Hogan, Lillie R. v. Marshall, Marilyn O. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 13, 2005
Decided June 29, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-1032 Appeal from the United
States District Court for the
In the Matter of: Northern District of Illinois,
Eastern Division.
LILLIE R. HOGAN,
Debtor-Appellant. No. 04 C 5960
Blanche M. Manning, Judge.
Order
Section 109(g)(2) of the Bankruptcy Code provides that no one may commence a
new bankruptcy proceeding within 180 days after “the debtor requested and obtained
the voluntary dismissal of [a] case following the filing of a request for relief from the
automatic stay provided by section 362 of this title.” Lillie Hogan wanted to extend
the effective time limit of a Chapter 13 plan by dismissing her pending proceeding
(which per 11 U.S.C. §1322(d) cannot exceed five years, only five months of which
remained) and immediately filing another. A creditor had filed a motion to lift the
automatic stay in Hogan’s original proceeding, however, so both Bankruptcy Judge
Squires and Marilyn Marshall, the Chapter 13 Standing Trustee, warned her that
§109(g)(2) precludes the plan. Hogan nonetheless dismissed the pending case and
promptly tried to file a new petition. The Trustee not only opposed this maneuver but
also sought an award of attorneys’ fees for frivolous litigation. Hogan retaliated by
No. 05-1032 Page 2
calling the Trustee’s motion frivolous and demanding an award of attorneys’ fees in
her favor. Relying on §109(g)(2), the bankruptcy judge dismissed the new petition; the
judge also denied both requests for sanctions. The district judge affirmed. 2004 U.S.
Dist. LEXIS 24535 (N.D. Ill. Nov. 30, 2004).
Hogan’s initial petition was dismissed on April 21, 2004. The 180-day bar expired
in October 2004, before the district judge’s decision. Hogan could have filed another
Chapter 13 proceeding then but did not, and at oral argument her lawyer told us that
she had not done so to this day and no longer wants to go through bankruptcy again.
Nor did counsel articulate any loss that Hogan suffered during the 180 days when,
under the bankruptcy judge’s ruling, she was unable to file. No creditor seized assets
during that window.
The district judge did not remark on the possibility of mootness. The briefs in this
court by Hogan and the Trustee (none of Hogan’s creditors participated) likewise ig-
nore mootness and debate the interpretation of §109(g)(2) as if the judges were edi-
tors of a law review; neither side discusses how postponing the opportunity to file a
second bankruptcy petition affected Hogan and what relief could be apt today. Only
the possibility of attorneys’ fees remains. Yet the Supreme Court has held that “[t]he
mere fact that continued adjudication would provide a remedy for an injury [the cost
of legal services] that is only a byproduct of the suit itself does not mean that the in-
jury is cognizable under Art. III.” Diamond v. Charles, 476 U.S. 54, 70–71 (1986). See
also, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107–08 (1998);
Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990). Once the substantive
claim in the litigation becomes moot, a quest for fees does not justify a resolution of
the dispute on the merits.
That leaves the possibility that a 180-day delay in filing a new bankruptcy is suf-
ficiently short that the controversy is capable of repetition but evading review. That
doctrine, however, applies only when the dispute is capable of repetition for the same
litigants. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); Weinstein v. Bradford, 423
U.S 147 (1975). Hogan tells us that she has sworn off bankruptcy. If she has a
change of heart (or of fortunes) it remains unlikely that the sequence of motion to
modify the automatic stay, dismissal, and refiling within 180 days would recur. Such
a remote possibility does not make this a live case or controversy.
The judgment of the district court is vacated, and the case is remanded with in-
structions to remand to the bankruptcy court for vacatur and dismissal as moot. See
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).