Last year, we offered a lesson and a moral from a North Carolina district court decision reversing a $115,000 sanctions order by a North Carolina bankruptcy court.
The lesson from the case was that the bankruptcy court cannot sanction a creditor if there is an objectively reasonable basis for concluding that the creditor's conduct is lawful.
The moral was that a creditor can avoid the time, expense, and risk associated with litigating contempt and sanctions issues by taking basic steps to ensure that confirmed Chapter 11 plans are clear and precise. The moral is even more glaring now because a recent decision from the Fourth Circuit Court of Appeals reveals that the parties continue to fight in court over the easily-avoidable sanctions order. The decision also clarifies when and why a bankruptcy court can sanction a creditor.
In 2009, the Beckharts filed Chapter 11. At the time, they were almost a year behind on a loan secured by the property at Kure Beach. The loan servicer objected to planning confirmation because it did not specify how post-petition mortgage payments would be applied to principal and interest. The bankruptcy court confirmed the plan without clarifying the issue, but the servicer did not ask the court to reconsider its order, nor did it appeal.
The Beckharts paid for five years. Shellpoint acquired the loan from the original servicer and treated it as in default based on unpaid accrued arrearages. Periodically, Shellpoint sent default letters to the Beckharts, who disputed the default. Counsel for Shellpoint advised that the confirmation order had not changed the loan contract terms and that the loan remained in default. The matter escalated with the Beckharts filing complaints with the Consumer Financial Protection Bureau. Shellpoint commenced foreclosure, then represented to the Beckharts that it was ceasing foreclosure, but then posted a foreclosure hearing notice on the Beckharts' door (allegedly due to error).
In January 2020, the Beckharts moved the bankruptcy court to find Shellpoint in contempt and award them monetary sanctions. The court held a hearing in June and, in September 2020, found Shellpoint in contempt. The court tagged Shellpoint with $115,000 in sanctions for lost wages, "loss of a fresh start," attorney's fees, and travel expenses.
Bankruptcy courts have the power to hold a party in civil contempt and to impose sanctions for violation of a confirmed plan. The test for liability is based on a recent United States Supreme Court decision -- Taggart v. Lorenzen. The Taggart test prohibits sanctions if there was an "objectively reasonable basis for concluding that the creditor's conduct might be lawful." There can be contempt for violating the discharge injunction only "if there is no fair ground of doubt as to whether the order barred the creditor's conduct."
In reversing the bankruptcy court, the district court noted that the plan and confirmation order did not state how much the debtors would owe on confirmation, did not say how the $23,000 in arrears would be paid, and did not set the amount of the first payment. Confusingly, the confirmation order also said that the original loan terms would remain in effect, except as modified. Finally, the district court pointed out that Shellpoint was repeatedly advised by counsel that their behavior was authorized, and reliance on the advice of outside counsel is a sufficient defense to civil sanctions. Based on all these facts, the district court found that Shellpoint acted in good faith and interpreted the confirmation order in a manner consistent with the contractual terms of the loan, and that was objectively reasonable.
Taggart was a Chapter 7 case involving a discharge violation, but the Fourth Circuit held that the "no fair ground of doubt" test applied broadly in bankruptcy – including in Chapter 11 cases.
But the Fourth Circuit disagreed with the district court's decision to reverse the bankruptcy court because the creditor had requested and received legal advice from outside counsel. The Fourth Circuit held that advice of counsel is not an absolute defense in civil contempt. The Court suggested that, under the Taggart test, advice of counsel "may still be considered in appropriate circumstances as a relevant factor" and "a party's reliance on guidance from outside counsel may be instructive, at least in part, when determining whether that party's belief that she was complying with the order was objectively unreasonable."
The Fourth Circuit held that both lower courts had made mistakes and sent the case back to the bankruptcy court to "reconsider the contempt motion under the correct legal standard, including any additional fact-finding that may be necessary."
Creditors can take some comfort in the "no fair ground of doubt" test, which is more forgiving than a strict liability standard. But creditors can't blame their lawyer for perilous conduct and expect the court to exonerate them.
But the most important takeaway hasn't changed: Creditors should insist on clear and specific plan terms. After over two years of litigation, Shellpoint remains in peril of sanctions. All of this could have been avoided had the loan servicer insisted the plan specify how the Beckharts' payments would be applied to satisfy the arrearage.
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