     Case: 14-10458       Document: 00513127056         Page: 1     Date Filed: 07/23/2015




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

                                       No. 14-10458
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                                July 23, 2015

In the Matter of: HARRY NEAL MCMILLAN,                                         Lyle W. Cayce
                                                                                    Clerk
               Debtor

                        __________________________________

HARRY NEAL MCMILLAN,

               Appellant

v.

DONAL RAY SCHMIDT, JR.; THIMOTHY S. WAFFORD,

               Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-807


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is an appeal of the district court’s dismissal of Appellant Harry
McMillan’s motion for fees, costs, and damages arising from an improper



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                      No. 14-10458
petition for involuntary bankruptcy under 11 U.S.C. § 303. Thomas Aigner, a
third party, entered into a Joint Prosecution Agreement with Appellees Donal
Schmidt and Thimothy Wafford to petition McMillan for involuntary
bankruptcy based on a default judgment McMillan owed Aigner. The
bankruptcy court dismissed the petition because it determined that Aigner
transferred a portion of his interest in the claim to Schmidt and Wafford with
the intention of beginning an involuntary action against McMillan. McMillan
sought fees, costs, and damages against Aigner, Schmidt and Wafford. The
bankruptcy court denied McMillan’s motion, and the district court affirmed as
to Schmidt and Wafford. 1 McMillan appeals the decision.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
       Aigner filed an involuntary bankruptcy petition against McMillan under
11 U.S.C. § 303, seeking to enforce a default judgment of approximately three
million dollars that Aigner obtained against McMillan in 1999. Though the
judgment had gone dormant, Aigner revived it in 2011. On December 16, 2011,
Aigner entered into a Joint Prosecution Agreement (“JPA” or “Agreement”)
with Appellees Schmidt and Wafford.
       Schmidt and Wafford’s relationship to McMillan is unrelated to Aigner’s
default judgment. Around 2008, McMillan consulted for Sun River, a company
owning substantial mineral rights in New Mexico, in connection with its plan
to become a publicly traded company. In exchange, McMillan received stock
and warrants, and he became Sun River’s largest shareholder. Some time later,
Schmidt became the CEO and Wafford the CFO of Sun River. In December
2011, relations broke down between McMillan and Schmidt/Wafford.




       1Before the district court affirmed, it granted a motion to dismiss with prejudice all
claims against Aigner.
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                                 No. 14-10458
      Shortly after relations soured between McMillan and the Appellees,
Schmidt and Wafford entered into the JPA with Aigner. The Agreement grants
Schmidt and Wafford a certain degree of control over Aigner’s involuntary-
bankruptcy petition. Pursuant to the Agreement, Aigner filed a petition for
involuntary bankruptcy against McMillan on December 21, 2011. Only
Aigner—and not Schmidt or Wafford—signed the petition. McMillan moved to
dismiss the petition and counter-claimed for costs, fees, and actual and
punitive damages under § 303(i).
      After nine days of evidentiary hearings, the bankruptcy court dismissed
Aigner’s petition. See Aigner v. McMillan, No. 11-47029-7, 2013 WL 2445042,
at *7 (Bankr. N.D. Tex. June 4, 2013). It concluded that Aigner was disqualified
to serve as a petitioner for involuntary bankruptcy because, via the Agreement
with Schmidt and Wafford, Aigner acquired or transferred an interest in the
claim “for the purpose of commencing an involuntary case” in violation of
Bankruptcy Rule 1003(a). The bankruptcy court concluded, “[t]here can be no
question but that the Agreement was executed and implemented for the
purpose of commencing an involuntary case against McMillan.” Therefore,
Aigner, Schmidt, and Wafford were not qualified creditors to petition for
involuntary bankruptcy under § 303.
      In reaching this disposition, the bankruptcy court noted that “the Case
is but another battle in an ongoing war between McMillan and . . . Sun River,”
and that it “was commenced principally at the ins[istence] of Sun River as a
tactical measure in its disputes with McMillan.” After examining the
Agreement, the bankruptcy court concluded that “control over prosecution of
the involuntary case against McMillan is largely ceded to Schmidt and
Wafford,” who “have the power under the Agreement to force and maintain
prosecution of the Case.” Finally, the court found that “Schmidt and Wafford


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                                  No. 14-10458
sought out [Aigner] with the goal of forcing McMillan into bankruptcy.” Sun
River, it concluded, is “the true prime mover for involuntary relief.”
      The bankruptcy court determined that Aigner filed the § 303 petition in
good faith. Yet it noted in footnote twenty of the order: “This is not to say that
Sun River, Schmidt, and Wafford did not act other than in good faith, but they
are not petitioners and are therefore not before the court.” It is this last
determination that McMillan appeals.
      Reviewing the bankruptcy court’s conclusions of law de novo and its
factual findings for clear error, the district court affirmed, reaching two
alternative resolutions. First, the district court held that as neither Schmidt
nor Wafford was served with process in accordance with Bankruptcy Rule
7004(b)(1), “the bankruptcy court never had in personam jurisdiction over
Schmidt and Wafford, because they had not appeared as parties in the
proceeding below.” Therefore, “absent compliance with Rule 7004(b)(1),
entertaining McMillan’s appeal would offend due process.” Second, although
the district court found it “unnecessary” to address the bankruptcy court’s
ruling that Schmidt and Wafford were not petitioners, and therefore performed
no independent analysis of the legal question, it concluded that “the
bankruptcy court did not commit reversible error in concluding that Schmidt
and Wafford were not ‘petitioners,’ and in declining to award relief under
Section 303(i) against them.”
      Before this Court, McMillan argues that (1) Schmidt and Wafford are
“petitioners” within the meaning of § 303(i) and (2) the bankruptcy court may
impose costs, fees, and damages on Schmidt and Wafford without McMillan
having to commence an adversarial proceeding against the Appellees under
Rule 7004(b)(1).




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                                   No. 14-10458
                             II.     DISCUSSION
      This Court has jurisdiction over McMillan’s appeal of the district court’s
review of a bankruptcy court’s final order under 28 U.S.C. § 158(d)(1). This
Court reviews the district court’s decision “by applying the same standard of
review to the bankruptcy court’s conclusions of law and findings of fact that
the district court applied.” In re Cahill, 428 F.3d 536, 539 (5th Cir. 2005) (per
curiam). “[C]onclusions of law are reviewed de novo, findings of fact are
reviewed for clear error, and mixed questions of fact and law are reviewed de
novo.” In re Nat’l Gypsum Co., 208 F.3d 498, 504 (5th Cir. 2000).
      Section 303 of the Bankruptcy Code governs petitions for involuntary
bankruptcy. “An involuntary case against a person is commenced by the filing
with the bankruptcy court of a petition under chapter 7 or 11 of this title” by
an entity holding an undisputed, bona fide claim against the alleged debtor. 11
U.S.C. § 303(b). After the petition is filed, “a creditor holding an unsecured
claim that is not contingent . . . may join in the petition with the same effect as
if such joining creditor were a petitioning creditor under subsection (b) of this
section.” § 303(c) (emphasis added). Therefore, a “petitioning creditor” is an
entity that files a petition under § 303(b) or one who joins the petition under §
303(c).
      Rule 1003, using the word “petitioner” and not “petitioning creditor,”
imposes a limitation on involuntary bankruptcy: “An entity that has
transferred or acquired a claim for the purpose of commencing a case for
liquidation under chapter 7 or for reorganization under chapter 11 shall not be
a qualified petitioner.” Fed. R. Bankr. P. 1003(a). If an alleged debtor succeeds
in getting the petition against him dismissed, then § 303(i) permits the alleged
debtor to collect fees, costs, and damages from his petitioners:
      (i) If the court dismisses a petition under this section other than
      on consent of all petitioners and the debtor, and if the debtor

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                                  No. 14-10458
      does not waive the right to judgment under this subsection, the
      court may grant judgment—
           (1) against the petitioners and in favor of the debtor for—
                 (A) costs; or
                 (B) a reasonable attorney’s fee; or
           (2) against any petitioner that filed the petition in bad
            faith, for—
                (A) any damages proximately caused by such filing; or
                (B) punitive damages.
      Ordinarily, an alleged involuntary debtor may collect fees under § 303(i)
by filing a motion with the bankruptcy court. See Fed. R. Bankr. P. 9014 (“In a
contested matter . . . relief shall be requested by motion . . . .”). Bankruptcy
procedure distinguishes a contested matter—such as a petition for involuntary
bankruptcy—from an adversary proceeding. See Fed. R. Bankr. P. 7001
(explaining that “a proceeding to recover money or property” is an adversary
proceeding); Fed. R. Bankr. P. 9014 advisory committee’s note (“Whenever
there is an actual dispute, other than an adversary proceeding, before the
bankruptcy court, the litigation to resolve that dispute is a contested matter.”).
      At issue in this appeal is whether McMillan may collect the fees
authorized by § 303(i) from Schmidt and Wafford—who did not sign the
original petition for involuntary bankruptcy—and whether he may do so
without beginning an adversary proceeding. 2
      McMillan contends that he may recover fees and damages from Schmidt
and Wafford because they are “petitioners” under § 303(i). Relying on
Rosenberg v. DVI Receivables, XIV, LLC (In re Rosenberg), 471 B.R. 307
(Bankr. S.D. Fla. 2012), and In re Oakley Custom Homes, Inc., 168 B.R. 232
(Bankr. D. Colo. 1994), McMillan argues that “petitioner” is a broader category
than “petitioning creditor,” and therefore that he may recover from people or


      2  Rule 7004 provides the requirements for service of process in an adversary
proceeding, which begins with a summons.
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                                        No. 14-10458
entities that caused his involuntary petition to be filed. Cf. In re Rosenberg,
779 F.3d 1254, 1268–69 (11th Cir. 2015) (affirming the bankruptcy court’s
award of fees from an entity it concluded was the “de facto petitioning creditor”
though not a signatory to the original involuntary petition). McMillan stresses
Rule 1003 contemplates that entities other than “petitioning creditors” may be
integral to filing a petition for involuntary bankruptcy, and he invites this
Court to define “petitioner” with reference to state-law agency principles.
       We make no pronouncement today on whether the meaning of
“petitioner” may be broader than “petitioning creditor” under the bankruptcy
code. Instead, we hold that only “petitioning creditors”—i.e., entities that file
a petition under § 303(b) or join it under § 303(c)—are parties to the contested
matter and therefore properly before the bankruptcy court on a motion for fees.
See DVI Receivables XIV, LLC v. Rosenberg, 500 B.R. 174, 177 (S.D. Fla. 2013)
(noting that the bankruptcy court “ordered Rosenberg to convert the Motion
into an adversary complaint—or, in the alternative, to withdraw the Motion
and file a new adversary complaint—so that the court could have jurisdiction
over these additional parties” and that Rosenberg obliged).
       Schmidt and Wafford were not signatories to the original involuntary
petition; therefore, they are not parties to the contested matter, and McMillan
must serve them with process to bring them within the jurisdiction of the
bankruptcy court. Because he seeks to “recover money” from the Appellees,
McMillan’s action is properly brought as an adversary proceeding under Rule
7001. 3 We agree with the district court that McMillan must serve Schmidt and
Wafford with a summons and a complaint in accordance with Bankruptcy Rule
7004(b)(1) to subject them to the jurisdiction of the bankruptcy court.


       3 See, e.g., In re Dean, 359 B.R. 218, 222 (Bankr. C.D. Ill. 2006) (collecting cases and
noting that “[s]everal courts have held that if a party seeks recovery of damages . . . this falls
within Rule 7001(1) and the matter should be brought as an adversary proceeding”).
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                                 No. 14-10458
                              III.   CONCLUSION
     For the foregoing reason, we AFFIRM the district court’s dismissal of
McMillan’s motion for fees.




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                                       No. 14-10458
JAMES L. DENNIS, Circuit Judge, dissenting:
       This case presents difficult questions of bankruptcy law that do not lend
themselves to easy answers. Respectfully, however, the majority’s resolution
of the case appears to me to be in tension with current bankruptcy court
practice. For the reasons that follow, I respectfully dissent.
       The present dispute stems from an involuntary bankruptcy petition filed
against Harry McMillan (in bankruptcy parlance, the “alleged debtor”) by
Thomas Aigner (the “petitioning creditor”). Before filing the petition, Aigner
entered into a contract with two others, Donal Schmidt and Thimothy Wafford,
giving them sole authority to select bankruptcy counsel and control the
prosecution of the case, even though they weren’t joining it as petitioning
creditors.     The bankruptcy court, holding that this arrangement was
impermissible (for reasons that are irrelevant to the present appeal and need
not be elaborated upon here), dismissed the case. 1 McMillan sought attorney’s
fees, costs, and damages under 11 U.S.C. § 303(i)—which affords alleged
debtors such relief upon dismissal of their involuntary bankruptcy cases—from
Aigner, Schmidt, and Wafford. 2 McMillan later settled with Aigner, leaving
only Schmidt and Wafford. McMillan sought the § 303(i) attorney’s fees, costs,
and damages from Schmidt and Wafford by serving them with a so-styled
“motion” for relief. He did not serve them with summonses and a complaint.




       1 Aigner, Schmidt, and Wafford have not challenged the bankruptcy court’s dismissal
of the involuntary bankruptcy case, so for purposes of deciding this appeal I will assume that
the dismissal was proper.
       2  Section 303(i) provides: “If the court dismisses a petition under this section other
than on consent of all petitioners and the debtor, and if the debtor does not waive the right
to judgment under this subsection, the court may grant judgment—(1) against the petitioners
and in favor of the debtor for—(A) costs; or (B) a reasonable attorney’s fee; or (2) against any
petitioner that filed the petition in bad faith, for—(A) any damages proximately caused by
such filing; or (B) punitive damages.”
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                                      No. 14-10458
       McMillan’s demand for § 303(i) attorney’s fees, costs, and damages from
Schmidt from Wafford presents two issues. First, as a matter of procedure, did
service of McMillan’s motion adequately bring Schmidt and Wafford within the
jurisdiction of the bankruptcy court to allow that court to assess attorney’s fees,
costs, and damages against them? If so, second, as matter of substantive law,
does § 303(i) allow for such relief from persons, like Schmidt and Wafford, who
did not join the involuntary bankruptcy petition as petitioning creditors but
nevertheless caused the petition to be filed? The majority answers the first
question in the negative and does not reach the second. I will address both
questions in turn.
       As to the first question, the majority holds that McMillan’s service of a
motion for damages on Schmidt and Wafford was inadequate to bring them
into the jurisdiction of the bankruptcy court.              Ante, at 7.     The majority
concludes that, in order for the bankruptcy court to exercise jurisdiction over
Schmidt and Wafford, McMillan must begin an adversary proceeding against
them, which requires service of summonses and a complaint rather than a
motion. Id. Respectfully, this holding appears to me to be in tension with the
current prevailing practice in bankruptcy courts, as I will explain. 3
       The bankruptcy rules create two potential avenues through which
disputes may be resolved: (1) adversary proceedings, Fed. R. Bankr. P. 7001,
and (2) contested matters, Fed. R. Bankr. P. 9014. Every dispute that arises




       3 I note for the sake of clarity that there is no dispute as to the method of service,
which, here, was certified mail. Whether McMillan should have served Schmidt and Wafford
with summonses and a complaint (as the majority holds) or a motion (as he did), certified
mail was a proper method of service under the applicable rules. See FED. R. BANKR. P.
7004(b)(1); FED. R. BANKR. P. 9014(b); In re Ballard, 502 B.R. 311, 320-21 (Bankr. S.D. Ohio
2013) (noting that there are no differences between the permissible methods of service used
to initiate adversary proceedings and contested matters); In re Dean, 359 B.R. 218, 221
(Bankr. C.D. Ill. 2006) (same).
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                                       No. 14-10458
in bankruptcy is resolved through one or the other. 4 Pertinent here is that
different documents are used to initiate adversary proceedings and contested
matters. An adversary proceeding is initiated with a summons and complaint.
Fed. R. Bankr. P. 7004(a)(1) (incorporating Fed. R. Civ. P. 4(c)(1)). 5 A contested
matter is initiated with a motion. Fed. R. Bankr. P. 9014(a). 6 Therefore, the
question here is whether McMillan’s demand for attorney’s fees, costs, and
damages under § 303(i) must be asserted in an adversary proceeding or as a
contested matter. If an adversary proceeding is the required vehicle for the
dispute, as the majority holds, then McMillan erred when he served a motion
rather than summonses and a complaint. But if a contested matter is a proper
vehicle, then McMillan followed the correct procedure when he served Schmidt
and Wafford with a motion.
       Bankruptcy Rule 7001 defines the types of disputes that must be
asserted in adversary proceedings. The subsection most relevant here is (1),
which provides that adversary proceedings include (subject to certain
exceptions inapposite here) “proceeding[s] to recover money or property.” It is
certainly reasonable to hold, as the majority does, that a demand for attorney’s
fees, costs, and damages under § 303(i) seeks “to recover money” as that phrase
is used in Rule 7001(1) and therefore requires an adversary proceeding.


       4FED. R. BANKR. P. 9014 advisory comm. notes (“Whenever there is an actual dispute,
other than an adversary proceeding, before the bankruptcy court, the litigation to resolve
that dispute is a contested matter.”); Matter of Zale Corp., 62 F.3d 746, 762 n.49 (5th Cir.
1995) (“Contested matters are those issues for which Rule 7001 does not require an adversary
proceeding.”); Ballard, 502 B.R. at 320 (“There are two different types of litigated proceedings
within bankruptcy cases: adversary proceedings and contested matters.”).
       5 See also Ballard, 502 B.R. at 320 (“An adversary proceeding is commenced through
the filing of a complaint and requires the service of the complaint with a summons.”).
       6  See also Dean, 359 B.R. at 222 (“The main difference between an adversary
proceeding and a contested matter is that an adversary proceeding must be commenced by
the filing and service of a complaint that meets specific notice and formatting requirements
and which must be accompanied by a summons directed to the named defendant.”).

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                                        No. 14-10458
However, it appears that the majority of bankruptcy courts have construed
Rule 7001(1) more narrowly and in fact hold that at least some analogous
disputes     should     be    resolved      as     contested    matters—not         adversary
proceedings—as I will now explain.
       While there is no case law (not before today, at least) addressing whether
§ 303(i) disputes with non-petitioning-creditors (like Schmidt and Wafford)
should be resolved in adversary proceedings or as contested matters, there is
abundant case law as to whether requests for relief under a different section,
11 U.S.C. § 362(k)—which affords debtors attorney’s fees, costs, and damages
for violations of the bankruptcy automatic stay—should be resolved in
adversary proceedings or as contested matters. 7 And, the prevailing practice
in the vast majority of bankruptcy courts (at least, in those that have addressed
the issue in written opinions) is for § 362(k) disputes to be resolved as contested
matters that are initiated by motion. See In re Ballard, 502 B.R. 311, 313 n.1
(Bankr. S.D. Ohio 2013) (collecting cases). 8 Ballard and the cases cited therein
explain the rationale these courts adopt for resolving § 362(k) disputes as
contested matters, and it is unnecessary for me to repeat their reasons here.
The pertinent point is, if it is correct under the bankruptcy rules, as the
majority of bankruptcy courts appear to believe, to resolve § 362(k) disputes as
contested matters, then, for the sake of consistency, I see no reason that it


       7 The automatic stay is defined in 11 U.S.C. § 362(a). Generally, it provides that once
a bankruptcy petition is filed, creditors are prohibited “from making collection efforts against
the debtor or the property of the debtor’s estate.” Campbell v. Countrywide Home Loans,
Inc., 545 F.3d 348, 353 (5th Cir. 2008) (paraphrasing § 362(a)). Additionally, courts have
held that non-creditors, who are not attempting to collect on a debt, can violate the automatic
stay in certain circumstances, too. See, e.g., In re Lee, 35 B.R. 452 (Bankr. N.D. Ga. 1983).
       8 In allowing § 362(k) disputes to be resolved as contested matters that are initiated
by motion, it appears that bankruptcy courts do not distinguish between demands for § 362(k)
damages from creditors who previously received notice of the bankruptcy case, see, e.g., In re
Meadows, 396 B.R. 485 (B.A.P. 6th Cir. 2008), and others who did not have prior notice of or
participation in the bankruptcy case, see, e.g., In re Hill, 523 B.R. 704 (Bankr. D. Mont. 2014).
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                                 No. 14-10458
shouldn’t also be correct for § 303(i) disputes to be resolved as contested
matters, too. I discern no material difference between the two sections, both
of which afford attorney’s fees, costs, and damages when the bankruptcy rules
have been violated. Thus, the majority’s holding—that McMillan must, as a
jurisdictional prerequisite, initiate an adversary proceeding against Schmidt
and Wafford with service of summonses and a complaint—is contrary to the
analogous practice of resolving disputes under § 362(k) as contested matters
that are initiated by motion.
      I note, too, that when appropriate circumstances arise, bankruptcy
courts sometimes sua sponte exercise jurisdiction over potential violators of the
automatic stay. See, for example, In re Lee, 35 B.R. 452, 455 (Bankr. N.D. Ga.
1983), in which the bankruptcy court sua sponte ordered a bank, which was
not previously part of the bankruptcy case, to show cause why its conduct
(specifically, its closure of the debtors’ bank accounts) did not violate the
automatic stay.     The majority’s holding—that an adversary proceeding
initiated by summonses and a complaint is a jurisdictional prerequisite here—
is also contrary to this practice of bankruptcy courts sua sponte addressing
potential violations of the automatic stay.
      To summarize, there is tension between the majority’s holding here and
the current prevailing practices in bankruptcy court. I am hesitant to upset or
disturb these customs in the absence of a clear indication that the law so
requires, and I see no such indication here.       Therefore, I would hold, in
accordance with what appears to be the prevailing practice in bankruptcy
courts as to § 362(k), an analogous provision, that § 303(i) disputes, including
McMillan’s dispute with Schmidt and Wafford, may be initiated by motion and
resolved as contested matters.     I respectfully dissent from the majority’s
contrary holding that the bankruptcy court here was without jurisdiction to act


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                                  No. 14-10458
because McMillan failed to serve Schmidt and Wafford with summonses and a
complaint.
      The second issue in this case is whether § 303(i) as a substantive matter
allows for damages from persons, like Schmidt and Wafford, who did not join
the involuntary bankruptcy petition as petitioning creditors but nevertheless
caused the petition to be filed.     Because the majority doesn’t reach this
question, there is no need for me to decide it here. I will briefly note, though,
that one of McMillan’s theories appears to have potential merit. That is, he
argues that § 303(i) implicitly incorporates the common law doctrine of agency
holding that principals are liable for the authorized acts of their agents. (Here,
he claims that Aigner, the petitioning creditor, filed the involuntary
bankruptcy petition in his capacity as an agent for Schmidt and Wafford, the
principals.) If § 303(i) indeed implicitly incorporates common law doctrines of
agency liability, it would not be the first federal statute to do so. See, e.g.,
Meyer v. Holley, 537 U.S. 280 (2003) (Fair Housing Act); Am. Soc’y of Mech.
Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982) (Sherman Act); Wood v.
Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975) (Fair Credit Reporting Act);
Paul F. Newton & Co. v. Tex. Commerce Bank, 630 F.2d 1111 (5th Cir. 1980)
(Securities Exchange Act); Chowdhury v. Worldtel Bangladesh Holding, Ltd.,
746 F.3d 42 (2d Cir. 2014) (Torture Victim Protection Act); 1-800-Contacts, Inc.
v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013) (Lanham Act). The next time
this issue arises, it deserves serious consideration.
      For the foregoing reasons, I respectfully dissent.




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