            United States Bankruptcy Appellate Panel
                         FOR THE EIGHTH CIRCUIT

                               ___________________

                                    05-6041EM
                                    06-6011EM
                               ___________________

In re : Ralph D. Schachtele;             *
Mildred A. Schachtele,                   *
                                         *
      Debtors.                           *
                                         *
Tina Livestock Sales, Inc.,              *   Appeal from the United States
                                         *   Bankruptcy Court for the
      Objector - Appellant,              *   Eastern District of Missouri
                                         *
             v.                          *
                                         *
Ralph D. Schachtele;                     *
Mildred A. Schachtele,                   *
                                         *
      Debtors - Appellees.               *

                               ____________________

                               Submitted: May 1, 2006
                                 Filed: May 11, 2006
                               ____________________

KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges.
                         ____________________

FEDERMAN, Bankruptcy Judge.
                          PROCEDURAL BACKGROUND

       These are appeals from Orders of the United States Bankruptcy Court for the
Eastern District of Missouri1 issued on July 6, 2005, and February 6, 2006, in which
the court granted the Debtors’ Motions to Amend their Chapter 13 Plan. After oral
argument in these appeals, Appellant Tina Livestock Sales, Inc., filed a Dismissal of
Appeal in Case No. 05-6041, requesting that we deny as withdrawn or moot all
actions pending on appeal and that we dismiss the appeal. Although this pleading was
filed in only one of the cases pending before us, we construed it as a request that we
dismiss both appeals.

       On March 31, 2006, we issued an Order to Show Cause announcing that we
would dismiss the appeals, but ordering Tina Livestock and its counsel to show cause
why they should not be sanctioned for filing a frivolous appeal. Tina Livestock and
its counsel responded to the Order to Show Cause, and Debtor-Appellees Ralph and
Mildred Schachtele filed a reply. For the reasons that follow, we find that these
appeals were frivolous, that they should be dismissed, and that sanctions are warranted
in this case.

                             FACTUAL BACKGROUND

       Debtors Ralph D. Schachtele and Mildred A. Schachtele operate a business in
which they raise dogs for research purposes. They filed a voluntary Chapter 13
bankruptcy case on September 10, 2004, along with their original Chapter 13 Plan.
Among their secured claims, the Debtors listed a business debt owed to Bank of Cairo
and Moberly (BCM) which was secured by the Debtors’ business assets, including
livestock, and a second mortgage on the real estate encompassing the farm property
on which they operated the business and their home. Debtors listed a total of

       1
         The Honorable Kathy A. Surratt-States, Bankruptcy Judge, United States Bankruptcy
Court for the Eastern District of Missouri.

                                             2
approximately $82,000 in general unsecured debt, including an $11,000 obligation
owed to Tina Livestock on a bad check for $18,005 that the Debtors wrote to Tina
Livestock in March of 2000. At the time the bankruptcy Petition was filed, the
Debtors owed Tina Livestock $10,365 on the bad check because the Debtors had
repaid some of the funds prepetition. Tina Livestock failed to file a timely proof of
claim in the case, however.

      In their original Chapter 13 Plan, the Debtors proposed to cram down BCM’s
secured claim. The Debtors stated they owed BCM $55,354 on this loan and the Plan
proposed to cram the bank down to $17,135, which was the estimated equity in the
property securing the claim. The Plan proposed to pay the full value of the secured
claims over the life of the Plan and proposed to pay unsecured creditors approximately
10% of their claims.

       Tina Livestock did not file an objection to the original Plan, but joined an
objection filed by BCM. BCM had alleged that the Debtors undervalued their assets
on their schedules as compared to a personal financial statement they had recently
given to BCM. In addition to the “me too” objections in Tina Livestock’s pleading,
Tina Livestock also asserted that the Plan was not proposed in good faith since the
Debtors were proposing to pay their long-term real estate debt in full over the life of
the Plan, while only proposing to pay unsecured creditors approximately 10%. Tina
Livestock also said it was “concerned” because its debt was the result of a bad check.

       The bankruptcy court held a hearing on confirmation on January 27, 2005.
Before the hearing, the Debtors and BCM resolved their dispute and BCM withdrew
its objection to the original Plan. However, even though Tina Livestock had only
raised its objections on BCM’s coattails through the untimely “me too” objection,
counsel for Tina Livestock appeared at the confirmation hearing and raised its
additional objections to confirmation. The bankruptcy court overruled Tina
Livestock’s objections and the original Plan was confirmed on February 2, 2005.

                                          3
       On March 11, 2005, the Trustee filed a Notice of Lack of Feasibility regarding
the confirmed Plan. In response, the Debtors filed a Motion to Amend their Plan,
along with a First Amended Plan which increased the Plan’s duration from 36 to 44
months. Although the First Amended Plan did not change the fact that secured claims
would be paid in full over the life of the Plan, and unsecured creditors would still
receive approximately 10% of their allowed claims, the First Amended Plan appeared
to increase the amount to be paid to BCM on its crammed-down secured claim,
apparently because there had been a determination that the value of the collateral
securing BCM’s claim was higher than estimated in the original Plan.

       On May 11, 2005, Tina Livestock filed an Objection to Confirmation of the
First Amended Plan. In addition, having then realized that it failed to file a proof of
claim in this case, Tina Livestock filed a Proof of Claim in the amount of $10,365.24
on May 12, 2005, along with a Motion to Allow its Claim out of time. The Debtors
and the Chapter 13 Trustee objected to the allowance of the claim as untimely.

       In its Objection to Confirmation of the First Amended Plan, Tina Livestock
argued that the First Amended Plan was not proposed in good faith and violated §
1325(b)(1)(B), which requires a debtor to pay all of the debtor’s projected disposable
income to a plan for three years.2 In sum, Tina Livestock complained again that the
Debtors were proposing to pay their long-term real estate debt in full during the life
of the Plan, which results in the debt to BCM being paid off earlier than was provided
under the BCM loan documents,3 while paying unsecured creditors only about 10%

      2
          11 U.S.C. § 1325(b)(1)(B). This provision of the Bankruptcy Code was amended by
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No.
109-8, 199 Stat. 23 § 418 (Apr. 20, 2005). For Chapter 13 cases filed after October 17,
2005, the Code now requires a debtor to commit all of the debtor’s projected disposable
income for the “applicable commitment period,” rather than the three year period
previously required. Because this case was filed prior to October 17, 2005, the three-year
period is applicable.
      3
          Under the terms of the loan documents, BCM’s loan matured in 2012.

                                              4
of their claims. Tina Livestock alleged further that, because its claim was based on
a bad check, it would have been nondischargeable in a Chapter 7 case under §
523(a)(2) and (4).

        On July 6, 2005, the bankruptcy court granted the Debtors’ Motion to Amend
their Chapter 13 Plan and confirmed the First Amended Chapter 13 Plan over Tina
Livestock’s objection. Tina Livestock appealed. In the meantime, while that appeal
was pending, on December 29, 2005, the Debtors moved for an order permitting them
to file a Second Amended Plan to again extend their payments due to an unexpected
loss of income and cash flow. Other than the extension of the Plan’s duration, no
other plan provisions were modified through the Second Amended Plan. Again, Tina
Livestock objected on the same grounds asserted against the previous plans. On
February 6, 2006, the bankruptcy court granted the most recent Motion to Amend and
confirmed the Second Amended Plan. Tina Livestock appealed that order, and that
matter was consolidated with the appeal already pending, due to the fact that the issues
were identical.

      In addition, on February 21, 2006, the bankruptcy court entered an order
allowing Tina Livestock’s claim, but ordered that it be paid only after all other general
unsecured creditors are paid 100% of their claims.

      The Debtors assert these appeals are frivolous and they requested sanctions
under Rule 9011. Shortly after oral argument, Tina Livestock filed a Dismissal of
Appeal, requesting that we deny as withdrawn or moot all actions pending on appeal,
and that we dismiss these appeals. The Debtors opposed this request and asserted,
among other things, that it would be inappropriate to allow dismissal of the appeals
without assessing attorneys’ fees and costs incurred in defending it.




                                           5
       On March 31, 2006, we issued an Order to Show Cause, concluding that, even
if Rule 9011 is applicable to appeals,4 the Debtors did not meet the requirement
imposed by that rule to provide advance notice to the opposing party prior to the filing
of the motion for sanctions. However, we observed, the applicable rule specifically
relating to frivolous appeals is Rule 8020,5 and, pursuant to that rule, we ordered Tina
Livestock and its counsel to show cause why we should not impose sanctions for
frivolous appeal in this case.6 Tina Livestock and its counsel responded to the Order
to Show Cause asserting that, although the appeals might have been frivolous in
hindsight, sanctions are not warranted. The Debtors filed a reply, maintaining their
position that we should award them their attorney fees incurred in defending these
appeals.




       4
          See In re Great Road Serv. Ctr., Inc., 304 B.R. 547, 552 n. 4 (B.A.P. 1st Cir. 2004)
(holding that Rule 9011 is not applicable on appeals; the appropriate rule is Rule 8020.) But see
In re Mahendra, 131 F.3d 750, 759-60 (8th Cir. 1997) (affirming the district court’s imposition of
sanctions under Rule 9011 for frivolous appeal from the bankruptcy court and finding sanctions
appropriate under Rule 38 for frivolous appeal to the Court of Appeals).
       5
           Fed. R. Bankr. P. 8020.
       6
          See Porous Media Corp. v. Pall Corp., 201 F.3d 1058, 1060 (8th Cir. 2000) (Eighth
Circuit Court of Appeals giving appellant notice of consideration of whether sanctions for
frivolous appeal were warranted under Fed. R. App. P. 38). See also Lincoln Benefit Life Co. v.
Edwards, 160 F.3d 415, 416 (8th Cir. 1998) (providing appellant ten days to respond why Rule
38 damages were not warranted); In re Mahendra, 131 F.3d at 760 (providing notice of possible
sanctions for frivolous appeal under Rule 38 and opportunity to respond). In In re Korte, 262
B.R. 464 (B.A.P. 8th Cir. 2001), we determined we could not impose sanctions under Rule 8020,
even though we found the appeal in that case to be frivolous, because the appellee did not file a
separate motion as required under the rule. To the extent that decision could be interpreted to
mean that we do not have the authority to provide the required notice under Rule 8020 on our
own accord, we clarify here that, under the plain language of the rule and Eighth Circuit
precedent, we do possess such authority. We simply chose not to do so in that case.

                                                6
                                           DISCUSSION

       Rule 8020 provides:

       If a district court or bankruptcy appellate panel determines that an appeal
       from an order, judgment, or decree of a bankruptcy judge is frivolous, it
       may, after a separately filed motion or notice from the district court or
       bankruptcy appellate panel and reasonable opportunity to respond, award
       just damages and single or double costs to the appellee.7

Under this rule, we have the express authority to award damages or impose sanctions
against a party for a frivolous appeal.8 The language of Bankruptcy Rule 8020 is, for
all practical purposes, identical to that of Federal Rule of Appellate Procedure 38.
Accordingly, courts considering Bankruptcy Rule 8020 motions are guided by cases
applying Appellate Rule 38.9 Imposing sanctions under this rule is a two-step process:
first the panel must determine whether the appeal is frivolous and, second, the panel
must decide whether the procedural requirements of Rule 8020 are met.10

       “An appeal is frivolous when the result is obvious or when the appellant’s
argument is wholly without merit.”11 We need not find that the appellant acted in bad
faith in order to find an appeal to be frivolous.12



       7
            Fed. R. Bankr. P. 8020.
       8
            In re Korte, 262 B.R. 464, 475 n. 7 (B.A.P. 8th Cir. 2001).
       9
        In re Great Road Serv. Ctr., 304 B.R. at 552; Safety Nat’l Cas. Corp. v. Kaiser
Aluminum & Chem. Corp., 2003 WL 22928045 (D. Del. Nov. 25, 2003).
       10
            In re Great Road Serv. Ctr., 304 B.R. at 552.
       11
            Newhouse v. McCormick & Co., Inc., 130 F.3d 302, 305 (8th Cir. 1997).
       12
           Id. (finding an appellee’s cross-appeal to be frivolous even though the appellee did not
act in bad faith).

                                                   7
       In the Order to Show Cause, we outlined several reasons why we believed the
result of these appeals were obvious and we directed Tina Livestock to respond to
those reasons. The reasons we delineated are as follows.

       First, Tina Livestock did not have standing to object to the Debtors’ First and
Second Amended Plans in the first place. At the time the motions to amend were
filed, Tina Livestock did not hold an allowed claim because its late-filed claim was
not allowed (in limited fashion) until February 21, 2006. Section § 1325(b)(1)’s “best
efforts” test, one of Tina Livestock’s primary objections to the plans, only applies to
objections by the trustee and holders of allowed unsecured claims.13 Thus, at the time
it made each of its objections, Tina Livestock did not have standing to argue the “best
efforts” test.

       Moreover, the First and Second Amended Plans merely extended the original
Plan’s duration in order to ensure that the secured creditors would be paid in full and
unsecured creditors would receive the 10% dividend they were supposed to receive
as provided under the original Plan. The Amended Plans, therefore, did not adversely
affect the treatment or payout to unsecured creditors already provided. “A creditor
objecting to the modification of a confirmed plan must demonstrate prejudice in order
to possess standing to object.”14 Assuming Tina Livestock could be considered an
unsecured creditor with standing to object at the time the Debtors filed their motions
to amend the Plan even though it did not possess an allowed claim at that time, the
unsecured creditors were to receive the same amount under the Amended Plans as
they were under the original Plan and were, therefore, not prejudiced by the
amendments. Moreover, as to Tina Livestock’s claim in particular, even though its
claim was later allowed, the bankruptcy court’s order allowing it provided for it to be
paid only after all other allowed unsecured claims are paid in full. This could never


      13
           11 U.S.C. § 1325(b)(1).
      14
           In re Goodwin, 183 B.R. 329, 330 n.2 (Bankr. S.D. Ga. 1995).

                                               8
happen unless the Debtors somehow receive a windfall during the pendency of the
Plan. Consequently, even more noticeably than the other allowed unsecured claims,
the amendments did not adversely affect the treatment of Tina Livestock’s claim. As
a result, Tina Livestock lacked standing to object to the Amended Plans.

       Second, the issues raised in Tina Livestock’s objections to the First and Second
Amended Plans were res judicata when the bankruptcy court confirmed the original
Plan. In confirming the original Plan, the bankruptcy court implicitly found that it
was proposed in good faith as required by § 1325(a)(3) and that it met the “best
efforts” test of § 1325(b)(1). No one appealed the order confirming the original Plan
and it became a final order. As a creditor in the case, Tina Livestock was bound by
its terms, even though its (unfiled) claim was not provided for in the plan.15 Since the
Amended Plans changed nothing as to those issues already decided by the bankruptcy
court, they are res judicata and Tina Livestock cannot raise them now.

       Finally, even if we were to consider the merits of Tina Livestock’s objections
to the Amended Plans, we find them to be without basis. As mentioned above, Tina
Livestock’s primary complaint regarding the Amended Plans was that BCM’s secured
claim is being paid in full over the course of the Plan, which results in BCM being
paid in full sooner than provided under its loan documents, at the alleged expense of
unsecured creditors. However, BCM’s claim is being bifurcated, and its secured claim
is being crammed down to the value of the collateral securing its claim. Tina
Livestock’s assertion that BCM should not be paid in full over the life of the Plan
violates the Bankruptcy Code because, in a Chapter 13 case, a debtor may not invoke
both § 506(a) to bifurcate and thereby reduce the amount of a creditor’s secured claim,
and § 1322(b)(5) to extend repayment of the secured portion of the claim beyond a



       15
           11 U.S.C. § 1327(a) (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 the plan).

                                                 9
period of five years.16 Thus, the bankruptcy court could not require that BCM be paid
over a period longer than the term of the Plan.

       In the alternative, Tina Livestock urged that the Plan’s duration be extended to
60 months to allow a higher dividend to unsecured creditors. However, the
bankruptcy court could not require the Debtors to propose a 60-month plan without
a finding of “cause” under § 1322(d).17

       This brings us to Tina Livestock’s good faith argument because, in essence,
Tina Livestock urged that a 60-month plan was appropriate because the Debtors have
not proposed their plan in good faith, due to the secured creditors being paid in full
early, and due to the fact that its claim resulted from a bad check.

       In the Eighth Circuit, “good faith” analysis under § 1325(a)(3) is focused on
“whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter
13.”18 This requires looking to the totality of the circumstances to discern whether
good faith exists.19 In In re Estus, the Eighth Circuit enumerated several factors to be
considered.20 Following the enactment of § 1325(b), the Eighth Circuit concluded that
that provision subsumed many of these factors, and so it narrowed the focus to one
which depends on “whether the debtor has stated his debts and expenses accurately;

        16
          In re Rascon, 321 B.R. 48, 53 (N.D. Cal. 2005); In re Enewally, 368 F.3d 1165, 1172
  th
(9 Cir. 2004) (“a debtor may not use § 506(a) in combination with § 1322(b)(5) to reduce the
secured claim and repay it over a period longer than the plan term”), cert. denied, 543 U.S. 1021,
125 S.Ct. 669, 160 L.Ed.2d 497 (2004).
        17
          11 U.S.C. § 1322(d) (“[t]he plan may not provide for payments over a period that is
longer than three years, unless the court, for cause, approves a longer period”).
        18
        In re LaMaire, 898 F.2d 1346, 1348 (8th Cir. 1990) (citing In re Estus, 695 F.2d 311,
       th
316 (8 Cir. 1982)).
        19
             Id.
        20
             Id. at 1349 n. 4.

                                               10
whether he has made any fraudulent representation to mislead the bankruptcy court;
or whether he has unfairly manipulated the Bankruptcy Code.”21 However, the Eighth
Circuit preserved parts of the Estus “totality of circumstances” approach and, thus,
factors such as the type of debt sought to be discharged and whether the debt is
nondischargeable in Chapter 7, and the debtor’s motivation and sincerity in seeking
Chapter 13 relief, are particularly relevant.22

       Tina Livestock pointed primarily to two factors evidencing lack of good faith,
namely, the extent to which secured claims are being modified, and the type of debt
sought to be discharged and whether such debt is nondischargeable in Chapter 7. As
to the modification of the secured claim, as discussed above, the modification of
BCM’s secured claim is proper under the Code and, therefore, cannot form a basis for
lack of good faith.

       Tina Livestock also asserted the Plans were not proposed in good faith because
its debt would be nondischargeable in a Chapter 7 under § 523(a)(2) and (4) because
it resulted from a bad check. However, other than the bare assertion that it would be
nondischargeable, Tina Livestock offered no evidence whatsoever that its debt would
be nondischargeable. “The mere issuance of a ‘bad check,’ standing alone, is not
grounds for a determination that such debt is not dischargeable pursuant to 11 U.S.C.
§ 523(a)(2).”23 In addition to the bad check itself, there must be other acts, and other
evidence, supporting a claim for fraud or false representation, in order to declare such
a debt to be nondischargeable.24 “A determination that such a debt is non-
dischargeable can only be established if the debtor did not intend to pay the creditor

       21
            Id. at 1349 (citing Educ. Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir. 1987)).
       22
            Id.
       23
         In re Strecker, 251 B.R. 878, 882 (Bankr. D. Colo. 2000); see also In re Scarlata, 127
B.R. 1004 (N.D. Ill. 1991), aff’d 979 F.2d 521 (7th Cir. 1992).
       24
            Id.

                                                  11
when the check was issued and knew the check would bounce.”25 Tina Livestock
offered no evidence and made no showing at all as to the Debtors’ intent or
knowledge. In fact, the Debtors did repay $7,640 (42%) of the $18,005.58 bad check
prepetition. We conclude, therefore, that there is simply no basis in the record to find
that the debt to Tina Livestock, or any other creditor, would be nondischargeable in
a Chapter 7 case. Consequently, this cannot form the basis for a finding of lack of
good faith.

       As we indicated in the Order to Show Cause, we find, based on the above
discussion, that the result of these appeals was obvious and they were, therefore,
frivolous. The question, then, is whether sanctions are appropriate, and, if so, what
sanctions should be awarded.

       In their Response to the Order to Show Cause, Tina Livestock and its counsel
essentially concede that its appeals were, in hindsight, frivolous, but assert that
counsel truly believed, at the time the appeal was filed and up until the conclusion of
oral argument, that its position was meritorious. Counsel concedes that he may have
failed to see the forest for the trees, so to speak, and states he did not realize this was
a cram-down case until the question was raised at oral argument. He says he did not
see this as a case as one fitting under the doctrine set forth in In re Enewally,26 because
the loan to BCM was primarily secured by the Debtors’ residential real estate, thereby
bringing it under § 1322(b)(2). Apparently, Tina Livestock did not realize or
appreciate the fact that the BCM loan was also secured by inventory and other
collateral, so that § 1322(b)(2) was not applicable.

      We accept this part of counsel’s explanation pertaining to the merits of his
objections to the amended plans. However, what makes these appeals particularly


      25
           Id.
      26
           368 F.3d at 1172.

                                            12
frivolous are the points that (i) Tina Livestock lacked standing to object to the
amended plans and (ii) the issues on the merits of the objections were res judicata
because the original Plan, containing the same treatment of creditors, was confirmed
without being appealed. Counsel does not respond to the res judicata point at all.
And, the only response offered by counsel on the fact that Tina Livestock lacked
standing to object to the amended plans is that the bankruptcy court “ruled that
counsel had standing when that issue was raised by Debtors’ counsel” and that, had
the bankruptcy court not ruled he had standing, counsel would not have been
permitted to present his arguments.

       We find this explanation to be unsatisfactory for several reasons. First, counsel
does not cite to the record anywhere where the bankruptcy court ruled he had
standing, and we could find none. The Orders confirming the amended plans are
summary orders simply confirming the respective plans and do not address Tina
Livestock’s objections or its standing at all. Further, the parties did not submit the
transcripts of the hearings on confirmation of the First or Second Amended Plans and,
despite the fact that we expressly invited the parties to supplement the record to
submit the transcript of the hearing on confirmation of the First Amended Plan,27 they
declined to do so, with Tina Livestock expressly stating the only transcript it wished
to submit was the one from the hearing on allowance of its late-filed claim.28

      Consequently, we found in the record before us only one reference to Tina
Livestock’s standing to object to confirmation, and it appears in the transcript on the
hearing to allow Tina Livestock’s claim. Specifically, counsel for the Debtors
objected to Tina Livestock’s attempt to file its late claim so as to create standing to


       27
          See Docket Entry dated January 6, 2006, Clerk letter sent giving [Appellant] the
opportunity to supplement the record with the transcript of the hearing on confirmation.
       28
           See Docket Entry dated January 17, 2006, Letter from Fredrich J. Cruse for Appellant
Tina Livestock Sales stating the record is complete as far as [Appellant] is concerned; the only
transcript [Appellant] desired to include was the 6/30/05 hearing.

                                               13
object to the First Amended Plan, to which counsel for Tina Livestock disagreed, and
the bankruptcy court said, “We haven’t gotten to that” and “we’ll get to that later.”29
Consequently, contrary to counsel’s assertion, the record before us shows the
bankruptcy court did not rule that Tina Livestock had standing to object to the
Amended Plans.

       Finally, counsel for Tina Livestock outlined for us the reasons why he failed to
timely file a proof of claim, which is the root of Tina Livestock’s problems in this
case. In sum, counsel states he missed the claims deadline due to a family emergency
which necessitated his being out of the state, and understandably distracted, when the
deadline came and passed. We accept his explanation to be accurate. However, the
reason why Tina Livestock did not have an allowed claim at the time the First
Amended Plan was filed is irrelevant to the issue of whether Tina Livestock had an
allowed claim and, thus, standing. In sum, it had no allowed claim, so it had no
standing.30 Moreover, as outlined above, even the creditors with allowed unsecured
claims would not have had standing to object to the amended Plans because the
amended Plans did not alter the treatment of unsecured creditors.

       We reiterate that the res judicata and standing issues are what particularly
rendered these appeals frivolous and, because Tina Livestock’s response to those
issues are absent or unconvincing, we find sanctions are warranted in this case.



       29
          Transcript of Motion to Allow Claims [sic] No. 18 by Creditor Tina Livestock Sales,
Inc., (Cruse, Frederich) Before Honorable Kathy Surratt-States United States Bankruptcy Judge,
June 30, 2005, at 5- 6.
       30
           We also note that bankruptcy courts are not permitted to allow, over an objection, late
filed claims in a Chapter 13 case due to excusable neglect, even if disallowing the claim leads to
unwelcome results. See In re Griggs, 306 B.R. 660, 663-64 (Bankr. W.D. Mo. 2004) (citing
Pioneer Investment Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 389 n.4, 113 S.Ct. 1489,
1495, 123 L.Ed.2d 74 (1993) (noting that excusable neglect is not applicable to late claims under
Rule 3002(c)); Fed. R. Bankr. P. 9006(b)(1).

                                               14
       Counsel for the Debtors submitted a statement of her attorney fees and costs.
She shows a total of 26.05 hours defending these appeals, up to the oral argument, at
$160 per hour, plus the cost of a transcript of $33, for a total of $4,201. Tina
Livestock’s attorney asserts this amount is excessive, in view of the fact that he spent
only 16.2 hours in pursuing this appeal. He also disputes fees incurred by Debtors’
counsel dealing with the attorney for the BCM, the secured creditor. Debtors’ counsel
replies that, inter alia, it was BCM’s claim that was being crammed down in the Plan
and it considered filing an amicus brief to protect its interests in the appeal, so
counsel was required to address that situation. We also note that the fee statement
includes only the time incurred up to oral argument and that Debtors’ counsel has
certainly incurred fees after that point.31

       After reviewing the fee statement and the statements by counsel, we find the
attorney fees and costs to be reasonable under the circumstances.

       Finally, counsel for Tina Livestock candidly concedes that his clients acted on
his advice and, if he gave his client incorrect advice, he will accept responsibility for
doing so. We agree that counsel should bear responsibility for the frivolous appeals
in this case. Accordingly, we assess the costs and attorney fees against Tina
Livestock’s counsel, personally.32




       31
            Although Debtors’ counsel’s reply to Tina Livestock’s Response to the Order to Show
Cause states she did not include time incurred for driving to oral argument in St. Louis, the
Statement she submitted does include four hours of driving time. Nevertheless, we conclude that
the total fees requested are reasonable.
       32
          See Cronin v. Town of Amesbury, 81 F.3d 257, 262 (1st Cir. 1996) (assessing costs and
fees against attorney).

                                              15
                                 CONCLUSION

       For the foregoing reasons, these appeals are dismissed. Further, because Tina
Livestock Sales, Inc.’s appeals from the bankruptcy court’s Orders confirming the
First and Second Amended Plans were frivolous, Debtors Ralph D. Schachtele and
Mildred A. Schachtele are awarded attorneys’ fees in the amount of $4,168 and costs
of $33, for a total of $4,201, against Fredrich J. Cruse, counsel for Tina Livestock
Sales, Inc.
                        ______________________________




                                        16
