United States District Court, S.D. Florida
RICHARD P. BUTLER, JR., Appellant,
SONYA SALKIN, Appellee.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Appellee Sonya
Salkin's (“Salkin”) Motion to Dismiss Appeal
due to Lack of Jurisdiction (Improvident Interlocutory
Appeal), ECF No.  (the “Motion”). The Court
has carefully reviewed the Motion, the record, all supporting
and opposing filings, the exhibits attached thereto, and is
otherwise fully advised. For the reasons that follow, the
Motion is denied.
case involves an appeal of a non-final order entered in
proceedings before the United States Bankruptcy Court for the
Southern District of Florida (the “Bankruptcy
Court”). The procedural history before the Bankruptcy
Court as set forth in the Motion appears to be undisputed.
Appellant, Richard P. Butler (“Butler”), filed a
Chapter 11 voluntary bankruptcy petition on March 30, 2017.
See ECF No.  at 10-20. Thereafter, on October 2,
2017, the Office of the United States Trustee
(“UST”) filed a motion seeking to dismiss
Butler's bankruptcy petition or to convert it to a
Chapter 7 petition. Id. at 21-26. Following a
hearing on this motion, the Bankruptcy Court entered an Order
Converting Case under Chapter 11 to a Case under Chapter 7.
Id. at 27-30. In this order, Butler was required to
file routine information in a Chapter 7 petition, such as the
filing of “Official Bankruptcy Form 22 A
‘Statement of Current Monthly Income and Means Test
Calculation for Use in Chapter 7 Only, '” among
other documents. Id. One week later, the UST filed a
notice appointing Salkin as the Chapter 7 Trustee.
Id. at 31-32.
December 4, 2017, Butler filed his Chapter 7 Statement of
Current Monthly Income and Chapter 7 Means Test Calculation
(“Means Test”) and, on the following day, he
amended both. Id. at 36-65. The UST thereafter filed
a Motion to Dismiss pursuant to 11 U.S.C. § 707(b)(1)
based on the Presumption of Abuse Arising under 11 U.S.C.
§ 707(b)(2) and Abuse Arising under 11 U.S.C. §
707(b)(3). Id. at 65-72. Butler joined in the
UST's Motion to Dismiss, and in doing so, “waive[d]
his right under 11 U.S.C. § 707(b)(2)(B) to rebut the
presumption of abuse and request[ed] that his case be
dismissed pursuant to 11 U.S.C. 707(b)(2) and 11 U.S.C.
707(b)(3).” Id. at 73-75. Salkin opposed the
UST's Motion to Dismiss. Id. at 76-97. Although
the UST did not file a reply, Butler prepared a reply to
Salkin's opposition. Id. at 98-102. After
holding a hearing, the Bankruptcy Court ultimately denied the
UST's Motion to Dismiss. See ECF No.  at 4.
In doing so, the Bankruptcy Court stated, in pertinent part:
The question before me this morning in the U.S. Trustee's
motion to dismiss, and which the debtor has joined, is
whether I should exercise the discretion I'm provided
under the statute to dismiss this case pursuant to Section
707(b). Under Section 707(b)(2) I am satisfied that the
appropriate standard to measure the debtor's financial
position and CMI is the snapshot that's provided at the
petition date, and that snapshot, which would necessarily
include --- Which includes the $23, 000 monthly mortgage
payment, shows that the debtor's income, or its monthly
expenses are $15, 000 a month more than his income as
The trustee reports that as of now she has identified $732,
000 in assets for Form 1 purposes. That's not --
that's not nothing, and because there are assets which
have not been explored, and as to which the trustee does not
now have information, I believe that a dismissal of the case
now would be inappropriate, and I do that considering the
totality of the circumstances under Section 707(b)(3). And as
I said earlier, I would not dismiss the case under Section
707(b)(2) because I believe that the CMI properly stated
shows that the debtor's liabilities on a monthly basis,
or payment obligation on a monthly basis, taken as a
snapshot, greatly exceed his income. For those reasons I will
deny the motion to dismiss.
 at 132 (emphasis added). This appeal followed wherein
Butler challenges the Bankruptcy Court's decision to
include his “phantom” mortgage payments in the
Means Test calculation, which in turn led the Bankruptcy
Court to find no presumption of abuse under § 707(b)(2)
and to deny the request for dismissal under the totality of
the circumstances test of § 707(b)(3).
does not dispute that his appeal of the Order denying the
Motion to Dismiss is interlocutory in nature. Both parties,
however, take diverging views as to whether this Court should
exercise its discretion to review the Bankruptcy Court's
non-final order. Because this particular appeal satisfies all
three criteria for interlocutory review, this Court will
exercise its direction to hear the issues at this juncture.
federal district court has jurisdiction to hear appeals of
interlocutory orders and decrees issued by bankruptcy judges
in cases and proceedings referred under 28 U.S.C. §
See 28 U.S.C. § 158(a)(3). A party may appeal a
non-final order of a bankruptcy court only with leave of the
district court. See 28 U.S.C. § 158(a)(3)
(“jurisdiction to hear appeals . . . with leave of the
court, from other interlocutory order and decrees”);
Tobkin v. Calderin, No. 12-22692-MC, 2012 WL
3609867, at *1 (S.D. Fla. Aug. 22, 2012) (“district
courts have jurisdiction to hear appeals with leave of the
court, from other interlocutory orders and decrees”);
In re Fillard Apartments, Ltd., 104 B.R.
480, 480-81 (S.D. Fla. 1989) (“Interlocutory appeals,
however, may only be taken to the district court with the
leave of the district court.”). Interlocutory review is
generally disfavored for its piecemeal effect on cases.
See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d
1266, 1276 (11th Cir. 2000) (“[I]nterlocutory appeals
are inherently disruptive, time-consuming, and expensive and,
consequently, are generally disfavored.”) (quotations
omitted). However, a district court may grant interlocutory
review of a bankruptcy order if the moving party demonstrates
“that: (1) the order presents a controlling question of
law; (2) over which there is a substantial ground for
difference of opinion among courts; and (3) the immediate
resolution of the issue would materially advance the ultimate
termination of the litigation.” Laurent v.
Herkert, 196 Fed.Appx. 771, 772 (11th Cir. 2006) (citing
28 U.S.C. § 1292(b)); see In re Pac. Forest Products
Corp., 335 B.R. 910, 919 (S.D. Fla. 2005) (hereinafter,
“Colonial Bank”). This “three-part
standard is analogous to that set forth in 28 U.S.C. §
1292(b), which governs appeals from the district court to the
circuit court of appeals.” Colonial Bank, 335
B.R. at 919; see In re Celotex Corp., 187 B.R. 746,
749 (M.D. Fla. 1995) (citing In re Charter Co., 778
F.2d 617, 620 (11th Cir. 1985)) (“In determining when
to exercise this discretionary authority, a district court
will look to the standards which govern interlocutory appeals
from the district court to the court of appeals pursuant to
28 U.S.C. § 1292(b).”). “Leave must be
denied if the party seeking leave to appeal fails to
establish any one of the three elements.” Figueroa
v. Wells Fargo Bank N.A., 382 B.R. 814, 824 (S.D. Fla.
party seeking interlocutory review, Butler “bears the
burden of persuading the court that exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final
judgment.” Samsung Semiconductor, Inc. v. AASI
Liquidating Trust ex. Rel. Welt, No. 12-23707-CIV, 2013
WL 704775, at *4 (S.D. Fla. Feb. 26, 2013) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 475
(1978) (discussing the role of the court of appeals in
interlocutory appeals)); see also Soler v. Yip, No.
13-22168-CIV, 2013 WL 5446674, *5 (S.D. Fla. Sept. 30, 2013)
(“interlocutory bankruptcy appeals should be the
exception, not the rule.”). Even when a party has
established the three factors warranting interlocutory
appeal, a court “has discretion to turn down” an
interlocutory appeal, as liberal use of the interlocutory
appeal process “is bad policy.” McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.