                              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.




                               2
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)).


                                         67
      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


                                               68
       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.


                                        69
     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.


                                               73
       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



                                             74
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,

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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

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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.




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