           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 17, 2009

                                       No. 09-10145                    Charles R. Fulbruge III
                                                                               Clerk

In the Matter of: VANCE COLE CHESNUT,

                                                   Debtor




MARK T BROWN; TEMPLETON MORTGAGE CORP,

                                                   Appellants
v.

VANCE COLE CHESNUT,

                                                   Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CV-00578


Before KING, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Templeton Mortgage Corp. holds a lien on real property that it
asserts belongs solely to the wife of Appellee and former Chapter 13 Debtor


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 09-10145

Vance Chesnut. Appellant did not object either to the proof of claim the Debtor
filed on its behalf or to the Debtor’s proposed Chapter 13 plan that dealt with
Appellant’s claim and lien. The plan required the release of each secured
creditor’s lien upon completion of payments to that creditor under the plan. The
Debtor made all required payments to Appellant under the plan, but Appellant
refused to release the lien. We hold that res judicata bars Appellant’s claim
that, contrary to the plan, the lien need not be released because the property to
which it attached was not part of the Debtor’s estate. We therefore affirm the
judgments of the courts below.
                                   I. BACKGROUND
      Vance Chesnut and Jacqueline Chesnut were married in 1996. A few
years later, Mrs. Chesnut acquired from Brooksie Nell Hodges the deed to 2.52
acres of land in Eastland County, Texas (the “Eastland property”). The deed
recited that the Eastland property was granted to Mrs. Chesnut “as her sole and
separate property and estate,” and all relevant legal documents were signed only
by Mrs. Chesnut. In return, Mrs. Chesnut made a promissory note for the
purchase price of $26,000, secured by a vendor’s and deed of trust lien on the
Eastland property.         Hodges subsequently assigned the note and lien to
Templeton Mortgage Corp., of which Mark Templeton Brown is the sole
shareholder.1      When Mrs. Chesnut stopped making payments on the note,
Templeton accelerated the debt and set a foreclosure sale for February 4, 2003.
      On January 31, 2003, Mr. Chesnut filed a voluntary petition for relief
under Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Mrs. Chesnut
did not join in the petition. Claiming in the petition that Templeton was a
secured creditor, Mr. Chesnut sought release of all liens upon full payment of
Templeton’s allowed secured claim. Templeton, believing that Mr. Chesnut had



      1
          Unless otherwise noted, we will refer to the Appellants as “Templeton.”

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                                  No. 09-10145

no interest in the Eastland property, proceeded with the foreclosure sale as
planned. Subsequently, Mr. Chesnut filed schedules claiming that he had a
community interest in the Eastland property, that the Eastland property was
exempt as homestead, and that Templeton was a creditor holding a secured
claim. At that time, Mr. Chesnut also filed an Original Chapter 13 Plan alleging
that Templeton was a secured creditor and providing that Templeton’s allowed
secured claim would be paid off in exchange for release of the lien.
      Several months later, Mr. Chesnut filed an adversary proceeding against
Templeton, claiming a willful violation of the automatic stay provision, 11 U.S.C.
§ 362. In that proceeding, the bankruptcy court declined to determine whether
the Eastland property was community or separate property, instead concluding
that Templeton violated the automatic stay by foreclosing in spite of having
notice that Mr. Chesnut claimed an interest in the property. See Chesnut v.
Brown (In re Chesnut), 300 B.R. 880, 887 (Bankr. N.D. Tex. 2003). On appeal,
the district court reversed after concluding that the Eastland property was
separately owned and therefore not property of the estate subject to the
protection of the automatic stay. Brown v. Chesnut (In re Chesnut), 311 B.R.
446, 450 (N.D. Tex. 2004). On appeal to this court, we reversed the district
court’s judgment and affirmed the bankruptcy court’s judgment.          Brown v.
Chesnut (In re Chesnut), 422 F.3d 298, 306 (5th Cir. 2005) (“Chesnut I”). We
concluded that the Eastland property was “arguable property” of the bankruptcy
estate and that the automatic stay therefore protected it from unilateral action
by creditors. Id. at 303–04.
      While Chesnut I was on appeal, Mr. Chesnut’s bankruptcy case continued.
Pursuant to 11 U.S.C. § 501(c), Mr. Chesnut filed a proof of claim on Templeton’s
behalf, initially listing the Eastland property’s value at $15,110 and the debt at
$22,000. Templeton received notice of the proof of claim but did not file any
objections. Mr. Chesnut also filed a Final Chapter 13 Plan and Motion for

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                                       No. 09-10145

Valuation listing Templeton’s claim at $22,000, valuing the claim at the same
amount, and proposing to pay that amount plus interest over a term of 44
months. The plan provided that all secured creditors would release their liens
upon completion of plan payments.2 Templeton did not object to the plan or the
valuation; the plan was confirmed by order dated December 8, 2004. Templeton
did not appeal the confirmation order, nor did Templeton take further action
once Chesnut I was decided.
       Mr. Chesnut made payments according to the confirmed plan. Once the
Standing Chapter 13 Trustee had paid Templeton in full under the plan
(approximately $26,000, including interest), Mr. Chesnut sought release of
Templeton’s lien on the Eastland property. Templeton refused, asserting that
the payments made under the plan were insufficient to satisfy the original
promissory note. Mr. Chesnut moved to enforce the confirmed plan and compel
release of the lien. Templeton responded that the Eastland property was Mrs.
Chesnut’s separate property, that no proceeding had ever determined that it was
property of the estate, and that the confirmed plan could not affect the validity
of its lien.3

       2
         The release provision was included under paragraph L and L(2), labeled
“miscellaneous”:
              Each secured creditor’s lien . . . will be released after payment through
       the plan of the creditor’s allowed secured claim, with allowed interest, to the
       extent of the lesser of the amount listed in the claim column or . . . the value
       column . . . .
              Each secured creditor’s lien . . . shall be released after the amount of the
       creditor’s allowed secured claim is paid. All secured creditors shall execute any
       documentation necessary to release their liens upon payment of their allowed
       secured claim[s].
       3
         The sole issue before this court on appeal is whether res judicata bars Templeton from
now asserting that, because there was no explicit finding by the bankruptcy court that the
Eastland property was property of the estate, the lien on the Eastland property need not be
released. As the bankruptcy court recognized, “[r]elease of the lien on the [Eastland property]
does not affect Mrs. Chesnut’s obligation to [Templeton].” In re Chesnut, , No. 03-41050, 2008
WL 2962943, at *5 (Bankr. N.D. Tex. July 29, 2008). Templeton is “free to use and pursue any
and all remedies which may still be available under the law to recoup from Mrs. Chesnut any

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                                       No. 09-10145

       The bankruptcy court ordered the lien released, holding that because
Templeton failed to raise the issue prior to confirmation, res judicata barred the
collateral attack on the confirmed plan. In re Chesnut, 2008 WL 2962943, at
*3–4. On appeal, the district court affirmed. Brown v. Chesnut (In re Chesnut),
400 B.R. 74, 84 (N.D. Tex. 2009). Templeton timely appealed.
                                    II. DISCUSSION
       In its opening brief, Templeton identifies five “issues presented for
review.”    These five issues address (1) whether res judicata applies to the
Chapter 13 plan and requires Templeton to release the lien and (2) whether
Templeton had adequate notice of the effects of the plan’s provisions.4
A. Standard of Review
       We review, as the district court did, the bankruptcy court’s findings of fact
for clear error and its conclusions of law de novo. See Valley Educ. Found., Inc.
v. Eldercare Props. Ltd. (In re Eldercare Props. Ltd.), 568 F.3d 506, 515 (5th Cir.
2009). The application of res judicata is a question of law that we review de
novo. See Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009).


deficit that is owed.” Id.
       4
         The five issues listed in Templeton’s opening brief are:
       1. Whether the bankruptcy court lacks jurisdiction to order the release of a lien
       on property which is not property of the bankruptcy estate.
       2. Whether the Debtor’s Chapter 13 Plan gave Appellants adequate notice that
       the Debtor intended by his Plan to require Appellants to release their lien on
       property that was not property of the bankruptcy estate.
       3. Whether the doctrine of res judicata bars Appellants from arguing that their
       lien should not be released because the property was not property of the
       bankruptcy estate.
       4. Whether the bankruptcy judge erred in ordering the release of a lien on
       property that was never found to be property of the bankruptcy estate.
       5. Whether the bankruptcy judge erred in failing to conduct a trial of the still
       pending adversary proceeding, post-remand from the Fifth Circuit Court of
       Appeals, in which the Appellants’ asserted defense is that the property in issue
       is not property of the bankruptcy estate.
Issues 1, 3, 4, and 5 all turn on whether res judicata precludes Templeton’s claim in this case
and will be discussed accordingly.

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                                  No. 09-10145

B. Res Judicata
      In determining whether a claim is precluded under principles of res
judicata, our circuit applies the following test:
      For a prior judgment to bar an action on the basis of res judicata,
      the parties must be identical in both suits, the prior judgment must
      have been rendered by a court of competent jurisdiction, there must
      have been a final judgment on the merits and the same cause of
      action must be involved in both cases.
Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 559 (5th Cir. 1983) (en banc)
(quoting Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir. 1979)).
We give res judicata effect to a bankruptcy court’s confirmation order when the
elements of this test are satisfied. Sun Fin. Co. v. Howard (In re Howard), 972
F.2d 639, 641 (5th Cir. 1992); Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1051
(5th Cir. 1987).    The parties’ dispute centers on the jurisdiction of the
bankruptcy court to order release of a lien on property that Templeton asserts
was not part of Mr. Chesnut’s bankruptcy estate.
      Templeton is precluded in this appeal from challenging the bankruptcy
court’s subject matter jurisdiction during the confirmation proceedings. The
issue of a bankruptcy court’s subject matter jurisdiction may be raised on direct
appeal; however, a party to the original proceeding that had a fair chance to
challenge jurisdiction may not raise the question of jurisdiction in a collateral
attack. Travelers Indem. Co. v. Bailey, — U.S. —, —, 129 S. Ct. 2195, 2205
(2009) (“[O]nce the [prior] Orders became final on direct review (whether or not
proper exercises of bankruptcy court jurisdiction and power), they became res
judicata to the parties and those in privity with them, not only as to every
matter which was offered and received to sustain or defeat the claim or demand,
but as to any other admissible matter which might have been offered for that
purpose.” (internal quotation marks omitted)); Shoaf, 815 F.2d at 1049–54
(giving res judicata effect to a Chapter 11 plan’s release of a third-party


                                         6
                                   No. 09-10145

guarantor despite the bankruptcy court’s lack of statutory authority to order
such a release). Templeton does not contest that it received notice of both the
proof of claim filed on its behalf and the Chapter 13 plan. Templeton could have
raised the issue of jurisdiction before the bankruptcy court by objecting to the
proof of claim filed on its behalf, by objecting to the plan, or by directly appealing
the confirmation order. It followed none of those courses of action, and the
bankruptcy court’s subject matter jurisdiction is therefore insulated from
Templeton’s collateral attack.
      Templeton argues that this court’s decision in McCloy v. Silverthorne (In
re McCloy), 296 F.3d 370 (5th Cir. 2002), compels a bankruptcy court to
determine the separate or community character of property before the proper
exercise of jurisdiction. In that case, Mr. McCloy had purchased a parcel during
marriage, then borrowed funds from Silverthorne, executing a note and using
the parcel as security. Id. at 371. Mrs. McCloy did not sign any of the relevant
documents. Id. Mrs. McCloy then filed for bankruptcy, listing the parcel on her
schedule of assets; she did not, however, list Silverthorne as a creditor, and
Silverthorne was not notified of her bankruptcy or of her claim to the parcel. Id.
Mr. McCloy—again without his wife’s participation— subsequently executed a
new note and deed of trust for the parcel; when this went unpaid, Silverthorne
foreclosed.   Id. at 372.    Mr. McCloy sued in state court to set aside the
foreclosure for lack of notice, and Mrs. McCloy intervened to claim a one-half
interest in the parcel. Id. Before Mrs. McCloy intervened, however, Mr. McCloy
had been placed into involuntary bankruptcy; Mr. McCloy’s Chapter 7 trustee
removed the state court suit to the bankruptcy court. Id. The trustee and
Silverthorne arranged a settlement requiring the release of the estate’s claims
to the parcel; the bankruptcy court approved the settlement over the McCloys’
objections, finding that the parcel was Mr. McCloy’s sole-management
community property. Id.

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                                  No. 09-10145

      On appeal, the McCloys argued that the bankruptcy court lacked
jurisdiction to determine the rights of Mrs. McCloy—a non-debtor— in the parcel
because Mr. McCloy’s interest had already been foreclosed on. Id. at 372–73.
We assessed whether the bankruptcy court had “related to” jurisdiction under
28 U.S.C. § 157(c)(1) to hear the state court proceeding based on whether “‘the
outcome of that proceeding could conceivably have any effect on the estate being
administered in bankruptcy.’” Id. at 373 (quoting Wood v. Wood (In re Wood),
825 F.2d 90, 93 (5th Cir. 1987)).     We determined that the parcel was Mr.
McCloy’s sole-management community property, that he had the power to
encumber the entire property, and that Mrs. McCloy’s interest therefore did not
survive the foreclosure. Id. at 374. We held that the bankruptcy court had
jurisdiction to hear the proceeding because “a determination as to [the parcel]
clearly would have an effect on the assets of the bankruptcy estate.” Id.
      We do not read In re McCloy to compel a different result in this case.
Unlike here, the question of the bankruptcy court’s subject matter jurisdiction
was timely raised in that case. The parties contesting the bankruptcy court’s
jurisdiction raised that objection immediately, permitting the parties to brief the
issue and the courts to properly consider the matter.          Here, in contrast,
Templeton failed to object either to the proof of claim or to Mr. Chesnut’s
proposed plan, notwithstanding Chesnut I’s holding that the Eastland property
was arguably within Mr. Chesnut’s bankruptcy estate. Instead, Templeton’s
argument—that the bankruptcy court should have performed a complete
analysis of the Eastland property’s character under Texas community property
law—comes far too late in the proceedings for us to unsettle a confirmed and
completed Chapter 13 plan.
      We therefore hold that res judicata applies to the confirmed Chapter 13
plan in this case. While the Supreme Court’s decision in Travelers Indemnity
Co. v. Bailey did not involve a Chapter 13 plan, the text of the Bankruptcy Code

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                                   No. 09-10145

supports the application of res judicata to such plans:
      The provisions of a confirmed plan bind the debtor and each
      creditor, whether or not the claim of such creditor is provided for by
      the plan, and whether or not such creditor has objected to, has
      accepted, or has rejected the plan.
11 U.S.C. § 1327(a); see In re Howard, 972 F.2d at 641 (“[A] confirmed Chapter
13 plan is res judicata as to all parties who participate in the confirmation
process.”); 8 C OLLIER ON B ANKRUPTCY ¶ 1327.02[1][a] (Alan N. Resnick et al.
eds., 15th ed. rev. 2009) (“The binding effect of the confirmation order . . . [makes
i]t . . . incumbent upon creditors . . . to review the plan and object to the plan if
they believe it to be improper; they may ignore the confirmation hearing only at
their peril.”). We are also aided in this decision by the consequences to the
Chapter 13 Trustee system were we to undo the finality of a confirmed and
completed Chapter 13 plan at the behest of a creditor that had notice of the plan
and an opportunity to object.      Tim Truman, the Chapter 13 Trustee (the
“Trustee”) involved in this case, filed an amicus brief urging the application of
res judicata to the confirmed plan. The Trustee’s amicus brief notes that “[i]t is
upon the Order of Confirmation that the Trustee relies in his distribution of
funds pursuant to the confirmed plan.” We do not disturb that reliance here.
C. Requirement of an Adversary Proceeding
      Templeton asserts that the bankruptcy court could order the release of a
lien on the Eastland property only after determining it to be property of the
estate through an adversary proceeding. Templeton cites Rule 7001(2) of the
Federal Rules of Bankruptcy Procedure, which states that “a proceeding to
determine the validity, priority, or extent of a lien or other interest in property”
is an adversary proceeding. Because no adversary proceeding established Mr.
Chesnut’s rights in the Eastland property, Templeton claims, there could be no
res judicata effect flowing from the confirmation order.
      We reject Templeton’s argument that an adversary proceeding under Rule

                                         9
                                     No. 09-10145

7001(2) was needed for res judicata to apply here. By its terms, Rule 7001(2)
does not apply to this dispute. The text of the rule refers to determination of the
“validity, priority, or extent of a lien.” The confirmed plan does not challenge the
validity of Templeton’s lien, its priority over any other lien on the Eastland
property, or its extent to the full value of Templeton’s claim. Instead, the plan
expressly acknowledged that Templeton’s claim was fully secured and
required—upon full payment of the claim—that Templeton release any lien
securing the claim. That condition has been satisfied, and res judicata applies.5
       Nor do the cases Templeton cites suggest otherwise. In Simmons v. Savell
(In re Simmons), we held that a lien was not voided by confirmation of a Chapter
13 plan that listed the claim as unsecured when the creditor filed a proof of
claim listing the claim as secured, and the debtor did not object. 765 F.2d 547,
557 (5th Cir. 1985). We found that 11 U.S.C. §§ 502 and 506 permitted a secured
creditor to abstain from participating in bankruptcy without losing its lien,
placing the burden on the debtor to object to the creditor’s claim. Id. at 558. We
reaffirmed In re Simmons in In re Howard, where we stated:
       Shoaf stands for the proposition that a confirmed Chapter 13 plan
       is res judicata as to all parties who participate in the confirmation
       process. The general applicability of res judicata to bankruptcy plan
       confirmations must give way, however, to the interest of the secured
       creditor, as we recognized in Simmons, in being confident that its
       lien is secure unless a party in interest objects to it. Unlike the
       creditor in this case, the holder of the guaranty in Shoaf was not a
       secured creditor of the debtor entitled to the protection of §§ 502(a)
       and 506. . . . Simmons represents a limited exception to the general
       rule of Shoaf based upon the competing concerns expressed in the
       bankruptcy code.
972 F.2d at 641; see also IRS v. Taylor (In re Taylor), 132 F.3d 256, 261 (5th Cir.


       5
         The early iterations of Mr. Chesnut’s proposed plans listed Templeton’s claim as
partially secured and partially unsecured, but the confirmed plan treated Templeton’s claim
as fully secured. We need not and do not address the application of res judicata had Mr.
Chesnut’s confirmed plan treated Templeton’s claim as undersecured.

                                            10
                                       No. 09-10145

1998) (applying the In re Simmons exception to a tax penalty because the
penalty would have survived the debtor’s Chapter 11 proceeding).
       We find these authorities distinguishable from the present case. Here, Mr.
Chesnut filed a proof of claim on Templeton’s behalf, and no party ever contested
the claim or the validity of the lien. Mr. Chesnut’s Chapter 13 plan did not seek
to void or reduce the lien, but instead provided that the lien would be released
upon full payment of Templeton’s claim, which was done. Applying res judicata
to Mr. Chesnut’s confirmed plan does not run afoul of In re Simmons, In re
Howard, and In re Taylor,6 which stand for the unremarkable proposition that
a Chapter 13 plan must be consistent with the provisions of the Bankruptcy
Code. See 11 U.S.C. § 1322(b)(11) (“[T]he plan may . . . include any other
appropriate provision not inconsistent with this title.”). The absence of an
adversary proceeding here does not affect our conclusion that res judicata bars
Templeton’s challenge to Mr. Chesnut’s Chapter 13 plan.7
       Templeton further asserts that under Texas law, if the Eastland property
is community property, then it is presumed to be Mrs. Chesnut’s sole-
management community property. See T EX. F AM. C ODE A NN. § 3.104(a) (Vernon
2006). This, Templeton claims, placed the burden on Mr. Chesnut to initiate an



       6
          The same distinction exists with regard to In re Kleibrink, 346 B.R. 734, 751–52
(Bankr. N.D. Tex. 2006), currently on appeal to this court, where the bankruptcy court found
that a lien was not extinguished by a confirmed Chapter 13 plan that listed an allowed secured
claim as unsecured because no adversary proceeding under Rule 7001(2) had occurred. As
discussed above, Mr. Chesnut’s Chapter 13 plan did not challenge the validity, priority, or
extent of Templeton’s lien, and Rule 7001(2) was therefore not implicated.
       7
         We note that counsel for Templeton expressed a desire to resolve, through an
evidentiary hearing or adversary proceeding, whether the Eastland property was property of
the bankruptcy estate at hearings on September 27, 2007, and May 12, 2008. Our revised
opinion in Chesnut I did not remand the adversary proceeding relating to violation of the
automatic stay, and that adversary proceeding was thus not an appropriate vehicle to resolve
the issue. We express no opinion on whether Templeton would have been entitled to pursue
the issue through a separate adversary proceeding or what the outcome of such a proceeding
might have been.

                                             11
                                  No. 09-10145

adversary proceeding in order to rebut that presumption. The time to have
made that point, however, was during the pendency of the Chapter 13
proceeding.   As the bankruptcy court pointed out, Templeton did not take
advantage of Mr. Chesnut’s filing of a claim on its behalf or the confirmation
process to raise its questions about the separate or community character of the
Eastland property and whether it was properly treated in the plan.          In re
Chesnut, No. 03-41050, 2008 WL 2962943, at *2. To raise these issues now, in
the context of resisting compliance with a provision of a completed plan, would
run afoul of the finality required of such a plan.
D. Notice
      In its statement of issues and summary of the argument, Templeton
claims that it had insufficient notice of Mr. Chesnut’s intention to require
release of the lien. This argument is absent from the body of Templeton’s brief,
and we find it waived. See Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922,
927 (5th Cir. 2008). Even were this argument properly briefed, it would not
support Templeton’s position. Templeton actively participated in Mr. Chesnut’s
bankruptcy proceeding, litigating and appealing to this court an issue related to
the Eastland property’s characterization and inclusion in the bankruptcy estate.
There is no claim that Templeton was not served with all relevant
filings—including a proof of claim filed on its behalf, Mr. Chesnut’s Chapter 13
plan, and the confirmation order. The Trustee’s amicus brief puts it succinctly:
      [Templeton] made no attempt to bring before the Court any action
      which would have resulted in a final determination of the character
      of the Property. Instead, it sat back and said nothing while the
      Trustee, pursuant to the final confirmation order paid [Templeton]
      $26,233.60 on the secured claim filed for it by [Mr. Chesnut]. In
      light of that omission, [Templeton] is bound by the res judicata
      effect of the Confirmation Order which clearly establishes and
      makes provision for the payment of [Templeton]’s lien through [the]
      Chapter 13 Plan. [Templeton] may not now come before the Court
      seeking adjudication of issues which could have been determined

                                       12
                                No. 09-10145

      prior to confirmation as required by 11 U.S.C. § 1327(a).
                            III. CONCLUSION
      We hold that the res judicata effect of the bankruptcy court’s Chapter 13
confirmation order bars Templeton’s claim that the bankruptcy court could not
order its lien released. Accordingly, we AFFIRM the judgment of the district
court in turn affirming the order of the bankruptcy court.
      AFFIRMED.




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