In re Yotis

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISIONNov 27, 2019
Case No. 16 BK 30628 (Bankr. N.D. Ill. Nov. 27, 2019)

Case No. 16 BK 30628

11-27-2019

In re: Karen C. Yotis, Debtor.


Chapter 13 MEMORANDUM OPINION ON MOTION TO DETERMINE MORTGAGE FEES
[DKT. NO. 152]

Debtor Karen C. Yotis (the "Debtor") now moves to determine certain post-petition fees and expenses of creditor Oxford Bank and Trust ("Oxford"). For reasons articulated below, Debtor's Motion to "Determine" (and disallow) Mortgage Fees and Expenses of Oxford Bank and Trust Pursuant to Rule 3002.1(e) (the "Second Motion to Determine Fees and Expenses") will be DENIED by separate order to be entered concurrently herewith.

BACKGROUND

A. Case History

On December 21, 1993, Debtor and her husband William Yotis (collectively, the "Yotises") executed a mortgage loan with Oxford (the "Mortgage Agreement"). [Dkt. No. 21, Ex. D]. Specifically, the Mortgage Agreement provided for a loan of $166,500.00 from Oxford, secured by a mortgage on the Yotises' primary residence. [Dkt. No. 21, Ex. D]. In addition, the Mortgage Agreement also provided that "[i]f [the Yotises] [fail] to perform the covenants and agreements contained in [the Mortgage Agreement], or there is a legal proceeding that may significantly affect [Oxford's] rights in the Property (such as a proceeding in bankruptcy . . .)," any payments "necessary to protect the value of the Property and [Oxford's] rights in the Property," including "reasonable attorneys' fees . . . shall become additional debt of [the Yotises] secured by" the mortgage. [Dkt. No. 21, Ex. D].

The Yotises have a history of bankruptcy filings. On June 18, 1999, William Yotis filed for Chapter 7 bankruptcy and was granted a discharge on October 6, 1999. [Bankr. No. 99-19500, Dkt. No. 1 & 7]. On August 6, 2010, Debtor filed for Chapter 7 bankruptcy and was granted a discharge on June 13, 2011. [Bankr. No. 10-35161, Dkt. No. 1 & 42]. After Oxford obtained a judgment of foreclosure and sale as to the Yotises' residence, but before the foreclosure sale could be held, on January 29, 2014, William Yotis filed for Chapter 13 bankruptcy. [Bankr. No. 14- 02689, Dkt. No. 1]. On August 3, 2016, the bankruptcy was dismissed for failure to make plan payments. [Bankr. No. 14-02689, Dkt. No. 305]. On September 26, 2016, two days before the rescheduled foreclosure sale, Debtor filed the present Chapter 13 bankruptcy case (the "Bankruptcy Case"). [Dkt. No. 1].

In that bankruptcy, the Mortgage Agreement was reaffirmed by William Yotis. [Bankr. No. 99-19500, Dkt. No. 5].

Because Debtor did not reaffirm the Mortgage Agreement in that bankruptcy, Debtor's personal liability to the Mortgage Agreement was discharged.

On October 14, 2016, Oxford filed a Motion to Dismiss Debtor's Chapter 13 Case (the "Motion to Dismiss"), arguing that the Bankruptcy Case was filed "in bad faith, in the hopes of preventing her husband William Yotis' senior-secured creditor from selling their residence at a judicial sale." [Dkt. No. 21, at 1]. In the Motion to Dismiss, Oxford argued that since Debtor's personal liability to the Mortgage Agreement was discharged in her 2010 bankruptcy case, the present Bankruptcy Case (which lists a debt to Oxford in the schedules) was filed as a tactical move to avoid the judicial sale and frustrate Oxford's efforts to satisfy its indebtedness. [Dkt. No. 21]. After full briefing, and three evidentiary hearings, Oxford's Motion to Dismiss was ultimately denied on February 16, 2017. [Dkt. No. 64]. Alongside the Motion to Dismiss, Debtor filed an Objection to Oxford's Proof of Claim 4-1 (the "Proof of Claim") and Oxford filed an Objection to Debtor's proposed Plan. [Dkt. No. 30 & 71]. Debtor later withdrew her Objection to Oxford's claim, and Debtor's Plan was ultimately confirmed on June 7, 2017. [Dkt. No. 78 & 79].

On March 16, 2017, Oxford filed a supplement to the Proof of Claim under Bankruptcy Rule 3002.1 (the "First Supplement"), listing $32,273.86 in attorney fees and expenses it claimed were incurred in connection with the Bankruptcy Case and recoverable under the terms of the Mortgage Agreement. [Dkt. No. 89, Ex. 1].

On March 16, 2018, Debtor moved under Bankruptcy Rule 3002.1(e) for a determination of whether the fees and expenses were proper. [Dkt. No. 89]. In her Motion to Determine Mortgage Fees and Expenses re: Rule 3002.1 (the "First Motion to Determine Fees and Expenses"), Debtor argued that the claimed fees were unreasonable as the Motion to Dismiss was filed in bad faith and without proper legal or factual basis; consequently, those costs and fees associated with the Motion to Dismiss should be disallowed. [Dkt. No. 89]. In the First Motion to Determine Fees and Expenses, Debtor also requested disallowance of some or all of the fees and expenses as a sanction under Bankruptcy Rule 3001(c)(2)(D). After briefing, on June 20, 2018, the First Motion to Determine Fees and Expenses was denied. [Dkt. No. 109]. On July 5, 2018, Debtor filed a Motion to Alter or Amend. [Dkt. No. 111]. On July 25, 2018, the Motion to Alter or Amend was denied. [Dkt. No. 113].

On August 7, 2018, Debtor appealed to the District Court. [Dkt. No. 114]. On May 23, 2019, the District Court affirmed the bankruptcy court's rulings. In re Yotis, 2019 WL 2208472, at *6 (N.D. Ill. May 22, 2019). The District Court held that the bankruptcy court did not abuse its discretion when it decided that Oxford's Motion to Dismiss was reasonable given that the Yotises have a history of bankruptcy filings and that the Motion to Dismiss could have been originally granted. Specifically, the District Court held that "the bankruptcy court reasonably held that the totality of the circumstances gave Oxford a reasonable basis for moving to dismiss." Id. At *4. Therefore, because the Mortgage Agreement contained a fee-shifting provision allowing expenses necessary to protect the property or Oxford's rights in the property, including reasonable attorney fees, to be included in the mortgage, the District Court affirmed the bankruptcy court's ruling that those reasonable fees in the First Supplement were allowed as part of Oxford's Proof of Claim. As to the sanctions request, the District Court noted that Debtor had failed to explain or cite any authority for the proposition that a sanction of disallowance of post-petition fees and expenses is allowed (much less required) for Oxford's alleged omission to the Proof of Claim; therefore, Debtor forfeited any argument thereto. Finally, the District Court held that the bankruptcy court did not abuse its discretion in denying reconsideration as Debtor's arguments in the Motion to Alter or Amend therein were bareboned, unsupported, and recycled her original arguments in the First Motion to Determine Fees and Expenses without explaining the purported error committed.

The hearing on the Motion to Dismiss was continued multiple times until Debtor finally came in with records substantiating her claims of income sufficient to support the Plan. Therefore, had the bankruptcy court ruled at the initial hearing, the Motion to Dismiss may have well been granted.

B. The Second Motion to Determine Fees and Expenses

Oxford has since filed four additional supplements to the Proof of Claim after the First Supplement. Specifically, Oxford has claimed fees and expenses totaling:

1. $3,207.69 for the period of July 28, 2017 through January 24, 2018.

2. $13,544.32 for the period of January 25, 2018 through July 18, 2018.

3. $27,982.97 for the period of July 19, 2018 through December 12, 2018.

4. $578.33 for the period of December 13, 2018 through June 18, 2019.

On July 18, 2019, Debtor filed the present Second Motion to Determine Fees and Expenses. [Dkt. No. 152]. Now, Debtor appears to be contesting the entire $13,252.50 in attorney fees and $291.82 in expenses totaling $13,544.32 (collectively, the "Claimed Fees and Expenses") listed in the supplement for the period of January 25, 2018 through July 18, 2018 (the "Third Supplement"). Debtor argues that the Claimed Fees and Expenses are not reasonable and that sanctions should be granted, disallowing some or all of the Claimed Fees and Expenses for Oxford's failure to file Form 410A, the mortgage proof of claim attachment, with its Third Supplement.

On September 19, 2019, Oxford filed a Response to the Second Motion to Determine Fees and Expenses. [Dkt. No. 155]. In its Response, Oxford argues that although Debtor has objected to the entirety of the Claimed Fees and Expenses, Debtor has not provided any specifics nor identified any particular time entries she deems problematic. Oxford asserts that the only reason the Claimed Fees and Expenses are allegedly high is because of Debtor herself. Specifically, Oxford avers that the supposed excessive fees were a product of Debtor's unreasonable positions that were held unpersuasive through multiple proceedings in this Court and on appeal. Oxford argues that Debtor, similar to the First Motion to Determine Fees and Expenses, again has failed to support her arguments and position. Oxford contends that it has adequately supported its Claimed Fees and Expenses with detailed time records specifying the legal services provided and has therefore demonstrated the reasonableness of its fees. As such, Oxford argues, under the fee-shifting provision of the Mortgage Agreement, that Debtor is liable for the Claimed Fees and Expenses. Finally, Oxford argues that disallowance of the Claimed Fees and Expenses is not an appropriate sanction for a supposed omission of a Form 410A as: (1) a more appropriate remedy would be an amendment of the Proof of Claim to include the missing documentation; (2) Debtor waived any arguments as to the Proof of Claim since the plan was confirmed; and (3) Debtor failed to cite to any authority where a court denied post-petition fees based on a failure to attach required documentation to a proof of claim.

Debtor filed a Reply on October 17, 2019. [Dkt. No. 156]. In her Reply, alongside the same arguments originally presented in the Second Motion to Determine Fees and Expenses, oddly enough, Debtor raises arguments that Oxford's Claimed Fees and Expenses in the Third Supplement are unreasonable given Oxford's deficient Motion to Dismiss and Oxford's failure to succeed on the dismissal issue in the Bankruptcy Case.

JURISDICTION AND VENUE

Subject matter jurisdiction lies under 28 U.S.C. § 1334. The district court may refer bankruptcy proceedings to a bankruptcy judge under 28 U.S.C. § 157 and 28 U.S.C. § 1334, and this proceeding was thereby referred here by Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. Venue lies under 28 U.S.C. § 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).

DISCUSSION

A. Federal Bankruptcy Procedure Rule 3002.1

Federal Bankruptcy Procedure Rule 3002.1 ("Rule 3002.1") sets forth procedures applicable in chapter 13 cases to claims "(1) that are secured by a security interest in the debtor's principal residence, and (2) for which the plan provides [under 11 U.S.C. § 1322(b)(5)] that either the trustee or the debtor will make contractual installment payments." Fed. R. Bankr. P. 3002.1(a). A creditor with such a claim must file "a notice itemizing all fees, expenses, or charges (1) that were incurred in connection with [its] claim after the bankruptcy case was filed, and (2) that [it] asserts are recoverable against the debtor or against the debtor's principal residence . . . within 180 days after the date on which the fees, expenses, or charges are incurred." Fed. R. Bankr. P. 3002.1(c). The notice must be in the prescribed official form (Official Form 410S2) and, unlike proof of claims, the notice alone does not constitute prima facie evidence of its validity. Fed. R. Bankr. P. 3002.1(d); Fed. R. Bankr. P. 3001(1). Therefore, since no presumption of validity exists, the notice must describe the charges with particularity. A debtor may challenge any itemized fee, charge or expense within one year after such notice is given. Fed. R. Bankr. P. 3002.1(e). After such a motion of the determination of fees, expenses, or charges is made, "the court shall, after notice and hearing, determine whether payment of any claimed fee, expense, or charge is required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the Code." Fed. R. Bankr. P. 3002.1(e).

Here, the claim held by Oxford is secured by a mortgage on Debtor's principal residence and is treated as a 11 U.S.C. § 1322(b)(5) claim under Debtor's confirmed plan. [Dkt. No. 67 & 79]. Therefore, the procedural requirements of Rule 3002.1 are made applicable to Oxford's claim. Fed. R. Bankr. P. 3002.1(a). On July 18, 2018, Oxford filed the Third Supplement on Official Form 410S2 in accordance with Rule 3002.1(c) and (d). In the Third Supplement, Oxford itemizes detailed time entries for attorney fees and costs. Debtor does not dispute Oxford's compliance with notice procedures under this rule as the Claimed Fees and Expenses all did arise during the prior 180 days. In the Third Supplement, Oxford asserts the Claimed Fees and Expenses as recoverable against Debtor's principal residence.

The Claimed Fees and Expenses were incurred starting from February 7, 2018 and therefore fail within 180 days of the filing date of the Third Supplement on July 18, 2018.

The Claimed Fees and Expenses are not recoverable against Debtor herself as her personal liability to the Mortgage Agreement was discharged in her prior Chapter 7 bankruptcy. [Bankr. No. 10-35161, Dkt. No. 1 & 42].

Debtor has timely moved for a determination of the Claimed Fees and Expenses. Fed. R. Bankr. P. 3002.1(e). Oxford filed the Third Supplement on July 8, 2018. Debtor filed the Second Motion to Determine Fees and Expenses on July 18, 2019, exactly one year after the Third Supplement was filed. After full briefing, a hearing on the Second Motion to Determine Fees and Expenses was held on October 30, 2019. Accordingly, it must now be determined whether payment of the Claimed Fees and Expenses is required under the underlying agreement and applicable nonbankruptcy law. Fed. R. Bankr. P. 3002.1(e).

B. Oxford May Recover the Claimed Fees and Expenses if Commercially Reasonable

The underlying agreement is the Mortgage Agreement. Debtor does not challenge the interpretation, or the validity, of the Mortgage Agreement. As stated above, the Mortgage Agreement contains a fee-shifting provision that permits payments made by Oxford, including reasonable attorney fees, to become additional debt secured by the mortgage if such payments were necessary to protect the value of Debtor's primary residence or to protect Oxford's rights in the property. Accordingly, the Claimed Fees and Expenses become part of Oxford's Proof of Claim if the Claimed Fees and Expenses were indeed necessary to protect the value of Debtor's primary residence or to protect its rights in the property.

As the property is located in Illinois, the substantive nonbankruptcy law applicable here is Illinois law. Because Illinois allows contractual fee-shifting provisions for reasonable attorney fees, and the Mortgage Agreement permits recovery for reasonable and necessary fees and expenses, the Claimed Fees and Expenses would have to be reasonable to be allowed. See Kaiser v. MEPC Am. Properties, Inc., 518 N.E.2d 424, 427 (1987).

But, how reasonableness is determined is a procedural matter and not a substantive matter. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 774 (7th Cir. 2010) (standards for proving reasonableness of attorney fees are procedural, not substantive). Therefore, since federal law governs procedure in the federal courts, state law standards of granting attorney fees and costs do not apply in federal courts, and claimed attorney fees and expenses under a fee-shifting contract are assessed under a federal standard of "commercial reasonableness." Elustra v. Mineo, 595 F.3d 699, 704 (7th Cir. 2010) (federal law, not state law, governs procedure in the federal courts); Matthews v. Wisconsin Energy Corp., 642 F.3d 565, 572 (7th Cir. 2011) ("[F]ee-shifting contracts require reimbursement for commercially-reasonable fees no matter how the bills are stated.") (internal quotations omitted). Rather than engage in a "detailed, hour-by-hour review" of an attorney's bills, courts undertake an "overview . . . of [the] aggregate costs." Metavante, 619 F.3d at 774 (internal citations and quotations omitted). This is to ensure that the costs "were reasonable in relation to the stakes of the case" and to the other party's "litigation strategy." Id. Hence, the applicable nonbankruptcy law for a determination of reasonable attorney fees and costs is federal law. Accordingly, Oxford may recover the Claimed Fees and Expenses as long as an overview of the Claimed Fees and Expenses demonstrate commercial reasonableness.

C. Oxford's Claimed Fees and Expenses are Reasonable and Necessary

Debtor's Second Motion to Determine Fees and Expenses largely recycles her original arguments in the First Motion to Determine Fees and Expenses without explaining why those arguments (as to the Motion to Dismiss) apply to the Third Supplement. Debtor appears to, again as in the First Motion to Determine Fees and Expenses, base the majority of her argument that the Claimed Fees and Expenses are unreasonable under the Mortgage Agreement because "Oxford was unreasonable in its litigation assault at the outset of the case with a legally-defective [Motion to Dismiss] . . . [and] its motion was not brought in good faith supported by reasonable arguments and pertinent applicable authority." [Dkt. No. 156, at 10]. In support, Debtor advances various theories as to how Oxford acted unreasonably at the outstart of the Bankruptcy Case.

However, the stated Claimed Fees and Expenses in the Third Supplement were not incurred in litigating the Motion to Dismiss. Instead, almost the entirety of the Third Supplement's Claimed Fees and Expenses came from defending Debtor's First Motion to Determine Fees and Expenses. Clearly, the Claimed Fees and Expenses were necessary to preserve Oxford's attorney fees and costs in the First Supplement (that added to Oxford's overall amount in the Proof of Claim).

Likewise, Debtor's contention that Oxford acted unreasonably by incurring the Claimed Fees and Expenses is without merit. Debtor herself initiated the First Motion to Determine Fees and Expenses. Oxford only incurred the expenses listed in the Third Supplement by defending its original attorney fees and expenses in the First Supplement. Had Oxford not incurred the Claimed Fees and Expenses by not defending Debtor's First Motion to Determine Fees and Expenses, it could have lost all $32,273.86 of the attorney fees and expenses claimed in the First Supplement. As such, because Debtor herself instigated and proliferated the litigation, Debtor's argument that Oxford's response to the First Motion to Determine Fees and Expenses should not have incurred at all, and therefore Oxford could only have acted reasonably by not defending its First Supplement at all, is a non-sequitur.

To the extent Debtor also means to argue that the Claimed Fees and Expenses were unnecessary to protect its rights or the property's value as required under the Mortgage Agreement, that argument is forfeited because Debtor failed to raise it until her Reply brief. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) ("[T]he district court is entitled to find that an argument raised for the first time in a reply brief is forfeited."); see also Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003) ("Because Volvo raised the applicability of the Maine statute in its reply brief, the district court was entitled to find that Volvo waived the issue."). Furthermore, even if not waived, Debtor is incorrect. In defending the value of the Proof of Claim, Oxford's Claimed Fees and Expenses were certainly necessary to protect its rights in Debtor's residence.

Debtor further makes a bareboned assertion that the Claimed Fees and Expenses are excessive and redundant. Debtor does not substantiate her claims of excessiveness and redundancy. Debtor does not identify any particular time entries she deems problematic nor make a demonstration as to why the Claimed Fees and Expenses are not commercially reasonable. Therefore, Debtor's unsupported argument is waived. See M.G. Skinner & Assocs. Ins. Agency v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017) ("Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority."). Furthermore, even if not waived, under an overview of the aggregate costs, the total amount of the Claimed Fees and Expenses in the Third Supplement is not excessive. Here, Oxford's detailed time records in the Third Supplement adequately establishes that its Claimed Fees and Expenses of $13,544.3 are indeed commercially reasonable.

D. Debtor Has Waived Any Sanction Arguments

Finally, Debtor recycles her argument, again as in the First Motion to Determine Fees and Expenses, that some of the Claimed Fees and Expenses should be disallowed as a sanction under Federal Bankruptcy Procedure Rule 3001 ("Rule 3001"). Under Rule 3001(c)(2)(D), a creditor that submits a proof of claim but "fails to provide any information required by [Rule 3001(c)], the court may, after notice and hearing, . . . (i) preclude the [creditor] from presenting the omitted information . . . as evidence in any contested matter or adversary proceeding in the case unless the court determines that the failure was substantially justified or is harmless; or (ii) award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure." Fed. R. Bankr. P. 3001(c)(2)(D). Debtor points out that Oxford has failed to file the required Official Form 410A to the Proof of Claim and argues that a sanction disallowing the Claimed Fees and Expenses should be imposed for Oxford's failure. In Debtor's First Motion to Determine Fees and Expenses, Debtor raised the exact same argument. On appeal, the District Court carefully explained that Debtor failed to "explain or cite any authority for the proposition that the bankruptcy court was authorized—much less required—to sanction Oxford's alleged omission by disallowing its requested fees or expenses . . . [and] [s]he has therefore forfeited the point." Yotis, 2019 WL at *5.

Debtor apparently has not learned her lesson. She has again failed to cite to any authority supporting her position that sanctions disallowing post-petition fees and expenses are authorized or even required for cases where a creditor failed to attach required documentation to its proof of claim. Debtor's unsupported argument is waived. See M.G. Skinner, 845 F.3d at 321.

Almost the entirety of this subsection of Debtor's argument in her Second Motion to Determine Fees and Expenses is copied word-for-word from the First Motion to Determine Fees and Expenses. --------

Moreover, Debtor waived any argument as to the validity of the Proof of Claim when she withdrew her Objection to Oxford's Proof of Claim and did not appeal from the order of confirmation. See Adair v. Sherman, 230 F.3d 890, 894 (7th Cir. 2000) ("[W]hen a proof of claim is filed prior to confirmation, and the debtor does not object prior to confirmation, the debtor may not file a post-confirmation collateral action that calls into question the proof of claim.). Here, since Debtor withdrew her Objection prior to confirmation, Debtor thereby forfeited any post-confirmation objection to the nature of Oxford's Proof of Claim.

CONCLUSION

For the foregoing reasons, Debtor's Second Motion to Determine Fees and Expenses will be DENIED by separate order entered concurrently herewith. Further efforts by Debtor's counsel to pursue arguments heretofore rejected may be dealt with by sanctions if applicable.

ENTER:

/s/_________

Jack B. Schmetterer

United States Bankruptcy Judge Dated this 27th day of November 2019