In re Dempsey

247 F. App'x 21
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 31, 2007
DocketNo. 07-1042
StatusPublished
Cited by12 cases

This text of 247 F. App'x 21 (In re Dempsey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dempsey, 247 F. App'x 21 (7th Cir. 2007).

Opinion

ORDER

A bankruptcy court dismissed Gordon Dempsey’s Chapter 13 petition because he was unable to propose a confirmable plan in the two-year span of his case. Dempsey appealed the dismissal and several earlier rulings to the district court, which affirmed in all respects. We also affirm.

In March 2002 Dempsey defaulted under an installment contract to purchase from George and Oleva Carter a dilapidated block of residential units in Indianapolis, Indiana called Walnut Court. The Carters pursued and obtained a judgment against him in state court, which scheduled a foreclosure sale for that October. One day before the sale date, Dempsey filed his bankruptcy petition.

The Carters submitted a claim in bankruptcy for the arrearage on Walnut Court, determined by the bankruptcy court to be $133,000, an amount for which they were oversecured, meaning the value of the property exceeded the arrearage. For the next two years Dempsey, proceeding pro se, and the Carters litigated in the bankruptcy court the feasibility of Dempsey’s eight proposed Chapter 13 plans to satisfy the arrearage. The plans, like many of Dempsey’s submissions, are difficult to understand, but he principally proposed to pay the arrearage from the proceeds of the sale of two other properties, “Green Hills” and “Rex Court.” The Carters objected to the ability of these properties to generate [23]*23the necessary funds. The court ultimately rejected each plan due to infeasibility. Rex Court and Green Hills sold, but later, and for less than Dempsey had anticipated.

In October 2003, shortly after Dempsey proposed his fourth plan, the Carters moved to add their attorneys fees, $108,955, to their arrearage claim. See 11 U.S.C. § 506(b). Dempsey vigorously opposed the request, arguing that it was unreasonably high because the Carters had “nitpicked” at his proposed plans despite being oversecured. He moved for sanctions under Bankruptcy Rule 9011. The court reduced the amount of the Carters’s fee request by 25% to $80,716, and granted it in March 2004. The court determined that as to this reduced fee level the Carters had taken actions reasonably necessary to protect their interests. The court further explained that Dempsey’s ongoing inability to propose a confirmable plan and his general unfamiliarity with the Bankruptcy Code had made this an unusual case justifying the large fee award. The court denied Dempsey’s motion for sanctions.

In the meantime, in November 2003, the Carters also moved to lift the automatic stay as applied to their efforts in state court to foreclose on Walnut Court because Dempsey was not “adequately protect[ing]” their interests. See 11 U.S.C. § 362(d)(1). The court initially denied the motion but decreed in December 2003 that if Dempsey failed to pay the arrearage by June 30, 2004 it would then lift the stay. When Dempsey did not cure the arrearage on time, the court lifted the stay. The Carters then immediately sought a foreclosure sale of Walnut Court, which the state court scheduled for late September, But in August Dempsey finally sold Green Hills, although he netted only $13,000, much less than the Carters’s claim for arrearage. Proof of the sale nonetheless prompted the district court to grant Dempsey’s emergency motion to reinstate the stay on the day Walnut Court was to be foreclosed.

Finally, in November 2004, the bankruptcy court denied confirmation of Dempsey’s final plan. The court determined that Dempsey could not generate the anticipated and necessary payments to satisfy both pre- and post-petition debts. In particular, the court disagreed that Walnut Court would begin producing sufficient rental income after a proposed confirmation because Dempsey had no funds to complete its needed rehabilitation and was unable to pay several post-petition bills for the project. This finding was the last straw for the court, which finally granted the Carters’s and the trustee’s pending motions to dismiss Dempsey’s petition under 11 U.S.C. § 1307(c)(1) for “unreasonable delay” in progressing his case. The court also, albeit without citing to a particular Code provision, barred Dempsey from refiling for bankruptcy for a year on the ground that a future filing would merely stall the foreclosure sale without a con-firmable plan.

Dempsey consolidated his appeals to the district court. He appealed the fee award; the denial of his motion for sanctions; the lifting of the automatic stay; the dismissal of his petition; and the imposition of the filing bar. The district court affirmed the rulings. Dempsey raises each of these issues in this appeal.

We first address the award of $81,716 in attorneys fees to the Carters. The Bankruptcy Code allows attorneys fees as part of an oversecured creditor’s claim as long as the fees are reasonable and, as here, provided for in the parties’ underlying agreement. See 11 U.S.C. § 506(b); United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Dempsey dis[24]*24putes only that the fees are reasonable. He does not challenge the rates charged, but instead argues that many of the Carters’s actions were unnecessary and unduly aggressive in light of their oversecured status.

The reasonableness requirement in § 506(b) ensures that an oversecured creditor is not given a “blank check to incur fees and costs which will automatically be reimbursed out of its collateral.” In re Lund, 187 B.R. 245, 251 (N.D.Ill.1995). To assess reasonableness, the bankruptcy court should examine whether the creditor took the kind of actions a similarly situated creditor would have taken to protect its rights in its collateral. See In re White, 260 B.R. 870, 880 (8th Cir. BAP 2001). We review only for an abuse of discretion a bankruptcy court’s award of attorneys fees. See In re Bond, 254 F.3d 669, 676 (7th Cir.2001).

The bankruptcy court did not abuse its discretion here. The Carters’s opposition to Dempsey’s proposed plans consisted of principled objections a prudent creditor would have raised to protect its rights. Specifically, they objected that the proposed sales of Rex Court and Green Hills, a proposal common to each of the plans, would not pay off the pre-petition arrear-age within a “reasonable time.” See 11 U.S.C. § 1322(b)(5). These objections were reasonable because Rex Court and Green Hills were undesirable properties that had languished unsold on the market for nearly a year. Rather than allaying this concern with an additional, timely source of revenue, Dempsey merely projected later sales dates and lower sales prices for these same properties with each subsequent plan he proposed to the court, thereby prompting the same objections.

Dempsey also contends that a fee award totaling 60% of a claim, like the one here, is per se unreasonable.

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Bluebook (online)
247 F. App'x 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dempsey-ca7-2007.