Filed: Apr. 01, 2021
Latest Update: Apr. 02, 2021
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
In re: HOLLY MACINTYRE,
Debtor.
------------------------------
HOLLY MACINTYRE,
Plaintiff - Appellant,
v. No. 20-1199
(BAP No. 19-039-CO)
JP MORGAN CHASE BANK, N.A., (Bankruptcy Appellate Panel)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, McHUGH, and MORITZ, Circuit Judges.
_________________________________
After concluding her bankruptcy case, Holly MacIntyre resisted JPMorgan
Chase Bank, N.A.’s efforts to foreclose a non-discharged lien on real property she
owned. She then reopened her bankruptcy case and filed an adversary proceeding
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claiming Chase violated her bankruptcy discharge injunction by seeking an award of
attorneys’ fees for defending Ms. MacIntyre’s appeal of its foreclosure judgment.
Chase never attempted to collect those fees, and according to the complaint, never
intended to collect them. The bankruptcy court dismissed Ms. MacIntyre’s complaint
for failure to state a claim in part because it concluded Chase’s alleged acts did not
violate the discharge injunction. The bankruptcy appellate panel (BAP) affirmed.
Exercising jurisdiction under 28 U.S.C. § 158(d)(1), we affirm.
I. Background
“Ms. MacIntyre owned real property in Jefferson County, Colorado. In 2003,
she executed a $100,000 promissory note secured by a deed of trust on the property.”
MacIntyre v. JP Morgan Chase Bank, N.A., 827 F. App’x 812, 814 (10th Cir. 2020).
Ms. MacIntyre filed for chapter 7 bankruptcy in 2010. The bankruptcy estate
abandoned its interest in the property back to Ms. MacIntyre, though the property
remained subject to the deed of trust. The bankruptcy court granted Ms. MacIntyre a
discharge in 2011 and closed her bankruptcy case.
“In 2014, Chase, asserting it was the note holder, sought a foreclosure
judgment in state court authorizing a sale of the property.” Id. Ms. MacIntyre fought
Chase. The trial court “rejected Ms. MacIntyre’s assertion that Chase’s note was
forged, concluded Chase was the note holder, and issued a judgment of judicial
foreclosure.”
Id.
“Ms. MacIntyre appealed to the Colorado Court of Appeals (CCA) and filed
three motions to stay execution of the judgment—one in the trial court and two in the
2
CCA. All three were denied . . . .” Id. In its answer brief filed with the CCA, Chase
sought attorneys’ fees incurred in connection with the appeal. But it did not specify
whether the fees should be awarded in rem or as a personal obligation of
Ms. MacIntyre. After Chase filed its brief but before the CCA ruled on Chase’s
request for attorneys’ fees, “the property was sold at a sheriff’s sale,”
id. The CCA
then affirmed the foreclosure judgment, awarded attorneys’ fees to Chase, and
remanded for the trial court to determine the amount of fees to be awarded to Chase.
The CCA did not specify whether the attorneys’ fees award should be a personal
obligation of Ms. MacIntyre. On remand, Chase notified the trial court that it would
“not seek the recovery of its awarded appellate attorneys’ fees and costs in this
action.” Aplt. App. at 154 (internal quotation marks omitted).
Ms. MacIntyre then reopened her bankruptcy case and filed an adversary
proceeding pro se seeking to hold Chase in contempt for violating her discharge
injunction via its answer brief filed in the CCA that sought attorneys’ fees.1 The
bankruptcy court dismissed Ms. MacIntyre’s complaint under Federal Rule of
Bankruptcy Procedure 7012 and Federal Rule of Civil Procedure 12(b)(6). The BAP
affirmed.
1
Ms. MacIntyre also filed a civil action against Chase, alleging Chase engaged
in fraud during the foreclosure proceedings. We affirmed the district court’s
dismissal of that action. MacIntyre, 827 F. App’x at 814.
3
II. Discussion
“Although this is an appeal from a BAP decision, we review only the
[b]ankruptcy [c]ourt’s decision.” Rebein v. Cornerstone Creek Partners, LLC (In re
Expert S. Tulsa, LLC), 842 F.3d 1293, 1296 (10th Cir. 2016) (citation and internal
quotation marks omitted). We review the bankruptcy court’s ruling on a “motion
to dismiss in an adversary proceeding de novo.” Rajala v. Spencer Fane LLP (In re
Generation Res. Holding Co.),
964 F.3d 958, 965 (10th Cir. 2020). “In ruling on a
motion to dismiss for failure to state a claim, all well-pleaded facts, as distinguished
from conclusory allegations, must be taken as true, and the court must liberally
construe the pleadings and make all reasonable inferences in favor of the non-moving
party.”
Id. (brackets and internal quotation marks omitted). Because Ms. MacIntyre
appears pro se, we construe her filings liberally but do not serve as her advocate. See
Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
A bankruptcy discharge order “operates as an injunction against the
commencement or continuation of an action, the employment of process, or an act, to
collect, recover or offset any [discharged] debt as a personal liability of the debtor.”
11 U.S.C. § 524(a)(2) (emphasis added). But the discharge injunction “does not
preclude in rem actions by secured creditors,” and “valid liens may be enforced.”
Chandler Bank of Lyons v. Ray, 804 F.2d 577, 579 (10th Cir. 1986) (per curiam); see
also Johnson v. Home State Bank,
501 U.S. 78, 83–84 (1991) (“[A] creditor’s right to
foreclose on [a] mortgage survives or passes through the bankruptcy. . . . [A]
bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an
4
action against the debtor in personam—while leaving intact another—namely, an
action against the debtor in rem.”).
“Under 11 U.S.C. § 105(a), bankruptcy courts have the equitable power to
enforce and remedy violations of substantive provisions of the Bankruptcy Code,
including in particular the discharge injunction in § 524(a)(2).” Paul v. Iglehart
(In re Paul), 534 F.3d 1303, 1306 (10th Cir. 2008). But a court may hold a creditor
in contempt only “if there is no fair ground of doubt” as to whether the creditor’s
conduct violated the discharge injunction. Taggart v. Lorenzen,
139 S. Ct. 1795,
1799 (2019).
The complaint’s factual allegations leave fair ground to doubt whether Chase
sought or obtained an award of attorneys’ fees “as a personal liability” of
Ms. MacIntyre in violation of § 524(a)(2). The complaint acknowledges the
judgment on appeal to the CCA was “purely in rem.” Aplt. App. at 151. And it does
not allege Chase sought an award of fees as a personal liability of Ms. MacIntyre or
that the CCA’s award of fees was a personal liability of Ms. MacIntyre. It instead
posits Chase only sought an award of attorneys’ fees on appeal “to keep the
otherwise moot appeal artificially alive,” id. at 152, and that “Chase never intended
to collect the award [of attorneys’ fees] it sought and won,”
id. at 154.2 The
2
In Ms. MacIntyre’s view, if the appeal had become moot, Chase’s foreclosure
judgment would have been vacated. The complaint alleges Chase requested
attorneys’ fees as part of a “scheme to avoid mootness” so it could proceed with
foreclosure. Aplt. App. at 153. But the complaint does not allege Chase’s effort to
avoid mootness aided its effort to collect a discharged debt. We therefore need not
consider the propriety of Chase’s alleged scheme. See, e.g., In re Paul, 534 F.3d
5
complaint further acknowledges Chase did “not seek the recovery of its awarded
appellate attorneys’ fees.”
Id. (emphasis and internal quotation marks omitted).
Ms. MacIntyre attempts to bolster the complaint’s allegations by arguing that
because Chase “made a pre-foreclosure-sale request for a post-foreclosure-sale award
of attorney’s fees[,] . . . [t]he award would . . . have to be in personam.” Aplt.
Opening Br. at 14 (emphasis omitted). She cites no authority for this proposition yet
reasons it must be true “because the bid to which the in rem fees would have been
added was gone forever as of the sale date.” Aplt. Reply Br. at 14. But her
complaint alleges Chase “knew, when [it] requested the award . . . that it would not
be collectable following the foreclosure sale,” Aplt. App. at 154, and “remembered
not to tell the [CCA] that the attorney’s fees would be uncollectable after the
foreclosure sale,” id. at 153. The foreclosure sale would only render the award of
attorneys’ fees uncollectable if the award were in rem. And Ms. “MacIntyre
concedes that if the appeal [to the CCA] had been resolved before the [foreclosure]
sale, the appellate fees could have been collected as part of the in rem judgment.”
Aplt. Reply Br. at 14 (quoting Aplee. Br. at 20). The allegations in the complaint
therefore leave a “fair ground of doubt,”
Taggart, 139 S. Ct. at 1799, as to whether
Chase sought or obtained its award of fees “as a personal liability,” 11 U.S.C.
at 1308 (“[T]he presence of some other procedural impropriety or error in connection
with the creditor’s action will not give rise to a violation of the discharge injunction
if the objective effect is not to coerce payment of a discharged debt.”).
6
§ 524(a)(2), of Ms. MacIntyre. So the complaint fails to state a claim upon which
relief can be granted.
Because we hold Ms. MacIntyre failed to state a claim, we need not consider
whether the bankruptcy court correctly concluded that it lacked subject matter
jurisdiction to grant her requested remedy of “[s]triking the illicit award from the
[CCA’s] Opinion as void,” Aplt. App. at 155. See Griffin v. Davies, 929 F.2d 550, 554
(10th Cir. 1991) (“We will not undertake to decide issues that do not affect the outcome
of a dispute.”). And our disposition of this appeal renders moot Ms. MacIntyre’s
arguments that the BAP abused its discretion by denying her motion for a rehearing
because “[t]his court treats the BAP as a subordinate appellate tribunal whose rulings
may be persuasive but are not entitled to deference.” Peters v. Clark (In re Bryan),
857 F.3d 1078, 1081 (10th Cir. 2017) (brackets and internal quotation marks
omitted).
III. Conclusion
The BAP’s judgment is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
7
