Wheeler Financial, Inc. v. J.P. Morgan Chase Bank, N.A. ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-2681, 21-2682, 21-2687 & 21-2782
IN THE MATTER OF:
RAMON AGUIRRE and BERTHA AGUIRRE,
Debtors.
APPEALS OF:
WHEELER FINANCIAL, INC., and JPMORGAN CHASE BANK,
N.A.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 18-cv-07915, 19-cv-01232 & 19-cv-01233 — Martha M. Pacold, Judge.
____________________
ARGUED MAY 24, 2022 — DECIDED JUNE 16, 2022
____________________
Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.
EASTERBROOK, Circuit Judge. Litigants’ indifference to pro-
cedures has made a mess of this bankruptcy proceeding. A
$40,000 debt for real estate taxes is the nub of contention, and
the litigants must have spent multiples of that sum on legal
fees. Bankruptcy Judge Barnes has entered and revised nu-
merous orders, including multiple plans of reorganization.
Two district judges have found fault with some aspects of the
2 Nos. 21-2681, 21-2682, 21-2687 & 21-2782
bankruptcy judge’s orders. But the main problem lies with the
litigants.
Ramon and Bertha Aguirre own several properties in
northern Illinois. JPMorgan Chase Bank loaned them about
$1.3 million on the security of one parcel, a restaurant in Cook
County. After the Aguirres stopped paying real estate taxes,
Wheeler Financial paid on their behalf and received the right
to a tax deed once a redemption period had expired. The Bank
could have paid the taxes, or redeemed from Wheeler, and
added the amount to the loan in order to protect its interest.
Had the Bank done so, none of the events that we must con-
sider would have occurred. But the Bank didn’t.
After a few years of “saving” on real estate taxes, the
Aguirres stopped paying other debts and filed a bankruptcy
petition. They listed a few tax debts but not the ones to Cook
County and, derivatively, Wheeler. Indeed, the Aguirres did
not list either the County or Wheeler as creditors, and neither
was served with notice or a summons. The Bank knew about
the unpaid taxes but it, too, failed to ensure that the County
or Wheeler was served.
The Aguirres proposed a plan of reorganization that
would pay all back property taxes. At this point the tax debts
were a ma``er of record, but no one saw to it that the County
or Wheeler was served. The judge approved the plan of reor-
ganization even though the principal Class 2 creditors (the
County and Wheeler) did not vote—unsurprising, as they
had not been notified. Time passed, the Aguirres did not pay
up, and Wheeler finally appeared in the bankruptcy court to
ask the judge to lift the automatic stay so that it could go to
state court to get a tax deed. Judge Barnes obliged—as did a
state judge, who issued the requested deed.
Nos. 21-2681, 21-2682, 21-2687 & 21-2782 3
District Judge Norgle reversed and held, among other
things, that the stay should have been left in place because the
confirmed plan superseded Wheeler’s lien even though it had
not been paid. 565 B.R. 646 (N.D. Ill. 2017). He remanded for
further proceedings. Wheeler dutifully told the state court,
which revoked the tax deed—though the suit in Illinois re-
mains pending, and Wheeler hopes to get another tax deed
some day. On remand, Bankruptcy Judge Barnes declared the
tax deed “void” and approved a revised plan of reorganiza-
tion, this one calling on the Bank to pay Wheeler about
$65,000. More appeals led to a ruling by District Judge Pacold
that the state judge’s order was not “void”: reinstatement of a
stay does not retroactively invalidate judicial decisions made
while no stay was outstanding. 2021 U.S. Dist. LEXIS 156866(N.D. Ill. Aug. 19, 2021). Nonetheless, Judge Pacold con-
cluded, the order approving the revised plan and thus knock-
ing out Wheeler’s lien is valid, and the state judge’s rescission
of the deed made any other dispute academic. Both Wheeler
and Chase have appealed to this court.
Wheeler observes that it still has not been served with pro-
cess, and it contends that the plan of reorganization therefore
does not affect it. If it is not bound by the plan, then its lien
passes through the bankruptcy, see Long v. Bullard, 117 U.S.
617 (1886); In re Penrod, 50 F.3d 459 (7th Cir. 1995), and the
plan needs to be re-revised to eliminate all Wheeler-specific
clauses. But if that is so then this case would not be over in the
bankruptcy court, which would mean that the district court’s
order is not final and we would lack appellate jurisdiction un-
der 28 U.S.C. §§ 158, 1291. Bankruptcy comprises many dis-
putes that are stand-alone suits outside bankruptcy, and an
appeal is permissible if the district court has finally resolved
one such dispute. See, e.g., Bullard v. Blue Hills Bank, 575 U.S.
4 Nos. 21-2681, 21-2682, 21-2687 & 21-2782
496, 501 (2015); In re Morse Electric Co., 805 F.2d 262 (7th Cir.
1986). A final determination of Wheeler’s rights under a con-
firmed plan would qualify for appeal. But if the plan does not
affect Wheeler, there’s nothing to appeal. The order isn’t final
if the plan needs more revision, and Wheeler isn’t aggrieved
by an order that does not affect its rights.
So, to decide whether we have jurisdiction, we need to de-
termine whether the plan of reorganization binds Wheeler.
And the answer to that question could dispose of Wheeler’s
argument that its lien passes through bankruptcy. We think
the best way to get a handle on this problem is to lay out a
partial timeline of the bankruptcy.
• June 30, 2014: The Aguirres file for bankruptcy.
• July 3, 2014: The Aguirres certify that they’ve no-
tified their creditors. Despite this certification,
Wheeler and the Cook County Treasurer are not
notified.
• July 25, 2014: The Aguirres serve creditors (again
excluding Cook County and Wheeler) with a no-
tice telling them when proofs of claim are due.
• August 11, 2014: The Cook County tax liability is
mentioned for the first time, in an order by Judge
Barnes extending the automatic stay and ordering
debtors to pay the second installment of their
2013 real estate taxes relating to their Chicago
property (this installment is not part of the debt
that Wheeler purchased).
• August 12, 2014: The Bank files a response to the
Aguirres’ motion to make adequate-protection
payments. The Bank relates that the Aguirres
Nos. 21-2681, 21-2682, 21-2687 & 21-2782 5
haven’t paid real estate taxes on the restaurant
property in years. An appendix lists the amount
of tax liability and identifies Wheeler as the tax
debt’s purchaser. This appears to be the first no-
tice to Judge Barnes that Wheeler is a creditor—
though the Bank does not ensure that Wheeler be-
comes a party.
• September 26, 2014: Claim bar date for non-gov-
ernmental creditors. Wheeler naturally does not
file a claim.
• November 5, 2014: The Aguirres file their Chapter
11 plan. The Cook County Treasurer’s claim is
listed under Class 2, but only in vague terms. The
plan does not mention Wheeler.
• December 10, 2014: Wheeler files in the Circuit
Court of Cook County a petition for a tax deed. It
does not name the Bank as a litigant, and the
Aguirres, who were served, default.
• December 16, 2014: The Aguirres file an amended
plan that lists back taxes on the restaurant as
$40,000. This plan identifies both the Cook
County Treasurer and Wheeler as creditors for
that amount. The Aguirres and the Bank still do
not serve Wheeler with process.
• February 10, 2015: The Aguirres file their second
amended plan, which again lists Wheeler as a
creditor for around $40,000. It remains unserved.
• February 23, 2015: The Aguirres file a Certificate
of Service of Class 2 Ballots, certifying that a copy
of (1) the ballot, (2) the court’s order setting a
6 Nos. 21-2681, 21-2682, 21-2687 & 21-2782
hearing in April, (3) the Second Amended Disclo-
sure Statement, and (4) the Second Amended Plan
has been sent to Wheeler and various Cook
County officers. The Certificate is supposed to say
what means of notice will be used, but it does not.
It also specifies that the Plan is binding if con-
firmed, and it gives the recipient the choice to ei-
ther accept or reject the Second Amended Plan.
• March 1, 2015: Wheeler says that it received the
Certificate of Service of Class 2 Ballots “on or
about” this date. This is the first time that Wheeler
has been served with anything.
• April 4, 2015: A ballot report filed with the bank-
ruptcy court says that Wheeler’s vote has not
been received. The record does not contain evi-
dence that Wheeler ever voted for or against this
plan.
• April 15, 2015: Judge Barnes files a hand-written
Plan Amendment adding a provision that re-
quires the Aguirres to pay the debt to Wheeler
within 6 months. The plan is confirmed on this
date. This amendment apparently was the result
of negotiation among the Aguirres, the Bank, and
Wheeler—though Wheeler did not file anything
in the bankruptcy court.
• October 15, 2015: The Aguirres miss the deadline
for paying off Wheeler’s debt. The Bank does not
step in to pay in their stead.
• November 19, 2015: Wheeler files a Motion for Re-
lief from Stay that treats the Plan as binding on it.
Nos. 21-2681, 21-2682, 21-2687 & 21-2782 7
Wheeler asserts that the Aguirres’ “post-confir-
mation default … entitles Wheeler to stay relief
for ‘cause’ pursuant to [11 U.S.C.] §362(d)(1).”
That statute applies “on request of a party in in-
terest,” so by making this motion Wheeler identi-
fies itself as a party. Wheeler also says that
“[u]nder the Plan, Wheeler was allowed a ‘Class
2’ Claim … and was entitled to payment.” From
here on, Wheeler files many other papers in the
bankruptcy court and the district court.
Judges Barnes, Norgle, and Pacold all appear to have as-
sumed that Wheeler has been a party since November 19,
2015, if not earlier. When asked at oral argument whether his
client is a party, Wheeler’s lawyer said yes—though counsel
hedged about when and how this happened, observing that
Wheeler was never served with process. Yet while conceding
that Wheeler is a party, counsel strenuously contended that
Wheeler’s lien passes through bankruptcy unaffected, which
is possible only if Wheeler is not a party and therefore is not
bound by the confirmed plan of reorganization. See Penrod, 50
F.3d at 461.
To say that this sequence leaves a lot to be desired is an
understatement. But it seems safe to conclude, if only because
of counsel’s concession, that Wheeler is a party, making it
bound by the plan unless we reverse. Wheeler did not become
a party through the means normally employed for that pur-
pose, but an entity can waive service and consent to party sta-
tus even though the norms of party-making have not been fol-
lowed. See, e.g., Pennoyer v. Neff, 95 U.S. 714, 735–36 (1878).
And a litigant also can waive its right to participate in the vot-
ing on a proposed plan of reorganization. Wheeler did not
8 Nos. 21-2681, 21-2682, 21-2687 & 21-2782
vote, but it negotiated for be``er terms, got the terms it sought,
accepted the plan’s confirmation as a fait accompli, and
claimed rights under it. Those steps effectively consent to
have the lien replaced by a cash payment and waive any enti-
tlement to be``er or earlier notice.
Wheeler had other means of a``acking this plan. It could
have contended, for example, that the roughly $65,000 it
stands to receive falls short of the “indubitable equivalent” of
the tax lien’s value. 11 U.S.C. §1129(b)(2)(A)(iii). But Wheeler
does not contend that it has been forced to take a haircut, even
considering the running of interest on the original $40,000
debt.
Because Wheeler is a party, the plan has been confirmed,
and Wheeler has bypassed its principal opportunities to con-
test the plan, there is nothing more for us to do. The confirmed
plan knocks out any entitlement that Wheeler may once have
had to obtain a tax deed and foreclose on its lien—knocks it
out, that is, if the Aguirres or Chase at last pay as the plan
provides, something they should have done seven years ago.
As long as it remains unpaid, Wheeler need not dismiss its
state-court proceeding, though dismissal will be obligatory
once payment has been tendered. The parties have contested
many other legal issues, but nothing else need be said to re-
solve these appeals.
AFFIRMED