FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 2, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13915

________________________

D. C. Docket No. 06-01938-CV-ORL-22 

BKCY No. 04-BK-01564-ABB

IN RE: DONALD J. DONOVAN, 

 Debtor.

 __________________________________________________________________

CINDY BARBEN, 

Plaintiff-Appellant, 

versus 

DONALD J. DONOVAN, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 2, 2008)

Before EDMONDSON, Chief Judge, and PRYOR and KRAVITCH, Circuit

Judges.
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KRAVITCH, Circuit Judge:

This is a bankruptcy appeal. The order under review denies the motion of

appellant Barben, an unsecured creditor, to dismiss Donovan’s Chapter 7

bankruptcy case as abusive. The issue presented is whether we have jurisdiction. 

We conclude that we do not.

I. Statement of Facts

As a result of a divorce settlement, Cindy Barben holds a $54,000 judgment

against her ex-husband, Donald Donovan. The judgment is unsecured and is fully

dischargeable in bankruptcy. Donovan filed a Chapter 13 bankruptcy petition on

February 17, 2004, prior to the passage of the 2005 Bankruptcy Abuse Prevention

and Consumer Protection Act. A Chapter 13 plan was confirmed, and Donovan

paid roughly $48,000 to the Chapter 13 trustee over a period of approximately one

year. But because of monthly income fluctuations, Donovan became unable to

make the payments under the plan as they came due. Accordingly,

Donovan—apparently at the bankruptcy court’s suggestion—converted the case to

Chapter 7 on June 14, 2006; the bankruptcy court dismissed the Chapter 13 case on

June 30, 2006. 

Thereafter, Barben objected to the conversion and moved to dismiss the
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Chapter 7 case. She argued that the conversion to Chapter 7 was presumptively

abusive within the meaning of the 2005 Act because Donovan had more income

than the median for his state—Florida—and, therefore, that the conversion should

be disallowed and the case dismissed. The bankruptcy court held that the more

stringent standards of the 2005 Act for conversion to Chapter 7 did not apply and

that Barben lacked standing to raise the abuse issue under pre-2005 law. 

Accordingly, her motion to dismiss was denied on November 8, 2006. It is this

denial of the motion to dismiss that was appealed first to the district court, which

affirmed and granted costs to Donovan, and now to this court. Meanwhile, the

bankruptcy court ultimately granted Donovan a discharge in Chapter 7 on August

7, 2007; that order is not on appeal.

II. Discussion

A threshold issue in any case before this court is whether we have

jurisdiction; we are obligated to consider jurisdiction even if it means raising the

issue sua sponte. AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing,

Inc., 494 F.3d 1356, 1359 (11th Cir. 2007). We review jurisdictional issues de

novo. Id. at 1360. 

A court of appeals has jurisdiction over only final judgments and orders

arising from a bankruptcy proceeding, whereas the district court may review
 We have also concluded that the finality requirement is met where practical 1

considerations require it. See In re Walker, 515 F.3d at 1210 (concluding that judicial economy

would be “turned on its head” if the appellate court could not review the district court’s

affirmance of the removal of the trustee). But practical considerations do not require review in

this case. We see no reason why Barben could not have obtained meaningful appellate review

upon a final judgment.

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interlocutory judgments and orders as well. In re Walker, 515 F.3d 1204, 1210

(11th Cir. 2008); 28 U.S.C. § 158(d). Whether the denial of a motion to dismiss

for abuse is a final appealable order is a question of first impression in this circuit. 

Generally speaking, to be “final” under 28 U.S.C. § 158(d) and § 1291, an

order must end the litigation on the merits, leaving nothing to be done but execute

the judgment. Jove Eng’g v. IRS, 92 F.3d 1539, 1547 (11th Cir. 1996). Finality is

given a more flexible interpretation in the bankruptcy context, however, because

bankruptcy is an aggregation of controversies and suits. Id. at 1548. Instead, “[i]t

is generally the particular adversary proceeding or controversy that must have been

finally resolved rather than the entire bankruptcy litigation.” Commodore

Holdings, Inc. v. Exxon Mobil Corp., 331 F.3d 1257, 1259 (11th Cir. 2003). 

But the justification for relaxing the finality rule—that bankruptcy is an

aggregation of disputes—also provides the limiting principle for that relaxation. 

“Increased flexibility” in applying the finality doctrine in bankruptcy does not

render appealable an order which does not finally dispose of a claim or adversary

proceeding. Thus, to be final, a bankruptcy court order must “completely resolve 1
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all of the issues pertaining to a discrete claim, including issues as to the proper

relief.” In re Atlas, 210 F.3d 1305, 1308 (11th Cir. 2000); see e.g., Clay Co. Bank

v. Culton, 111 F.3d 92, 93 (11th Cir. 1997) (district court order reversing a

bankruptcy court’s dismissal of an adversary proceeding and remanding to the

bankruptcy court for further proceedings was not final); In re FDR Hickory House,

60 F.3d 724, 726 n.3 (11th Cir. 1995) (denial of summary judgment is non-final

because it does not conclusively resolve a claim). In short, the same concepts of

finality apply in bankruptcy as in any other case, but they are applied to the

discrete controversies within the administration of the estate; “the separate dispute

being assessed must have been finally resolved and leave nothing more for the

bankruptcy court to do.” In re Charter Co., 778 F.2d 617, 621 (11th Cir. 1985). 

Based essentially on this logic, the weight of circuit authority has concluded

that orders denying a motion to dismiss for bad faith or abuse are not appealable. 

At least three other circuits have specifically held that an order denying a motion to

dismiss a Chapter 11 bankruptcy case for abusive filing is not a final order. In re

Jartran, 886 F.2d 859, 864 (7th Cir. 1989); In re 405 N. Bedford Dr. Corp., 778

F.2d 1374, 1379 (9th Cir. 1985); see also In re Comm. of Asbestos Related

Litigants, 749 F.2d 3, 5 (2d Cir. 1984) (declining to issue mandamus to review

denial of motion to dismiss; suggesting in dicta that such denial was insufficiently
 Barben asserts that the denial of her motion to dismiss the Chapter 7 case effectively 2

disallowed her claim because once Donovan’s estate was converted to Chapter 7 administration

it became a practical certainty that her claim would be discharged and she would receive little or

no payment. Because judicial disallowance of a claim is immediately appealable, Barben argues

that a judge’s order that has the practical effect of disallowance should be appealable as well. 

See Greer v. O’Dell, 305 F.3d 1297, 1302 (11th Cir. 2002) (judicial disallowance is immediately

appealable). But while the conversion may in fact have guaranteed that Barben would not

receive a distribution from the estate, that is a result of her unsecured status and the degree of

Donovan’s insolvency, not a matter of bankruptcy procedure. The conversion from a Chapter 11

to a Chapter 7 proceeding is not legally equivalent to disallowing a claim; Barben was still a

creditor in Donovan’s Chapter 7 case and would have received a pro rata distribution had there

been sufficient assets. 

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final for direct appeal). But some courts have concluded to the contrary. In

particular, the Third Circuit has held that the denial of a motion to dismiss for bad

faith is immediately appealable in both Chapter 7 and 11. See In re Brown, 916

F.2d 120, 123-124 (3d Cir. 1990) (citing In re Christian, 804 F.2d 46 (3d Cir.

1986)). These cases, however, do not discuss whether a particular adversary

proceeding must be final.

Here, the bankruptcy court’s order denying Barben’s motion to dismiss the

Chapter 7 case is not a final order. By denying her motion to dismiss, the 2

bankruptcy court permitted the Chapter 7 case to continue. The court did not

conclusively resolve the bankruptcy case as a whole, nor did the court resolve any

adversary proceeding or claim. 

Further, this case does not fit into one of our established exceptions to the

finality rule. See In re FDR Hickory House, Inc., 60 F.3d at 726-727 (discussing
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the exceptions and their applicability in that case).

Accordingly, we DISMISS THE APPEAL FOR LACK OF

JURISDICTION.