Oteria Moses v. Cashcall, Inc.

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
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.

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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

3
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

4
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

5
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,

6
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

7
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

8
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

9
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.

10
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

11
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

12
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

13
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

14
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,

15
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

16
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.

17
 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

18
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

19
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

20
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

21
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

22
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

23
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

24
not alone dispositive”); Mintze, 434 F.3d at 229 (“The core/non-

core 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

25
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

26
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.

27
 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).

28
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

29
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

30
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

31
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

32
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’ non-
core 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.

33
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

34
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

35
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.

36
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:

37
 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.

38
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

39
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

40
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

41
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 final-

judgment 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

42
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

43
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

44
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.

45
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 non-

enforcement 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.

46
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 non-

core 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

47
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

48
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

49
 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’ non-

core 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

50
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

51
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 non-

core 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

52
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

53
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.

54
 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

55
in another forum, cannot justify the refusal to arbitrate a non-

core claim. As the Third Circuit observed in Hays, Congress’

decision to restrict a bankruptcy court’s jurisdiction over non-

core 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 core-

claims. 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

56
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

57
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

58
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

59
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.

60
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

61
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

62
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

63
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

64
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

65
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

66
 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)).

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 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

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 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.

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 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

70
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.

71
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.

72
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.

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 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 non-

core 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

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sum, I agree with CashCall that Moses must arbitrate her non-

core 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,

75
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

76
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.

77