McWilliams, Daniel L v. Village of San Jose ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3881
Village of San Jose, a Municipal
Corporation,
Plaintiff-Appellant,
v.
Daniel L. McWilliams and Ida M. McWilliams,
Debtors-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 C 3116--Richard Mills, Judge.
Argued March 1, 2002--Decided March 27, 2002
Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.
Bauer, Circuit Judge. The debtors filed
for bankruptcy protection under Chapter 7
of the Bankruptcy Code. The Village of
San Jose, a lien creditor, opposed the
discharge on the ground that within one
year of filing the petition the debtors
hindered, delayed, or defrauded the
Village by transferring or concealing
property. 11 U.S.C. sec. 727(a)(2). The
bankruptcy judge granted the discharge,
finding the debtors’ subsequent remedial
conduct of disclosing and recovering the
properties negated the pre-petition
conduct. The Village then appealed to the
district court, which affirmed the
bankruptcy judge’s ruling. Though the
Village stated that the debtors have no
discernable method to pay the amount
owed, bankruptcy or not, the Village
nevertheless seeks its "pound of
flesh"/1 in this court. After a
thorough review, we find that the
bankruptcy court erred, and reverse and
remand for further proceedings not
inconsistent with this opinion.
BACKGROUND
The Village of San Jose, Mason County,
Illinois, is a small enclave of some 696
people, located approximately twenty
miles south of Pekin, Illinois./2
Daniel and Ida McWilliams owned a number
of properties and buildings in the
Village of San Jose. The main property at
issue was a two-story brick building
built in the late 1800s, which housed a
restaurant at one time. The building,
located at 120 West Vine, was fairly
large, approximately 70 x 100 feet,
occupying 10,000 square feet.
In a letter dated January 4, 1999,
Daniel McWilliams was notified that the
building was condemned after inspection
by a Village health officer. According to
the health officer, the roof was sagging,
there was a hole in it, and contents were
falling into the structure. In a March 4,
1999 letter, the Village notified the
McWilliamses that they must either repair
or demolish the building, and if they
failed to act, the Village would demolish
it and charge the costs to them. The
McWilliamses obtained an estimate that it
would cost approximately $48,000 to
repair the building. The McWilliamses
neither repaired nor demolished the
building, stating they were unable to pay
for either action. On March 26, 1999, the
Village moved to demolish the building
and recover the costs of the demolition
and attorney’s fees incurred pursuant to
65 ILCS 5/11-31-1 (West 2001). An order
was entered in state court on July 2,
1999, permitting the Village to demolish
the building, effective July 22,
1999./3 The court also granted the
Village a lien on the property to satisfy
the costs of demolition.
On September 3, 1999, Daniel and Ida
McWilliams conveyed several lots, by
quitclaim deed, to their four
grandchildren for "One ($1.00) Dollar and
Love." Prior to transferring the
properties, the McWilliamses satisfied
the outstanding mortgages with the San
Jose Tri-County Bank. The deeds were
recorded as transferred to the grandchil
dren with the proper government
officials, but the deeds were not
physically delivered to the
grandchildren.
In February 2000, the Village filed a
supplemental motion in state court to set
aside the transfers under the Uniform
Fraudulent Transfer Act (UFTA), 740 ILCS
160/5 (West 2001). The McWilliamses
voluntarily filed for bankruptcy
protection on March 15, 2000. The
Bankruptcy Trustee held the first meeting
of the creditors on April 10, 2000. The
McWilliamses have some 28 creditors and
the Village is the largest.
The following assets were disclosed in
the creditors’ meeting: Ida McWilliams
was employed making roughly $600 per
month at one job, and $500 per week at a
second job. Daniel McWilliams is disabled
and receives only $937 a month in Social
Security Disability benefits, but he did
receive a $40,000 worker’s compensation
settlement at the time of injury. He has
been disabled since a 1984 accident at
work. The McWilliamses own a home at 400
W. Vine, and two adjoining lots at 402
and 404 W. Vine. There is a house on 402
W. Vine, which the McWilliamses rent out
for $300 per month. The properties at
400, 402, and 404 W. Vine have a combined
value of approximately $51,000. All three
properties have mortgages on them. The
McWilliamses also own a commercial
building on 320 S. Second, and are two
years into a four year installment sales
contract for $200 per month for the
property. The 320 S. Second property is
unencumbered. They also own a 1998 Ford
Taurus and a 1988 Ford Ranger, both of
which have liens on them.
During the creditors’ meeting, the
Trustee inquired if the McWilliamses had
sold, exchanged, or given away anything
of value recently. Ida McWilliams
responded "no." The Trustee then
specifically asked about the lots
conveyed to the grandchildren. Daniel
McWilliams stated that they did convey
the lots in September 1999, and that
their value was $2,000 each. Daniel
McWilliams added that they conveyed the
lots "six months before we got a bill
from San Jose lawyer on what we owed them
that was the reason we had to file
bankruptcy."
The Village filed an objection to the
McWilliamses bankruptcy petition and
discharge on April 10, 2000. On May 10,
2000, the grandchildren reconveyed the
lots at issue back to Daniel and Ida
McWilliams. A hearing was held on
February 6, 2001, before the bankruptcy
judge. The McWilliamses appeared pro se
at the hearing, stating they could no
longer afford an attorney./4 During the
first few minutes of the hearing, the
bankruptcy judge made his opinion of the
case known to the Village’s attorney.
I think on this, and I know that I have
talked to you about this in the pretrial,
talked to you about it on other
occasions, I am not going to deny their
discharge under 727(a)(2). It’s been my
policy, and I think it’s good law, that
if I file a petition that says I made
these transfers and the Trustee said
those are invalid, correct that, I am not
going to deny a discharge. They have made
no attempt to conceal anything to this
Court or to the Bankruptcy Trustee.
That’s the purpose of the 727(a)(2) in my
opinion. And you can pull out a number of
cases . . . and I don’t care what those
say.
. . . [L]et’s move on, okay. You are not
going to convince me to change my mind on
this. I have told you that from the day
you filed it.
After the hearing, consistent with his
prior comments, the judge issued a ruling
granting the McWilliams’ petition. The
Village appealed to the district court,
which affirmed the bankruptcy court’s
ruling.
ANALYSIS
The bankruptcy court’s factual
determinations are reviewed for clear
error and legal conclusions de novo. See,
e.g., Cult Awareness Network, Inc. v.
Martino (In re Cult Awareness Network),
151 F.3d 605, 607 (7th Cir. 1998) (noting
that in bankruptcy cases on appeal from
the district court, we use the same
standard of review as the district
court). The bankruptcy court interpreted
11 U.S.C. sec. 727(a)(2) as allowing a
discharge even if the debtor violated the
section, as long as the infraction was
rectified and none of the creditors were
harmed. The construction of the
Bankruptcy Code is question of law we
review de novo. See, e.g., In re Cult
Awareness Network, 151 F.3d at 607.
The Village makes numerous arguments
urging reversal, not the least of which
is a constitutional due process argument.
The Village argues that the bankruptcy
judge decided the case before hearing its
arguments. The district court found that
the bankruptcy judge made his decision
based on the pleadings and Trustee’s
report; however, the bankruptcy court’s
order stated the determination the
McWilliamses lacked the intent to defraud
was based, in part, on testimony from the
hearing. The district court noted that if
the judge "was obligated to recuse
himself from this case simply because he
had read the pleadings before the
hearing, no judge could ever come to
court prepared." The district judge’s
comment was right on the mark, and we
need not elevate this disagreement to a
constitutional level when it is more
appropriately framed as a ordinary review
for error.
A. Discharge in Bankruptcy
The purpose of the Code is to provide
equitable distribution of the debtor’s
assets to the creditors and "to relieve
the honest debtor from the weight of
oppressive indebtedness and permit him to
start afresh free from the obligations
and responsibilities consequent upon
business misfortunes." Williams v. United
States Fid. & Guar. Co., 236 U.S. 549,
554-55 (1915). We construe the Bankruptcy
Code "liberally in favor of the debtor
and strictly against the creditor."
Gullickson v. Brown (In re Brown), 108
F.3d 1290, 1292 (10th Cir. 1997); In re
Reines, 142 F.3d 970, 973 (7th Cir.
1998); In re Adlman, 541 F.2d 999, 1003
(2d Cir. 1976); 11 U.S.C. sec. 727(a)
(providing that, "[t]he court shall grant
the debtor a discharge, unless . . .").
Thus, consistent with the Code,
bankruptcy protection and discharge may
be denied to a debtor who was less than
honest. Grogan v. Garner, 498 U.S. 279,
286-87 (1991) ("But in the same breath
that we have invoked this ’fresh start’
policy, we have been careful to explain
that the Act limits the opportunity for a
completely unencumbered new beginning to
the ’honest but unfortunate debtor.’")
(quoting Local Loan Co. v. Hunt, 292 U.S.
234, 244 (1934)); Mayer v. Spanel Int’l
Ltd., 51 F.3d 670, 674 (7th Cir. 1995)
("Congress concluded that preventing
fraud is more important than letting
defrauders start over with a clean slate,
and we must respect that judgment."). If
a creditor demonstrates by a
preponderance of the evidence that the
debtor actually intended to hinder,
delay, or defraud a creditor, the court
can deny the discharge. See In re Keeney,
227 F.3d 679, 683 (6th Cir. 2000); In re
Scott, 172 F.3d 959, 966-67 (7th Cir.
1999); cf. Grogan, 498 U.S. at 286-87.
The intent to defraud must be actual and
cannot be constructive; however, because
it is unlikely that the debtor will admit
fraud, intent may be established by
circumstantial evidence. See In the
Matter of Krehl, 86 F.3d 737, 743-44 (7th
Cir. 1996); Smiley v. First Nat’l Bank of
Belleville (In the Matter of Smiley), 864
F.2d 562, 566 (7th Cir. 1989).
B. Objections to Discharge Based on
Section 727(a)(2)
In order to succeed with an objection to
discharge based on section 727(a)(2), the
creditor must prove:
(1) that the act complained of was done
at a time subsequent to one year before
the date of the filing of the petition;
(2) with actual intent to hinder, delay,
or defraud a creditor or an officer of
the estate charged with custody of
property under the Bankruptcy Code; (3)
that the act was that of the debtor or
his duly authorized agent; (4) that the
act consisted of transferring, removing,
destroying or concealing any of the
debtor’s property, or permitting any of
these acts to be done.
Lee Supply Corp. v. Agnew (In the Matter
of Agnew), 818 F.2d 1284, 1287 (7th Cir.
1987) (citation omitted). The facts show
that three of the four elements were met.
The issue was whether the second element,
actual intent, had been met. Though
actual intent is difficult to prove, it
may be shown through circumstantial
evidence, and the Fifth Circuit adopted a
series of factors which, if proven,
indicate actual fraud:
(1) the lack or inadequacy of
consideration; (2) the family, friendship
or close associate relationship between
the parties; (3) the retention of
possession, benefit or use of the
property in question; (4) the financial
condition of the party sought to be
charged both before and after the
transaction in question; (5) the
existence or cumulative effect of the
pattern or series of transactions or
course of conduct after the incurring of
debt, onset of financial difficulties, or
pendency or threat of suits by creditors;
and (6) the general chronology of the
events and transactions under inquiry.
Pavy v. Chastant (In the Matter of
Chastant), 873 F.2d 89, 91 (5th Cir.
1989) (citation omitted). If the creditor
can show that one or some of these
factors are met, "[t]his creates a
presumption of an intent to defraud
establishing plaintiff’s prima facie case
and shifting . . . the burden [to the
debtor-defendant] of demonstrating that
he lacked fraudulent intent." Id.
The McWilliamses did transfer the
properties for $1.00 and love to their
grandchildren, retained possession of the
deeds, and transferred the properties
after they had been notified that the
Village demolished the building and would
seek to recoup the costs from them. This
circumstantial evidence demonstrates the
McWilliamses transferred the properties
to either conceal or prevent the Village
from obtaining them to satisfy their
debts. The bankruptcy court similarly
found that several of these factors were
met, yet concluded that the McWilliamses
did not make the transfers "with the
intent to hinder, delay, or defraud
creditors." The bankruptcy court
concluded that the McWilliamses cured the
fraud and redeemed themselves by
disclosing of the transfers and
subsequently recovering the properties.
1. Redemption for a Less Than Honest
Debtor
Though it does not cite a specific case
in support, the bankruptcy court’s
reasoning is in line with a doctrine
announced in First Beverly Bank v. Adeeb
(In re Adeeb), 787 F.2d 1339 (9th Cir.
1986). In Adeeb, the Ninth Circuit
allowed the granting of a discharge
petition over a creditor’s objections
because the debtor disclosed the previous
transfers to the creditors and was making
a good-faith effort to recover the
property at the time an involuntary bank
ruptcy petition was filed. Id. at 1346.
Adeeb, after being threatened by this
creditors, consulted with an attorney who
advised him to transfer title to several
parcels of property to third parties for
no consideration. Id. at 1341. After
consulting with a second attorney, Adeeb
told his creditors about the transfers,
and the creditors filed for an
involuntary bankruptcy. Id. Adeeb
attempted to recover the properties, and
the creditors objected to the discharge
based on section 727(a)(2). Id. The Ninth
Circuit interpreted the term "transfer"
in section 727(a)(2) "to mean
’transferred and remained transferred’"
because, they concluded, Congress
intended to deny discharge only to
debtors who try to keep assets hidden
"until after they obtain their discharge
in bankruptcy." Id. at 1344-45.
Adeeb, as other courts have concluded,
appears to contravene the plain language
of the Code. See, e.g., Davis v. Davis
(In re Davis), 911 F.2d 560, 562 (11th
Cir. 1990) (per curiam) ("Congress
certainly was capable of drafting a
statute which would deny a discharge only
when assets were fraudulently transferred
and remained transferred at the time of
filing of bankruptcy proceedings, but it
did not."). However, the Ninth Circuit
felt that this exception would
"encourages honest debtors to recover
property they have transferred" and
permit an "honest debtor to undo his
mistakes and receive his discharge." In
re Adeeb, 787 F.2d at 1345. This
reasoning is not persuasive because the
debtor was in fact dishonest, he tried to
hide assets from creditors, and only
after the debtor discovered he would
likely be caught and pay a penalty did he
reverse the transfers. Furthermore,
section 727(a) already encourages debtors
to be honest, or they will not be able to
obtain a discharge; additional incentives
need not be judicially created. See
Martin v. Bajgar (In re Bajgar), 104 F.3d
495, 501 n.3 (1st Cir. 1997) ("[I]t is
likely that our decision, by denying
discharge, will facilitate this outcome
by deterring petitioners from
fraudulently transferring property within
one year of filing a voluntary bankruptcy
petition in the first place.") (emphasis
added).
Even though Adeeb purports to interpret
the term "transfer" in section 727(a)(2),
the facts surrounding the case and
analysis reveal the court focused on the
equities. "We are also persuaded by
practical considerations that a discharge
should not be denied in the present
situation." In re Adeeb, 787 F.2d at
1345. Rather than finding Adeeb lacked
the intent to defraud, the court was
forced to go another route because it was
clear that Adeeb transferred the
properties with full knowledge and actual
intent to hinder, delay, or defraud his
creditors. Id. at 1341-43. In considering
the same issue, the First Circuit
concluded that expanding the definition
of "transfer" based on equitable
considerations "’has no place under the
Code to the extent the statute addresses
the question.’" In re Bajgar, 104 F.3d at
498 (quoting Levit v. Ingersoll Rand Fin.
Corp., 874 F.2d 1186, 1189 (7th Cir.
1989)).
Further, Adeeb is not on all fours with
this case. Adeeb’s holding was limited to
involuntary petitions, and any commentary
on voluntary petitions was dicta. In re
Adeeb, 787 F.2d at 1346. Unlike Adeeb,
the McWilliamses recovered the property
on May 10, 2000, only after they filed a
voluntary petition for bankruptcy on
March 15, 2000. See In re Bajgar, 104
F.3d at 499-500 (distinguishing In re
Adeeb because in voluntary bankruptcies
"’[t]he Ninth Circuit requires actual
reconveyance of the fraudulently
transferred property before the
bankruptcy filing.’") (citation and
emphasis omitted). Moreover, the
McWilliamses disclosed the transfers and
recovered the properties in March 2000,
well after the Village discovered the
transfers and filed a motion to set them
aside under the UFTA in February 2000.
Cf. In the Matter of Smiley, 864 F.2d at
566 ("The policy behind the Adeeb
decision . . . is not applicable here
where property was recovered only as a
result of the action of the bankruptcy
trustee and court."). Though they had
disclosed the transfer in their petition,
when asked by the Trustee if they had
transferred anything in the past year,
Ida McWilliams responded "no." It was not
until the Trustee asked a second specific
question about the properties did Daniel
McWilliams acknowledge the transfers. By
the time the McWilliamses rectified the
fraud, the Village had already expended
considerable efforts to recover the
properties and prevent the discharge in
bankruptcy. Cf. In re Davis, 911 F.2d at
561 n.2 ("The creditor presumably
incurred legal fees and expenses when he
brought an action challenging the
fraudulent transfer."). Even if the
Village did not suffer any harm, the
McWilliams’ intent to defraud is all that
is needed for a petition to be denied
under section 727(a)(2). See, e.g., In
the Matter of Krehl, 86 F.3d at 744 n.4
("Yet so long as the debtor acted with
the requisite intent under Section
727(a)(2), his discharge may be denied
even if creditors did not suffer any
harm."); In the Matter of Smiley, 864
F.2d at 569.
2. Property Transfer
In the final paragraph of its ruling,
the bankruptcy court noted that it did
not believe the conveyance of the deeds
was valid under Illinois law because the
McWilliamses did not physically deliver
the deeds to their grandchildren. Under
Illinois law, "delivery of a deed is
essential to the operation and validity
of a conveyance," but physical delivery
is only one means of completing the
transfer. See, e.g., Calcutt v. Gaylord,
114 N.E.2d 340, 343 (Ill. 1953).
"Delivery is determined by the intention
of the grantor manifested by words and
acts or the circumstances surrounding the
transaction," and "[t]he intent to
deliver may be shown by direct evidence
or presumed from acts and declarations of
the parties . . . ." Id.; Herron v.
Underwood, 503 N.E.2d 1111, 1118 (Ill.
App. 5th Dist. 1987). The McWilliamses
have consistently maintained that they
intended to make an innocent gift of the
properties to their grandchildren. If we
accept the bankruptcy court’s
interpretation, it would have been
unnecessary for the McWilliamses to have
their grandchildren properly execute and
file deeds reconveying the properties
back to the McWilliamses.
Moreover, we believe that the term
"transfer" in the Code is defined broadly
enough to encompass the transfer in this
case. Cf. Grogan, 498 U.S. at 284, 289
("Congress amended the Bankruptcy Act in
1970 to make nondischargeability a
question of federal law independent of
the issue of the validity of the
underlying claim."). "Transfer" is
defined as: "every mode, direct or
indirect, absolute or conditional,
voluntary or involuntary, of disposing of
or parting with property or with an
interest in property, including retention
of title as a security interest and
foreclosure of the debtor’s equity of
redemption." 11 U.S.C. sec. 101(54).
"’Under this definition, any transfer of
an interest in property is a transfer,
including a transfer of possession,
custody, or control even if there is not
transfer of title . . . .’" In the Matter
of Smiley, 864 F.2d at 565 (quoting S.
Rep. No. 95-989, 95th Cong., 2d Sess. 26-
27 (1978), reprinted in 1978 U.S.C.C.A.N.
5787, 5813, on the Bankruptcy Reform
Act); see also In re Bajgar, 104 F.3d at
498-99 ("[T]he legislative history of
Section 101(54), which defines
’transfer,’ explains that ’[t]he
definition of transfer is as broad as
possible.’ Limiting the definition of
’transferred’ to ’transferred and
remained transferred,’ in fact, would
contradict the drafters’ intent.")
(quoting S. Rep. No. 989, 95th Cong.)
(citations omitted); In re Davis, 911
F.2d at 562. The recording of the deeds
and acceptance of consideration
demonstrates that the conveyance in this
case was a "transfer" under the
definition in 11 U.S.C. sec. 101(54).
Whether the McWilliams’ actions are
defined as a "transfer" or "concealment,"
it is clear that they attempted to hide
the property from their creditors. The
recording, but failure to deliver the
deeds, demonstrates the McWilliamses
attempted to create the appearance that
they no longer owned the property. Thus,
even if the property was not found to
have been "transferred," it could be
found to have been "concealed." See In re
Keeney, 227 F.3d 679, 682-83 (6th Cir.
2000) (quoting the bankruptcy court’s
finding that the debtor concealed
property by having it titled "’in his
parents’ names’" while retaining a
beneficial interest in it); Friedell v.
Kauffman (In re Kauffman), 675 F.2d 127,
128 (7th Cir. 1981) (per curiam) ("The
transfer of title with attendant
circumstances indicating that the
bankrupt continues to use the property as
his own is sufficient to constitute a
concealment."). However, the fact that
the McWilliamses did later disclose the
transfer when they filed their petition
might, in other circumstances, mitigate
the concealment. See Gullickson v. Brown
(In re Brown), 108 F.3d 1290, 1293 (10th
Cir. 1997) (distinguishing between
"concealment" and "transfer" in section
727(a)(2), and finding that the debtor
transferred but did not conceal the
transaction because he placed it on his
bankruptcy schedules). In this case, it
is more likely that the disclosure was
prompted by the fact that the Village had
discovered the transfer and moved to have
it set aside under the UFTA.
The McWilliamses are certainly
unfortunate debtors, yet they are not
exactly honest debtors either. From the
transcript of the hearing and the
bankruptcy court’s ruling, there is
little doubt that the judge empathized
with the McWilliamses, and because they
disclosed the conduct and reconveyed the
properties the judge felt there was no
harm done. The counsel for the Village
was also quite displeased with this
outcome, and despite the judge’s
admonishment that an appeal would be a
waste of money, pursued the action with
two appeals. As the bankruptcy judge, we
are confounded as to the Village’s
vigorous pursuit of this case because it
is unlikely that the Village will see any
financial gain, and any benefits will
likely be offset by attorney’s fees. The
McWilliamses appeared pro se at oral
arguments before this court and we too
were not unmoved by their plight, but the
Village’s objections are clearly valid
under the law./5
CONCLUSION
In enacting the Bankruptcy Code,
Congress has determined that attempts,
successful or not, to conceal, transfer,
remove or destroy property cannot be
later cured by remedial conduct,
including undoing any transfers, if the
transfer occurred within one year of
filing the bankruptcy petition. The
debtors in this case cannot shield
themselves from a creditor’s objections,
based on section 727(a), through attempts
to remedy the fraud by disclosing the
transfers and reconveying the property
after they filed for bankruptcy. The
judgment of the bankruptcy court granting
the debtors’ discharge petition is
therefore, Reversed and Remanded for further
proceedings not inconsistent with this
opinion. Circuit Rule 36 to apply to both
the district and bankruptcy courts on
remand.
FOOTNOTES
/1 William Shakespeare, The Merchant of Venice 1.3
& 4.1 (1596). According to the Village’s attorney
this appeal is not about the debt (bond); it is
a "matter of principle." Similarly, in The Mer-
chant of Venice, Shylock, the money lender, when
offered several times the debt (bond) refused
stating the bond was forfeit and he wanted his
"pound of flesh." Id. It was only through the
rather creative reading of the law by Balthasar
(a doctor of laws, who was in fact Portia in
disguise) that the result was avoided. Id. Portia
read the contract as allowing the taking of the
pound of flesh, but not the drawing of any blood
(because it was not mentioned). Id. As we shall
see, no such creative reading of the law was
available here to save the debtors’ petition.
/2 See Census Bureau, U.S. Dep’t of Commerce, Pro-
files of General Demographic Characteristics
2000, 2594 (Issued May 2001). For those not
familiar with Pekin, Illinois (population of
33,857), it is about 170 miles southwest of
Chicago. Id. at 1759 & 2466. Also, San Jose
actually straddles the border of Mason and Logan
Counties, and the Census Bureau counted a little
less than half of the population as residing in
Logan County and a little over half as residing
in Mason County. See id. at 848-865 & 1037-1050.
/3 The McWilliamses contend that the building was
actually two buildings, and that the later amend-
ment to the court demolition order permitting the
demolition of the second building after the fact
acknowledges this. The Village states that there
was a single building with a lean-to attached,
which shared a common wall, and that the amended
court order simply recognized that there was a
single building. A "lean-to" is defined as: "a
wing or extension of a building having a lean-to
roof" or "a rough shed or shelter with a lean-to
roof." Merriam-Webster’s Collegiate Dictionary
662 (10th ed. 1996). We need not resolve this
point of contention as it does not alter our
analysis.
/4 The McWilliamses had previously been represented
by two different attorneys, one in the state
proceedings and another initially in the bank-
ruptcy proceedings. They told the bankruptcy
judge that the attorneys with whom they spoke
said it would cost them more than $3,000 "up
front," and that the result would be the same
with or without an attorney.
/5 In The Merchant of Venice, the Duke of Venice
sought to find a way to deny Shylock his "pound
of flesh," but admitted he must grant it under
the law. Shakespeare, The Merchant of Venice at
3.3, 4.1.