Opinion
Case No. 17-1207-JTM Bankr. Case No. 13-10458 Adv. No. 17-05006
10-10-2017
ROBERT PHILLIP GARCIA and ELIZABETH PAULINE GARCIA, Debtors, CARL B. DAVIS, Chapter 13 Trustee, Plaintiff, Appellant, v. TYSON PREPARED FOODS, INC. Defendant-Appellees.
Chapter 13 MEMORANDUM AND ORDER
This bankruptcy appeal is before the court on the motion of the Trustee for certification of the decisive issue to the Tenth Circuit Court of Appeals pursuant to Fed.R.Bankr.P. 8006(f) and 28 U.S.C. § 158(d)(2)(A)(i)-(iii), specifically the definition of the word "act" within 11 U.S.C. § 362(a)(3). The appellee, Tyson Foods, has explicitly acknowledged (Dkt. 3) that under the circumstances of the case it does not oppose certification.
The underlying dispute between the parties is whether a statutory lien which arises automatically under state law as to a workers compensation settlement is an "act" within the meaning of the stay provisions of Section 362. The bankruptcy court determined that in light of recent Tenth Circuit precedent, WD Equipment, LLC v. Cowen (In re Cowen), 849 F.3d 943 (10th Cir. 2017), it was compelled to conclude that such a post-petition lien was not barred by Section 362.
Certification is appropriate under either of two alternative provisions in § 158(d)(2)(A). First, the automatic stay is a vital provision of bankruptcy law, and a resolution of the issue as to the effect of a post-petition automatic statutory lien is of sufficient "public import that [it] 'transcend[s] the litigants and involves a legal question the resolution of which will advance the cause of jurisprudence to a degree that is usually not the case.'" In re Johns-Manville Corp., 449 B.R. 31, 34 (S.D.N.Y. 2011), quoting 1 Collier on Bankruptcy ¶5.06[5][b] (Alan N. Resnick & Henry J. Sommer, 16th ed. 2010). Second, and alternatively, the effective resolution of the issue requires a balancing of conflicting circuit interpretations of Section 362. In both cases, determining whether Cowen in fact controls the resolution of the action, and whether Cowen was correctly decided, is a matter more efficiently resolved by the Tenth Circuit.
IT IS ACCORDINGLY ORDERED this 10th day of October, that the plaintiff-appellant's Motion for Certification (Dkt. 2) is hereby granted.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE