UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30344
Summary Calendar
IN THE MATTER OF: LEONARD O. PARKER, JR.,
Debtor.
LEONARD O. PARKER,
Appellant,
VERSUS
FEDERAL HOME LOAN MORTGAGE CORP.,
Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
( 94-CV-2503 R )
October 26, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant Leonard O. Parker, Jr. sought confirmation of his
proposed Chapter 13 plan in bankruptcy court. The bankruptcy court
denied confirmation, finding that the plan impermissibly modified
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Appellee Federal Home Loan Mortgage Corporation’s secured claim in
violation of 11 U.S.C. § 1322(b)(2). Appellant appeals the
district court’s affirmation of the bankruptcy court’s decision.
We dismiss for lack of jurisdiction. The bankruptcy court’s
judgment is not final. Therefore, we, and the district court, lack
jurisdiction.
FACTS
Appellant and his wife purchased a residence. To finance the
purchase, the Parkers obtained a personal loan from Federal Home
Loan Mortgage Corporation.
Years later Mr. Parker sought relief from the bankruptcy court
under Chapter 13. Federal Home filed a proof of claim for
$90,584.64, which included the principal due on the mortgage on
Parker’s property, past due payments, foreclosure costs advances,
property tax advances, late charges, and attorney’s fees.
Appellant’s plan proposed to reduce Federal Home’s secured claim to
the fair market value of the property (approximately $70,000),
decrease the interest rate, reduce the monthly payments, extinguish
Mrs. Parker’s liability on the Note and Mortgage, and transfer Mrs.
Parker’s interest in the Property to Mr. Parker.
Federal Home and the Chapter 13 Trustee objected to the plan,
claiming that it impermissibly modified the secured claim in
violation of 11 U.S.C. § 1322(b)(2). The bankruptcy court denied
confirmation and the district court affirmed holding that pursuant
to 11 U.S.C. § 1322(b)(2), Appellant could not modify Federal
Home’s claim
2
DISCUSSION
Parker raised in both the bankruptcy and district courts, and
raised before us, three arguments in favor of modifying Federal
Home’s claim under 11 U.S.C. § 1322(b)(2). Although the bankruptcy
and district courts addressed the merits of two of Appellant’s
claims,2 one potentially dispositive issue remains.
Appellant argues that the advances made by Federal Home to
pay property taxes and foreclosure costs constitute additional
security interests that remove Federal Home’s claim from the scope
of 11 U.S.C. § 1322(b)(2). Section 1322(b)(2) prohibits
modification of “a claim secured only by a security interest in
real property that is the debtor’s principal residence.” Appellant
contends that the advancements are not secured by the debtor’s
residence, thereby divesting Federal Home of its section 1322(b)(2)
protection.
Because neither the bankruptcy court nor district court
considered this issue, and the case was not dismissed by the
bankruptcy court, their judgments are not final and we do not have
appellate jurisdiction. 28 U.S.C. § 158(a) governs bankruptcy
appeals from the district court to the court of appeals. We can
review only final judgments entered by district courts reviewing
bankruptcy orders. 28 U.S.C. § 158(d). Under 28 U.S.C. § 158(a),
2
The bankruptcy and district courts addressed Appellant's
arguments that Federal Homes' mortgage may be modified under 11
U.S.C. § 1322(b)(2) because his property serves the dual purpose of
residence and office space and because his personal liability was
discharged in the Chapter 7 proceeding, leaving only an in rem
obligation.
3
district courts have jurisdiction to hear appeals only from final
orders of bankruptcy judges. We therefore have jurisdiction only
if the underlying bankruptcy court order was final. See In re
Delta Servs. Indus., 782 F.2d 1267, 1268 (5th Cir. 1986).
“In order to be final in character, an order by a bankruptcy
court must resolve a discreet unit in the larger case.”3 In the
Matter of Greene County Hospital, 835 F.2d 589, 595 (5th Cir.
1988). In addition, a final order must “conclusively determine
substantive rights of parties.” In re Delta Servs. Indus., 782
F.2d at 1270. Because the bankruptcy court did not fully resolve
whether Appellant’s plan may be modified pursuant to 11 U.S.C. §
1322(b)(2), its order was not final. Therefore, we, and the
district court, lack jurisdiction.
For the foregoing reasons, Appellant’s appeal is dismissed for
lack of jurisdiction. We remand this case to the district court
with instructions to vacate its order and to remand to the
bankruptcy court for further proceedings.
3
Although 28 U.S.C. § 1291 provides interpretive guidance,
courts view finality more flexibly under section 158(d) than under
section 1291. In re Delta Servs. Indus., 782 F.2d at 1269. Under
section 1291, a judgment that does not dispose of all issues in a
case is not final. Brown v. New Orleans Clerks and Checkers Union
Local No. 1497, 590 F.2d 161, 163-64 (5th Cir. 1979).
4