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- Published on 25 February 2015
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Ledin v. Thompson et al, 14-05193 (Bankr. D. Kan. Feb. 10, 2015) Doc. # 52
SIGNED this 10th day of February, 2015.
DESIGNATED FOR ONLINE PUBLICATION BUT NOT PRINT PUBLICATION
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
JONATHAN EDWARD LEDIN, ) Case No. 14-12347
) Chapter 7
JONATHAN EDWARD LEDIN, )
) Adv. No. 14-5193
COMMERCE BANK, AMY WHITE, )
FINANCECO OF KANSAS, INC., and )
RICHARD K. THOMPSON, )
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
FOR FAILURE TO STATE A CLAIM (Dkt. 26 and 32)
Case 14-05193 Doc# 52 Filed 02/10/15 Page 1 of 17
The Bankruptcy Code contains two provisions that protect debtors from
collection activity during a case and shield certain exempt assets from administration
as part of the debtor’s bankruptcy estate. 11 U.S.C. § 362(a) stays collection activity
during a case and § 522(d)(10) exempts social security and other government
payments from the reach of the trustee. Neither takes effect unless and until a debtor
actually files a bankruptcy case, though, and, except in limited circumstances, neither
forms the basis for an independent cause of action. The same is true for the provisions
of the Code of Federal Regulations found at 31 C.F.R. §§ 212.6 and 212.7 that govern
how financial institutions respond to garnishments of accounts that may contain
social security or other government payments. Nor do “violations” of procedural
statutes and court rules -- KAN. STAT. ANN. § 60-211(a) and KAN. S. CT. RULE 170(d)
- create independent, substantive claims.
FinanceCo of Kansas took a deficiency judgment on a defaulted car loan owed
by debtor Jonathan Ledin sometime in 2008. In 2013, FinanceCo transcribed that
judgment on the Chapter 60 appearance docket of the Reno County District Court
and, in June of 2014, garnished Ledin’s savings accounts at Commerce Bank. Ledin
replied, claiming that the accounts contained funds traceable to social security
payments, but the Reno County court concluded that the funds were not exempt,
granting judgment and entering a pay order on the garnishment. In September of
2014, FinanceCo garnished Ledin’s checking account at Commerce. This time, Ledin
replied, additionally claiming that he was in the process of preparing a bankruptcy
filing. The state court allowed that garnishment as well, after conducting a hearing
Case 14-05193 Doc# 52 Filed 02/10/15 Page 2 of 17
on Ledin’s objection. Ledin then filed the present chapter 7 case here on October 14,
2014. He filed this adversary proceeding against judgment creditor FinanceCo, its
counsel Richard Thompson, garnishee Commerce Bank, and its Hutchinson branch
manager, Amy White, seeking over a million dollars in damages (the garnishments
netted $1,066) and demanding a jury trial. All four defendants move to dismiss the
complaint as failing to state a claim for relief under Rule 12(b)(6).1
Ledin’s claims for damages under §§ 362(a) and 522(d)(10) fail because he was
not a debtor in bankruptcy when either of the garnishments occurred and because
neither of those sections support a private right of action under the circumstances
that he alleges. His tort claims under the “CFRs” fail because those regulations also
do not supply a right of private action and because the facts alleged in the complaint
do not support a plausible claim for relief. KAN. STAT. ANN. § 60-211(a) and KAN. S.
CT. RULE 170(d) are state procedural rules that do not give rise to causes of action.
Finally, Ledin’s remedy in the state garnishment case was to timely appeal the Reno
County court’s orders after the garnishment hearings instead of seeking collateral
relief from those final orders in this Court in the form of a wrongful garnishment
lawsuit. The complaint should therefore be dismissed.2
Rule 12(b)(6) Standards
1 Fed. R. Civ. P. 12(b)(6), as made applicable to adversary proceedings by Fed. R. Bankr. P.
7012. See Adv. Dkt. 26 (Motion to Dismiss of defendants FinanceCo of Kansas, Inc. and
Richard Thompson); Adv. Dkt. 32 (Motion to Dismiss of defendants Commerce Bank and Amy
2 Plaintiff Jonathan Ledin appears pro se. Defendants Commerce Bank and Amy White
appear by their attorney Jack C. Marvin. Defendants FinanceCo of Kansas, Inc. and RichardThompson appear by their attorney Samantha M.H. Woods.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 3 of 17
In determining whether Ledin’s complaint states a claim upon which relief
may be granted, I assess whether these factual allegations give rise to a cause of
action against defendants for violation of the statutes and regulations alleged. The
question is whether the complaint contains facts sufficient to support these claims,
not whether Ledin will ultimately prevail on those claims.3 The plaintiff must allege
enough facts to support a claim that is plausible on its face.4 The plausibility standard
is less than a probability but more than a sheer possibility that Ledin is entitled to
the relief requested.5 For purposes of this motion, I take the facts pled in the
complaint as true.6
Ledin seeks cumulative damages in excess of $1.1 million dollars against the
defendants for violation of the exemption statute, 11 U.S.C. § 522(d)(10)(A) [Count I];
violation of certain federal banking regulations dealing with garnishment of accounts
containing direct deposit federal benefit payments, 31 C.F.R. §§ 212.6 and 212.7
[Counts II and III]; violation of the automatic stay, 11 U.S.C. § 362; violation of KAN.
STAT. ANN. § 60-211(a) (2013 Supp.) for failure to sign unspecified court documents;
3 Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (In ruling on a motion to dismiss
the judge must accept all allegations as true and may not dismiss on the basis that it appears
unlikely the allegations can be proven.).
4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (enough facts must be alleged to
nudge the claim across the line from conceivable to plausible).
5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
6 Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (In reviewing
the sufficiency of the complaint, the court assumes the truth of the plaintiff’s well-pleaded
factual allegations and views them in the light most favorable to the plaintiff.); Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (A Rule 12(b)(6) motion tests the sufficiency of
the allegations within the four corners of the complaint after accepting as true all well-
pleaded factual allegations.).
Case 14-05193 Doc# 52 Filed 02/10/15 Page 4 of 17
and violation of KAN. S. CT. RULE 170(d)(2) for failure to make reasonable effort to
resolve Ledin’s objections to proposed orders submitted to the state court regarding
the garnishments.7 These claims arise from two prepetition state court garnishments
that attached a total of $1,066.15 in funds from Ledin’s savings and checking accounts
at Commerce Bank which he claimed were exempt social security disability benefits.
Ledin demands a jury trial on all claims – claims that he characterizes as actions in
Summary of Facts Pled in Complaint8
FinanceCo obtained a chapter 61 state court limited actions judgment in the
amount of $6,023 against Ledin sometime in 2008. FinanceCo transcribed its limited
actions judgment to Reno County District Court sometime in November 2013, thus
imposing a chapter 60 judgment lien on Ledin’s real property in the county where
recorded.9 Ledin does not dispute the validity of FinanceCo’s underlying judgment.
In early September 2013 Ledin opened a checking account and two savings
accounts at Commerce Bank. Initially, his monthly social security disability benefit
check of $1,323 was directly deposited in the checking account. He would then
withdraw $100 cash from the checking account each month and deposit $50 in each
7 Ledin asserts the exemption and “CFR” claims against all defendants. He asserts the stay
violation against FinanceCo and Thompson, and the remaining § 60-211(a) and Rule 170(d)
claims against Thompson only.
8 These facts are common to all of the claims alleged. None of the pleadings, orders, or
documents pertaining to the subject garnishments were attached to Ledin’s complaint.
9 See KAN. STAT. ANN. § 60-2418(a) and § 60-2202(b). Upon transcribing the limited actions
judgment (Case No. 09 LM 0731) to a code of civil procedure chapter 60 judgment (Case No.
14 CV 2) and recording it, execution to satisfy the judgment proceeds in the same fashion as
though it were an original chapter 60 judgment.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 5 of 17
savings account. Ledin characterizes the savings accounts as his “emergency fund”
and says he opened them because of Commerce Bank’s Rewards program.
On June 12, 2014, FinanceCo garnished Ledin’s savings accounts at Commerce
and attached $688.05. This garnishment depleted both savings accounts. Ledin
asserted that the funds were exempt as his social security disability benefit. Ms.
White told Ledin that his disability benefit was not protected from garnishment once
he transferred the funds out of his checking account to his savings account. It is
unclear from the face of the complaint whether Ledin requested a court hearing to
assert his claim of exemption or otherwise filed a reply contesting the garnishee’s
answer as provided by Kansas garnishment procedures.10 In any event, the state
court apparently rejected Ledin’s claim of exemption of the garnished funds leading
to this complaint.11
In July or August of 2014 Ledin changed the direct deposit method for his social
security disability benefit. Instead of the funds being directly deposited to his bank
account, the monthly benefit was now transferred to a stored value card called a
Direct Express® Debit Card – apparently available to certain federal benefit program
recipients. Ledin would take a cash advance from the Debit Card and deposit it in his
checking account to supplement his “emergency fund.”
On or about September 9, 2014, FinanceCo garnished Ledin’s checking account
10 See KAN. STAT. ANN. §§ 60-735(b) and 60-738.
11 In other pleadings that Ledin filed in this adversary proceeding, he attached some of the
documents pertaining to the June 2014 garnishment, including a copy of the state court’s
Order to Pay Money to Judgment Creditor entered August 14, 2014. See Adv. Dkt. 42-1, p.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 6 of 17
and attached $378.10, causing the account to be overdrawn. On or about September
12, 2014, Ledin “contested” this garnishment by submitting an affidavit claiming the
funds protected as social security disability income and stating that he “intends to
file for Chapter 7 Bankruptcy . . . .” The affidavit was not attached to Ledin’s
adversary complaint, but was attached to his “response” to the Motion to Dismiss.12
Reno County District Court Judge Chambers conducted a hearing on the second
garnishment on September 29, 2014. Nothing in the pleadings tells me what
happened at that hearing.
After Commerce closed Ledin’s bank accounts on October 10, 2014, he filed his
bankruptcy petition on October 14, 2014 and commenced this adversary proceeding
on November 17, 2014.
1. The Exemption Claim under § 522(d)(10)(A)
Ledin alleges that the defendants “violated” § 522(d)(10)(A), the Bankruptcy
Code provision that allows bankruptcy debtors to claim exempt the right to receive a
“social security benefit.” Section 522(d) lists the so-called federal exemptions in
bankruptcy. Because Kansas has opted out of the federal exemption scheme Kansas
bankruptcy debtors must generally use the state law exemptions, but KAN. STAT.
ANN. § 60-2312(b), expressly authorizes an “individual debtor under the federal
bankruptcy reform act” to claim the § 522(d)(10)(A) federal exemption in addition to
12 See Adv. Dkt. 31, pp. 15-16.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 7 of 17
the state law exemptions.13 In order to claim the §60-2312(b)/§522(d)(10) exemption,
the claimant must be a debtor in bankruptcy.
When he contested the state court garnishment proceedings, Ledin claimed
that his Social Security disability benefit was exempt. A person’s future right to the
payment of Social Security benefits is generally exempt from execution under 42
U.S.C. § 407(a). Ledin has not alleged that any of the defendants sought to garnish
his benefits in the hands of the Government or that they sought to execute on his
future right to claim them. The state court, not the defendants, determined that the
garnished funds—cash that he withdrew from his checking account and deposited
into his savings account—were not in any way exempt. Section 522(d)(10) did not
apply to Ledin when this determination was made because he was not yet in
bankruptcy. Even if there were a private right of action under § 522(d)(10)(A), the
state court garnishment proceedings occurred before Ledin filed his bankruptcy case,
rendering § 522 of the Bankruptcy Code inapplicable to those proceedings. Finally,
as the defendants note, there is no private cause of action in tort for damages in § 522
when a court disallows an exemption claim – inside or outside of a bankruptcy case.14
Ledin’s damage claim for “violating” this exemption statute fails to state a claim upon
which relief may be granted.
2. Violation of Federal Regulations, 31 C.F.R. §§ 212.6 and 212.7
Ledin also seeks damages for defendants’ withholding or freezing funds as the
13 KAN. STAT. ANN. § 60-2312(a) (2005).
14 See Adv. Dkt. 33, p. 5. Adv. Dkt. 27, pp. 5-6.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 8 of 17
state court garnishment order directed. Part 212 of Title 31 of the Code of Federal
Regulations, adopted in 2011, deals with garnishment of accounts containing federal
benefit payments. Its purpose is to protect federal benefits from garnishment by
establishing procedures for financial institutions when served with a garnishment
order against an account holder “into whose account a [protected] Federal benefit
payment has been directly deposited.”15 It applies to financial institutions as defined
in § 212.3, not their individual officers or employees. That alone protects defendant
White from liability here.16 The regulations require that a financial institution, as
garnishee, conduct an account review and follow certain procedures when served with
a garnishment order.17 Section 212.3 defines a “[f]inancial institution” as “a bank,
savings association, credit union, or other entity chartered under
Federal or State law to engage in the business of banking.” Ledin does not allege that
defendants FinanceCo or Thompson are financial institutions within the meaning of
§ 212.3. As with his claims against defendant White, this kills Ledin’s alleged claim
against FinanceCo and Thompson for violating the garnishment regulations.
Thompson is an individual engaged in the practice of law, not a financial institution
or other entity engaged in banking. There is no allegation that FinanceCo is an entity
chartered to engage in the business of banking. Because the judgment creditor and
its attorney are not financial institutions and were not served with an order of
garnishment, they are not subject to these regulations, are not obligated to conduct
15 31 C.F.R. § 212.1 (2011). Emphasis added.
16 31 C.F.R. § 212.2.
17 31 C.F.R. § 212.2, § 212.3 (defining an “account review”); § 212.5.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 9 of 17
an “account review,” and are not obligated to adhere to the procedures enumerated
in Part 212. The regulations govern a financial institution who is served with an order
of garnishment on its depositor’s accounts and as garnishee must evaluate whether
the garnishment seeks to attach protected federal benefit payments. Ledin’s
complaint fails to state a claim for damages against White, FinanceCo, and Thompson
for violation of 31 C.F.R. §§ 212.6 and 212.7.18
Commerce is a financial institution under the regulations. A “benefit payment”
is specifically defined as one that is paid electronically by direct deposit to the account
and contains certain encoded characters in the record of the direct deposit entry.19 In
general, when a financial institution receives a garnishment order, it must review
the transactions over the preceding 2 months in any account held by the judgment
debtor to determine whether a benefit payment was deposited into the account by a
benefit agency in that time and determine what the “protected amount” of the account
is. That “protected amount” as determined by the financial institution is “conclusively
considered to be exempt from garnishment under law.”20 If a benefit payment was
electronically deposited, a protected amount established, and funds exist in excess of
the protected amount, the financial institution is required to send notice to the
account holder.21 If there was no benefit payment deposited during the look back
period, the financial institution is not required to give notice. While § 212.10 of the
18 31 C.F.R. § 212.2.
19 31 C.F.R. § 212.3.
20 See §§ 212.3, 212.5, 212.6.
21 Section 212.7.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 10 of 17
regulations provide a safe harbor against both the judgment creditor and the account
holder to financial institutions that act in good faith, Part 212 does not create or
expressly authorize a private cause of action by an account holder against the
financial institution. Even if they did, Ledin’s complaint fails to state a claim against
On its face, Ledin’s complaint does not state a claim for relief with respect to
the first garnishment. The garnishment order applied to Ledin’s savings accounts –
accounts that Ledin says contained funds from cash deposits, not electronic direct
deposits. He alleges that he took cash withdrawals from his checking account and
deposited them into his savings accounts.22 He does not allege that any direct deposits
of social security payments were made electronically to his savings accounts by a
benefit agency. Thus, the savings account did not contain a “benefit payment” as
defined in § 212.3 and the federal regulations do not apply.
Nor were the funds caught by the second garnishment protected. Ledin says
he took a cash advance from his Direct Express Debit Card that he then deposited in
his checking account. He does not allege that the second garnishment attached a
“benefit payment” made by a “benefit agency.” This part of Ledin’s complaint fails to
state a claim for relief against Commerce.23 Because no benefit payments as defined
in § 212.3 were deposited by a benefit agency, Commerce was not obligated to comply
22 Only electronic deposits made by a “benefit agency” are protected from garnishment. See §
212.3 and § 212.5(b) and (c).
23 See § 212.3 which defines a “benefit agency” as the Social Security Administration and
requires the “benefit payment” to be paid by direct deposit electronically into the account
Case 14-05193 Doc# 52 Filed 02/10/15 Page 11 of 17
with the procedures in the regulations nor provide the notice referenced in § 212.6(e)
and § 212.7 to Ledin.24 The “CFR” claim against Commerce must be dismissed for
failure to state a claim.
3. Alleged Stay Violation, 11 U.S.C. § 362
Ledin alleges that FinanceCo and Thompson violated the automatic stay by
requesting garnishment orders in June and September of 2014. Specifically, he
alleges in the complaint that FinanceCo:
. . . did intentionally and illegally obtain a Court Order to garnish
Plaintiff’s savings and checking account for a total of $1,066.15 with
the intention, knowledge and purpose of harming Plaintiff by
attempting to collect, assess, or recover on a claim for a debt; a
deficiency judgment that increased to the amount of $15,551.47,
from a court hearing held . . . on September 29, 2014 in violation of
11 U.S.C. § 361(a)(1), (2), and (6), of the automatic stay. . . .
FinanceCo . . . had knowledge that Plaintiff was preparing to file for
bankruptcy Chapter 7 protection through said Affidavit mentioned
in paragraph 22. Defendant FinanceCo . . . is therefore liable in tort
to Plaintiff for violation of: (1) 11 U.S.C. § 362(a)(1), (2), and (6), of
the automatic stay . . .25
The referenced paragraph 22 provides:
Plaintiff submitted an Affidavit signed September 12, 2014 to the
trial court, in Ref: Case No. 14 CV 2 that he was filing for
bankruptcy Chapter 7. Defendant FinanceCo . . . continued to
conduct the hearing held on September 29, 2014 in Division II, the
Honorable Judge Timothy Chambers presiding.26
Like allegations are made against defendant Thompson, including that Thompson
24 See 31 C.F.R. § 212.5(b) (where no benefit payment is deposited during the look back
period, the financial institution is not required to follow the procedures in § 212.6); § 212.6
(the provisions of § 212.6 apply only if an account review shows that “a benefit agency
deposited a benefit payment into an account during the look back period.”).
25 Adv. Dkt. 1, ¶ 26.
26 Id. at ¶ 22.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 12 of 17
knew “Plaintiff was preparing to file for bankruptcy . . . .”27 Ledin did not file his
chapter 7 case here until October and this alone is fatal to his stay violation claim.
The sum of the stay violations alleged against FinanceCo and Thompson are
that (1) they obtained garnishment orders which were issued and served on
approximately June 12, 2014 and September 9, 2014;28 and (2) that they continued
forward with a hearing on September 29, 2014 despite knowing that Ledin was
preparing to file bankruptcy. These allegations do not state a claim for relief because
the automatic stay was not in effect at any point during this timeframe.
The automatic stay is triggered by the filing of a bankruptcy petition.29 Section
362(a) provides that: “. . . a petition filed under section 301, 302, or 303 of this title .
. . operates as a stay, applicable to all entities . . .” Intent to file bankruptcy in the
future does not trigger the automatic stay.30 Ledin did not file his bankruptcy petition
until October 14, 2014. Thus, no stay was in effect during the complained-of conduct
that can possibly give rise to a violation of the automatic stay. Ledin’s affidavit
submitted on September 12, 2014 in response to the second garnishment and to
apparently halt the September 29 hearing did not cause the stay to go into effect.
Because Ledin has not alleged the commencement or continuation of any
garnishment activity or proceedings by FinanceCo or Thompson after October 14,
2014, he has failed to state a claim for violation of the automatic stay under 11 U.S.C.
27 Id. at ¶ 40
28 Id. at ¶s 20-21.
29 In re Calder, 907 F.2d 953, 956 (10th Cir. 1990).
30 In re Nelson, 335 B.R. 740, 749 (Bankr. D. Kan. 2004). See also In re Bush, 169 B.R. 34
(W.D. Va. 1994).
Case 14-05193 Doc# 52 Filed 02/10/15 Page 13 of 17
4. Failing to Sign Orders and Court Documents, KAN. STAT. ANN. § 60-211(a)
Ledin vaguely alleges that Thompson is liable in tort for “fail[ing] to sign court
documents related to the Court Order of garnishment” with the intention of harming
him in violation of § 60-211.31 As a consequence, he asserts that all “Orders,
Judgments and Garnishment Orders” signed by the state court trial judge since 2009
are null and void.32 He also alleges that Thompson failed on three occasions to sign
proposed Orders submitted to the state trial court under Kansas Supreme Court Rule
170(d)(2), rendering him liable for violation of § 60-211.33 These allegations are the
sum total of Ledin’s attempt to state a cause of action under § 60-211.
Section 60-211(a) (2013 Supp.) of the Kansas Code of Civil Procedure provides:
(a) Signature. Every pleading, written motion, and other paper must
be signed by at least one attorney of record in the attorney’s name,
or by a party personally if the party is unrepresented. The paper
must state the signer’s address, e-mail address, telephone numberand fax number. Unless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by anaffidavit or a declaration pursuant to K.S.A. 53-601, andamendments thereto. The court must strike an unsigned paperunless the omission is promptly corrected after being called to the
attorney’s or party’s attention.
Ledin makes no effort to identify the specific pleadings, motions, or papers that
Thompson failed to sign. His complaint is that Thompson did not sign Orders,
Judgments, and Garnishment Orders, all of which were entered by judges and which
31 Adv. Dkt. 1, ¶s 41-44
32 Id. at ¶ 44.
33 Id. at ¶ 46.
Case 14-05193 Doc# 52 Filed 02/10/15 Page 14 of 17
attorneys are not necessarily required to sign. Section 60-211(a) does not support a
private cause of action in tort. This is a procedural, not substantive provision.34 The
more commonly invoked provisions (not pled by Ledin here), § 60-211(b) and (c),
supply a basis for courts to sanction lawyers and parties who file frivolous or false
pleadings. Ledin’s allegation of noncompliance with subsection (a) that merely
parrots the language of the statute is not sufficient to show that there are facts that
support a plausible claim for relief.35 Nothing alleged here shows that Ledin is
entitled to relief. The alleged violation of § 60-211(a) does not state a claim for relief
against Thompson and must be dismissed.
5. Failing to Comply with KAN. S. CT. RULE 170(d)(2)
Ledin claims that Thompson failed to comply with KAN. S. CT. RULE 170(d)(2),
a procedural rule governing proceedings in Kansas district courts (state trial courts)
titled “Preparation of Order” and that he should be answerable in damages. Rule 170
specifies the procedure for memorializing a court’s order when a state trial court
directs that it be prepared by a party. If the opposing party objects to the order, the
parties are to attempt to resolve the dispute before submitting the order to the court
to settle. Ledin says that on three occasions, Thompson failed to make a reasonable
effort to resolve Ledin’s objections to proposed orders submitted to the state trial
34 See Christenson Media Group, Inc. v. Lang Industries, Inc., 782 F. Supp. 2d 1213, 1221 (D.
Kan. 2011) (an unsigned pleading is a technical defect that does not affect the substantial
rights of the adverse party under § 60-211).
35 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007) (Plaintiff
must plead the grounds of his entitlement to relief with more than labels and conclusions or formulaic
recitation of the elements of a cause of action).
Case 14-05193 Doc# 52 Filed 02/10/15 Page 15 of 17
court.36 He does not allege any facts concerning the efforts attempted or the nature
of the objections. He does not even identify the proposed orders.
Rule 170(d)(2) and (3) provide:
(d)(2) If there is an objection, the parties must make a reasonable
effort to confer to resolve the objection and, if agreement is reached,
the drafter must submit the agreed journal entry to the court for
approval. A “reasonable effort to confer” requires more than sending
a communication to the opposing party. It requires that the parties
in good faith converse, compare views, and deliberate, or in good
faith attempt to do so.
(d)(3) If – after reasonable effort to confer – the parties have not
agreed on the terms of the order, the drafter must submit the
original draft and the objection to the court and the court mustsettle the order, with or without a hearing.
This purported claim against Thompson fails for the same reasons as Ledin’s claim
under § 60-211(a). No right to tort damages arises from the parties’ inability to resolve
an objection to a proposed order or a party’s noncompliance with the procedure for
drafting and submitting orders to the state trial court. Ledin’s allegation, pled solely
in paragraph 45 of the complaint, fails to state a claim for relief and must be
6. Lack of Subject Matter Jurisdiction
Ledin’s complaint is really no more than a collateral attack on a state court’s
final order. Ledin should have (and apparently did) raise his exemption claim in reply
to both FinanceCo garnishments as KAN. STAT. ANN. §§ 60-735(b) and 60-738(a) (2013
Supp.) allow.37 When the judgment debtor replies, objecting to the requested
36 Adv. Dkt. 1, ¶ 45.
37 See Adv. Dkt. 31, pp. 15-16 (Affidavit submitted in reply to September garnishment).
Case 14-05193 Doc# 52 Filed 02/10/15 Page 16 of 17
garnishment, the state court holds a hearing at which the objecting party bears the
burden of proving a claimed exemption and the facts alleged in his objection.38 Ledin
did that and lost; his remedy was to appeal that final order to the Kansas Court of
Appeals.39 When he didn’t, the garnishment order and order to pay became final.
This Court must give those orders full faith and credit. Even if an independent action
were proper under the circumstances, a wrongful garnishment action based upon a
prepetition garnishment proceeding would properly lie within the jurisdiction of the
state court, not the bankruptcy court, particularly where the garnished funds are
claimed exempt and not property of the bankruptcy estate. Moreover, such a cause of
action would be property of Ledin’s bankruptcy estate and the only proper party
plaintiff would be, in the first instance, the chapter 7 trustee. This Court is simply
without jurisdiction to grant the relief Ledin seeks.
For all of the foregoing reasons, Ledin’s complaint fails to state a claim for
relief against defendants Commerce Bank, Amy White, FinanceCo of Kansas, Inc.,
and Richard Thompson. The defendants’ motions are granted; the complaint is
dismissed. A judgment on decision shall issue this day.
# # #
38 See KAN. STAT. ANN. § 60-735(c) and § 60-738(b).
39 See e.g., LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 152 P.3d 34
(2007) (after judgment debtor successfully quashed garnishment of bank accounts, judgment
Case 14-05193 Doc# 52 Filed 02/10/15 Page 17 of 17
- Category: Judge Nugent
- Published on 27 January 2015
- Written by Judge Nugent
- Hits: 187
Nielsen et al v. Pollan, 13-05204 (Bankr. D. Kan. Jan. 14, 2014) Doc. # 55
SIGNED this 13th day of January, 2015.
DESIGNATED FOR ONLINE PUBLICATION
BUT NOT PRINT PUBLICATION
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
IN RE: )
MARY DONNA POLLAN, ) Case No. 13-12513
) Chapter 13
SHERI NIELSEN and )
JACKIE NIELSEN, )
vs. ) Adv. No. 13-5204
MARY DONNA POLLAN, )
Mary Pollan offered Sheri Nielsen a hand up in a time of need; she borrowed
money from two banks to buy Sheri a car and fund Sheri’s nursing school
Case 13-05204 Doc# 55 Filed 01/13/15 Page 1 of 14
enrollment while permitting her to live in a rental home Mary owned in Wichita.
Sheri was to make the payments on the debts that Mary incurred for her. When
Sheri failed to repay her, Mary resorted to self-help to collect from Sheri. After
convincing Sheri’s mother, Jackie, to refinance the car loan in her own name, Mary
reclaimed the (Kia) Soul that she had purchased for Sheri and sold it. Now Sheri
and Jackie allege that Mary defrauded them. After they sued her in state court, she
filed a chapter 13 case here. Sheri and Jackie filed this dischargeability complaint
alleging that Mary’s debt to them should be excepted from her discharge because it
was incurred by false representations, false pretenses or actual fraud as 11 U.S.C. §
To prevail in this proceeding, Sheri and Jackie Nielsen must show that
Mary’s representations were false when she made them or that she intentionally
fostered a false impression to defraud Sheri and Jackie. Merely demonstrating that
Mary took property in which Sheri and Jackie claimed an interest is not sufficient
to support their fraud-based claims—the only exceptions to her discharge that Sheri
and Jackie pled.1
This is the unhappy story of the misplaced affections and misunderstandings
that often begin with the best intentions. When Sheri Nielsen met Mary Pollan in
2004, she was a single mother. Mary and her husband (now deceased) ranched in
the Cambridge area of southeastern Kansas and Sheri lived nearby with her
daughter, America, and her boyfriend, Abel. Until he left Sheri, Abel helped Mr.
Pollan with miscellaneous work on the ranch. Mary became attached to Sheri and
1 Plaintiffs Sheri and Jackie Nielsen appeared by their attorney Barry L. Arbuckle of Wichita,
Kansas. Defendant and debtor Mary Pollan appeared by her attorney Carl B. Davis of Wichita,
Case 13-05204 Doc# 55 Filed 01/13/15 Page 2 of 14
America acting almost as a mother and grandmother to them. Sheri’s mother Jackie
worked at the café in town, helping to support herself and Sheri’s father who was ill
and on Social Security. Mary frequently cared for America and helped Sheri in
various other ways.
By 2011, Sheri wanted to become a nurse so Mary, now widowed, offered
Sheri three kinds of material assistance.2 She offered to borrow money from her
bank, the Emerald Bank, on her personal vehicle, and lend it to Sheri to pay for
nurses training and some lingering personal debts. She offered to assist Sheri in
purchasing a more reliable car (Sheri was driving a junker) so she could safely get
to Wichita for school. And, Mary offered Sheri a place to live in her rental house in
Wichita. Sheri was a nursing assistant at a nursing home at this time. Even so, she
agreed that if Mary would take these loans out, Sheri would carry the payments so
that Mary’s credit would not be periled.
On July 11, 2011, Sheri and Mary went to the Steven dealership in Wichita
to look at cars for Sheri. When they found a suitable vehicle, a used 2010 Kia Soul,
they applied for financing as co-makers. But, when the dealer told them that the
interest rate would be lower if only Mary were on the note (apparently owing to
Sheri’s bad credit), Mary alone signed a retail installment contract that Steven
assigned to TD Auto Finance and the car was titled to her.3 This was a 72-month
obligation with a $309 monthly payment. Sheri agreed that she would make the
The next day, July 12, Mary signed a note to Emerald Bank for $10,000,
secured by a lien on her 1995 Ford Mustang.4 This note was payable over two years
at $456 per month. The loan proceeds were deposited in her checking account and
2 At the time of the events in this proceeding, Sheri was 33-34 years of age.
3 Ex. C, Ex. D, and Ex. P.
4 Ex. A.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 3 of 14
from there, a $2,000 down payment was made on the Kia Soul by check dated July
19, a $1,700 cash withdrawal was made on July 22, and $6,000 was paid for Sheri’s
nursing school fees by check dated July 20.5 Mary wrote the $6,000 check, leaving
the payee line blank, and gave it to Sheri for nursing school; on the memo line of
the check, Mary noted “Loan Sheri.”6 Mary said she left the payee line blank
because she didn’t know the name of the school; Sheri says Mary actually gave her
the check to cash, that she did so at a Bank of America branch, and gave the money
back to Mary who took it instead to the casino. Someone wrote the name “Kari
Einerson” on the payee line and Ms. Einerson appears to have endorsed the check.
Ms. Einerson was an acquaintance of Sheri’s and according to Sheri used Bank of
America to cash the check (where Einerson banked), because Sheri had no bank
account and could not cash the check on her own.7 Sheri’s version lacks credibility
not least because Sheri concedes she agreed to repay the Emerald debt and because,
as Sheri testified, she was denied admission to nurses training after failing an
entrance examination or course prerequisite. Sheri wouldn’t have agreed to pay
(and, in fact, make payments) if she never received the benefit of the money.
At about the same time, Mary evicted a troublesome tenant from her rental
home on Sheridan Street in Wichita and allowed Sheri and America to move in.
5 See Ex. I. As the cancelled checks on Mary’s bank account demonstrate, she routinely filled out the
memo line of her checks identifying the purpose of the check. The $2,000 down payment to StevenKia (check no. 2100) was dated July 19 and cleared July 21. The $6,000 for nursing school (check no.
2101) was dated July 20 and cleared the bank on July 21. The cash withdrawal was purportedly for
unpaid bills and expenses of Sheri (including to repay loans from family members), but she deniesreceiving the $1,700 withdrawal. Sheri claims that she received a total of $2,700 from the $10,000
Emerald loan – the $2,000 car down payment and $700 cash for unspecified bills. In any event, Sheri
admitted receiving some amount for bills and expenses from Mary and acknowledged her obligation
to make payments on the Emerald loan.
6 Ex. H.
7 Sheri’s story that she was merely cashing the check for Mary is not believable. Mary’s bank account
records show that Mary made cash withdrawals in $50-$100 increments fairly regularly (which shepersonally signed for). See Ex. I, J, K. She needed neither to write a check to obtain cash nor Sheri’s
assistance. If Mary had intended to obtain cash via a check drawn on her account, she could have
made the check payable to “cash” and presented it.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 4 of 14
Sheri was to have free rent for three months, then begin paying $450 rent each
month. Mary intended this arrangement to run for at least six months. While it’s
difficult to understand how Sheri would be able to service $765 each month in debt
while paying $450 in rent, a total of $1,215 monthly, on her minimum wage job and
while she attended school, that appears to have been Sheri’s understanding and
Sheri defaulted. She missed the first several Emerald payments. She also
missed and was late from the outset on the TD Auto car loan payments, regularly
incurring late fees, while she was off work due to a shoulder injury.8 And, after the
free three months expired, she didn’t pay the rent on the Sheridan property. Mary
addressed this situation by repeatedly asking for the money. When that didn’t work,
in January of 2012, she took the car briefly as a “wake up call” to Sheri that she
expected repayment and in an effort to thwart a possible repossession of the Kia by
TD Auto.9 Not surprisingly, their relationship deteriorated and Sheri stopped
communicating with Mary. Sheri called TD Auto to see about taking the car loan on
herself, but, because TD Auto apparently thought Sheri was Mary’s daughter, they
sent the application to Mary’s Cambridge address. No application was made.
In April, Mary approached Jackie at Jackie’s workplace, the 160 Café in
Cambridge. She told Jackie about the two loans and Sheri’s default. She told Jackie
she wanted them all paid and that she didn’t want to hazard her credit rating. She
specifically asked Jackie to take on the TD Auto loan by refinancing it at her own
bank, Citizens Bank of Kansas. On April 24, 2012, someone representing either
Mary or Citizens Bank called TD Auto to get a payoff amount and, on April 30,
8 See Ex. F, TD Auto Account History showing a total of 4 loan payments on the TD Auto Loan:
October 12, 2011, January 24, 2012, February 6, 2012, and March 13, 2012.
9 Ex. L. TD Auto sent a notice of default addressed to Mary at the Sheridan property but Mary never
received the correspondence because she was not residing at the Sheridan property at the time. Sheri
was living there.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 5 of 14
Jackie closed a loan from Citizens for $17,709, enough to pay off the TD Auto loan
in full.10 Citizens forwarded the funds to TD Auto who, in turn, released its lien
against the Kia Soul on May 22.11 On June 2, the Kansas Department of Revenue
issued a clear certificate of title for the Soul to Mary, its record owner.12
Between May and September, Mary continued to ask Sheri and Jackie for
payment on the Emerald loan. When Sheri stopped taking Mary’s calls, Mary wrote
her letters, stating in one that she was “sorry I didn’t keep the car when I came
after it the first time.”13 Mary also approached Jackie at work, resulting in Jackie
calling the sheriff to remove her. Meanwhile, Citizens needed to complete its
documentation of the Nielsen car loan and, to that end, Citizens requested of Mary
to bring the Soul’s certificate of title to the bank. Mary brought the title to the
Winfield branch office and met with branch president Dennis Knackstedt. She
showed him the title, but took it back, saying she wished to consult with a lawyer
about how she might best proceed to preserve her rights in connection with the
Emerald loan. She then left the bank, never to return. Knackstedt wrote her on
September 28 requesting delivery of the title or repayment of what Citizens Bank
had advanced to pay off TD Auto.14
After receiving the Citizens Bank letter, Mary acted quickly. On October 2,
she and friend drove to Wichita and secured a duplicate key to the Soul from the
Steven dealership. They then went to Andover, Kansas where Sheri worked, and
stopped at the police department to seek assistance in taking the car. When the
police declined to assist, Mary and her friend went to Sheri’s place of employment
and took the car. They returned with it to Steven but, according to Mary, were told
10 Ex. 13, 9.
11 Ex. F and Ex. G. The TD Auto loan was paid off by Citizens on May 9, 2012 (Ex. F).
12 Ex. B.
13 Ex. T.
14 Ex. 16.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 6 of 14
the car was in too poor condition for Steven to buy it. In the intervening months
between July of 2011 and October of 2012, some 34,000 miles had been put on the
car. Sheri’s two dogs had ridden in it a lot; the windshield was cracked, and the car
was filled with toys, clothes, and trash. Nevertheless, when Mary and her friend
went to Carmax, that dealer offered her $8,000.15 Mary accepted and took the
money, signed over her title, and deposited the proceeds in Emerald Bank on
October 3 after paying, at least in part, the Emerald note.16
Sheri reported the car stolen, but because Mary had legal title to it, the
Andover police declined to pursue the complaint. Likewise, Sheri’s parents, who had
apparently insured the car, made a stolen car claim to Farm Bureau. Like the
police, Farm Bureau concluded that Mary’s legal title to the car supported her
taking it, thus denying the claim.17 Jackie and Sheri consulted their counsel and
sued Mary in Sedgwick County District Court.
The state court litigation has been eventful and expensive. Sheri and Jackie
sued not only Mary, but also Carmax, TD Auto, and Citizens Bank on a plethora of
theories. A proposed settlement between them and Citizens Bank was never
consummated. Carmax was dismissed from the case, as was TD Auto. TD Auto
received an award of KAN. STAT. ANN. § 60-211 attorney’s fee sanctions against
Sheri and Jackie’s counsel as part of its dismissal order. Their Kansas Consumer
Protection Act claims against Citizens were likewise dismissed and the Bank’s
“prevailing party” attorneys’ fees were also assessed against them. Their motion to
reconsider that award was denied and their counsel was sanctioned for his conduct
in connection with that matter as well. There are many copied court documents in
15 Ex. E.
16 Ex. M shows that Mary deposited the $8,000 sale proceeds in her savings account, net of $4,890
applied to the Emerald loan. Mary bagged up the personal property in the car and left it at the back
door of the 160 Café for Jackie to return to Sheri.
17 Ex. N.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 7 of 14
evidence, but the status of the remainder of the state court case remains unclear.
Whatever its status is, all that matters in this adversary proceeding is whether
Mary made false representations, employed false pretenses, or committed actual
fraud to obtain the Soul or its value and whether Mary’s debt to Sheri and Jackie
should be excepted from her chapter 13 discharge.18 Mary filed this chapter 13 case
on September 27, 2013. Neither Sheri nor Jackie filed a proof of claim in that
The plaintiffs’ theory of recovery in this case has evolved from a
broad-brushed allegation that Mary committed “fraud” under 11 U.S.C. § 1328(a)(2)
which incorporates § 523(a)(2)(A), to the more narrow issues presented at trial. In
his opening statement, plaintiffs’ counsel (who is also their lawyer in state court)
claimed his clients relied on Mary’s two alleged false statements: (1) that Mary
would assist Sheri in buying the Soul and, when Sheri had completed the payments,
Mary would sign it over to her; and (2) that if Sheri and Jackie would refinance the
car loan, Mary would let them have the car to secure that loan. In addition, counsel
stated that Mary’s conduct as a whole demonstrated false pretenses. Thus, this case
proceeded and will be decided on whether Mary’s statements were knowingly false,
made with intent to deceive, and justifiably relied upon by Sheri and Jackie to their
detriment under § 523(a)(2)(A). Likewise, I will consider whether the plaintiffs
proved that Mary’s conduct demonstrated false pretenses or actual fraud. Those are
the only theories of recovery the plaintiffs pleaded. Exceptions to discharge are
narrowly construed in favor of the debtor to promote the “fresh start” policy of the
Bankruptcy Code and therefore, where there is doubt it is resolved in the debtor’s
18 Nor did Plaintiffs present evidence of the extent of their claimed loss caused by Mary’s fraud.
19 The claims bar date ran on January 28, 2014. Sheri and Jackie are listed on Schedule F as
unsecured creditors with unliquidated claims.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 8 of 14
favor.20 The plaintiffs, as creditors, have the burden of proving their alleged
exception to discharge by a preponderance of the evidence.21
A representation is false for § 523(a)(2)(A) purposes if the speaker knows its
falsity when she utters it, that she intended to deceive the creditor by uttering it,
that the creditor relied on the statement to her detriment, and that the reliance was
justifiable.22 The intent to deceive can be inferred from the totality of the
circumstances.23 Sheri and Jackie allege that Mary made two sets of false
statements: first, that while Mary’s name would be on the TD Auto financing and
the Soul’s title, Sheri would own it; and second, that if Jackie and Sheri took out a
new loan to refinance Mary’s TD Auto car loan, the she would let them have the
vehicle as security.
The facts do not support the first alleged false representation. There is
simply no evidence that Mary undertook the purchase of the Soul for Sheri’s use
with the intention of getting someone else to pay for the car or with designs on
ultimately keeping it for herself. She already had two cars, the Mustang on which
she borrowed from Emerald and a 2010 Ford Fusion. Mary and Sheri shared the
understanding that Sheri would complete the payments and eventually receive the
vehicle. If Mary formed the intention to mulct Sheri and Jackie into paying for the
Soul so she could keep it, she did so after she purchased it from Steven and
borrowed the purchase price from TD Auto and after Sheri defaulted on payments.
Mary’s pre-purchase representation that Sheri would own the car once she’d made
the loan payments was not false and was not made with the intent to deceive. There
20 Jones v. Jones (In re Jones), 9 F.3d 878, 880 (10th Cir. 1993); Herman v. White (In re White), 519
B.R. 832, 834-35 (Bankr. N.D. Okla. 2014); In re Coates, 519 B.R. 842, 848 (Bankr. D. Utah 2014).
21 In re White, 519 B.R. at 835.
22 Bank of Cordell v. Sturgeon (In re Sturgeon), 496 B.R. 215, 222 (10th Cir. B.A.P. 2013).
23 Copper v. Lemke (In re Lemke), 423 B.R. 917, 922 (10th Cir. B.A.P. 2010).
Case 13-05204 Doc# 55 Filed 01/13/15 Page 9 of 14
was no evidence that Mary had no intention of fulfilling her promise to transfer the
car to Sheri upon repayment of the loans when the agreement was struck in July of
2011.24 Only when Sheri breached the agreement by not repaying the loans did
Mary’s intent change.25
The second representation allegation also lacks factual support. The evidence
is less than clear whether Mary’s conversations with Jackie at the café referred to
the Emerald loan. Jackie says Mary said nothing to her about it until after Jackie
and Sheri had signed the Citizens Bank note that refinanced the TD loan. Mary
says that she did in fact discuss the Emerald note with Jackie because she
considered the Emerald loan, the TD Auto loan, and the lease of the Sheridan
property a coordinated effort to help Sheri. The plaintiffs’ evidence of the second
representation is iffy at best. Jackie and Sheri had the burden to prove that Mary
made the false statement; I cannot conclude that they met that burden. Rather,
given Mary’s continuing belief that the loans and lease transaction were elements of
one arrangement between her and Sheri, it seems more likely that she would have
discussed the Emerald loan with Jackie. Repayment of the Emerald loan (secured
by Mary’s Ford) was, at least in Mary’s mind, a condition precedent to the Nielsens
getting the Kia.26 Mary’s subsequent conduct also suggests no misrepresentation
was made. The Citizens Bank loan, payoff of TD Auto, and lien release on the Soul
occurred in April and May of 2012. Mary took no steps to seize the Soul until
October, after Citizens Bank made demand upon her and after months of Mary
24 See In re Borschow, 454 B.R. 374, 395 (Bankr. W.D. Tex. 2011) (Mere promise, to be executed inthe future, is insufficient to make debt nondischargeable under § 523(a)(2)(A) unless debtor had no
intention of fulfilling the promise when made.).
25 This first representation is not in any event actionable by Jackie as Mary made no representationsto Jackie prior to purchase of the Kia. Jackie learned of Mary’s 2011 loans to Sheri after the fact.
26 In re Bird, 224 B.R. 622, 627 (Bankr. S.D. Ohio 1998) (If there is room for inference of honest
intent, nondischargeability must be resolved in favor of debtor.).
Case 13-05204 Doc# 55 Filed 01/13/15 Page 10 of 14
asking Sheri and Jackie for repayment of the Emerald Bank loan. Indeed, Mary’s
correspondence with both Jackie and Sheri in August, evidences Mary’s insistence
on Sheri’s timely payments of the Emerald Bank loan or getting it out of Mary’s
name so as not to damage her credit.27 That was the premise of Mary’s and Sheri’s
“deal” from the outset. Had Sheri made the Emerald payments, Mary likely would
not have seized the Kia.28
While false representation claims require express statements, false pretense
claims involve “implied representations intended to create and foster a false
impression.”29 This can include conduct and material omissions. As with the
Nielsens’ false representation claims, their proof falls short here. They failed to
prove that Mary’s initial conduct in borrowing money for Sheri to get her a car and
help finance her nursing school ambitions was done to create and foster a false
impression. The evidence demonstrates that, based largely on their friendship and
trust, Mary undertook to help Sheri, and through her, Sheri’s daughter, find a way
to a better life. Indeed, Sheri testified to her understanding that she would receive
the car when she had completed the payments on the TD loan. She also testified
that she attempted to keep the Emerald payments current until she was hurt and
unable to work. Sheri contacted TD Auto about moving the loan into her own name
and asked her mother about it. Sheri also knew that she would be obligated to pay
rent on the Wichita house at some point. Sheri and Jackie failed to demonstrate
that Mary’s conduct or speech “fostered a false impression” at least during the
27 Ex. T, U.
28 See also Ex. 15 – interrogatory answers nos. 10 and 11 indicate Mary’s intent and Sheri’s promise
that she would repay both the Emerald Bank loan and the TD Auto loan before ownership would be
transferred to Sheri.
29 In re Sturgeon, 496 B.R. 215, 223.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 11 of 14
Whether Mary fostered a false impression in her dealings with Jackie and
Citizens Bank is a much closer call. While it is not clear to me that Mary expressly
and falsely represented to Jackie that the Nielsens would get the Kia once they
refinanced the TD Auto loan, some of her conduct after that time might suggest that
she “fostered a false impression” about that. Whether she in her discussions with
Jackie made payment of Emerald loan a condition precedent to Sheri and Jackie
obtaining the Kia or not, Mary clearly understood that no third bank would likely
make a car loan without receiving a lien on the car. Indeed, she had to give Emerald
Bank a lien on her Ford to secure the nursing home loan. Mary wanted out from
under the TD Auto loan, but she also wanted the Emerald loan repaid. She showed
the Kia title to Mr. Knackstedt at Citizens Bank knowing that the TD Auto loan
had been paid off, but then refused to sign it over and carried it off. Then, in
October of 2012, after Citizens wrote and demanded that either the title be turned
over or that Mary take over the loan, Mary and her friend took possession of the Kia
and sold it.
In the end, Mary’s obligation to TD Auto was repaid by Jackie and Sheri’s
refinance at Citizens and her liability to Emerald was reduced when she sold the
Soul and applied its proceeds to that debt.31 But the issue in this proceeding was
whether that was the outcome she had in mind when she approached Jackie about
the TD Auto refinance.32 The record is simply unclear. Mary saw these transactions
as one: she incurred credit that Sheri couldn’t have gotten from a legitimate
30 The evidence established that Jackie was not even privy to Mary’s and Sheri’s dealings until after
the car was purchased.
31 The record is unclear on this point. Ex. M shows that Mary applied $4,890 to the Emerald Bank
loan but it is unclear whether this paid off the loan in full.
32 There was no evidence that Mary had any direct communication with Citizens Bank as to the
refinance transaction until after it was consummated.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 12 of 14
financial institution, credit that Sheri agreed to repay. While a banker or lawyer
might understand that retaining the Kia to “secure” Sheri’s paying Mary back for
the Emerald loan wasn’t legally proper, none of these three parties had either the
education or training to understand that. That taking the car to pay the Emerald
loan made sense to Mary suggests that she lacked requisite wrongful intent.33 In
her mind, even after the TD Auto loan had been repaid, Mary still had a debt to
collect and the Kia was the only means to do it, because Sheri had stopped making
payments. She took the asset to pay a debt. And as noted under the false
representations section herein, Mary continued to pursue Sheri’s timely loan
payment on the Emerald Bank loan after TD Auto was paid off and before she
resorted to the Kia.34 That is not enough to support a finding of false pretenses
To prevail on an actual fraud claim, the Nielsens had to show that Mary
deliberately engaged in a scheme to deprive them of property or a legal right. As
discussed above, they did not prove that Mary had any such plan or motive in mind
in July of 2011 when she purchased the Kia. Nor did they show that Mary had a
malign plan in mind when she approached Jackie about refinancing the Kia. What
appears to have happened here is that Sheri’s failure to maintain the payments
that Mary generously incurred in her behalf led to hurt feelings and distrust
leading her to take matters into her hands. After Mary realized that Sheri and
Jackie couldn’t or wouldn’t repay her for the Emerald loan, she repossessed a car to
which she had received clear title, sold it, and paid the Emerald loan herself. The
33 In correspondence to both Jackie and Sheri in August 2012, Mary lamented not keeping the car
when she repossessed it the first time. Ex. T, U. This negates the suggestion that she intended all
along to keep the car when she first approached Jackie to refinance the TD Auto loan.
34 See Ex. T, U.
Case 13-05204 Doc# 55 Filed 01/13/15 Page 13 of 14
Nielsens failed to prove the existence of a scheme to deprive or cheat them. Mary’s
only “scheme” was to collect from the Nielsens what she felt she was owed and what
Sheri had promised to pay.
What transpired in this case is unfortunate at best. Well-intended loans
between close friends or relatives frequently go awry when emotions cloud a
person’s lending judgment. Mary Pollan’s judgment was thus clouded. But her
conduct in this case is consistent with her belief that Sheri had agreed to repay her
for the credit she extended – the TD Auto loan and the Emerald loan. Once Sheri
and Mary’s communication broke down, Mary collected what she could by
repossessing and selling the car titled in her name. While discrete pieces of this
transaction show Mary in a negative light, Sheri and Jackie have failed to
demonstrate by a preponderance of the evidence that she falsely represented her
intentions to them, that she fostered a false impression, or that she made the Kia
purchase as part of a scheme to retain the car. Nor does it appear that Mary
intended to take the car at the time she approached Jackie about refinancing it. The
plaintiffs failed to demonstrate Mary’s bad intent; their complaint fails.35
Mary is entitled to judgment on the plaintiffs’ complaint and judgment will
be entered this day accordingly.
# # #
35 The Court does not condone Mary’s self-help initiative and notes that, in a non-bankruptcy
setting, Jackie and Sheri might be able to show that they had equitable title to the Kia and that
Mary converted it when she repossessed and sold the Soul. That was pled in state court, but not here.
Conversion can form the basis for a Chapter 7 discharge exception under § 523(a)(6) (willful and
malicious damage to property) when the converter is shown to have the requisite malicious intention.
That exception is not incorporated as one of the exceptions to a chapter 13 full payment discharge
Case 13-05204 Doc# 55 Filed 01/13/15 Page 14 of 14
- Category: Judge Nugent
- Published on 13 November 2014
- Written by Judge Nugent
- Hits: 258
Morris v. Ark Valley Credit Union et al, 14-05002 (Bankr. D. Kan. Oct. 30, 2014) Doc. # 46
SIGNED this 30th day of October, 2014.
DESIGNATED FOR ONLINE PUBLICATION ONLY
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
IN RE: )
JEFFREY KENT GRACY, ) Case No. 13-11917
) Chapter 7
J. MICHAEL MORRIS, Trustee,
vs. ) Adv. No. 14-5002
ARK VALLEY CREDIT UNION; )
and JEFFREY KENT GRACY )
ORDER DENYING ARK VALLEY CREDIT UNION’S MOTION TO DISMISS
Can the trustee avoid an unperfected lien in a mobile home when the creditor
denies that it took a lien in the home as security for a revolving line of credit extended
to debtor? Debtor Jeffrey Gracy lives in a 1994 Fuqua manufactured home that is set
Case 14-05002 Doc# 46 Filed 10/30/14 Page 1 of 7
on real estate he owns. He granted two separate mortgages to Ark Valley Credit
Union – the first in 2009 in the amount of $21,000 and the second in 2010 in the
amount of $26,000 – to secure a revolving line of credit. Both mortgages legally
describe the subject real estate at 617 W. Avenue G, Caldwell, Kansas, together with
all improvements and fixtures; the mortgages do not describe, specifically or
generally, the manufactured home. The trustee seeks to avoid the alleged lien in the
mobile home under 11 U.S.C. § 544(a) claiming the mobile home is property subject
to the mortgage lien and was unperfected on the date of the petition. Ark Valley
moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), made applicable to
adversary proceedings by Fed. R. Bankr. P. 7012(b), asserting that it claims no lien
in the mobile home and attaching exhibits and evidentiary material to its motion.
Limiting my review to the allegations of the trustee’s avoidance complaint, the Court
concludes that it satisfies the facial plausibility standard of Twombly1 and Iqbal2 and
therefore, Ark Valley’s motion to dismiss for failure to state a claim must be DENIED.
Because material factual questions remain regarding the revolving line of
credit transactions between debtor and Ark Valley, whether the mortgage lien
attached to the mobile home, the home’s worth, and whether non-parties may claim
an interest in the home, I direct that this matter proceed to a status conference on
November 7, 2014 in advance of the evidentiary hearing, currently set for November
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed. 2d 929 (2007) (plaintiff must
allege sufficient facts to render the claim “plausible on its face.”).
2 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009).
Case 14-05002 Doc# 46 Filed 10/30/14 Page 2 of 7
Debtor filed his chapter 7 petition on July 25, 2013. The trustee filed this
adversary complaint on January 6, 2014 seeking to avoid and preserve Ark Valley’s
alleged lien in the debtor’s Fuqua manufactured home under § 544(a). After first filing
an answer to the complaint, Ark Valley moved to dismiss the complaint, contending
that because it did not claim a lien in the mobile home, the trustee had failed to state
a claim upon which relief could be granted under Fed. R. Civ. P. 12(b)(6), incorporated
in adversary proceedings by Fed. R. Bankr. P. 7012(b). In its supporting
memorandum, Ark Valley set forth a separate statement of facts, supported by copies
of the mortgages referenced in the complaint and attached other documents that were
not part of the pleadings in the case. In his response, the trustee did not admit or
deny Ark Valley’s statement of facts, but alleged his own facts, also supported by the
mortgages and materials outside the pleadings, including the affidavit of debtor that
purports to describe the manner in which the mobile home is affixed to the real estate.
I decline to convert Ark Valley’s motion to dismiss to one for summary
judgment as Fed. R. Civ. P. 12(d) permits, and except for the mortgages which are
referenced in the complaint, copies of which both parties have attached to their
memoranda, I do not consider any of the non-pleading materials that the parties have
presented in evaluating whether the trustee’s complaint states a claim pursuant to
3 The chapter 7 trustee J. Michael Morris appears on his own behalf. Ark Valley Credit Union appearsby its counsel Eric D. Bruce. Pro se debtor Jeffrey Gracy does not appear and a default judgment was
entered against him on February 28, 2014. See Adv. Dkt. 20.
Case 14-05002 Doc# 46 Filed 10/30/14 Page 3 of 7
Rule 12(b)(6).4 Converting the motion would be futile because there are genuine
disputes of material fact that cannot be determined in a summary proceeding--the
intent of the parties in granting the mortgages and entering into the revolving line of
credit transaction, the value of the manufactured home, and the value of the avoided
lien should the trustee’s avoidance claim be established.
The Trustee’s Complaint
The trustee’s complaint is brought under § 544(a) and § 551 to avoid and
preserve an alleged unperfected lien in the manufactured home for the benefit of the
estate. Section § 544(a)(1) grants the trustee the status of a hypothetical lien creditor
as of the date of the bankruptcy petition. The trustee can avoid liens that were
unperfected on that date. Under Kansas law, the rights of the person who became a
lien creditor prior to perfection have priority over the person holding an unperfected
security interest.5 Thus, to prevail on an avoidance complaint, the trustee must show
that the creditor has a valid lien in the subject property and that the lien is not
properly perfected as of commencement of the bankruptcy case. If the creditor’s lien
never attaches, there is no lien for the trustee to avoid and it has no value to the
4 Fed. R. Bankr. P. 7012(b) incorporates Fed. R. Civ. P. 12(d). Rule 12(d) does not require the Court toconvert the motion to one for summary judgment unless it considers matters that are outside the
pleadings and are not public records. The court has broad discretion in determining whether or not to
accept materials beyond the pleadings. Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
However, in certain circumstances, a court may consider documents that are referenced in the
complaint, but not attached, without converting the motion to one for summary judgment. See Thomas
v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014) (when documents are referenced in a complaint that are
central to plaintiff’s claims and indisputably authentic, court may consider such documents when
resolving a motion to dismiss without converting the motion to summary judgment); GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997) (on motion to dismiss incontract dispute, court’s consideration of letter that purported to satisfy the statute of frauds was noterror where letter was referred to in the complaint, authenticity of the letter was not disputed, andletter was attached to and discussed in plaintiff’s brief in opposition to the 12(b)(6) motion).
5 KAN. STAT. ANN. § 84-9-317(a) (2013 Supp.); In re Haberman, 516 F.3d 1207 (10th Cir. 2008).
Case 14-05002 Doc# 46 Filed 10/30/14 Page 4 of 7
Here, the trustee alleges that debtor granted two prepetition mortgages to Ark
Valley on January 27, 2009 and on January 19, 2010 respectively, on Lots 32, 34, 36
and 38, Block 85 in Caldwell, Kansas. He alleges that the debtor’s 1994 Fuqua
manufactured home is part of the mortgaged property. And finally he alleges that the
security interest or lien in the manufactured home was not perfected as of the date of
the bankruptcy filing, subjecting it to the trustee’s avoidance powers under § 544(a).
These allegations meet the Twombly facial plausibility standard for stating a
claim for avoidance of the alleged lien on the manufactured home under § 544(a). The
complaint alleges the execution of an instrument (the mortgages) by the debtor to Ark
Valley. Ark Valley admits that the debtor executed them in its answer.7 The trustee’s
allegation that the mortgaged property includes the manufactured home effectively
asserts that a security interest attached to the manufactured home by virtue of the
mortgages.8 Taken together the trustee asserts that debtor granted a lien in the
While Ark Valley suggests that it did not intend to take a security interest in
the mobile home and therefore the lien never attached, there is no need to decide that
6 Rajala v. Buerge (In re Buerge), 2013 WL 4409698 at *7 (Bankr. D. Kan. Aug. 13, 2013) (under §
544(a), the trustee seeks to avoid unperfected – but otherwise valid – liens that are attached to
property of the debtor; a lien that never attaches to property is not only unperfected but also invalid
and entirely worthless to the estate).
7 Adv. Dkt. 5, ¶ 1.
8 See In re Brooks, 452 B.R. 809, 813 (Bankr. D. Kan. 2011) (mortgage that creates or provides for a
security interest in fixtures and is signed by debtor constitutes an authenticated security agreement
necessary for attachment of security interest in mobile home under KAN. STAT. ANN. § 84-9-203,
Kansas’ version of the Uniform Commercial Code); See also, KAN. STAT. ANN. § 84-9-102(a)(73)
(defining term ‘security agreement’).
Case 14-05002 Doc# 46 Filed 10/30/14 Page 5 of 7
ultimate issue at this stage. I only need to determine if the trustee stated a facially
plausible claim. He did. He alleged facts from which a court might conclude that a
lien attached to the mobile home by virtue of the mortgage. That raises the trustee’s
right to relief above the speculative level.9 Only at trial will I interpret the mortgage
instruments and consider any other extrinsic evidence the parties may offer about
what they mutually intended when the mortgages were granted.10
Finally, the trustee alleges that the alleged lien on the manufactured home
was unperfected on the bankruptcy petition date, the key element for the trustee to
exercise his avoiding power under § 544(a). While it might have been preferable to
attach the mortgages upon which the trustee’s claim is founded to the adversary
complaint, he has nonetheless sufficiently pled a claim to avoid and preserve the
purported lien of Ark Valley in the debtor’s home.11 Ark Valley’s motion to dismiss is
Other Necessary Parties
9 Twombly, 550 U.S. 544, 555. A claim has facial plausibility when factual content is pled that allowsthe court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Iqbal, 556 U.S. at 678.
10 See In re Mahan, 2007 WL 4387420 at *3-4 (Bankr. N.D. Okla. 2007) (In addition to satisfying the
technical requirements of UCC Article 9 (§ 9-203) for a security agreement and attachment, court must
satisfy itself that the parties intended to create a security interest in the subject property; like all
contracts, there must be a meeting of the minds that a security interest attach to the collateral at
issue.); Barkley Clark and Barbara Clark, 1 THE LAW OF SECURED TRANSACTIONS UNDER THE UNIFORM
COMMERCIAL CODE § 2.02[b] (3rd Ed. 2014) (court’s role is to determine the mutual intent of the
parties; security agreement is no different from any other contract); Baldwin v. Hays Asphalt Const.,
Inc., 20 Kan. App. 2d 853, 857, 893 P.2d 275 (1995) (In determining whether security interest exists,
the intent of the parties controls; that intent is determined by the language used in the instrument
and considering the conditions and circumstances when the contract was made); First Nat. Bank and
Trust Co. of Oklahoma City v. Atchison County Auction Co., Inc., 10 Kan. App. 2d 382, 386, 699 P.2d
1032 (1985) (where ambiguity in a security agreement results from inclusion of the location of the
collateral, parol evidence is admissible to determine the intent of the parties; evidence that both bankand debtor intended security agreement to cover all of debtor’s livestock, despite security agreement’sdescription of collateral that included location of some of the cattle).
11 See Fed. R. Civ. P. 10(c).
Case 14-05002 Doc# 46 Filed 10/30/14 Page 6 of 7
Ark Valley provided an exhibit suggesting that the manufactured home was
last titled to Leonard and Gladys Tomlin and that Green Tree Financial Corporation
claimed a security interest in it.12 The title appears to have been issued in August of
1994. Neither the Tomlins nor Green Tree are parties to this adversary proceeding.
Their interests in the mobile home, if any, cannot be determined or protected in their
absence because they have no notice of the proceeding. The Court may not be able to
render complete relief among debtor, the Trustee, and Ark Valley without them and,
if the present parties do not join them or explain their failure to do so, the Court is
obligated to do so.13
Conclusion and Orders
Ark Valley’s motion to dismiss is DENIED. Trial counsel are directed to appear
for a final pretrial status conference in this matter on November 7, 2014 at
11:00 a.m. at which time they should be prepared to address whether all necessary
parties have been properly joined in this adversary proceeding as well as any other
matters typically considered at final pretrial conference.14 Trial of this matter
remains scheduled for November 18, 2014, subject to further order of the Court.
# # #
12 Adv. Dkt. 34, p. 40.
13 See Fed. R. Civ. P. 19(a)(1) and (2); Fed. R. Bankr. P. 7019.
14 The Court entered the Final Pretrial Order in this matter on October 20, 2014. Adv. Dkt. 40.
Case 14-05002 Doc# 46 Filed 10/30/14 Page 7 of 7
- Category: Judge Nugent
- Published on 22 January 2015
- Written by Judge Nugent
- Hits: 192
Morris v. Ark Valley Credit Union et al, 14-05002 (Bankr. D. Kan. Jan. 7, 2015) Doc. # 57
SIGNED this 6th day of January, 2015.
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
IN RE: )
JEFFREY KENT GRACY, ) Case No. 13-11917
) Chapter 7
J. MICHAEL MORRIS, Trustee,
vs. ) Adv. No. 14-5002
ARK VALLEY CREDIT UNION; )
and JEFFREY KENT GRACY )
When Jeffrey Gracy took two home equity loans from Ark Valley Credit Union,
he signed mortgages that described the real estate upon which he lives, along with
Case 14-05002 Doc# 57 Filed 01/06/15 Page 1 of 16
any improvements and fixtures. He intended to grant and Ark Valley intended to
take liens in his land as well as his residence, a manufactured home. Neither he nor
Ark Valley took measures to eliminate the certificate of title on his manufactured
home, allowing it to remain personal property that is subject to the Uniform
Commercial Code and, specifically, Article 9. An Article 9 security interest only
attaches when, among other things, the security agreement reasonably identifies the
In this case, the trustee seeks to avoid an alleged unperfected lien in a
manufactured home by virtue of a mortgage that describes the lender’s security as
both the debtor’s real property and any “fixtures” upon the property. Mortgages can
be “security agreements” if they satisfy the three requirements of KAN. STAT. ANN. §
84-9-203 (2013 Supp.), but when the transaction is a “consumer transaction” that
involves “consumer goods,” § 84-9-108(e)(2) renders a generic collateral description
by UCC type insufficient as a matter of law.
As discussed below, Gracy’s home equity lines of credit from Ark Valley Credit
Union were consumer transactions and the manufactured home—his residence—is a
consumer good. The liens that Ark Valley sought never attached to the manufactured
home leaving the trustee nothing to avoid.1
Findings of Fact
In the mid-1990’s debtor Jeff Gracy bought the land commonly described as
1 The trustee J. Michael Morris appeared in person. Ark Valley Credit Union appeared by its counsel
Eric Bruce. The debtor Jeffrey Gracy appeared as a witness at trial, but is in default of answering thecomplaint and the trustee obtained a default judgment against Gracy. Adv. Dkt. 20 (Ex. 10).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 2 of 16
617 W. Avenue G in Caldwell, Kansas and moved a new 1994 Fuqua manufactured
home that he had purchased from his father-in-law onto the property. Mr. Gracy and
his wife lived there; she has since passed, but he continued to live there. He paid off
the manufactured home’s purchase money loan in 2007, leaving it free and clear of
liens at the time of the subsequent transactions with Ark Valley that are the subject
of this proceeding.2 While the title to the home was never transferred to Mr. Gracy of
record, he located the certificate of title among papers in his home after this case was
filed. Neither party offered it in evidence. Kansas law permits manufactured
homeowners or lienholders to “eliminate” certificates of title, thus changing the
character of the manufactured home from personal property to an improvement to
the real estate.3 That was not done in this case.
In January of 2009, Mr. Gracy borrowed $21,000 from Ark Valley Credit Union
on a home equity line of credit to refinance what he described as personal bills or
expenses.4 The line of credit was secured by a 15-year Revolving Credit Mortgage
granted on the Caldwell property. It provides:
TO SECURE to Lender:
(1) The repayment of all indebtedness due and to become due under
the terms and conditions of the . . . Credit Agreement . . .
(2) The payment of all other sums advanced
. . . to protect the
security of this Mortgage . . .
(3) The performance of Borrower’s covenants and agreements of
Borrower herein contained;
BORROWER does hereby mortgage, grant and convey to Lender the
2 The purchase money lender, Green Tree Financial Corp., never released the lien of record, see Exhibit
3 See KAN. STAT. ANN. § 58-4214 (2005).
4 The credit agreement – a LOANLINER Home Equity Plan Credit Agreement and Truth-in-Lending
Disclosures – referenced in the mortgage instrument was not offered into evidence at trial.
Case 14-05002 Doc# 57 Filed 01/06/15 Page 3 of 16
following described property located in the County of Sumner, Stateof Kansas:
Lots 32, 34, 36, and 38, Block 85, New Caldwell Addition, City ofCaldwell, Sumner County, Kansas which has the address of 617 W.
Ave. G, Caldwell, Kansas 67022 (herein “Property Address”);
TOGETHER with all the improvements now or hereafter erected
on the property, and all easements, rights, appurtenances and
fixtures, all of which shall be deemed to be and remain a part of the
property covered by this Mortgage; . . . .5
No reference was made in the mortgage to the manufactured home located on the
A year later, on January 19, 2010 Mr. Gracy obtained a second line of credit
from Ark Valley in the amount of $26,000 and executed another Revolving Credit
Mortgage on an identical form to secure repayment of the indebtedness. He used this
money to build a detached garage on the property.6 The 2010 mortgage had a 20-year
term but the collateral description was identical to that on the 2009 Revolving Credit
Mortgage as were the granting and habendum clauses. The 2010 mortgage also made
no reference to a manufactured home being located on the realty.
Mr. Gracy thinks that the Ark Valley lending officer knew the described
property was his “home,” but testified that there was no discussion of it being a
manufactured home. When he executed the mortgages, he believed that he had
granted a lien on his land, the manufactured home, and the detached garage. Mr.
Gracy did not recall any specific discussion with Ark Valley about the mortgage form
5 Ex. B, emphasis added.
6 Ex. E.
Case 14-05002 Doc# 57 Filed 01/06/15 Page 4 of 16
or its meaning.
Mary Gillette is the retired manager for Ark Valley. She dealt with Mr. Gracy
on these credit transactions. She testified that credit union employees received
training on documenting mobile home loans. In particular, the credit union’s policy
was that manufactured homes offered as security for a home equity loan were
required to be set on a permanent foundation and the home’s certificate of title was
to be eliminated.7 She did not elaborate on what makes a foundation “permanent.”
Ms. Gillette knew there was a “house” on the property and that Gracy lived there, but
she did not know that Gracy’s home was a manufactured home.
The credit union didn’t obtain an appraisal of the property to support either
loan, but it did rely on the 2008 Sumner County real estate tax valuation in making
the 2009 loan.8 According to Ms. Gillette, the credit union could loan up to 70% of the
property’s appraised value - $75,410. Before it made the second loan in 2010, Ark
Valley obtained a title insurance commitment from abstractor Security 1st Title to
make sure no other liens were placed against the real estate.9 Neither the tax
valuation nor the title insurance certificate reference a manufactured home or any
other improvement on the real estate.10 Ms. Gillette also testified that Ark Valley
7 Ms. Gillette was referring to Kansas law that requires elimination of a manufactured home’s
certificate of title to change the character of a home permanently affixed to the land from personalproperty to an improvement to real property. See KAN. STAT. ANN. § 58-4214(a) (2005). Subsection (b)
sets forth the process and requirements of an application to eliminate title.
8 Ex. G.
9 Ex. H.
10 A 2013 two-page printout from the online Sumner County Information System regarding this parcelshows the property’s use is that of a “single family residence (detached).” The second page of theprintout shows the structure as a “detached SFR [single family residence] unit” and the architectural
style is identified as “Mod/MH [modular/manufactured home]” with a crawl space as the basement.
See Ex. 6. There is no evidence, however, that Ark Valley ever referred to Sumner County’s online
Case 14-05002 Doc# 57 Filed 01/06/15 Page 5 of 16
employees were trained to take a mortgage “on everything.” With respect to Mr.
Gracy’s loans, she intended to obtain a lien on the property as a whole, including the
Neither party offered any photographic evidence of how the manufactured
home was set on the ground, leaving me only Mr. Gracy’s testimony on that topic. On
direct examination, he testified that the home was set on “concrete slabs” spaced
every 2-3 feet running the length of the home. On cross-examination, Mr. Gracy
expanded on this description, testifying that the home is set on cement block piers
running the length of the home. Mr. Gracy’s description is consistent with the
existence of concrete footings as opposed to a solid concrete foundation under the
home. It is likely that the piers are set on the concrete slab footings. The home
remains on its chassis and is anchored to the surface with what Mr. Gracy called
metal straps. These straps are stanchions that tie down and provide support for the
home. The manufactured home is skirted with brick, but there is no evidence to
suggest that it is load-bearing. Utility service is connected to the home from
underneath the home. At some point, Mr. Gracy added a concrete patio and steps to
the back side of the mobile home and the detached garage was built on the property
in 2010. The front porch and steps were constructed of wood. At trial, neither party
elicited whether the manufactured home could be removed intact from the real estate.
Gracy filed this chapter 7 bankruptcy on July 25, 2013. He claimed the
property exempt as his homestead.11 On the date of his petition, the combined balance
Information System at the time of making the loans to Gracy.
11 The Court observes that Gracy did not separately schedule the manufactured home as personal
Case 14-05002 Doc# 57 Filed 01/06/15 Page 6 of 16
of the home equity loans was $43,426.12 Gracy continues to make monthly principal
and interest payments of $347 on the Ark Valley debt.
The trustee filed this adversary proceeding to avoid Ark Valley’s alleged lien
in the manufactured home as unperfected under 11 U.S.C. § 544(a) because Ark
Valley’s lien is not indicated on the home’s certificate of title as KAN. STAT. ANN. § 584204
(2013 Supp.) requires. Ark Valley denies that it took a lien in the home, leaving
no lien to be avoided. The Court denied its motion to dismiss for failure to state a
claim on this basis.13
Conclusions of Law
The trustee invokes his § 544(a) lien creditor avoiding powers, requiring the
Court to navigate the intersection of Kansas property law, Kansas’s version of Article
9 of the Uniform Commercial Code, and the Kansas Manufactured Housing Act, KAN.
STAT. ANN. § 58-4201 et seq. (2005 and 2013 Supp.) to determine whether Ark Valley
received enforceable security interests on Gracy’s manufactured home under the
mortgages and whether those security interests were properly perfected. As noted in
my ruling on Ark Valley’s motion to dismiss, the first issue is one of attachment. Only
if the credit union’s liens attached will I need to assess whether the lien was properly
The trustee says that a lien attached to the manufactured home because the
collateral description in the mortgages included the term “fixtures.” He further
property on Schedule B.
12 Ex. 8.
13 Adv. Dkt. 33, 34, and 45 (order).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 7 of 16
asserts that the evidence establishes that the manufactured home was a fixture
under the common law of fixtures because it was permanently affixed to the real
In the face of its own witness’s credible testimony, Ark Valley counters that it
did not intend to create a lien on the manufactured home and, therefore, no lien
attached. It further contends that the manufactured home is personal property, not
a fixture, because the certificate of title was never eliminated as provided under KAN.
STAT. ANN. § 58-4214, and the common law of fixtures is inapplicable under the Tenth
Circuit Bankruptcy Appellate Panel’s decision in In re Thomas.14 Finally, even if the
common law of fixtures applies, Ark Valley submits that the trustee has failed to meet
its burden of proof that the manufactured home is a fixture encumbered by the
Development of the Law on Manufactured Home Secured
Article 9 of the Uniform Commercial Code, codified in Kansas at KAN. STAT.
ANN. § 84-9-101 et seq. (2013 Supp.), governs security interests in personal property
and fixtures.15 Secured transactions involving manufactured homes are governed in
part by Article 9; such homes are generally personal property though they may
become fixtures if they become sufficiently related to real property.16
Section 84-9-203 governs the attachment of a security interest to collateral and
its enforceability, including a security interest in a manufactured home. Subsection
14 362 B.R. 478 (10th Cir. BAP 2007).
15 See § 84-9-109(a)(1) (scope); § 84-9-101, Official UCC Comment 1.
16 § 84-9-102(a)(53) and (54) (defining manufactured homes and manufactured home transactions).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 8 of 16
(b) requires that value be given, that debtor have rights in the collateral, and that the
debtor have authenticated a security agreement that provides a description of the
collateral. No particular form of a security agreement is required; instead the
agreement must create a security interest as defined in § 84-1-201(b)(35).17 A
mortgage may qualify as an authenticated security agreement.18 But if the formal
requisites of § 84-9-203 are met, the Court must satisfy itself that the parties
mutually intended a security interest to attach to the manufactured home,
particularly where, as here, Ark Valley, denies such intention.19
If the attachment criteria are met, we turn to perfection. In most cases, a
security interest is perfected by the filing of a financing statement.20 Section 84-9311(
a)(2) addresses perfection of a security interest in collateral covered by a state
certificate of title statute and generally provides that indicating the security interest
on the certificate of title or otherwise complying with the non-uniform statute’s other
perfection requirements has the effect that filing a financing statement has.21 In the
case of certificate of title property like a manufactured home, filing a financing
statement is unnecessary and ineffective to perfect a security interest.22
Prior to 1991, the state statute governing perfection of a security interest in
manufactured homes or mobile homes was found in the motor vehicle statutes,
17 § 84-9-102(a)(73) (defining a “security agreement”); § 84-1-201(b)(35) (defining “security interest” as
an interest in personal property or fixtures which secures payment or performance of an obligation).
18 See In re Brooks, 452 B.R. 809, 813 (Bankr. D. Kan. 2011).
19 Adv. Dkt. 45, n. 10 at p. 6.
20 § 84-9-310(a).
21 Section 84-9-109(c)(2) provides that Article 9 does not apply to the extent another statute of this
state expressly governs the creation, perfection, priority or enforcement of a security interest.
22 § 84-9-310(b)(3).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 9 of 16
specifically KAN. STAT. ANN. § 8-135(c), because a manufactured home was defined as
a vehicle.23 In 1991, Kansas enacted the Manufactured Housing Act (KMHA), KAN.
STAT. ANN. § 58-4201 et seq. Section 58-4204 is now the certificate of title statute
governing manufactured homes. The method of perfection, however, remained
generally unchanged – notation of the lien on the certificate of title.24 For KMHA
purposes, a manufactured home is deemed to be personal property and § 58-4204 is
the exclusive means of perfecting a security interest in one.25
Section 58-4204(i) of the KMHA addresses perfection of non-purchase money
security interests in a manufactured home after the original certificate of title has
been issued and applies to the Ark Valley transactions. That section provides, in part:
When a person acquires a security agreement on a manufactured home or
mobile home subsequent to the issuance of the original title on such
manufactured home or mobile home, such person shall require the holder
of the certificate of title to surrender the same and sign an application for a
mortgage title in such form as prescribed by the director. Upon such
surrender, the person shall immediately deliver the certificate of title,
application and a fee of $10 to the division. Upon receipt thereof the
division shall issue a new certificate of title, showing the liens or
encumbrances so created, but not more than two liens or encumbrances
may be shown upon a title. The delivery of the certificate of title,
application and fee to the division shall perfect such person's security
interest in the manufactured home or mobile home described in the
certificate of title, as referenced in K.S.A. 84-9-311, and amendments
In 2002, the legislature amended the KMHA to add § 58-4214. This statute
provided a mechanism to convert the legal character of a manufactured home from
23 See Beneficial Finance Co. of Kansas, Inc. v. Schroeder, 12 Kan. App. 2d 150, 737 P.2d 52 (1987),
rev. denied 241 Kan. 838 (1987).
24 See § 58-4204(i) (2013 Supp.) governing a party who acquires a non-purchase money security interest
in a manufactured home after issuance of the original certificate of title on the manufactured home.
25 See § 58-4204(a); In re Jackson, 358 B.R. 412, 416 (Bankr. D. Kan. 2007).
26 § 58-4204(i) (2013 Supp.), emphasis added.
Case 14-05002 Doc# 57 Filed 01/06/15 Page 10 of 16
personal property to “an improvement to real property” for all purposes. 27 There are
two requirements to effect this change: (1) the home must be affixed to a permanent
foundation; and (2) the certificate of title must be eliminated pursuant to § 584214(
b). In short, the KMHA provides that a manufactured home is personal property
unless the certificate of title is eliminated. It remains subject to the provisions of
Article 9, and for purposes of perfection, the certificate of title statute, § 58-4204 until
the title is eliminated. If the requirements of § 58-4214 are satisfied, the
manufactured home is treated as real property to which the lien of valid real estate
mortgage covering the real property attaches.
There is no question in this case that even if Ark Valley’s liens attached to the
manufactured home, they are not perfected. The certificate of title has not been
eliminated, the manufactured home remains personal property, and Ark Valley’s
liens needed to be indicated on the certificate of title to be properly perfected. The
critical inquiry here is whether the mortgages sufficed to create security interests
that attached to the manufactured home at all.
The trustee argues that the mortgages create security interests in the
manufactured home because, notwithstanding the lack of a general or specific
27 The legislative history to HB 2723 (adding § 58-4214 to the KMHA) reflects that the purpose for
enacting an elimination of certificate of title provision was to enable title insurance to be obtained onmanufactured homes placed on permanent foundations. Without the elimination of the mobile hometitle, title insurers viewed the home as personal property and would not insure the transfer of
ownership of manufactured or mobile homes. Kansas’s elimination statute was modeled after similarstatutes in Colorado and Washington. See Minutes of the Senate Committee on Financial Institutions
and Insurance dated March 26, 2002, Hearing on HB 2723 on March 20, 2002 (with attachments and
written testimony); Kansas Summary of Legislation, 2002 Reg. Sess. H.B. 2723 (elimination ofcertificates of title on manufactured homes makes them eligible for title insurance).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 11 of 16
reference to the manufactured home in the mortgages, the habendum clause refers to
“fixtures.” Thus, the trustee reasons, if the evidence shows that the manufactured
home is a fixture, it is sufficiently described so that Article 9 security interests
attached to it by virtue of the mortgages.
Section 84-9-203 governs the requirements for attachment and
enforcement of a security interest in collateral.
A security interest attaches and becomes enforceable upon the satisfaction of
three conditions: (1) value has been given; (2) the debtor has rights in the collateral;
and (3) the debtor has authenticated a security agreement that provides a description
of the collateral. The first two conditions are easily met. Ark Valley gave value to the
debtor in the form of loan proceeds. The debtor has rights in the manufactured home
as, at a minimum, the equitable owner. As for the third requirement, the mortgages
granted by Gracy to Ark Valley qualify as authenticated security agreements because
they “mortgage, grant and convey” an interest in the real property legally described,
together with improvements and fixtures that “secure” the repayment of the
indebtedness under the home equity credit agreements.
But, two questions remain. First, did Gracy and Ark Valley mutually intend to
grant a security interest in the manufactured home located on the real property?
And, second, does the use of the term “fixtures” sufficiently describe the otherwise
unidentified collateral -- the manufactured home?
As to the first question, because Ark Valley denies that it took a security
interest in the manufactured home, we look beyond the technical requirements of §
Case 14-05002 Doc# 57 Filed 01/06/15 Page 12 of 16
84-9-203(b) to determine whether the parties intended to create a security interest in
the manufactured home.28 Mr. Gracy unequivocally testified that Ark Valley knew
his “home” was located on the land and in executing the mortgages he believed he
was granting a lien on his land, the manufactured home, and the detached garage.
The Ark Valley witness largely corroborated Mr. Gracy’s testimony. Ms. Gillette
knew that Gracy lived in a “house” on the described realty but didn’t know that it was
a manufactured home. Gracy and Gillette had no discussion that the “home” or
“house” on the property was a manufactured home. She had been trained to obtain
mortgages “on everything” to secure loans and acknowledged that her intent was to
obtain a mortgage on the property as a whole. All of the evidence suggests that the
parties mutually intended to grant a security interest in the manufactured home.29
The security agreement must describe the collateral in which
a security interest is granted.
The sufficiency of the description of the collateral in a security agreement is
governed by § 84-9-108 which requires that the collateral be reasonably identified.
The purpose of the collateral description is evidentiary, and the test of sufficiency is
“that the description do the job assigned to it: Make possible the identification of the
collateral described.”30 While supergeneric descriptions in security agreements are
prohibited under subsection (c), § 84-9-108(b) generally authorizes describing
28 Adv. Dkt. 45, n.10 at p. 6.
29 Based upon Ms. Gillette’s testimony, she recognized that if the collateral was a manufactured home,
special requirements were necessary for Ark Valley to be properly perfected by the recorded mortgage.
But the inquiry here is not whether Ms. Gillette intended to perfect a security interest in the
manufactured home; the inquiry is whether she, on behalf of Ark Valley, intended to obtain a lien on
Mr. Gracy’s home.
30 See Official UCC Comment 2, § 84-9-108.
Case 14-05002 Doc# 57 Filed 01/06/15 Page 13 of 16
collateral by category or type such as goods, inventory, equipment, accounts, etc.31
The UCC recognizes several categories or types of collateral. Most relevant here,
“goods” are broadly defined in § 84-9-102(a)(44) as all things that are movable at the
time a security interest attaches; “goods” specifically subsumes “fixtures” and
“manufactured homes.” “Fixtures” are also a UCC-defined type of collateral.32
Likewise, “consumer goods” defined in § 84-9-102(a)(23), are “goods” that are used
primarily for personal, family, or household purposes.33 Because Gracy uses his
manufactured home as his residence, it is a “consumer good” and the transactions it
secures are “consumer transactions.”
A more specific description of collateral is required in a
consumer transaction involving consumer goods.
Consumer goods are an exception to the general rule permitting description by
collateral type. Subsection (e)(2) of § 84-9-108 renders descriptions of consumer goods
by collateral type insufficient in consumer transactions; a more specific description is
required.34 Gracy’s home equity loans from Ark Valley are consumer transactions
involving consumer goods. Section 84-9-102(a)(26) defines a consumer transaction as
“a transaction in which (i) an individual incurs an obligation primarily for personal,
family, or household purposes, (ii) a security interest secures the obligation, and (iii)
the collateral is held or acquired primarily for personal, family, or household
31 § 84-9-108(b); See § 84-9-102, Official UCC Comments 3 and 4.
32 § 84-9-102(a)(41).
33 Revised Article 9 retained the four mutually exclusive “types” of goods: inventory, equipment, farm
products and consumer goods. See § 84-9-102, Official UCC Comment 4.
34 In re Cunningham, 489 B.R. 602 (Bankr. D. Kan. 2013) (recognizing rule that property type
descriptions of collateral are not sufficient for consumer goods; a collateral description of “goods
purchased on Account” or “goods purchased with Card” was insufficient to allow attachment and
enforceability of a security interest in the goods purchased).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 14 of 16
purposes. “Consumer-goods transactions” are subsumed under “consumer
Gracy testified that he used the proceeds of the 2009 home equity loan to pay
unspecified personal expenses. He used the proceeds of the 2010 home equity loan to
construct a detached garage on the property. These obligations were incurred for
primarily personal, family, or household purposes. Gracy lives in the manufactured
home–another personal, family, or household use. Therefore, the home equity loans
are consumer transactions as defined in § 84-9-102(a)(26). The manufactured home
is a “good” under § 84-9-102(a)(44) that is also a “consumer good” under § 84-9102(
a)(23). This makes § 84-9-108(e)(2) apply to these lines of credit transactions with
Ark Valley. Therefore, the collateral “type” descriptions in the mortgages are
insufficient to attach security interests in the manufactured home.36 Here, the
collateral is generically described as a fixture, a UCC-defined collateral type.37 A
specific reference to a “manufactured home” on the real property might have
reasonably identified the consumer goods in which a security interest was being
granted as § 84-9-108(e)(2) requires. But here, neither of Gracy’s mortgages referred
to a “manufactured home,” whether generically or specifically. The collateral
description in the security agreements is insufficient to attach a security interest in
35 Consumer-goods transactions are defined in § 84-9-102(a)(24).
36 Cf. In re Pizzano, 439 B.R. 445, 450-53 (Bankr. W.D. Mich. 2010) (collateral type description of
“goods” was sufficient for security interest to attach to debtor’s Corvette where the financing
transaction between debtor and creditor was a commercial transaction to finance debtor’s business
and the Corvette was both a “good” and “consumer good”).
37 Id. at 452 (calling party’s argument that fixtures are not a “type” of collateral defined in the UCC “a
dubious proposition”). Section 84-9-102(a)(41) defines fixtures as “goods that have become so related
to particular real property that an interest in them arises under real property law.”
Case 14-05002 Doc# 57 Filed 01/06/15 Page 15 of 16
the manufactured home as a matter of law.38 Because there is no lien in the
manufactured home to avoid, the trustee’s § 544(a) complaint necessarily fails.39 This
adversary proceeding should be dismissed.
Because Ark Valley’s mortgages insufficiently described Mr. Gracy’s
manufacture home, the liens that Mr. Gracy sought to grant and Ark Valley tried to
obtain never attached, leaving the trustee with nothing to avoid. Judgment shall be
entered for Ark Valley accordingly and a judgment on decision will issue this day.40
# # #
38 Cf. In re Brooks, 452 B.R. 809, 813 (Bankr. D. Kan. 2011) (granting clause of mortgage described
two tracts of real estate and specified that one of the tracts also included a “mobile home”).
39 See In re Seibold, 351 B.R. 741 (Bankr. D. Idaho 2006) (The trustee cannot preserve a nonexistent
lien; where a security agreement did not exist under applicable state law, there is nothing for thetrustee to avoid.); Rajala v. Buerge (In re Buerge), 2013 WL 4409698 at *7 (Bankr. D. Kan. Aug. 13,2013) (Section 544(a) of the Bankruptcy Code empowers the trustee to avoid unperfected but otherwise
valid liens that are attached to property of the debtor; a lien that never attaches is not only
unperfected, it is invalid and entirely worthless to the estate.)
40 Having concluded that no lien attached by virtue of the mortgages, we do not reach the questionwhether the manufactured home was in fact a fixture based upon the evidence presented at trial. Nor
is it necessary to consider whether the enactment of § 58-4214 of the KMHA rendered the Kansas
common law of fixtures inapplicable to manufactured housing secured transactions as the TenthCircuit Bankruptcy Appellate Panel concluded in In re Thomas, 362 B.R. 478 (10th Cir. BAP 2007).
Case 14-05002 Doc# 57 Filed 01/06/15 Page 16 of 16
- Category: Judge Nugent
- Published on 10 November 2014
- Written by Judge Nugent
- Hits: 345
In Re Dynamic Drywall Inc, 14-11131 (Bankr. D. Kan. Oct. 22, 2014) Doc. # 112
SIGNED this 22nd day of October, 2014.
DESIGNATED FOR ONLINE PUBLICATION ONLY
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
IN RE: )
DYNAMIC DRYWALL, INC. ) Case No. 14-11131
) Chapter 11
ORDER ON JOINT MOTION OF BUILDING CONSTRUCTION
ENTERPRISES, INC. AND HARTFORD FIRE INSURANCE CO.
FOR RELIEF FROM THE AUTOMATIC STAY
Dynamic Drywall Inc.’s bankruptcy petition stayed any actions against it.
Building Construction Enterprises (BCE) and Hartford Fire Insurance Company
(Hartford) claim that they should receive relief from the stay for cause so they can
continue pre-petition state court litigation in Johnson County, Kansas District Court.
In general, pre-petition litigants can be granted that relief if they can show that
Case 14-11131 Doc# 112 Filed 10/22/14 Page 1 of 12
judicial economy would be served by allowing the non-bankruptcy court to complete its
work, the parties are ready for trial, the non-bankruptcy proceedings may resolve
issues critical to the bankruptcy case, the non-debtor parties are reasonably likely to
succeed on the merits, and that the debtor will not be burdened by its defense costs
during the pendency of its bankruptcy case.1
After lengthy contract litigation among these parties, Dynamic received a
judgment in Johnson County court awarding it attorneys fees against BCE, but not
Hartford, on April 4, 2014 (the Fee Award). The judgment was entered in a reasoned
opinion in which the district court judge invited BCE to file a motion for a “subsequent
hearing” at which the parties could present more evidence about whether some of the
fees awarded were for services rendered on issues not related to the BCE-Drywall
dispute. BCE filed nothing. Then, on May 5, 2014, Drywall appealed the Fee Award to
the Kansas Court of Appeals and, on May 21, filed its voluntary petition here.2
Now Hartford and BCE seek relief from the stay to defend Dynamic’s state court
appeal of the Fee Award and to file a motion to “reconsider” the Fee Award in Johnson
County District Court.3 When they argued their motion on August 6, 2014, I granted
limited relief to allow all of the parties to pursue their rights in the Fee Award appeal
1See In re Curtis, 40 B.R. 795, 799-800 (D. Utah 1984) (citing 12 factors to beconsidered in lifting stay to allow pre-petition non-bankruptcy litigation tocontinue).
2 Because the thirtieth day, May 4, fell on a Sunday, the notice of appeal wasdue on May 5, 2014. See KAN. STAT. ANN. § 60-206(a)(1)(C) (2013 Supp.).
3 Dkt. 24.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 2 of 12
through the entry of final judgment.4 I also invited them to brief whether there was
cause to grant stay relief to allow the post-trial state court motion to be filed.5 After
carefully reviewing the Fee Award and the briefs, I conclude that the contemplated
post-trial motion for “subsequent hearing” is stayed and that, because BCE and
Hartford failed to show cause for any relief, the balance of their motion should be
denied. The state trial court has lost jurisdiction of the case because of the pending
appeal. Granting stay relief to allow a motion to be filed there would be futile.6
The pre-petition state court litigation between Dynamic, BCE, and Hartford
arises from a construction contract. BCE was a general contractor that subcontracted
with Dynamic to supply labor and materials for building an adult detention facility
being erected by the Johnson County, Kansas Public Building Commission (the
Commission). Hartford issued the public works statutory payment bond for the project
as required by Kansas law. After BCE sued the Commission for breach of contract in
4 See TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th
Cir. 2011) (automatic stay provision stays all appeals in proceedings that wereoriginally brought against the debtor, regardless of whether the debtor is theappellant or appellee); In re Horizon Womens Care Professional LLC, 506 B.R. 553
(Bankr. D. Colo. 2014) (pending appeal of state court’s attorney fee award againstphysician arising from the LLC debtor’s lawsuit for breach of employmentagreement was not subject to the automatic stay).
5 Dkt. 38.
6 Debtor Dynamic Drywall, Inc. appears by its attorney Mark J. Lazzo.
Movant Building Construction Enterprises, Inc. appears by its attorneys Scott C.
Long and Burke D. Robinson. Movant Hartford Fire Insurance Company appearsby its attorneys Greta A. McMorris and Lawrence Lerner.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 3 of 12
2006, Dynamic intervened and asserted its own breach of contract and bond claim
against BCE and Hartford.7 In October of 2009, BCE prevailed on its contract claims
against the Commission. In May of 2010, BCE, Hartford, and Dynamic settled their
remaining disputes by BCE and Hartford agreeing to pay Dynamic $325,000 and
stipulating to a partial dismissal that reserved to Dynamic the right to seek attorney’s
fees under its subcontract and the settlement agreement. In July of 2010, Dynamic
filed its motion for those attorney’s fees and costs, seeking an award of $619,313. In
November of 2011, the Johnson County district judge conducted a three day trial on
the attorney’s fees motion. While that matter was pending, the Commission appealed
the judgment entered against it in the contract dispute between it and BCE and
Hartford. BCE cross appealed. That appeal was concluded in October of 2013.
On April 4, 2014, two and half years after the 2011 fee application trial, the
district judge entered the Fee Award, granting Dynamic judgment against BCE for
attorney’s fees and expenses of $378,662.10. But, in his summary of the ruling, the
judge said that this amount could be adjusted for “legal work not related to the claims
and issues involved in the dispute between BCE and DDI [Dynamic], which shall be
determined at a subsequent hearing.”8 The opinion contains several other statements
7 Building Construction Enterprise, Inc. v. Public Building Commission of
Johnson County, Case No. 06cv3708 in the District Court of Johnson County,
8 Dkt. 24-2 at p. 17, Journal Entry of Judgment and Memorandum filed April4, 2014 and attached as Exhibit B to movants’ motion for relief from the automatic
stay, hereafter referred to as the Fee Award.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 4 of 12
suggesting that the judge doubted whether BCE should be answerable for all of the
fees he assessed. For example, “such attorney fee statement contains significant
amounts of time and expense relating to claims and issues for which DDI is not
entitled to recover attorney fees . . . .”9 He noted various inconsistencies in the
testimony of the attorney who represented Dynamic in the previous proceedings and
whose fees were at issue. Likewise, he questioned the credibility of Dynamic’s expert’s
The judge also stated that he had “not examined each line of each billing
statement” to determine whether the time spent was related to a Dynamic-BCE
disputed issue and that “no specific evidence was provided . . . by either party in order
for the Court to discern which entries apply to issues unrelated to the dispute between
DDI and BCE.”10 Even so, the judge ruled that Dynamic was entitled to recover fees
from BCE11 in the amount of $378,662.10, “less those items of billing that do not relate
to the litigation between BCE and DDI which BCE may bring to the court’s attention
by a motion to reduce the judgment at a later hearing.”12 Noting that BCE was
9 Fee Award, p. 7.
10 Id. at p.15.
11 The judge concluded that Hartford was not obligated to pay Dynamic’sattorney fees and expenses by virtue of bonding the project or the settlement
agreement. See Fee Award, pp. 10-13. Presumably, Hartford seeks stay relief hereto challenge the fee award there in case the Court of Appeals reverses or alters thatpart of the judge’s ruling exonerating it from liability for attorneys fees under thecontract and settlement agreement.
12 Fee Award, p. 16.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 5 of 12
allegedly “judgment proof,” the judge further directed that if “BCE wishes to pursue
the reduction of attorney’s fees and expenses . . . , BCE must bring [unrelated
expenses] to the Court’s attention by a motion to reconsider. . . .”13 The decretal
paragraph of the journal entry provides for a judgment in the above amount, minus
any fees and expenses that might be disallowed in a subsequent “later hearing.”
Because BCE never filed a motion, that hearing never occurred.
Dynamic appealed the Fee Award to the Kansas Court of Appeals, filing its
timely notice of appeal on May 5, 2014. Neither BCE nor Hartford cross appealed. The
28-day period in which to file a motion to alter or amend a judgment under KAN. STAT.
ANN. § 60-259(f) expired on May 2, 2014 without any motions being filed.14 Not
surprisingly, on June 5, 2014, the Court of Appeals issued a sua sponte order directing
the parties to show cause why the appeal should not be dismissed as interlocutory,
focusing on the “subsequent hearing” language in the journal entry and questioning
whether the Fee Award was final.15 Both parties briefed the issue and, on July 2, 2014,
the Court of Appeals entered the following order, quoted in its entirety, “Appeal
14 Kansas law does not recognize a “motion to reconsider” per se. The courts
have construed such a motion as a post-trial motion to alter or amend the judgmentbrought under KAN. STAT. ANN. § 60-259(f) (2013 Supp.). Honeycutt v. City of
Wichita, 251 Kan. 451, 460, 836 P.2d 1128 (1992); Hundley v. Pfuetze, 18 Kan.App.
2d 755, 756, 858 P.2d 1244 (1993).
15 Dkt. 33-2.
16 Dkt. 33-5.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 6 of 12
Dynamic filed its chapter 11 petition on May 21, 2014. BCE and Hartford jointly
moved for stay relief on June 30 seeking (1) to file a post-trial motion in Johnson
County District Court to pursue the “subsequent hearing” mentioned in the Fee Award
order; and (2) to defend their interests in the Fee Award appeal.17
BCE and Hartford argue that their participation in the ongoing attorney’s fee
dispute is not stayed because they are defending against Dynamic’s affirmative action
against them. They also argue that the Johnson County District Court retains
jurisdiction to reduce the Fee Award notwithstanding the pending appeal because
attorney’s fee requests are simply requests for costs that can be decided after the
merits of a case have been determined even if the court’s decision on the merits has
been appealed. They argue that their requesting a “subsequent hearing” is not stayed
and that the District Court may hear it at any time. Drywall views this effort as an
attack on a property interest of the debtor and further suggests that when BCE and
Hartford failed to seek relief from the Fee Award within 28 days, they lost the right to
seek its reduction forever.
A. The “subsequent hearing” is stayed by 11 U.S.C. § 362(a).
The automatic stay imposed by § 362(a)(1) restrains the commencement or
continuation of proceedings against the debtor while subsection (a)(3) stays actions to
obtain possession or control over debtor’s property. While the movants are correct that
17 Dkt. 24.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 7 of 12
defensive actions in cases brought by a debtor are not stayed,18 this situation is
different. The Fee Award is a final order that has been appealed.19 Asking the district
court to reconsider it by reducing the amount of Drywall’s judgment is not merely
“defensive.” It is a collateral attack on a final judgment and having to defend it will
burden Drywall by requiring it not only to prosecute its appeal, but also to concurrently
defend this motion in the trial court. BCE’s and Hartford’s effort to reduce the amount
of a final judgment owned by the debtor and to require the debtor to fight on multiple
fronts would be contrary to the purpose and intent of the automatic stay which was
designed to protect a reorganizing debtor’s property from acquisitive creditors while
it rearranges its affairs.
The Fee Award is a final judgment that has been appealed; lifting
the stay to allow further trial court proceedings regarding the
Fee Award would be futile because the state district court has
lost jurisdiction of the case.
BCE is correct in noting that the Kansas Supreme Court has held that a pending
merits appeal does not deprive a trial court of jurisdiction to award costs, including
18 See Riviera Drilling and Exploration Co. v. Gunnison Energy Corp., 412
Fed. Appx. 89 (10th Cir., Jan. 25, 2011) (bankruptcy automatic stay did not voidtrial court’s dismissal of debtor’s antitrust lawsuit against defendants for failure toprosecute); TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th
Cir. 2011) (automatic stay provision stays all appeals in proceedings that wereoriginally brought against the debtor, regardless of whether the debtor is theappellant or appellee).
19 As noted supra at page 2-3, this Court has previously granted partial relieffrom the automatic stay for the parties to pursue and defend the appeal of the FeeAward. See Dkt. 66.
Case 14-11131 Doc# 112 Filed 10/22/14 Page 8 of 12
attorney’s fees, in a case.20 But, the only appeal on the merits in the state court
litigation was the appeal of the court’s judgment concerning the contract dispute
between BCE and the Commission. That appeal was concluded in October of 2013,
before the Fee Award was ever entered. The merits of the contract and bond claims
among Dynamic, BCE, and Hartford were settled by stipulation and agreed dismissal
orders. In the settlement agreement and agreed dismissal order, the parties expressly
reserved the issue of Dynamic’s right to claim attorney’s fees. When these parties
settled the remaining claims in the litigation, BCE’s judgment against the Commission
became a final judgment from which the Commission appealed while the trial court
retained jurisdiction to assess Dynamic’s attorney’s fees.21
The trial court entered its Fee Award as a judgment after a trial on the
application. That judgment became final and appealable when BCE and Hartford
failed to file post-trial motions.22 Dynamic appealed the Fee Award and neither BCE
nor Hartford have cross-appealed. Once Dynamic filed its notice of appeal and the
20 Moritz Implement Co., Inc. v. Matthews, 265 Kan. 179, 189-90, 959 P.2d
886 (1998) (foreclosure judgment did not preclude the trial court from determiningamount due for attorney fees in the sale confirmation order); Snodgrass v. State
Farm Mut. Auto. Ins. Co., 246 Kan. 371, 377-78, 789 P.2d 211 (1990) (decision onmerits is a final decision for purposes of appeal and does not require determinationof motion for attorney fees attributable to case before filing a timely notice ofappeal; claim for attorney’s fees is not part of the merits of the action to which thefees pertain).
21 This procedure is wholly consistent with Snodgrass, supra.
22 Filing post-trial motions would have tolled the appeal time. KAN. STAT.
ANN. § 60-2103(a) (2013 Supp.).
Case 14-11131 Doc# 112 Filed 10/22/14 Page 9 of 12
appeal was docketed, the district court lost jurisdiction of the Fee Award controversy.23
To conclude otherwise would be to conclude that two state courts could simultaneously
exercise jurisdiction over the merits of the Fee Award - the district court and the
appellate court. That would risk the two courts’ reaching conflicting determinations
and would completely disregard the respective statutory jurisdictional grants of each
court.24 No work remains for the trial court to do on the Fee Award unless or until the
Court of Appeals remands it for further proceedings.
Because of this lack of jurisdiction, there is no cause to lift the automatic stay
under § 362(d)(1) to allow the parties to pursue further litigation in district court.
Bankruptcy courts in the Tenth Circuit look to the factors originally listed in In re
Curtis in determining whether to lift the stay to allow pending litigation to go
23 Dkt. 33-4, p. 28 showing that Dynamic’s appeal was docketed on June 3,2014. See Martin v. Martin, 5 Kan. App. 2d 670, 623 P.2d 527 (1981) (trial court canre-examine its rulings only within time allotted by rule for relief from judgment andbefore appeal is docketed; trial court was without jurisdiction to consider motion forrelief from judgment where it was not filed until after appeal from judgment wasdocketed in the Court of Appeals); Harsch v. Miller, 288 Kan. 280, 200 P.3d 467
(2009) (trial court does not have jurisdiction to modify a judgment after it has beenappealed and the appeal docketed at the appellate level); Matter of Robinson’s
Estate, 232 Kan. 752, 754, 659 P.2d 172 (1983) (noting general rule that trial courtdoes not have jurisdiction to modify a judgment after it has been appealed and theappeal docketed but the rule does not stay other proceedings before the lower court).
24 See In re Horizon Womens Care Professional LLC, 506 B.R. 553 (Bankr. D.
Colo. 2014) (even if automatic stay applied to pending appeal of state court’s feeaward against physician in state court litigation brought by debtor for breach ofemployment agreement containing a prevailing party provision, allowingcompletion of fee appeal would not interfere with administration of bankruptcycase; pending appeal was properly venued in state appellate court and state courtsystem was the only forum for final determination of the issue).
Case 14-11131 Doc# 112 Filed 10/22/14 Page 10 of 12
forward.25 Applying these factors allows the bankruptcy court to assess and balance the
benefits and burdens to each party of permitting or blocking ongoing prepetition
litigation while a bankruptcy case is pending. Among the factors that are relevant in
this matter are judicial economy, the potential resolution of issues critical to the
bankruptcy case, trial readiness, the likelihood that the non-debtor will succeed on the
merits, and the burden of defense costs on the debtor during its reorganization.
Judicial economy will not be served by allowing the non-debtors BCE and
Hartford to belatedly attempt to invoke the state trial court’s non-existent jurisdiction
to consider subject matter identical to that which is under review in the Fee Award
appeal – whether and to what extent Dynamic was entitled to attorney’s fees and from
whom it could recover them. The statutory time in which to seek to alter or amend a
judgment, 28 days, has long since expired. Despite the district judge’s repeated
invitation to do so, BCE never filed the motion. As noted above, my permitting the
motion to alter and amend a judgment that is on appeal would allow a second and
inferior court to revisit a judgment that is on appeal to the court of appeals. That is the
opposite of judicial economy.
The validity and amount of the Fee Award is not a critical issue in the
bankruptcy case at this time. Even if it were, the court of appeals must first pass on
25 In re Curtis, 40 B.R. 795, 799-800 (D. Utah 1984) (citing 12 factors to beconsidered). See also Busch v. Busch (In re Busch), 294 B.R. 137, 141 (10th Cir. BAP
2003) (noting that Curtis factors have been widely adopted by bankruptcy courts);
Carbaugh v. Carbaugh (In re Carbaugh), 278 B.R. 512, 525 (10th Cir. BAP 2002)
(“Cause” for relief from the automatic stay is a discretionary determination made ona case-by-case basis).
Case 14-11131 Doc# 112 Filed 10/22/14 Page 11 of 12
the validity of the judgment and the bankruptcy court is bound to give full faith and
credit to the state courts’ final order on that issue.
There is no suggestion that the parties are “trial ready.” BCE had 28 days in
which to file a motion to alter and amend this past May, but didn’t. The fee application
was tried for three days in November of 2011, nearly three years ago. Even if the stay
were lifted to allow this motion to proceed, the parties would require considerable time
to gear up to retry a case that they appear to have already tried once before.
Because the district court lacks jurisdiction to alter or amend the appealed
judgment, BCE and Hartford cannot hope to succeed on the merits. Allowing them to
file the motion now would be untimely and futile. There is no reason to tax the district
court with hearing it or Drywall with the costs defending it.
The joint motion of BCE and Hartford for relief from the automatic stay is
DENIED, except as previously granted to allow the parties to respectively prosecute
and defend the Fee Award appeal.
# # #
Case 14-11131 Doc# 112 Filed 10/22/14 Page 12 of 12