Curtis A. Crofford v. Conseco Finance ( 2003 )


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  •            United States Bankruptcy Appellate Panel
    FOR THE EIGHTH CIRCUIT
    No. 02-6075 EA
    In re:                                 *
    *
    Curtis A. Crofford, and                *
    Maria E. Crofford,                     *
    *
    Debtors.                         *
    *
    Curtis A. Crofford, and                *        Appeal from the United States
    Maria E. Crofford,                     *        Bankruptcy Court for the
    *        Eastern District of Arkansas
    Appellants,                      *
    *
    v.                         *
    *
    Conseco Finance Servicing Corporation, *
    *
    Appellee.                        *
    Submitted: October 29, 2003
    Filed: December 8, 2003
    Before SCHERMER, DREHER, and FEDERMAN, Bankruptcy Judges
    SCHERMER, Bankruptcy Judge
    The debtors, Curtis A. Crofford and Maria E. Crofford (“Debtors”), appeal the
    bankruptcy court order denying the Debtors’ motion to reopen their case and
    imposing monetary sanctions on the Debtors’ counsel. We have jurisdiction over the
    appeal from the final order of the bankruptcy court denying the motion to reopen and
    imposing sanctions. See 28 U.S.C. § 158(b). For the reasons set forth below, we
    partially affirm and partially reverse and remand.
    ISSUE
    The issue on appeal is whether the court properly imposed monetary sanctions
    on the Debtors’ counsel payable to Conseco Finance Servicing Corp. (“Creditor”)
    pursuant to 11 U.S.C. § 105 and Federal Rule of Bankruptcy Procedure 9011. We
    conclude that: (1) the court failed to provide notice of its intent to impose sanctions
    pursuant to 11 U.S.C. § 105 and therefore could not rely on such provision for the
    award of sanctions; (2) the court gave proper notice authorizing an award of sanctions
    pursuant to Federal Rule of Bankruptcy Procedure 9011; (3) the court properly
    exercised its discretion to determine that sanctions were appropriate under Rule 9011;
    and (4) the court’s ability to award monetary sanctions was limited by Rule
    9011(c)(2) to an award payable to the court and not payable to an opponent.
    BACKGROUND
    On January 25, 2000, the Debtors executed two promissory notes in the
    principal amounts of $13,000 and $61,858.50 in favor of the Creditor. The two
    promissory notes were secured by real estate mortgages.
    On August 20, 2000, the Debtors filed a petition for relief pursuant to Chapter
    7 of the Bankruptcy Code. On December 14, 2000, the Debtors received a discharge
    and on January 16, 2001, the Debtors’ bankruptcy case was closed.
    2
    In 2001, the Creditor filed a complaint in equity in the Circuit Court of Pulaski
    County, Arkansas (“State Court”) seeking a reformation of the legal descriptions and
    foreclosure of its interest under the mortgages. Thereafter the Debtors filed a motion
    to reopen their bankruptcy case to address the issue of the impact of their discharge
    on the Creditor’s claims raised in the State Court litigation. The bankruptcy court
    denied the motion to reopen. The Debtors filed a motion to reconsider the denial of
    the motion to reopen which the bankruptcy court also denied. The Debtors appealed
    the orders denying the motion to reopen and denying the motion to reconsider to this
    court which denied as untimely the appeal with respect to the order denying the
    motion to reopen and affirmed the order denying the motion to reconsider. Crofford
    v. Conseco Finance Servicing Corp. (In re Crofford), 
    277 B.R. 109
    (B.A.P. 8th Cir.
    2002).1
    On July 23, 2003, the Debtors filed another motion to reopen their bankruptcy
    case. In the second motion, the Debtors sought to reopen the case to file an adversary
    proceeding against the Creditor requesting damages for violation of the discharge
    injunction of 11 U.S.C. § 524 and seeking a determination regarding the
    dischargeability of a certain indebtedness of the Debtors to the Creditor created by
    the deed reformation litigation pending before the State Court. On August 16, 2002,
    the bankruptcy court entered its order denying the motion to reopen. The court
    determined that the allegations in the second motion to reopen were substantially the
    same as the allegations the Debtors had made in the first motion, which was the
    subject of the prior appeal to this court. The court raised the issue of a possible
    violation of Federal Rule of Bankruptcy Procedure 9011 and directed the Debtors and
    their counsel to show cause why they should not be sanctioned under Rule
    9011(c)(1)(B) for raising legal issues that had previously been raised and decided.
    1
    For a more detailed history of the dispute between these parties, see our
    prior 
    opinion, 277 B.R. at 111-12
    .
    3
    On August 26, the Debtors filed a motion to alter or amend the order denying
    the second motion to reopen. After the Creditor filed its response to such motion and
    the Debtors filed their reply, the Debtors filed a motion to amend the motion to alter
    or amend. A hearing was held on September 18, 2002, on the motion to alter or
    amend, the motion to amend the motion to alter or amend, and the show cause. The
    Creditor orally moved for an award of attorneys’ fees and costs at the hearing. The
    court denied the motion to alter or amend and the motion to amend the motion to alter
    or amend. The court ruled that it would enter sanctions and took that matter under
    advisement. On November 14, 2002, the court entered its order denying the motion
    to alter or amend judgment, denying the motion to amend the motion to alter or
    amend, and imposing monetary sanctions on the Debtors’ counsel in the amount of
    $3,000 payable to the Creditor.
    The Debtors appealed the November 14 order as well as the original order
    denying the second motion to reopen. The Debtors abandoned the appeal with
    respect to the denial of the motion to reopen and the reconsideration of such denial.2
    The sole issue to be decided at this juncture is the propriety of the award of
    sanctions.3
    2
    The Creditor filed bankruptcy during the pendency of this appeal. Despite
    several opportunities to obtain relief from the automatic stay in the Creditor’s
    bankruptcy proceeding, the Debtors failed to do so. The Debtors indicated in their
    brief that the pending appeal is limited to the issue of sanctions imposed on the
    Debtors’ counsel. (Appellants’ Brief at 3.)
    3
    The Debtors’ counsel rather than the Debtors is the true party-in-interest to
    this appeal and should have filed a separate notice of appeal. This technical
    deficiency does not prevent our jurisdiction over this appeal, however. Retail
    Flooring Dealers of America, Inc. v. Beaulieu of America, LLC, 
    339 F.3d 1146
    ,
    1148-49 (9th Cir. 2003); Laurino v. Tate, 
    220 F.3d 1213
    , 1218 (10th Cir. 2000);
    Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints
    v. Associated Contractors, Inc., 
    877 F.2d 938
    , n.1 (11th Cir. 1989). See also
    Gordon v. Unifund CCR Partners, 
    345 F.3d 1028
    (8th Cir. 2003)(caption for
    4
    STANDARD OF REVIEW
    An award of sanctions involves a consideration of three types of issues: factual,
    legal, and discretionary. Cooter & Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 399, 
    110 S. Ct. 2447
    , 2457, 
    110 L. Ed. 2d 359
    (1990) First, a court must consider factual
    questions regarding the nature of the attorney’s inquiry prior to filing the pleading
    and the factual basis for the pleading. Next, a court must consider legal issues to
    determine if the pleading is warranted by existing law or a good faith argument for
    a change in the law and whether the attorney’s conduct violated Rule 9011. Finally,
    if a court determines that sanctions are warranted, it must exercise discretion to
    ensure the sanction is appropriately tailored to the situation. 
    Id. We review
    the award of sanctions for an abuse of discretion. Cooter & Gell
    v. Hartmarx Corp., 
    496 U.S. 384
    , 399-405, 
    110 S. Ct. 2447
    , 2457-2461, 
    110 L. Ed. 2d 359
    (1990); Gordon v. Unifund CCR Partners, 
    345 F.3d 1028
    , 1030 (8th Cir. 2003);
    MHC Inv. Co. v. Racom Corp., 
    323 F.3d 620
    , 624 (8th Cir. 2003); Coonts v. Potts, 
    316 F.3d 745
    , 753 (8th Cir. 2003); Schwartz v. Kujawa (In re Kujawa), 
    270 F.3d 578
    , 581-
    82 (8th Cir. 2001); Grunewaldt v. Mut. Life Ins. Co. of New York (In re Coones Ranch,
    Inc.), 
    7 F.3d 740
    , 743 (8th Cir. 1993); Ebersold v. DeLaughter (In re DeLaughter),
    
    213 B.R. 839
    , 841 (B.A.P. 8th Cir. 1997). The review of the imposition of sanctions
    under Federal Rule of Bankruptcy Procedure Rule 9011 necessarily requires an
    examination of the underlying factual and legal claims. Cooter & Gell v. Hartmarx
    
    Corp., 496 U.S. at 405
    , 110 S.Ct. at 2461; MHC Inv. Co. v. Racom 
    Corp., 323 F.3d at 624
    . We reverse the award of sanctions only if it was based on an erroneous view
    of the law or on a clearly erroneous assessment of the evidence. Cooter & Gell v.
    Hartmarx 
    Corp., 496 U.S. at 405
    , 110 S.Ct. at 2461; MHC Inv. Co. v. Racom 
    Corp., 323 F.3d at 624
    ; 
    DeLaughter, 213 B.R. at 841
    . The facts are not in dispute; however,
    appeal of sanction award against attorney is in the name of client and not
    attorney).
    5
    whether the Debtors’ motion was warranted by existing law or a nonfrivolous
    argument for extension, modification, or reversal of the law is in dispute.
    Accordingly, we review the award of sanctions to determine if it was based on an
    erroneous view of the law and to ensure that the court did not abuse its discretion in
    tailoring the award.
    DISCUSSION
    A bankruptcy court can award sanctions pursuant to 11 U.S.C. § 105 or Federal
    Rule of Bankruptcy Procedure 9011. Section 105 of the Bankruptcy Code recognizes
    the bankruptcy court’s inherent authority to issue any order that is necessary or
    appropriate to carry out the provisions of this title. 11 U.S.C. § 105(a). Rule 9011(c)
    authorizes a court to impose sanctions by motion or on its own initiative. In either
    event, due process requires notice and an opportunity to respond before the
    imposition of sanctions.
    Every pleading filed by a represented party must be signed by an attorney of
    record. Fed. R. Bankr. P. 9011(a). By presenting a motion to the court, the signing
    attorney is certifying, to the best of the attorney’s knowledge, information, and belief,
    formed after an inquiry reasonable under the circumstances, that the motion is not
    being presented for any improper purpose; the legal contentions therein are warranted
    by existing law or by a nonfrivolous argument for the extension, modification, or
    reversal of existing law or the establishment of new law; and the factual allegations
    therein have or are likely to have evidentiary support. Fed. R. Bankr. P. 9011(b).
    If, after notice and a reasonable opportunity to respond, a court determines that
    a motion was presented for an improper purpose, was not warranted by law or a
    nonfrivolous argument for extension, modification, or reversal thereof or the
    establishment of new law, or lacks evidentiary support, the court may impose
    sanctions on the attorney who filed the motion. Fed. R. Bankr. P. 9011(c). A request
    6
    for sanctions can be initiated by motion of a party or by a show cause order issued
    by the court. Fed. R. Bankr. P. 9011(c)(1). Any sanction imposed must be limited
    to what is sufficient to deter repetition of such conduct or comparable conduct by
    others similarly situated. Fed. R. Bankr. P. 9011(c)(2). Sanctions may be monetary
    or non-monetary; however, where the court initiates the award of sanctions by a show
    cause order, monetary sanctions are limited to the award of a penalty payable to the
    court. Fed. R. Bankr. P. 9011(c)(2).4 Furthermore, a court may not issue monetary
    sanctions on its own initiative unless the court issues a show cause order before a
    voluntary withdrawal or settlement of the offensive pleading. Fed. R. Civ. P.
    9011(c)(2)(B).
    In the instant case, the court issued its order for the Debtors and their counsel
    to show cause why they should not be sanctioned under Rule 9011(c)(1)(B) for filing
    a motion to reopen raising legal issues that had previously been raised and decided.
    The Debtors and their counsel were not given notice that the court would rely on any
    4
    Federal Rule of Bankruptcy Procedure 9011(c)(2) states as follows:
    Subject to the limitations in subparagraphs (A) and (B), the sanction
    may consist of, or include, directives of a nonmonetary nature, an
    order to pay a penalty into court, or, if imposed on motion and
    warranted for effective deterrence, an order directing payment to
    the movant of some or all of the reasonable attorneys’ fees and
    other expense incurred as a direct result of the violation.
    (Emphasis added.) Subparagraph (A) prohibits the imposition of monetary
    sanctions on a represented party for filing a pleading which is not warranted by
    existing law or a nonfrivolous argument for the extension, modification, or
    reversal of existing law or the establishment of new law. A represented party is
    entitled to rely on its attorney to determine if a pleading is warranted by existing
    law. Subparagraph (B) prohibits a court-initiated award of monetary sanctions if
    the offensive pleading is voluntarily withdrawn or settled prior to the issuance of a
    show cause order.
    7
    authority other than Rule 9011(c)(1)(B) for the imposition of sanctions. Given the
    serious nature of sanctions, due process requires specific notice of the possibility of
    sanctions. Here, the imposition of sanctions should be limited to the authority
    pursuant to which notice of the possibility of sanctions was issued. Therefore the
    court’s award of sanctions must comply with Rule 9011, and cannot be justified by
    reliance on the court’s inherent powers or 11 U.S.C. ¶ 105.5 Accordingly, we review
    the award of sanctions under Rule 9011 only.
    The Debtors and their counsel were given proper notice and an opportunity to
    respond to the court’s concerns that they had violated Rule 9011 by attempting to re-
    raise a legal argument which they had already lost. In response to the show cause
    order, the Debtors filed the motion to alter or amend which set forth the Debtors’
    counsel’s reliance on a certain opinion issued by the Ninth Circuit Bankruptcy
    Appellate Panel, In re Menk, 
    241 B.R. 896
    (B.A.P. 9th Cir. 1999), for the proposition
    that the denial of the prior motion to reopen was not the law of the case and therefore
    did not predetermine the outcome of the second motion to reopen. The Debtors’
    counsel cited the Menk decision in support of its request to reconsider the decision
    not to reopen the case and in support of its argument that the second motion to reopen
    was not legally frivolous. At the hearing when given the opportunity to respond to
    the show cause order by supplementing prior pleadings, the Debtors’ counsel replied,
    “Nothing further, Your Honor.” (Transcript at page 4.)
    In determining whether the Debtors’ counsel violated Rule 9011, the court
    must consider whether the second motion to reopen was warranted by existing law
    or a nonfrivolous argument for the extension, modification, or reversal of existing law
    or the establishment of new law. The Debtors’ counsel’s personal belief in the merits
    of the second motion is insufficient to avoid the imposition of sanctions. Rather, an
    5
    In its order imposing sanctions, the court noted that a bankruptcy court
    has inherent power to sanction persons appearing before it.
    8
    objective analysis is required to determine whether a reasonable and competent
    attorney would believe in the merits of the second motion. Coonts v. Potts, 
    316 F.3d 745
    , 753 (8th Cir. 2003).6 Here, the Debtors’ counsel had previously filed a motion
    to reopen which was denied by the bankruptcy court. The Debtors’ counsel appealed
    that order to this court which affirmed the prior order. The Debtors filed the second
    motion again seeking the very relief which had been denied by the bankruptcy court
    and upheld on appeal. A reasonable attorney who had lost a motion, appealed, and
    lost on appeal should not expect to file the same motion again and get a different
    result. Otherwise orders would have no finality.
    The facts had not changed between the time of the first motion to reopen and
    the time of the second motion to reopen. The only difference was that at the time of
    the second motion, the litigation pending before the State Court was farther along in
    the process. This is not a new or materially different fact which would warrant a
    different outcome for the second motion. Additionally, the Debtors’ counsel was
    under no special time pressure, a factor which might otherwise impact the
    reasonableness of her pre-filing legal research; rather, the dispute with the Creditor
    was the same one which dated back to the original bankruptcy filing.7
    6
    We note that other circuits require a higher mens rea standard comparable
    to the standard for imposing contempt where a court initiates the award of
    sanctions under Rule 9011. See, e.g. Kaplan v. Daimler Chrysler, A.G., 
    331 F.3d 1251
    , 1255 (11th Cir. 2003); In re Pennie & Edmonds, LLP, 
    323 F.3d 86
    (2nd Cir.
    2003). While the Eighth Circuit Court of Appeals has recognized that the standard
    (i.e. claims must be warranted by existing law or by a nonfrivolous argument for
    the extension, modification, or reversal of existing law) is applied with particular
    strictness where the sanctions are imposed on the court’s own motion, MHC Inv.
    Co. v. Racom Corp., 
    323 F.3d 620
    , 623 (8th Cir. 2003), it applied the objective
    standard of a reasonable attorney to the court-initiated award of sanctions in the
    Coonts case.
    7
    See, e.g., Grunewaldt v. Mut. Life Ins. Co. of New York (In re Coones
    Ranch, Inc.), 
    7 F.3d 740
    , 743 (8th Cir. 1993), recognizing time pressure as a factor
    9
    The Debtors’ counsel exhibited a lack of respect for the bankruptcy court and
    for this court by filing the second motion after both the trial court and this court had
    denied counsel’s request in the first motion. Such lack of respect supports the
    imposition of sanctions. Ebersold v. DeLaughter (In re DeLaughter), 
    213 B.R. 839
    ,
    844 (B.A.P. 8th Cir. 1997).
    The Debtors’ counsel disregarded the established law of the case when filing
    the second motion to reopen. The Debtors’ counsel argues that the denial of a motion
    to reopen does not establish the law of the case nor prevent a second motion to
    reopen. The Debtors’ counsel relies on a certain opinion issued by the Ninth Circuit
    Bankruptcy Appellate Panel, In re Menk, 
    241 B.R. 896
    (B.A.P. 9th Cir. 1999), for this
    proposition. The Debtors’ counsel’s reliance on the Menk opinion is misguided. A
    reasonable reading of the opinion does not support the conclusion that it stands for
    the proposition for which it has been cited by the Debtors’ counsel.8 The Menk case
    did not involve serial motions to reopen; rather it involved a single motion to reopen
    which was granted and the appeal of which was ultimately determined to be moot.
    The Debtors’ counsel’s reliance on Menk for the proposition that an order denying a
    motion to reopen a bankruptcy case does not become the law of the case does not rise
    to the level of what a reasonable and competent attorney would believe. Coonts v.
    in evaluating the reasonableness of a pre-filing inquiry.
    8
    In Menk, a judgment creditor moved to reopen a Chapter 7 case to
    challenge the dischargeability of a certain debt. The debtor unsuccessfully
    attempted to appeal the order reopening the case. Thereafter the bankruptcy court
    entered judgment excepting the debt from discharge. The debtor then renewed his
    appeal of the order reopening his bankruptcy case but did not appeal the judgment
    of nondischargeability. On appeal, the Ninth Circuit Bankruptcy Appellate Panel
    held that the appeal was moot because reopening the bankruptcy case was not a
    pre-requisite to subject matter jurisdiction over a non-dischargeability proceeding
    and that the debtor lacked standing to appeal the order reopening the case.
    10
    Potts, 
    316 F.3d 745
    , 753 (8th Cir. 2003). Consequently, the court properly concluded
    that the Debtor’s counsel had violated Rule 9011 and that sanctions were warranted.
    Once a court determines that a violation of Rule 9011 has occurred and that an
    award of sanctions is warranted, the court must decide what sanctions are appropriate.
    In fashioning the award, the court must comply with the limitations set forth in Rule
    9011. Sanctions may normally be monetary or non-monetary. Fed. R. Bankr. P.
    9011(c)(2). However, monetary sanctions may be awarded following a show cause
    order only if the show cause order was issued before a voluntary dismissal or
    settlement of the claim out of which the sanctionable conduct arose. Fed. R. Bank.
    P. 9011(c)(2)(A). Here the second motion to reopen was never dismissed or settled.
    Therefore an award of monetary sanctions was appropriate.
    Sanctions must be limited to what is sufficient to deter repetition of such
    conduct or comparable conduct by others similarly situated. Fed. R. Bankr. P.
    9011(c)(2). The sanctions imposed – $3,000 – were appropriately limited to an
    amount sufficient to deter the inappropriate conduct.
    Where the court initiates the award of sanctions by a show cause order,
    monetary sanctions are limited to the award of a penalty payable to the court. Fed.
    R. Bankr. P. 9011(c)(2). The court has no discretion to award monetary sanctions
    payable to an opponent in such circumstances. Accordingly, the bankruptcy court’s
    award of monetary sanctions payable to the Creditor must be reversed.9
    9
    We note that the Creditor asked for fees and costs at the hearing on the
    show cause order and the motion to alter or amend. While an award of sanctions
    may be payable to an opponent when sanctions are requested by the opponent, a
    request for sanctions by an opponent must be in writing and must comply with the
    safe-harbor provisions of Rule 9011(c)(1)(A). Consequently, the Creditor’s oral
    request for fees at the show cause hearing cannot justify the award of monetary
    sanctions payable to the Creditor.
    11
    CONCLUSION
    The bankruptcy court did not abuse its discretion in determining that the
    Debtors’ attorney’s conduct in filing the second motion to reopen warranted an award
    of sanctions under Rule 9011. Nor did it abuse its discretion in setting a dollar
    amount of sanctions which was appropriate in the circumstances. However, where
    the sanctions were initiated on the court’s show cause order, an award of monetary
    sanctions was limited to a penalty payable to the court. Consequently, the order
    imposing monetary sanctions payable to the Creditor is reversed and remanded for
    a determination of appropriate sanctions under the circumstances.
    A true copy.
    Attest:
    CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
    EIGHTH CIRCUIT
    12