Wachovia Securities, LLC v. Loop Corporation ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3860
WACHOVIA SECURITIES, LLC,
Plaintiff-Appellee,
and
GOLF VENTURE, LLC,
Intervenor-Appellee,
v.
LOOP CORPORATION,
Defendant-Appellee,
APPEAL OF: BANCO PANAMERICANO INCORPORATED.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:05-cv-03788 — Joan B. Gottschall, Judge.
ARGUED APRIL 4, 2013 — DECIDED AUGUST 8, 2013
Before MANION, TINDER, and HAMILTON, Circuit Judges.
TINDER, Circuit Judge. This appeal presents yet another
chapter in the litigation saga surrounding the many companies
2 No. 11-3860
owned in part and in whole by Leon A. Greenblatt. Greenblatt,
often referred to as “the ‘bad boy of Chicago arbitrage,’”
became a “cult hero” among Chicago traders in the late 1990s
after his unorthodox trading strategies resulted in a big
payday. Greg Burns, Wily Trader Incurs Wrath of Judge, Chi.
Tr ib., June 7, 2010, available at
http://articles.chicagotribune.com/2010-06-07/business/ct-biz-
0607-burns--20100607_1_chicago-trader-bankruptcy-chicago-
stock-exchange. The new millennium has been less kind to
Greenblatt, however, as he has repeatedly found himself in
court defending how he uses his “web of corporations.”
Stephanie Gleason, Trader with ‘Scattered’ History Sees Another
Company into Chapter 11, Wall St. J. Blogs (May 23, 2012),
http://blogs.wsj.com/bankruptcy/2012/05/23/trader-with-
%E2%80%98scattered%E2%80%99-history-sees-another-
company-into-chapter-11. Indeed, Greenblatt was in our court
only last year on a related appeal. There, we affirmed a district
court’s order piercing the corporate veil of one of Greenblatt’s
companies, Loop Corporation, and voiding a lien over that
company’s assets held by a second Greenblatt company, Banco
Panamericano, Inc. See Wachovia Secs., LLC v. Banco
Panamericano, Inc., 674 F.3d 743, 751-59 (7th Cir. 2012) (hereinaf-
ter “Wachovia I”).
The same two Greenblatt companies involved in the 2012
appeal are also involved in the present appeal. Greenblatt is 50
percent owner of Loop Corporation, and Greenblatt’s family
trust is 100 percent owner of Banco Panamericano, Inc. Both
Loop and Banco are incorporated in the state of South Dakota,
and both have their principal place of business in Illinois. Also
involved in the present case are three non-Greenblatt compa-
No. 11-3860 3
nies: Wachovia Securities, LLC (organized under Delaware law
with its principal place of business in Virginia), Golf Venture,
LLC (organized under Delaware law with its principal place of
business in Illinois), and EZLinks Golf, Inc. (incorporated in
Delaware with its principal place of business in Illinois).
Although appellant Banco came before our court only last
year, Banco finds itself here once again—apparently trying to
fight the effects of our 2012 decision against it in Wachovia I, 674
F.3d at 759. We believed that our decision last year in Wachovia
I was clear enough, especially since we characterized the
situation as “a particularly compelling case” for voiding
Banco’s lien against Loop, given the Greenblatt companies’
“convoluted web of entities, insider transactions, and sham
loans all designed to avoid financial responsibility.” Id. at 749.
In spite of our clear directive last year, Banco nonetheless
believes it retains an interest in what happens to Loop’s assets.
Shortly before we issued the Wachovia I opinion last year, the
district court ordered the sale of Loop’s only valuable asset, EZ
Links stock, in order to satisfy two other secured liens against
Loop held by Golf Venture and Wachovia. Banco asserts that
it has standing on appeal to contest the district court’s deci-
sions surrounding this sale. We disagree. Our holding in
Wachovia I makes Banco, at best, an unsecured creditor of Loop.
Golf Venture and Wachovia are secured creditors and, thus,
would always take ahead of Banco. No matter how many
convoluted ways Banco tries to characterize its situation, Banco
simply has no injury here. For that reason, we dismiss Banco’s
appeal for lack of standing, and we also grant Golf Venture’s
4 No. 11-3860
and Wachovia’s Fed. R. App. P. 38 motions against Banco for
bringing a frivolous appeal.
I
Because we are dismissing this appeal for lack of standing,
we will keep our discussion of the facts brief. In the early part
of the previous decade, Loop incurred an enormous amount of
debt. In 2000, Banco extended a $9.9 million line of credit in
exchange for a blanket lien over Loop’s assets and a 12%
interest rate. Wachovia I, 674 F.3d at 749. Loop defaulted on this
line of credit when it matured the following year; nevertheless,
Banco expanded the line of credit by several million dollars in
2002 and continued to loan Loop money until 2004. Although
Banco’s early lien against Loop’s assets initially gave Banco
senior secured creditor status, Banco lost this status once the
district court voided the lien (a decision that we affirmed last
year). Id. at 758-59.
The next major debt that Loop incurred came in February
2001, when Loop purchased millions of shares of EZ Links
stock from Golf Venture. Loop paid for this stock in part with
a promissory note to Golf Venture in the amount of $1 million.
Loop then defaulted on the note when it matured the following
year. Golf Venture sued Loop upon default, and in 2002, the
Circuit Court of Cook County, Illinois, entered a judgment of
over $1.2 million in Golf Venture’s favor. Golf Venture re-
corded this judgment with the Cook County Recorder of Deeds
in early 2003.
The final major debt that Loop incurred came in May 2001,
when a failed margin transaction left Loop indebted to its
brokerage firm, Wachovia, in the amount of $1,885,751.
No. 11-3860 5
Wachovia I, 674 F.3d at 750. When Loop had failed to pay off
this debt by 2003, Wachovia took Loop to arbitration under the
terms of the brokerage agreement. The Department of Arbitra-
tion of the New York Stock Exchange issued a $2,349,000
award against Loop in May 2005, and Wachovia filed a petition
in federal district court to confirm the arbitration award shortly
thereafter. The district court granted Wachovia’s motion in
September 2005, entering judgment in the amount of
$2,478,418.80 against Loop (in addition to the $2,349,000 award,
the court awarded $90,000 in attorneys’ fees and almost $40,000
in interest). Wachovia registered the judgment and almost
immediately began collection enforcement proceedings against
Loop.
Eight years later, Wachovia is still trying to collect its
judgment against Loop through the present lawsuit.
Wachovia’s initial collection efforts failed for two reasons. First,
Loop transferred almost all of its valuable assets to another
Greenblatt company, so the only asset remaining by the time
that Wachovia began its collection efforts was the EZ Links
stock. Second, Banco claimed to have creditor priority over
Wachovia. Banco’s claim was particularly problematic for
Wachovia’s collection efforts since Banco was actually in
possession of the EZ Links stock certificates as part of its
security agreement with Loop. (In fact, Banco’s possession of
these certificates is what got the company involved in the
present lawsuit. Although initially a collection dispute between
Wachovia and Loop only, Wachovia served Banco with a
citation to discover Loop’s assets once Wachovia learned that
Banco possessed the EZ Links stock certificates.)
6 No. 11-3860
At that point, Wachovia attempted (1) to pierce Loop’s
corporate veil in order to reach the assets of Greenblatt and his
business partners and (2) to void Banco’s blanket lien against
Loop’s assets in order to destroy Banco’s creditor priority. The
district court held a bench trial on these two issues and decided
both in Wachovia’s favor in October 2008. See Wachovia
Securities, LLC v. Jahelka, 586 F. Supp. 2d 972, 980-1014 (N.D. Ill.
2008). Wachovia likely thought it was out of the woods (and
finally close to collecting its judgment) once we affirmed the
district court’s decision last year. Wachovia I, 674 F.3d at 759.
Yet here Wachovia is again, a year later, still out $2,478,418.80
plus interest.
Nor has Golf Venture had any better luck collecting its 2002
judgment against Loop. In the years following its judgment,
Golf Venture has actively pursued collection proceedings
against Loop in the Circuit Court of Cook County. But Golf
Venture has encountered the same problems as Wachovia in
trying to collect its judgment from Loop. Banco has stood in
the way of Golf Venture’s collection efforts as Loop’s alleged
senior creditor. And even ignoring Banco’s alleged seniority,
the substantial depletion of Loop’s assets has stood in the way
of Golf Venture’s collection efforts. Thus, once the district court
decided in Wachovia’s collection proceedings to pierce Loop’s
corporate veil and void Banco’s blanket lien in October 2008,
Golf Venture was quick to jump on Wachovia’s bandwagon
and take advantage of its favorable ruling. In August
2009—shortly after Wachovia had filed a motion for Loop to
turn over enough EZ Links stock to satisfy Wachovia’s
judgment—Golf Venture filed a motion to intervene in
Wachovia’s suit pursuant to Fed. R. Civ. P. 24(c). Golf Venture
No. 11-3860 7
pointed out to the district court that it had an earlier, superior
lien to Wachovia’s lien, and while it had no objection to a
turnover and court-ordered sale of EZ Links stock, Golf
Venture wanted to make sure that it was first in line to collect
the proceeds of the sale. When the parties went before the
magistrate judge assigned to the case to discuss Golf Venture’s
motion to intervene, Banco’s counsel at the time, Susan
Valentine, had the following exchange with the magistrate
judge:
The Court: … [I]f you have an objection, you can
raise it at this point.
Ms. Valentine: We have been litigating this
before the Circuit Court of Cook County since
2002 with Golf Venture, so I’m not sure that it
belongs before your Honor when there is a state
court judge that has been litigating this issue for
years.
The Court: I do understand that you have raised
those legal arguments, but for purposes of what
is the motion for a turnover, do you have an
objection to their intervening for that limited
purpose, raising whatever issues they believe are
relevant for the court to consider?
Ms. Valentine: Well, other than what I have just
stated, no.
8 No. 11-3860
Over no real objection from Banco’s counsel—indeed, after
Banco had even admitted to the court that “Golf Venture has
a judgment [against Loop] that predates Wachovia’s”—the
magistrate judge unsurprisingly granted Golf Venture’s
motion to intervene on August 4, 2009.
As soon as the district court allowed Golf Venture to
intervene in Wachovia’s suit, Golf Venture immediately filed
its own motion for Loop to turn over the EZ Links stock. The
district court granted both Wachovia’s and Golf Venture’s
motions for turnover on February 18, 2011. Once the motions
for turnover were granted, the parties had to determine the
best way to sell the EZ Links stock, and after several months of
negotiations, arranged for EZ Links to redeem 7,774,668 of its
own shares from Loop at a price that would more than satisfy
both Wachovia’s and Golf Venture’s judgments. The district
court approved this agreement on September 20, 2011, and it
seemed that Wachovia and Golf Venture would at last see their
judgments satisfied.
But never one to make things easy, Banco threw yet another
roadblock in Wachovia’s and Golf Venture’s way. On Septem-
ber 22, 2011—only two days after the district court approved
the sale of stock back to EZ Links—Banco filed a motion to
modify the turnover order from February 2011. In this motion,
Banco principally contended that Golf Venture’s lien was
invalid, making “Golf … no better than any other unsecured
creditor.” Without any acknowledgment of its failure to raise
this argument previously, Banco asked the district court to
“remove any reference to Golf” from the turnover order,
“grant [Banco] the costs of bringing this motion,” and “grant
No. 11-3860 9
[Banco] such other and further relief as this Court deems
proper.”
With this motion, the district judge became justifiably
exasperated with Banco’s delay tactics. In her November 7,
2011, order denying Banco’s motion to amend, the district
judge pointed out that “Banco has had ample time—over two
years—in which to make the arguments it makes today… .
Banco provides no reason why it was unable to, as it puts it,
‘catch this scam until now.’” As a result, the judge concluded
the order by warning Banco that “any attempt to relitigate
those issues that have already been decided by the court will
result in a sanction of $1000 per incident.”
On the same day that the district judge denied Banco’s
motion to amend the turnover order, the judge also granted a
motion for attorneys’ fees previously brought by Wachovia.
Wachovia based the motion on its brokerage agreement with
Loop, which had expressly provided for the recovery of
“reasonable attorneys’ fees and interest at the highest lawful
rate in the event [Wachovia had to] take[] legal action to collect
any amount due.” In granting Wachovia’s motion, the court
remarked that it was “convinced that Wachovia, as a prevail-
ing party who has awaited satisfaction of its judgment for over
six years, was entitled to [fees and costs] where they [we]re
adequately supported.”
Although the district court was convinced that Wachovia
deserved attorneys’ fees and costs, it went through Wachovia’s
bill for $267,119 in attorneys’ fees and $8,100.31 in costs in great
detail, knocking off almost $30,000 in fees and $6,500 in costs
that the court found to be either insufficiently documented or
10 No. 11-3860
not recoverable. The court’s detailed analysis of Wachovia’s
bill is particularly notable given the failure of any opposing
party to file objections to the awarding of fees and costs. (Both
Loop and Banco, of course, had desired to file objections to
Wachovia’s motions for fees and costs, but neither was able to
do so in a timely fashion. Loop and Banco both filed motions
for an extension of time to file objections on the day that these
objections had originally been due to the district court. Loop
blamed its failure to file timely objections on its counsel, who
had taken a last-minute trip to Zurich, Switzerland, during the
time allotted. Banco also blamed its failure on its counsel, who
had been on vacation in Los Angeles and had been observing
the Jewish holiday of Succos during the time allotted. The court
denied both motions on October 25, 2011, because
“[e]xtensions at this stage [we]re unreasonable, especially
given that counsel did not request extensions until the date
their responses were due, even though they were aware of
their own holiday or travel obligations in advance of that
date.”) As a result of its thorough analysis of Wachovia’s bill,
the district court ordered Loop to pay Wachovia an additional
$238,888.58 in fees and costs from the proceeds of the EZ Links
sale. Both Wachovia’s and Golf Venture’s judgments were
finally satisfied in full from the proceeds of the EZ Links sale
on November 28, 2011. It took Wachovia over six years to
collect its judgment and Golf Venture over nine.
Yet even after the satisfaction of their judgments, Wachovia
and Golf Venture were still not out of the woods. On December
14, 2011, Banco alone appealed five of the district court’s
decisions, including (1) its decision to grant Golf Venture’s
motion to intervene on August 4, 2009, (2) its decision to grant
No. 11-3860 11
Golf Venture’s motion for turnover on February 18, 2011, (3) its
decision to deny Banco’s motion to amend and remove Golf
Venture from the turnover order on November 7, 2011, (4) its
decision to deny Banco’s motion for an extension of time to file
objections to Wachovia’s motion for attorneys’ fees and costs
on October 25, 2011, and (5) its decision to award Wachovia
$238,888.58 in attorneys’ fees and costs on November 7, 2011.
Loop, notably, did not file an appeal with our court—even
though Loop alone had paid for Wachovia’s judgment, Golf
Venture’s judgment, and Wachovia’s attorneys’ fees and costs
out of the proceeds from the sale of its EZ Links stock. Loop, as
a result, was styled as an appellee (along with Wachovia, Golf
Venture, and EZ Links), and Banco was styled as the sole
appellant.
Throughout the course of Banco’s appeal to our court, Loop
has not made much effort to support Banco’s cause—despite
the fact that Loop is the only party that suffered a financial loss
as a result of the district court’s decisions and despite the fact
that Loop shares common ownership with Banco. Loop even
failed to file an appellee response brief, prompting us to issue
a show cause order for Loop to explain why the appeal should
not be submitted for consideration without the filing of a brief
and oral argument. Loop responded to the order two weeks
later, arguing that it was “properly before this court as an
appellant,” instead of an appellee. Besides the obvious reasons
why Loop’s and Banco’s interests were closely aligned, Loop
pointed out that their interests were aligned since “the interest
rate on its debt owing to Banco … is approximately twice the
judgment interest rate that it would owe to Golf Venture
LLC … . [Therefore,] its economic interest favors supporting
12 No. 11-3860
the appeal filed by Banco.” The next month, we denied Loop’s
request to proceed as an appellant and directed Loop to file a
response brief. Loop ignored our request and has not filed
anything in our court since.
Loop, not Banco, was the party ordered to turn over its EZ
Links stock so that it could be sold back to EZ Links. Loop, not
Banco, was the party ordered to pay Wachovia millions of
dollars from the proceeds of the stock sale in order to satisfy a
prior judgment. Loop, not Banco, was the party ordered to pay
Golf Venture millions of dollars from the proceeds of the stock
sale in order to satisfy a prior judgment. Finally, Loop, not
Banco, was the party ordered to pay Wachovia hundreds of
thousands of dollars in attorneys’ fees and costs from the
proceeds of the stock sale. Loop clearly has suffered a financial
loss as a result of the five district court orders that Banco
appeals. But we cannot find a single loss—financial or
otherwise—that Banco has suffered as a result of the five
district court orders that it appeals. Without a loss or injury of
any kind, Banco lacks standing, and we must dismiss the
present appeal. We explain our grounds for dismissal more
thoroughly in the next section.
II
This case was initially a judgment-collection action between
Wachovia and Loop alone. Banco only became involved in the
case because it claimed to be Loop’s senior creditor, and as a
result, was in possession of Loop’s only valuable asset. Last
year, we soundly refuted Banco’s claim to be Loop’s senior
creditor, characterizing Banco’s blanket lien over Loop’s assets
as “‘a vehicle to avoid Loop’s creditors by ensuring that all of
No. 11-3860 13
Loop’s assets were fully encumbered by a blanket lien in favor
of Greenblatt, the dominant shareholder of both Banco and
Loop.’” Wachovia I, 674 F.3d at 756 (quoting Jahelka, 586 F.
Supp. 2d at 986). We affirmed the district court and voided
Banco’s lien because we believed that it represented an
“extraordinary attempt to prevent creditors from collecting on
a debt, a circumvention of the principle that when a business
fails, shareholders are paid last.” Wachovia I, 674 F.3d at 758.
After our decision last year, Banco should not have any
interest remaining in this case. With its blanket lien invali-
dated, Banco is—at most—an unsecured creditor of Loop.
Wachovia, in contrast, is a secured creditor of Loop. (Thank-
fully, Banco has never contested Wachovia’s secured creditor
status; it has only contested Wachovia’s priority.) The only
other party involved in this case, Golf Venture, is also a
secured creditor: Golf Venture has a valid, registered judgment
against Loop. Although Banco now contests Golf Venture’s
secured creditor status, it previously admitted as much to the
district court, stating in an earlier filing that “Golf Venture has
a judgment that predates Wachovia’s.” (This statement, of
course, was made in a self-serving context, when Banco was
trying to prevent Wachovia from collecting on its judgment
against Loop.) Under the basic principles of secured-transac-
tion law, “secured creditors must be paid in full before unse-
cured creditors retain any interest” in a debtor’s assets. Wilkow
v. Forbes, Inc., 241 F.3d 552, 554 (7th Cir. 2001).
Thus, even if we assume that Banco is an unsecured
creditor of Loop, secured creditors like Wachovia and Golf
Venture are entitled to resolution of their claims before Banco
acquires any interest whatsoever in Loop’s assets. Despite its
14 No. 11-3860
lack of interest in the dispute between Loop and its secured
creditors, Banco has filed an appeal contesting the district
court’s resolution of this dispute. But without any interest,
Banco has no standing to file an appeal. Standing to file an
appeal requires an “injury caused by the judgment rather than
injury caused by the underlying facts.” Transamerica Ins. Co. v.
South, 125 F.3d 392, 396 (7th Cir. 1997) (quotation and citation
omitted). As a result, if a party cannot show that it has suffered
an “adverse effect” from the district court’s judgment, then
that party lacks standing to appeal. Id. (quotation and citation
omitted); see also Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper,
445 U.S. 326, 347-48 (1980) (“It is this constitutional limitation
[in Article III, § 2], and not any rule of practice, that has
impelled federal courts uniformly to require a showing of
continuing adverse effect in order to confer standing to
appeal.” (quotation and citation omitted)).
Banco has not suffered an adverse effect from any of the
five district court decisions that it contests. First, Banco has not
suffered any adverse effect from the district court’s decision to
grant Golf Venture’s Rule 24(c) motion to intervene on August
4, 2009. As a secured creditor, Golf Venture would have always
been entitled to collect from Loop ahead of Banco. In fact, the
only two parties that were potentially affected by the district
court’s granting of Golf Venture’s Rule 24 motion were
Wachovia (since Golf Venture claimed to have creditor priority
over Wachovia) and Loop (since Golf Venture intervened in
order to collect its judgment against Loop). But neither
Wachovia nor Loop appeal the granting of this motion.
Second, Banco has not suffered any adverse effect from the
district court’s decision to grant Golf Venture’s motion for
No. 11-3860 15
turnover on February 18, 2011. Once again, as a secured
creditor, Golf Venture would have been entitled to proceeds
from the EZ Links stock sale long before Banco. Moreover, the
two parties potentially affected by the district court’s decision,
Wachovia and Loop, have not appealed. Third—and for
exactly the same reasons—Banco has not suffered any adverse
effect from the district court’s decision to deny Banco’s motion
to remove Golf Venture from the turnover order on November
7, 2011.
Fourth, Banco has not suffered any adverse effect from the
district court’s decision to deny Banco’s motion for an exten-
sion of time to file objections to Wachovia’s motion for attor-
neys’ fees and costs. Wachovia’s motion asked for its attorneys’
fees and costs to be paid by Loop—not Banco. Banco never had
any interest in this fees and costs dispute. That dispute arose
pursuant to a clause in the brokerage contract between Loop
and Wachovia. Banco was not a party to that contract. Thus,
this dispute should not have concerned any parties besides
Wachovia and Loop. Fifth, and finally, Banco has not suffered
any adverse effect from the district court’s decision to award
Wachovia $238,888.58 in attorneys’ fees and costs on Novem-
ber 7, 2011. Loop alone was responsible for the payment of
these fees and costs.
Even though it is quite clear that Banco has not been injured
by any of the five district court decisions that it challenges,
Banco boldly tries to turn our own language against us in order
to establish an injury. Banco paraphrases our decision affirm-
ing the piercing of Loop’s corporate veil in Wachovia I, 674 F.3d
at 751-57, as finding that “Banco is Loop and Loop is Banco.”
Therefore, Banco reasons, if Loop is injured, then Banco is also
16 No. 11-3860
injured, so Banco must have standing to appeal any decision
that Loop would have standing to appeal. In essence, Banco
desires to use the previous piercing of its corporate veil to its
own advantage. But just because a court pierces a corporation’s
veil in one instance does not mean that all courts henceforth
should pierce that corporation’s veil, no matter the underlying
facts.
In fact, according to Illinois law, which both parties agree
applies to the present case, a corporation’s veil should only be
pierced on a case-by-case basis when “adherence to the fiction
of separate corporate existence would sanction a fraud or
promote injustice.” Judson Atkinson Candies, Inc. v. Latini-
Hohberger Dhimantec, 529 F.3d 371, 379 (7th Cir. 2008) (citations
omitted). We see no such injustice here by refusing to pierce
Banco’s corporate veil so that it might have standing to appeal;
indeed, we believe that piercing the corporate veil in this
instance would actually create an injustice, forcing Wachovia
and Golf Venture to litigate their judgments against Loop even
longer.
Furthermore, Illinois courts have previously prohibited
corporations from using the doctrine of piercing the corporate
veil in such a fashion. In Main Bank of Chicago v. Baker, 427
N.E.2d 94, 102 (Ill. 1981), the Illinois Supreme Court expressly
stated that a party “cannot assert the equitable doctrine of
piercing the corporate veil to disregard the separate corporate
existence of a corporation he himself created to gain an
advantage which would be lost under his present conten-
tion”—which is exactly what Banco is attempting to do here.
Because “[t]he rules relating to piercing of the corporate veil
are designed to protect those relying on the existence of a
No. 11-3860 17
distinct corporate entity,” the Illinois Supreme Court has
repeatedly expressed support for the general principle that
“the corporate veil is never pierced for the benefit of the
corporation or its stockholders.” In re Rehab. of Centaur Ins. Co.,
632 N.E.2d 1015, 1018 (Ill. 1994); see also Flynn v. Allis Chalmers
Corp., 634 N.E.2d 8, 11 (Ill. App. Ct. 1994) (holding that a
corporation may not pierce its own corporate veil in order “to
frustrate creditors”); Hughey v. Hoffman Rosner Corp., 440
N.E.2d 1049, 1051 (Ill. App. Ct. 1982) (“Defendants have
uniformly been denied the opportunity to pierce their own
corporate veil in order to avoid liability.”).
In other words, Banco cannot “have its cake and eat it too.”
Forsythe v. Clark USA, Inc., 864 N.E.2d 227, 241 (Ill. 2007). Banco
cannot claim to be a separate corporation from Loop in order
to prevent other creditors from accessing Loop’s assets, while
at the same time claiming to be the same corporation as Loop
in order to have standing to fight Loop’s battles on appeal.
Loop, not Banco, was the Greenblatt company injured by the
five decisions of the district court here before us on appeal. If
Loop wanted to appeal these decisions, it had an opportunity
to do so. But since Loop failed to take advantage of this
opportunity, the decisions of the district court stand.
Regardless of how many ways Banco spins the facts of this
case, Banco cannot get around the fact that it lacks an injury.
Nor can Banco get around the fact that “the irreducible
constitutional minimum of standing” required by U.S. Const.
Art. III, §2, demands that Banco have an “injury in fact” before
filing an appeal. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); see also Transamerica, 125 F.3d 392, 395 (7th Cir. 1997)
18 No. 11-3860
(“[S]tanding to appeal is recognized if the appellant can show
an adverse effect of the judgment. Thus even a party who has
properly intervened in a case may not appeal a judgment from
which he or she suffers no adverse effects.” (quotation and
citation omitted)). Moreover, even if Banco were to somehow
convince us that it had an injury, it cannot convince us that its
injury would be “redressed by [our] favorable decision,” which
is another requirement of standing. Lujan, 504 U.S. at 561.
Banco wants our court to throw Golf Venture out of the
present case and to reverse the district court’s order that Loop
pay Wachovia’s fees and costs. But these actions would help
Loop, not Banco. In sum, regardless of how many ways we
spin the facts of this case, there is no possible way for Banco to
have standing to bring the present appeal.
III
Since Banco lacks standing to bring this appeal, we will not
address the merits. Nevertheless, before we conclude, we must
address Wachovia’s and Golf Venture’s Fed. R. App. P. 38
motions for attorneys’ fees and costs incurred during this
appeal. Rule 38 provides, “If a court of appeals determines that
an appeal is frivolous, it may, after a separately filed motion or
notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appel-
lee.” An appeal is frivolous under Rule 38 “when the result is
obvious or when the appellant’s argument is wholly without
merit.” Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d
635, 642 (7th Cir. 2002) (quotation and citation omitted). Here,
Wachovia and Golf Venture claim that Banco’s appeal is
frivolous because Banco very obviously lacks standing to
appeal any of the five district court decisions that it contests.
No. 11-3860 19
We agree with Wachovia and Golf Venture that Banco’s
appeal is frivolous. As we pointed out in the previous section,
Banco lacks standing on multiple grounds, including a clear
lack of injury and lack of redressability. Banco lost nothing
from the district court’s judgment, nor did it stand to gain
anything from this appeal. Consequently, it is clear to us that
Banco filed this appeal “with no reasonable expectation of
altering the district court’s judgment and for purposes of delay
or harassment or out of sheer obstinacy.” Giannopoulous v.
Brach & Brock Confections, Inc., 109 F.3d 406, 412 (7th Cir. 1997)
(quoting Flexible Mfg. Sys. Pty. Ltd. v. Super Prod. Corp., 86 F.3d
96, 101 (7th Cir. 1996)). Banco successfully delayed both
Wachovia and Golf Venture from collecting their multi-million
dollar judgments from Loop for almost a decade. In the past,
we have sanctioned an appellant who delayed an appellee
from collecting a judgment for two years, let alone ten. See
Flexible, 86 F.3d at 101 (imposing Rule 38 sanctions because the
“appeal had absolutely no prospect of success and has served
only to tax the resources of this Court … cost[ing the appellant]
more than two years of delay in collecting its arbitration
award”). Banco has repeatedly obstructed Wachovia’s and Golf
Venture’s paths to collection by making up some new argu-
ment why it is entitled to Loop’s one valuable asset—or at the
very least, making up some new argument why Wachovia and
Golf Venture are not entitled to Loop’s one valuable asset.
The delays end now. Rule 38 serves “both a compensatory
purpose and a deterrent purpose,” and we believe its deterrent
purpose will be particularly well served here by the imposition
of sanctions on Banco. Harris N.A. v. Hershey, 711 F.3d 794, 801
(7th Cir. 2013). The district court has already warned Banco
20 No. 11-3860
regarding its persistence in attempting to block Wachovia and
Golf Venture from collecting their judgments. One of the
district court orders challenged by Banco on appeal character-
izes Banco as “the bad actor here, because yet again Banco
attempts to relitigate issues that have already been decided by
the courts, carefully glossing over or ignoring earlier deci-
sions.” In fact, the last line of that same district court order
specifically warns Banco that “any attempt to relitigate those
issues that have already been decided by the court will result
in a sanction of $1000 per incident.” Apparently these threat-
ened sanctions from the district court were not a sufficient
deterrent for Banco to desist from its vexatious litigation
strategy. We hope that our imposed sanctions will be a
sufficient deterrent for Banco.
Accordingly, we AFFIRM all five decisions of the district
court, and we GRANT both Wachovia’s and Golf Venture’s
motions for sanctions pursuant to Fed. R. App. P. 38. (Golf
seeks a doubling of its costs, but we think a single award of
costs in favor of each appellee is sufficient.) Wachovia and Golf
Venture will have twenty-eight days to submit to the clerk of
this court proper documentation of their attorneys’ fees and
costs expended in defense of this appeal. Banco will then have
fourteen days to file a response to Wachovia’s and Golf’s
documentation. Based upon these filings, we will determine
the appropriate amount of fees and costs to assess, and Banco
will be responsible for reimbursing Wachovia and Golf
Venture for these fees and costs.