We have yet to directly address whether a bankruptcy court's order of substantive consolidation is final and appealable under § 158(a). However, other circuits have generally addressed interlocutory appeals of substantive consolidation orders without consideration of the jurisdictional question raised here. See, e.g., First Nat'l Bank of El Dorado v. Giller ( In re Giller), 962 F.2d 796, 797-98 (8th Cir. 1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir. 1991); Union Savings Bank v. Augie/Restivo Baking Co. Ltd. ( In re Augie/Restivo Baking Co.), 860 F.2d 515, 516-17 (2d Cir. 1988); cf. Drabkin v. Midland-Ross Corp. ( In re Auto-Train Corp., Inc.), 810 F.2d 270, 272-73 (D.C. Cir. 1987). Consistent with the approach of our sister circuits, and properly applying Frontier Prop., we conclude that substantive consolidation orders are final and appealable under § 158(a).
The one unit of binding precedent for the motion at bar falls into the Auto–Train line by its substance, if not by express concession. In re Giller, 962 F.2d 796 (8th Cir.1992) is not a long opinion. It does not discuss the origins and nature of substantive consolidation.
In re Archdiocese of Milwaukee, 483 B.R. 693, 699 (Bankr. E.D. Wisc. 2012). Rather, a bankruptcy court's authority to order substantive consolidation arises from its equitable powers under § 105 of the Bankruptcy Code. Id.; In re Giller, 962 F.2d 796, 799 (8th Cir. 1992). Section 105 authorizes a bankruptcy court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of" the Bankruptcy Code. 11 U.S.C. § 105(a).
The Eighth Circuit takes this approach. In re Giller, 962 F.2d 796, 799 (8th Cir.1992) (“the bankruptcy court retains the power to order a less than complete consolidation,” in the sense that causes of action for avoidance that lay in favor of the estates of individual debtors before consolidation may be expressly preserved for possible recovery in favor of the consolidated estate). That was done here.
The court retains the power to order a less than complete consolidation, preserving avoidance claims by the formerly separate estates. See First National Bank v. Giller (In re Giller), 962 F.2d 796, 799 (8th Cir. 1992); In re Parkway Calabasas Ltd, supra, at 837; In re Standard Brands Paint Co., 154 B.R. 563, 570 (Bankr.C.D.Cal. 1993). But here, no request was made for preservation of any avoidance claims owned by the formerly separate estates.
We thus join the four Courts of Appeal that have exercised jurisdiction in this context. Alexander v. Compton ( In re Bonham), 229 F.3d 750, 762 (9th Cir. 2000); First Nat'l Bank of ElDorado v. Giller ( In re Giller), 962 F.2d 796, 797-98 (8th Cir. 1992); Eastgroup Props. v. S. Motel Ass'n, 935 F.2d 245, 248 (11th Cir. 1991); and Union Sav. Bank v. Augie/Restivo Baking Co., Ltd. ( In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 516-17 (2d Cir. 1988). First, substantive consolidation has a profound effect on the assets of the consolidated entities.
First, a bankruptcy court's authority, if any, to order substantive consolidation arises under a bankruptcy court's general equitable powers under § 105(a). First Nat'l Bank of El Dorado v. Giller (In re Giller), 962 F.2d 796, 799 (8th Cir.1992). However, “[a]lthough a bankruptcy court is essentially a court of equity, its broad equitable powers may only be exercised in a manner which is consistent with the provisions of the Code.”
The Eighth Circuit has stated that the bankruptcy court's searching analysis should including the following three factors: (1) the necessity of consolidation due to the interrelationship among the debtors; (2) whether the benefits of consolidation outweigh the harm to creditors; and (3) prejudice resulting from not consolidating the debtors. First Nat'l Bank v. Giller (In) re Giller), 962 F.2d 796, 799 (8th Cir. 1992). The Eighth Circuit's use of the term "include" in identifying these three factors indicates that these factors are only illustrative of the type of fact specific analysis that the court must conduct.
The Eighth Circuit Court of Appeals has opted for what appears to be a combination of the two general approaches described above. In First National Bank of El Dorado v. Giller (In re Giller), 962 F.2d 796 (8th Cir. 1992), the court stated, "Factors to consider when deciding whether substantive consolidation is appropriate include 1) the necessity of consolidation due to the interrelationship among the debtors; 2) whether the benefits of consolidation outweigh the harm to creditors; and 3) prejudice resulting from not consolidating the debtors." Id. at 799.
Thus, we review an order of substantive consolidation for abuse of discretion. In re Giller, 962 F.2d 796, 799 (8th Cir. 1992). IV. DISCUSSION