                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                            July 25, 2006

                          _______________________                    Charles R. Fulbruge III
                                                                             Clerk
                                No. 05-41141
                          _______________________

                         In The Matter Of: ENRE LP,

                                                                            Debtor,

         BRIDGEPORT TANK TRUCKS; WEST FORK TANK TRUCKS INC;
      BAKER HUGHES OILFIELD OPERATIONS INC; WILSON SUPPLY,
              A Division of Smith International, Inc.,

                                                                      Appellants,

                                     versus

                                   LIEN AGENT,

                                                                         Appellee.


              Appeals from the United States District Court
                    for the Southern District of Texas


Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:

              Appellants seek to recover attorney fees and costs, under

the   prior    version   of   11   U.S.C.   §   506(b),    as   part     of   their

oversecured      statutory    materialmen’s      lien     claims    against      the

debtor’s oil and gas wells.          We hold that the applicable statute

does not permit such costs and fees and AFFIRM the judgments of the

bankruptcy and district courts.
                                 BACKGROUND

            Appellants, various creditors of Chapter 11 debtor EnRe

LP (“EnRe”), performed work on oil and gas wells in Texas and

Wyoming.    Some of Appellants’ contracts provided that EnRe would

pay costs and attorney fees in the event of litigation to collect

what EnRe owed.     None had an express security agreement.          Instead,

following industry practice in the oil patch, Appellants all timely

filed for and obtained statutory materialmen’s mineral liens (M&M

liens) on EnRe’s property pursuant to Texas or Wyoming law.               Upon

EnRe’s filing bankruptcy, Appellants duly filed proofs of claim.

Appellee, the lien agent, allowed the M&M lien claims and included

them in Class 8 of the reorganization plan.           The bankruptcy court

held that Appellants, as oversecured creditors, were entitled to

receive principal and interest, which EnRe paid, but they were not

entitled to     receive   attorney    fees   and   costs   under   11   U.S.C.

§ 506(b).    The district court affirmed.1

                                 DISCUSSION

            This court reviews de novo the legal question whether an

oversecured lienholder may receive attorney fees and costs under

the Bankruptcy Code.       See, e.g., U.S. Dep’t of Educ. v. Gerhardt

(In re Gerhardt), 348 F.3d 89, 91 (5th Cir. 2003).


      1
            In the alternative, Appellant Baker Hughes Incorporated seeks to
recover fees under 11 U.S.C. § 502.      This issue is waived, as all parties
stipulated that “the only remaining legal issue [is] the proper interpretation
and application of 11 U.S.C. 506(b).” Accordingly, we review the decisions of
the bankruptcy and district courts addressing § 506(b) only. See, e.g., Ginther
v. Ginther Trusts (In re Ginther Trusts), 238 F.3d 686, 689 (5th Cir. 2001).

                                      2
            Congress    recently    amended    §    506(b)   as   part   of   the

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,

Pub. L. No. 109-8, 119 Stat. 23 (“BAPCPA”).2             Nonetheless, as the

parties agree, the Act’s amendments are not retroactive, and the

prior version of the statute controls.             See id. § 1501, 119 Stat.

at 216.    The controlling version provides:

      To the extent that an allowed secured claim is secured by
      property the value of which, after any recovery under
      subsection (c) of this section, is greater than the
      amount of such claim, there shall be allowed to the
      holder of such claim, interest on such claim, and any
      reasonable fees, costs, or charges provided for under the
      agreement under which such claim arose.

Act of Nov. 6, 1978, Pub. L. No. 95-598, § 506(b), 92 Stat. 2549,

Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L.

No. 98-353, § 448, 98 Stat. 374 (current version at 11 U.S.C.

§ 506(b)).

            The pre-BAPCPA version of the statute authorizes interest

on an oversecured claim without qualification, but it qualifies the

availability of fees, costs, or charges by mandating that they be

both reasonable and provided for under the agreement under which

such claim arose.      See United States v. Ron Pair Enters., Inc., 489

U.S. 235, 241, 109 S. Ct. 1026, 1030 (1989).                 The parties here

dispute only whether the claims for fees and costs are “provided

for under the agreement under which such claim arose.”



      2
            The new statute authorizes collection fees if “provided for under the
agreement or State statute under which such claim arose.” 11 U.S.C. § 506(b)
(emphasis added).

                                       3
               The plain language of the statute assumes that creditors

who seek fees possess a security agreement that authorizes the

charging of collection fees; a general agreement for fees, such as

a clause in a labor/supply contract, does not qualify, if it is not

the agreement under which the “allowed secured claim” arose.                   See

Rushton v. State Bank of S. Utah (In re Gledhill), 164 F.3d 1338,

1341 (10th Cir. 1999) (explaining that an “‘allowed secured claim’

is   the      specific   claim   presented   to    the   bankruptcy    court   for

payment”).       In this case, it is undisputed that state involuntary

lien laws, not the work orders or invoices delivered by the

creditors to EnRe, constituted the only basis for Appellants’

allowed secured claims.           Absent security agreements, the claims

fail     to    satisfy    the    statute’s   requirement      for     oversecured

creditors’ recovery of collection fees.

               This requirement, that an agreement covering collection

fees must give rise to the allowed secured claim, explains the

courts’ differential treatment of consensual and nonconsensual

liens.        As this court has held, “the plain language of § 506(b)

distinguishes between voluntary secured claims (i.e., security

agreements)       and    involuntary   secured      claims   (i.e.,     statutory

liens).”        City of Farmers Branch v. Pointer (In re Pointer),

952 F.2d 82, 89 (5th Cir. 1992).                  “All creditors can recover

interest on an oversecured claim, but only creditors who have

voluntary secured claims can recover penalties, fees and costs.”

Id.; see also In re Gledhill, 164 F.3d at 1341-42; Bondholder Comm.

                                        4
v. Williamson County (In re Brentwood Outpatient, Ltd.), 43 F.3d

256, 259-61 (6th Cir. 1994).

           Appellants, relying on dicta from Ron Pair, argue that

the consensual/nonconsensual distinction is not supported by the

statute.   In a footnote, the Ron Pair Court noted that “other

portions of § 506 make no distinction between consensual and

nonconsensual liens” and that “had Congress intended § 506(b) to

apply only to consensual liens, it would have clarified its intent

by using the specific phrase, ‘security interest,’ which the Code

employs to refer to liens created by agreement.”            Ron Pair,

489 U.S. at 242 n.5, 109 S. Ct. at 1031.   Ambiguous as the footnote

is, we are bound to follow In re Pointer, which has, along with

other courts, considered and rejected Appellants’ reading of Ron

Pair.   The footnote’s interpretation is rendered more obscure by

the Ron Pair dissent, which acknowledges that “[e]ven under the

Court’s interpretation, [collection fees] can only be awarded if

provided for in a consensual lien.”   Id. at 251, 109 S. Ct. at 1035

(O’Connor, J., dissenting) (emphasis added).

           Appellants’ more refined position is that their liens are

consensual.   Because state law provides for both mineral liens and

attorney fees for collection thereof, albeit in separate statutory

provisions, and because state law is a backdrop to all contracts

performed in the state, it is contended that EnRe “consented” to

liens that included such fees under state law.    In other words, M&M

liens   embody   a   consensual   agreement,     unlike   the   purely

                                  5
nonconsensual tax liens at issue in In re Pointer and other cases

where no agreement existed between the debtor and lien creditor.

See In re Pointer, 952 F.2d at 83 (tax lien); In re Brentwood

Outpatient, Ltd., 43 F.3d at 259 & n.3 (tax lien).         Although

creative, this argument fails:   Statutory liens may be inevitable,

but they are not consensual.   A secured claim based on a statutory

lien arises out of state law, not out of the parties’ agreement to

a lien, even though the parties agreed to do business.   See, e.g.,

Ron Pair, 489 U.S. at 238 n.1, 247 n.9, 109 S. Ct. at 1029, 1034

(referring to M&M-type liens as nonconsensual).    If state law did

not authorize these liens, Appellants would have pure unsecured

claims.

           Finally, Appellants argue that their claims represent

consensual liens because EnRe expressly agreed to grant them

substitute liens through a post-bankruptcy cash collateral order.

In its cash collateral order, however, the bankruptcy court carried

forward the statutory liens, specifically stating that they “shall

have the same priority as the prepetition liens of such M&M

Lienholders.”   The substitute liens merely retained the statutory

character of the liens they replaced.    They did not “create” a new

agreement under which the allowed secured claims arose, thereby

giving rise to a right to collection fees under the pre-BAPCPA

statute.

                            CONCLUSION



                                 6
          Because § 506(b), pre-BAPCPA, does not authorize an

oversecured creditor’s recovery of attorney fees or costs of

collection in connection with the statutory M&M liens at issue in

these cases, we AFFIRM.




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