Bankruptcy Judge Schmetterer's Opinion (12)

Bankruptcy Caption: In re Margie Brown

Bankruptcy No. 01 B 37744

Adversary Caption:

Adversary No.

Date of Issuance: January 24, 2005

Judge: Jack B. Schmetterer

Appearance of Counsel:

Attorney for Movant or Plaintiff: Karris Bilal (The Bilal Law Firm)

Attorney for Respondent or Defendant: Berton J. Maley (Codilis & Associates, P.C.)

Trustee or Other Attorneys: Tom Vaughn, Trustee

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN RE		)
		)
MARGIE BROWN		)	No. 01 B 37744
		)
	Debtor.	)

MEMORANDUM OPINION FIXING
RULE 9011 SANCTIONS AGAINST EMC MORTGAGE

PROCEDURAL HISTORY

This opinion illustrates the difficultiesfacedbya securedcreditor that pleads falsely, and debtor’s

counsel who does not seek redress properly under Rule 9011 Fed.R.Bankr.P.

The matter discussed herein relates to a Chapter 13 Bankruptcy case filed by Margie Brown

(“Debtor”). The issue arose when creditor EMC Mortgage Corporation (“EMC”) moved under 11 U.S.C.

§ 362 tomodifytheautomaticstayandforpermissiontoforeclosethe mortgage on Debtor’s home. That

motion was filed on February 10, 2004 and presented in open court on February 19, 2004, before

BankruptcyJudgeSusanPiersonSonderbytowhomthisBankruptcycaseisassigned. That motion alleged

interalia that Debtor wasthreemonthsinarrearageonmortgage payments due post bankruptcy. Debtor

through her counsel asserted before Judge Sonderby that she was current on all payments due on the

mortgage, and moved for sanctions for false allegations. Judge Sonderby ordered EMC to produce its

records of payments and alleged delinquencies. The motiontomodifystaywas denied without prejudice

on March 18, 2004, and Debtor's motion for sanctions was also denied without prejudice on April 8,

2004.

Debtor moved again for sanctions by motion filed April 19, 2004, assertedly for false pleading in

the EMC stay motion, and EMC filed a motion for sanctions on June 22, 2004. Judge Sonderby

reassigned those motions and all related issues to the undersigned with consent of the Chief Bankruptcy

Judge because of her heavy caseload at the time.

The EMC sanction motion was withdrawn, but its objection to Debtor’s sanction motion was

sustained because Debtor’scounselhadfailedto comply with the so-called “safe harbor” notice required

byRule 9011(c)(1)(A) Fed.R.Bankr.P.1/ That Rule requires service of the sanctions motion onthe other

partyasa warning at least 21 days beforethe motionisfiledor presented,orsuchlongeror shorterperiod

prescribed by the court. The purpose is to allow the offending pleading to be withdrawn by the pleader,

thus preventing sanctions from being imposed on that pleader. In proceedings to modify stay, Congress

hasmandatedthatatleastthe initialhearingmustbe held withinthirtydays after the motion is presented 11

U.S.C § 362(e). Should Debtor’s counsel have sought to claim sanctions based on the EMC motion

before doing work to prepare for the early hearing thus mandated, that counsel was entitled to ask the

1/ Fed. R. Bank. P. 9011(c)(1)(A) provides in pertinent part:

“The motionforsanctions maynotbefiledwithorpresentedto the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b).”

The “except” clause applies to the filing of a bankruptcy petition and excepts the filing of that petition from its provisions. In re McNichols, 258 B.R. 892, 902 (Bankr. N.D. Ill. 2001); see also Dressler v. The Seeley Co.(Inre Silberkraus), 336 F.3d 864, 868 (9th Cir. 2003) (“The clear import of this language is that the mandatory 21 day safe harbor rule does not apply to the filing of the initial [bankruptcy] petition.”) See also 9 Collier on Bankruptcy at P 9011.060 (15th ed. rev. 2003).

bankruptcy judge to shorten the 21 days warning period, then comply with the safe harbor rule in the shortened period by serving the motion, and finally file and present a sanction motion after the shortened warning period had expired. Debtor’s counsel did none of that, so his sanction motion was necessarily dismissed.

However, because the issue of false pleading is of considerable importance to the court as well as debtors inChapter13, the CourtexerciseddiscretionunderRule 9011(c)(1)(B) Fed.R.Bankr.P. toinitiate a hearing on whether or not the creditor had pleaded falsely, and if so whether a sanction should be imposed.

Evidence was taken in a long and hotly contested hearing. Afterwards it was found (as earlier announced in detail by remarks from the bench), based both on the creditor’s own records and those of Debtor,thatthe originalallegationbyEMC thatDebtor wasthree months in arrearage of post bankruptcy mortgage payments wasfalse,and thatinfactshe wascurrent inhermortgage payments when that motion was filed. Accordingly, pursuant to Rule 9011 (c)(1)(B) Fed.R.Bankr.P. the Court ordered EMC and its counsel to "show cause" why either or both of them had not violated Rule 9011(b)(3) and if so why they should not be sanctioned for false pleading.

Followinghearingthereon, it was found and held (forreasons againearlierstated indetailfromthe bench) thatEMC counselwasjustifiedinrelyingonitsclient’scommunication to it that misrepresented the facts, and therefore counsel should not be sanctioned. However, it was also held that because EMC was responsible forthe falseallegations initsmotionto modify stay, itshould besanctionedforviolationofRule 9011(b)(3) Fed.R.Bankr.P.

The issue remaining is the nature of sanction to be imposed.

HEARING ON SANCTIONS

Counsel for Debtor submitted time records and requested for sanctions amounting to $28,999 based onhis work in defending against the false motion and establishing the falsity by evidence bothfrom EMC’s records and those of Debtor. Many of his activities were contested for various reasons by EMC counsel,andDebtor’scounseltestifiedwithrespecttothem. Some of the EMC objections to various tasks had merit. However, because those fees cannot under Circuit authority be allowed in a sanctions proceeding initiated as here by the judge, such objections are not relevant.

Debtor’scounselarguedthathisreasonable and necessaryfeesshould bethe measureofsanctions to be awarded, and that he should be awarded those fees. He separately argued that the harm to his client because of need to employ counsel, and also the potential harm to debtors generally from false pleading on a motion to modify stay was so great that a monetary sanction should be awarded to deter similar carelessness and error by EMC and other secured creditors. The latter argument is approved below.

Basedonthe foregoingrecord and hearing, the Courtnowmakesand entersthefollowingFindings of Fact and Conclusions of Law.

FINDINGS OF FACT

ThehearingunderRule 9011 Fed.R.Bankr.P. wasbrought bythe CourtafterDebtor’smotionwas necessarily dismissed for failure to comply with the “safe harbor” provision. Based on Seventh Circuit authority cited below, it would be an abuse of discretion to award attorney’s fees to Debtor’s counsel as asanction in a court initiated proceeding under Bankruptcy Rule 9011,and ifa monetarysanctionisto be awardeditmustbe based on other grounds. Accordingly,whileDebtor’scounseldidhardandadmirable work, he must look to his own client for payment on application to this Court for fees in the Chapter 13 proceeding.

Asdiscussedbelowa sanctioncould be measuredbydamagesto the Debtor,but inthis casewhile the motion to modify stay was dismissed without prejudice, and could have been revived, it was not reinstated. Therefore EMC did not succeed in taking away Debtor’s home. While under 11 U.S.C. § 362(h) “damages”isdefinedasincludingattorneys’fees, in the light of Circuit authority cited below that forbids fee allowance as a sanction under Rule 9011 when as here the Rule 9011 process is initiated by the Court, the definition in § 362(h) has no application here.

However, thereisanurgent needforanappropriatesanctionto be enteredinorder to deter EMC and other secured creditors from careless record keeping and giving of false information to their counsel when seeking modification of stay so they can foreclose on homes or seize family autos or other property related to family life. The automatic stay in bankruptcy is often the only protection debtors have against loss of their homes and property. The consequences of falsely pleading that payments are past due when the payments have actually been made nullify that protection and can be most cruel to debtors and their families. Not all debtors keep complete payment records. When a dispute arises, debtor’s counsel often must exert great and expensive effort to demonstrate the falsityofa creditor’sallegations,the verytypeof effortrequired here. Given the legal cost of such efforts, debtors and their counsel oftencompromisethe debt and permit the secured creditor to add the expenses of litigation to the debt.

If the false pleading is believed by the Court and not disproved by the debtor, there follows mortgage foreclosure and loss of family home, or loss of car needed to drive to work and maintain employment, or loss of refrigerator or furniture needed for daily life.

Sofalsepleadingsmayleadtodestruction of family life. Eventhoughthatdidnothappenhere,the potential for harm from false pleadings is so great that a sanction for it must be severe enough to get the attention of this and similar creditors and deter the type of carelessness that bought it about in this case. Authority discussed below shows that the amount of a monetary sanction must be within the ability of creditor to pay, but large enough to deterrepetitionofsuchconduct. EMC is a major secured creditor in the mortgage market, and is well able to pay a sanction of $10,000. That amount is large enough in this case to get its attention and deter further similar conduct, particularly when coupled in the sanction order with requirement that this Opinion be delivered by EMC counsel to its executive officers, and the prohibition against EMC charging litigation expenses related to these matters to Debtor’s account absent court permission. A much larger monetary sanction has not been entered because this is the first time EMC is known to have been guilty of false pleading.

In light of the foregoing history and considerations, it is found that a sanction of $10,000 is necessaryand appropriateto deter careless false pleading byEMC inthe courseofmovingto modifystay in a Chapter 13 bankruptcy case. Should this or other secured creditors not be deterred by that amount, future sanctions will be substantially larger. While the Debtor was not financially harmed except through need to employ her counsel, she was wrongfully intimidated and threatened by the attempt to foreclose on her home, and her fee obligations to her bankruptcy counsel have been greatly increased. Therefore, the monetary sanction will be entered for payment to the Chapter 13 Trustee in this case and for her benefit, and judgment for that sanction is separately entered in her favor.

Facts stated in the Conclusions of Law will stand as additional Findings of Fact.

CONCLUSIONS OF LAW

- 7

A court may impose monetary sanctions on attorneys, law firms or parties who violate or are responsible for a violation of Rule 9011. Collier on Bankruptcy, § 9011.09 (15th ed. rev. 2004). However,thecourt'sdiscretioninthis area isnotunlimited.Anysanctionmustfitthe inappropriateconduct. Johnson v. A. W. Chesterton Co.,18F.3d1362,1366(7thCir. 1994) (quoting Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1439 (7th Cir. 1987)).

In determining the amount ofthe sanction, a courtmayconsidernotonlythe sanctionable conduct, but also the offending party's ability to pay. See Oliveri v. Thompson, 803 F.2d 1265, 1281 (2d Cir. 1986) (holding that a court may consider the sanctioned party’s assets and collecting cases). The test is one of reasonableness and equitable considerations are weighed in fashioning an award. See Matter of Yagman, 796 F.2d 1165, 1188 (9th Cir. 1986) (Courtmayconsidertheexpenseanddelay of litigation); Brown, 830 F.2d at1429 (Courtmayconsiderthe “experienceofthe lawyer, and whetherthe area oflaw was one that required special expertise.”)

In this case, when the Debtor’s sanction motion failed, the Court acted sua sponte under Rule 9011(a)(1)(B) because of the importance of the automatic stay in bankruptcy cases. If the sanction is imposed on the court'sownmotion,attorneyfeescannotbe awarded. Methode Electronic, Inc. v. Adam Technologies, et al., 371 F.3d 923, 926-7 (7th Cir. 2004); Divane v. Krull Elec. Co., 200 F.3d 1020, 1030 (7th Cir. 1999)(holding that since Rule 11(c)(2) “allows the imposition of attorneys' fees against a party only if the sanctions were initiated by motion." Those cases hold that it would be an abuse of discretionfora judge toimposeattorney’sfeesas sanctions whenthe judge initiatesthe hearingunderRule 11 Fed.R.Civ.P. Therefore, under Circuit authority, discretion is lacking here to award a sanction consisting of attorney’s fees to prevailing counsel.

Moreover, ajudge actingsua spontemaynotimposea monetarysanctionunlessthe “showcause” orderisissuedbeforeclaimsinissuearewithdrawnorsettled. Rule 9011(c)(2)(B). The EMC motion was only stricken without prejudice, not withdrawn or settled. The court’s inquiry into allegations of false pleadingwasdefendedvigorously, no confessionoferror wasfiled,anda“showcause”order wasentered, so that provision does not apply.

In reviewing a sanction under Rule 11 Fed.R.Civ.P., a Seventh Circuit panel indicated that in “casesinvolvingsubstantialawards”ofsanction, the trialjudge should bothspecifythe reasonsforsanctions and quantify them “with some precision and properly itemized in terms of the perceived misconduct and the sanctioning authority.” Brown v. Neely, 830 F.3d 1429 (7th Cir. 1987). However, “[t]he specific findings requirement would not be appropriate when the imposition of modest sanction is solely for the purpose of deterrence,” Id., citing Ordover v. Feldman, 826 F.2d 1569 (7th Cir. 1987).

The trialcourtshould also weigh “equitable considerations,” such as the sanctionedparty’sassets (here substantial), whether the party seeking fees caused the litigation to be longer than necessary (found here not to be so), and need for experienced counsel to resist the offending pleading (found here to be essential). Brown Id.

Given that fees may not be directly awarded to Debtor’s attorney in this case, it is difficult to quantifyanappropriateaward. What amount will be just enough to deter EMC and othersfromcareless mistakes that lead to false pleading? Atwhatdollarsanctionwillthecompanyexecutivestake a hand and order more careful procedures?

Whena company like EMC administersmillions ofdollarsinmortgageseveryday, itisalltoo easy to pay a $10,000 sanction as a cost ofdoingbusiness, and there is no way of selecting a specific amount that will necessarily deter.

However,the $10,000 will at least serve as a strong symbol, particularly when coupledwithpart of the sanction order that requires EMC counsel to furnish a copy of this Opinion to the President, and Chief Executive Officers of EMC and file proof of such service and another part barring the charging of Debtor’saccountwithlitigationexpensesincurredhere. A further sanction ordered now will prevent EMC from adding onto the Debtor’s mortgage the cost of its flawed motion and defense efforts to avoid being sanctioned, and that too represents a deterrence; false pleading must not be followed by laying expense of the falsity on the back of debtor in financial distress.

Inthis case, itturnedout thatcarelessnessbyEMC indealingwith the transitionofitsrecords from pre-bankruptcytopost-bankruptcystatusexplaineditspleadingerror. But sophisticated secured creditors must keep accurate records concerning debtor payments. In these days of modern computers, they can hardly be expected to do otherwise.

EMC is a major financial company, and is clearly able to pay a $10,000 sanction. Therefore, should itdisobeythe Court’sorder and fail to pay withinthe time fixed,jurisdictionisbeingretainedto add a sanction for such disobedience to cover further legal work necessary to collect the $10,000.

CONCLUSION

Itisvitalthatbankruptcyjudgesbe able toexpect secured creditors to present truthfulinformation on motions to modify stay in Chapter 13 cases when they seek foreclosure of the homes and autos of debtors. The consequences to debtors of false pleading are dire, including expenses to defend and even

the loss of the vehicle or home with consequent destruction of income, residence rights, and family life.

Even if such false pleading is the product of careless mistake rather than evil intent, it cannot be tolerated.

By separate judgment order a sanction is imposed against EMC Mortgage Corporation in the

amount of $10,000 in favor of and to be paid to the Debtor. The order provides that execution will issue

on the judgment if it is not paid within 21 days, and that jurisdiction is reserved to impose an additional

sanction for disobedience of the Court order should it be necessary for Debtor to seek collection of the

sanction by further efforts and expensive legal steps.

As further sanction, the order bars EMC from adding any cost, fees, or expenses relating to the

false motion to modify stay or resistance by Debtor thereto, to defense of Debtor's motion for sanctions

or prosecution of its own motions related thereto, or to the hearing under Rule 9011(a)(1)(B) ordered by

the Court, or any other matters discussed herein unless EMC comes first to this Court for permission on

notice and motion. Further, counsel for EMC is ordered to serve copies of the Opinion on the

President and Chief Executive Officer of EMC so that these officers will earn of the mistakes and have an

opportunity to order corrections in procedures so that such mistakes may be avoided in the future.

ENTER:

Jack B. Schmetterer United States Bankruptcy Judge Entered this 24th day of January 2005.

CERTIFICATE OF SERVICE

I, Dorothy Clay certify that onJanuary , 2005, I caused to be mailed by United States first class mail copies of the foregoing MEMORANDUM OPINION to the following:

Karris Bilal, Esq. The Bilal Law Firm	Ms. Margie M. Brown 506 Park Drive
Three Emily Court Bollingbrook, IL 60490	Glenwood, IL 60425
Rachael A. Stokas, Esq. Berton J. Maley, Esq. Codilis & Associates, P.C. 15W030 North Frontage Road Suite 100 Burr Ridge, IL 60527	Tom Vaughn Chapter 13 Trustee 200 South Michigan Avenue Suite 1300 Chicago, IL 60604
Via Personal Delivery Honorable Susan Pierson Sonderby United States Bankruptcy Court 219 South Dearborn Street
Chicago, IL 60604

Secretary/Deputy Clerk