Attorneys Br. 2–3 (stating that at least seventeen 

states have initiated formal proceedings to stop CashCall’s 

operations from affecting their residents, more than ten states

have issued cease and desist orders against CashCall’s internet 

lending operations, and several states have determined that 

CashCall’s loans are void in whole or in part).

I do not hesitate to observe the odiousness of CashCall’s 

apparent practice of using tribal arbitration agreements to prey 

on financially distressed consumers, while shielding itself from 

state actions to enforce consumer protection laws. Nor do I 

blink at the underlying motivations of CashCall’s transparently 

tactical decision to withdraw its proof of claim in this case as 

a means to pretermit the adversary proceedings. Yet, unlike the 

above cited cases, this case does not call upon us to determine 
77

whether Moses’s arbitration agreement is unenforceable on its 

face. Because Moses never raised this issue in the proceedings 

below, we lack any factual record upon which to make such a 

ruling. I note that nothing contained in this opinion would 

impair Moses’s ability to raise the issue of unconscionability 

(and any other alleged bar to arbitration of her damages claims 

under North Carolina law) upon further proceedings in any action 

against CashCall.

III.

For the reasons stated above, I would reverse in part, 

vacate in part, and remand this case with instructions that the 

district court reverse the bankruptcy court’s denial of the 

motion to compel arbitration. I am pleased that that is the 

ultimate result reached by the panel.