James Cockhren, et al v. MidWest One Bank, et al

Filing

OPINION FILED - THE COURT: ARTHUR B. FEDERMAN, BARRY S. SCHERMER and JERRY W. VENTERS. Arthur Federman, Authoring Judge (PUBLISHED) [3898830] [11-6067]

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
_______________
No. 11-6067
_______________
In re: James Arthur Cockhren;
Margaret Louise Cockhren

*
*
*
Debtors
*
*
Margaret Louise Cockhren, also known *
as Margaret L. Glass-Cockhren;
*
James Arthur Cockhren, doing business *
as Cockhren Roofing & Contracting, *
doing business as Cockhren Housing *
Mgmt
*
*
Debtors - Appellants
*
*
v.
*
*
MidWestOne Bank, its Holding Co.
*
and/or any of their Directors, Officers, *
former and current Employees,
*
Agents and Attorneys
*
*
Interested party - Appellee
*
*
Michael C. Dunbar
*
*
Trustee - Appellee
*

Appeal from the United States
Bankruptcy Court for the
Northern District of Iowa

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Submitted: March 29, 2012
Filed: April 9, 2012
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Before SCHERMER, FEDERMAN, and VENTERS, Bankruptcy Judges
FEDERMAN, Bankruptcy Judge
Debtors James and Margaret Cockhren appeal from the Bankruptcy Court’s1
Order Granting the Trustee’s Motion for Approval of Compromise or Settlement of
Controversy, relating to claims they asserted against MidWestOne Bank for lender
liability and discrimination. They also request oral argument on appeal. For the
reasons that follow, their request for oral argument is DENIED, and the Bankruptcy
Court’s Order is AFFIRMED.
FACTUAL BACKGROUND
The source of the dispute between the Debtors and MidWestOne Bank is a loan
secured by the Debtors’ property, which consists of their residence and an adjacent
commercial lot. The parties have been involved in litigation over the loan since 2007.
That litigation history is summarized as follows:
Case No. CVCV104021 - The First State Court Lender Liability Action
The Debtors, pro se, filed a lender liability action against the Bank and its
former president, James Chizek, on December 11, 2007, in the Iowa District Court
in Black Hawk County. On July 1, 2009, the Court granted the Bank’s Motion for
Summary Judgment and dismissed the case.

1

The Honorable Paul J. Kilburg, United States Bankruptcy Judge for the
Northern District of Iowa.
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Case No. EQCV104984 - The First Foreclosure Action
This was a Foreclosure Petition filed by the Bank in the Iowa District Court in
Black Hawk County on March 31, 2008. The Debtors, pro se, filed Answers and also
asserted counterclaims against the Bank and Chizek. The foreclosure was stayed by
a Chapter 13 bankruptcy filing, Case No. 08-01328, discussed immediately below.
Based on the confirmed plan in that Chapter 13 case, the Bank dismissed the
foreclosure part of the proceeding without prejudice. On September 9, 2010, the
Court granted the Bank’s motion to dismiss the Debtors’ counterclaims.
Case No. 08-01382 - The Chapter 13 Bankruptcy Case
The Debtors, through counsel, filed a Chapter 13 bankruptcy petition on July
2, 2008 in the Bankruptcy Court for the Northern District of Iowa. Debtor James
Cockhren was dismissed out of the case on October 2, 2008. An Order Confirming
Amended Plan was entered as to Margaret Cockhren on November 30, 2009. The
Bankruptcy Court dismissed the case on October 7, 2010 on the Bank’s motion, due
to default in the terms of the confirmed plan.
Case No. LACV112367 - The Second State Court Lender Liability Action
While the Chapter 13 Bankruptcy Case was pending, the Debtors filed another
pro se lender liability Petition against the Bank and Chizek on April 7, 2010 in the
Iowa District Court in Black Hawk County. The Bank answered and trial was
apparently set for October 4, 2011. This action was stayed by the Debtors’ instant
Chapter 7 filing on March 22, 2011, discussed below. After the Bankruptcy Court
in the instant Chapter 7 bankruptcy case lifted the stay to allow the Bank to defend
in this case, and denied the Debtors’ motion to dismiss the bankruptcy, the Iowa
Court dismissed the Second State Court Lender Liability Action on June 30, 2011,

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based on the conclusion that the cause of action belonged to the Trustee and that the
Debtors lacked standing.
Case No. EQCV114957 - The Second Foreclosure Action
While the Second State Court Lender Liability Action was pending, the Bank
filed a second foreclosure petition on December 29, 2010 in the Iowa District Court
for Black Hawk County. The Debtors answered pro se and again asserted
counterclaims against the Bank and a current bank employee, Bill Roth. Hearing on
the Bank’s Motion for Summary Judgment was set for March 25, 2011. This Second
Foreclosure Action was also stayed by the Debtors’ instant Chapter 7 bankruptcy
filing on March 22, 2011. Ultimately, the counterclaims in this case were also
dismissed on June 30, 2011, based on the state court’s conclusion that those claims
belonged to the Trustee.
Case No. 11-00560 - The Instant Chapter 7 Bankruptcy Case
As stated, on March 22, 2011, the Debtors, through counsel, filed this
voluntary Chapter 7 bankruptcy petition to stop the Second Foreclosure Action. The
Debtors listed counterclaims against the Bank as an asset on Schedule B, with a value
of zero.
On March 25, 2011, the Bank filed a motion for relief from the stay. The
Debtors filed an objection, asserting, among other things, that the property had equity
and that the Bank had mischaracterized the loan as a commercial loan, rather than a
residential loan. Hearing on the motion for relief was set on April 22.
Meanwhile, as mentioned above, on April 1, 2011, the Debtors filed a pleading
in the Second Foreclosure Action, alleging lender liability and discrimination claims
against the Bank and its employee, Bill Roth.
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On April 21, the Debtors moved to dismiss the instant Chapter 7 bankruptcy
case. They say in their appeal brief that they decided to dismiss the case when they
learned at their April 18 meeting of creditors that the Chapter 7 filing would not
ultimately stop the Second Foreclosure Action. Both the United States Trustee and
the Bank opposed dismissal. The United States Trustee stated that the Trustee was
investigating potential assets, and that the Debtors had not demonstrated cause to
dismiss their Chapter 7 case, as required under 11 U.S.C. § 707(a). The Bank’s
objection stated that the Debtors may have assets relating to a barbeque business not
organized under Iowa law and, further, that the Bank had made an offer to the Trustee
to purchase the Debtors’ claims against it for $5,000. The Bank said the Trustee had
accepted the offer, subject to notice and Court approval, and that the Trustee had
communicated this to the Debtors and their attorney at the April 18 meeting of
creditors.
At the April 22 hearing on the motion for relief from stay, the Debtors
withdrew their objection to it. The motion for relief from stay was granted that same
day, both to allow the Bank to proceed with its foreclosure of the residence and
commercial lot, and to allow the Bank, Chizek, and Roth to defend against the
Debtors’ counterclaims in the Second State Court Lender Liability Action and the
Second Foreclosure Action in Black Hawk County.
On April 29, 2011, the Debtors’ attorney filed a motion to withdraw as counsel,
which motion was granted on May 6, 2011. The Debtors have proceeded pro se in
the instant Chapter 7 bankruptcy case since that time.
On May 13, 2011, the Bankruptcy Court denied the Debtors’ motion to dismiss
the bankruptcy case because they failed to show sufficient cause and because it was
probable there would be assets for distribution to creditors. The Debtors did not
appeal that Order.

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On June 6, 2011, the Debtors filed a Motion for Declaratory Judgment, Failure
to Comply to 20 Day Notice of Rescission, and Request for Relief for Violation of
Regulation Z Provisions of TILA, in the Second Foreclosure Action. They filed a
similar pleading in the Bankruptcy Court on June 8.
On June 9, 2011, the Trustee filed with the Bankruptcy Court a motion to sell
the Debtors’ causes of action against the Bank and its officers and employees for
$5,000. On June 15, 2011, the Trustee withdrew that motion as being filed
incorrectly, and filed instead a motion to approve a compromise or settlement of
controversy. That motion stated that the Trustee had received an offer from the Bank
to purchase all of the Debtors’ claims against the Bank and its agents and employees,
whether past or present, and all of the Debtors’ stock, if any, in two unscheduled nonoperating Iowa corporations, for a total sum of $5,000.
On June 16, 2011, while this bankruptcy case was pending, the Debtors filed
a lawsuit in the United States District Court for the Northern District of Iowa, Case
No. 6:11-cv-02027-EJM (the “District Court Action”), apparently asserting the same
claims they were asserting in the Second Foreclosure Action and in the Bankruptcy
Court, including violations of Regulation Z and the Truth in Lending Act.
On June 23, 2011, the Bankruptcy Court denied the Debtors’ Motion for
Declaratory Judgment filed in the instant Chapter 7 bankruptcy case, in part because
the Debtors conceded at hearing that the issues should be litigated in the other actions
that were then still pending in state court and the federal district court.
On June 28, 2011, the Debtors filed an Objection to the motion to sell,
asserting that the Bank was attempting to violate their rights by selling their causes
of action.

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As mentioned above, on June 30, 2011, the Iowa District Court dismissed the
Second State Court Lender Liability Action, as well as the Debtors’ counterclaims in
the Second Foreclosure Action, concluding that the claims belonged to the
bankruptcy Trustee and the Debtors lacked standing. It also denied the Debtors’
Motion for Declaratory Judgment in the Second Foreclosure Action because their
claims in that pleading were based on federal law and should therefore be litigated
in the District Court Action.
On July 25, 2011, the Debtors filed an Amended Schedule B in this bankruptcy
case, listing their claims against the Bank with a value of $2.5 million.
On August 10, 2011, the Bankruptcy Court set the Bank’s motion to
compromise for hearing on September 14, 2011. The Bank filed an exhibit list and
exhibits for that hearing on September 2, 2011.
On September 12, 2011, the Debtors filed a motion to continue the hearing.
That motion stated, in its entirety: “Due to unforseen health concerns, the [Debtors]
hereby request that the hearing scheduled for September 14, 2011, at 9:45, in
Independence, Iowa, be rescheduled.” The following day, September 13, the Court
denied the motion, concluding that the Debtors had not shown good cause for
granting the continuance. The Court conducted the hearing as scheduled, and the
Debtors did not appear. On September 16, 2011, the Court entered an Order granting
the Trustee’s motion to compromise.
In sum, the Court concluded that, because all of the alleged acts had occurred
on or before the bankruptcy filing date of March 22, 2011, the Debtors’ asserted
claims against the Bank and its agents and employees were all assets of the
bankruptcy estate pursuant to 11 U.S.C. § 541(a)(1). Further, the Debtors had no
exemption to assert in the claims. Finally, the Court held that Bankruptcy Rule 9019
provided the Trustee with the authority, subject to notice and hearing, to compromise
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the claim if he determined that a settlement was in the best interest of creditors. The
Court found that the Debtors’ claims against the Bank were “speculative at best,” that
the Trustee was not willing to incur the expenses associated with prosecuting the
seemingly unsubstantiated lender liability and discrimination claims, and that the
Debtors were not represented by counsel in the District Court Action. Based on that,
the Court found that the offer of $5,000 was satisfactory and was not de minimis, and
approved the settlement. The Debtors appeal.
STANDARD OF REVIEW
We review findings of fact for clear error, and legal conclusions de novo.2 A
finding is clearly erroneous when the reviewing court is “left with the definite and
firm conviction that a mistake has been committed.”3 We review the Bankruptcy
Court's order approving a compromise or settlement for an abuse of discretion.4 An
abuse of discretion occurs if the court bases its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence.5 Interpretation of rules presents
a question of law that is subject to de novo review.6

2

First Nat’l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609
(8th Cir. 1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.
1997); Fed. R. Bankr. P. 8013.
3

Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84
L.Ed.2d 518 (1985).
4

In re Racing Services, Inc., 332 B.R. 581, 584 (B.A.P. 8th Cir. 2005)
(citing Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir.1988)).
5

Id. (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct.
2447, 110 L.Ed.2d 359 (1990)).
6

Id. (citing Indiana Lumbermens Mut. Ins. Co. v. Timberland Pallet and
Lumber Co., 195 F.3d 368, 374 (8th Cir. 1999)).
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DISCUSSION
The Debtors appear to assert four issues on appeal. First, they point out in their
Reply Brief that the Trustee did not file a brief on appeal. They incorrectly assert that
the brief filed by the Bank’s attorney was also filed on behalf of the Trustee. It was
not. The brief was filed on behalf of only the Bank. As a party to the settlement to
which the Debtors object, and as a named Appellee in this case, the Bank is an
interested party and has standing to defend its position on the settlement and file a
brief on appeal.7
Second, the Debtors assert that the Court erred by denying their motion to
dismiss the current bankruptcy case and then in allowing the case to proceed despite
their later filing deficiencies – which they concede were intended to cause the Court
to dismiss the case for failing to comply with the Court’s Rules and Orders.
However, the Debtors did not appeal from the Order denying their motion to dismiss,
and nothing obligated the Court to dismiss the case based on the Debtors’ intentional
filing deficiencies, particularly when the Court found that dismissing the case was not
in the best interest of creditors. As the Bankruptcy Court held in denying the motion
to dismiss, the Bankruptcy Code does not provide a simple escape mechanism for a
Chapter 7 debtor who decides he wants to abandon his case prior to discharge.8 “A
Chapter 7 debtor has no absolute right to dismiss his or her case; in order to
voluntarily dismiss the case, the debtor must show cause.”9 Further, although §
707(a) expressly mentions only cause, courts have read into it a requirement to
protect creditors as well.10
7

See Fed. R. Bankr. P. 8009(a)(2).

8

In re Asbury, 423 B.R. 525, 529 (B.A.P. 8th Cir. 2010).

9

Id. (citation omitted).

10

Id.
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Third, the Debtors assert that they were deprived of their due process and civil
rights when the Court denied their motion for continuance and held the hearing in
their absence.11
The decision to grant or deny a continuance of a hearing is within the
discretion of the trial court and is only reversible upon showing abuse of discretion.12
“We will not overturn a trial court’s denial of a continuance unless the trial court
clearly has abused its discretion, because continuances are not favored and should be
granted only when a compelling reason has been shown.”13 Consistent with that
principle, the Local Rules for the Northern District of Iowa provide that a continuance
may be granted for good cause and that a motion to continue must specify the grounds

11

The Debtors also say that approving the settlement without their
attendance at the hearing is a violation of Article 8 of the Declaration of Human
Rights, apparently referring to Article 8 of the Universal Declaration of Human
Rights, which provides that “[e]veryone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him
by the constitution or by law.” However, the Universal Declaration of Human
Rights is a declaration by the United Nations, not a treaty, and does not purport to
be a statement of law or legal obligation. Sneed v. Chase Home Finance LLC,
2007 WL 1851674 (S.D. Cal. June 27, 2007) (not reported); Tel-Oren v. Libyan
Arab Republic, 726 F.2d 774, 818 (D.C. Cir. 1984). It does not apply to a debtor’s
cause of action against a lender in bankruptcy cases. Id.
12

In re Rice, 357 B.R. 514, 517 (B.A.P. 8th Cir. 2006) (citing Lessmann v.
Comm'r of Internal Revenue, 327 F.2d 990, 996 (8th Cir.1964)).
13

United States v. Young, 943 F.2d 24, 25 (8th Cir.1991) (quotation
omitted), cert. denied, 503 U.S. 964, 112 S.Ct. 1571, 118 L.Ed.2d 216 (1992). See
also In re Martwick, 60 F.3d 482 (8th Cir. 1995); Kansas City Star Co. v. U.S.,
240 F.2d 643, 651 (8th Cir. 1957) (holding that motions to continue are addressed
to the sound discretion of the trial court and decisions on such motions will be
sustained in the absence of pure abuse of such discretion).
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for the request.14 Further, the Rules provide that a motion to continue which does not
comply with the Local Rule may be denied without hearing.15
The Debtors assert that the Bankruptcy Court “disregarded” and “ignored”
their request for continuance. To the contrary, although the Court had denied the
motion the day previous to the hearing, the Court addressed the request at the hearing.
The Court denied the motion, in part, because the Debtors failed to abide by the Local
Rules. Local Rule 5071-1(c) requires a person intending to request a continuance to
contact opposing counsel to advise them of the intended motion and to ascertain
whether opposing counsel will consent to the motion.16 At the hearing, the Court
asked counsel for the Bank, counsel for the Trustee, and counsel for the United States
Trustee if the Debtors had contacted them and all three lawyers answered in the
negative.
In addition, the sole basis asserted by the Debtors for the requested continuance
was “unforseen health concerns.” In view of the fact that the motion offered no detail
whatsoever, including whose health concern it was, what kind of health concern it
was, and when the Debtors became aware of the health concern, and in the context
of the history of the litigation between the parties, we cannot say that the denial of the
motion was an abuse of discretion.
Finally, the Debtors appear to assert that the Court erred in approving the
settlement. Under Rule 9019, “[o]n motion by the trustee and after notice and a
hearing, the court may approve a compromise or settlement.” A decision to approve

14

Local Rule 5071-1(a) and (e).

15

Local Rule 5071-1(i).

16

Local Rule 5071-1(c).
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a settlement under Rule 9019 is within the discretion of the bankruptcy judge.17 In
exercising its discretion under Rule 9019, the bankruptcy court must consider four
factors bearing on the settlement's reasonableness:
(1) the probability of success in the litigation; (2) the difficulties, if any,
to be encountered in the matter of collection; (3) the complexity of the
litigation involved, and the expense, inconvenience and delay
necessarily attending it; (4) the paramount interest of the creditors and
a proper deference to their reasonable views in the premises.18
An abuse of discretion occurs when a bankruptcy court does not weigh these factors
and then approves or rejects the proposed settlement.19 In addition, the standard for
compromise and approval of a settlement is whether it is “fair and equitable” and “in
the best interests of the estate.”20 “The purpose of a compromise is to allow the
trustee and creditors to avoid the expenses and burdens associated with litigating
sharply contested and dubious claims.”21 “When considering reasonableness, there
is no best compromise, only a range of reasonable compromises. So as long as the
one before the court falls within that range, it may be approved.”22

17

In re Racing Services, Inc., 332 B.R. 581, 586 (B.A.P. 8th Cir. 2005)
(citing Drexel, Burnham, Lambert, Inc. v. Flight Transp. Corp. (In re Flight
Trans. Corp. Sec. Litig.), 730 F.2d 1128, 1135 (8th Cir.1984)).
18

Id. (quoting In re Flight Trans. Corp. Sec. Litig., 730 F.2d at 1135;
Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929)).
19

Id. (citing ReGen Capital III, Inc. v. Official Comm. of Unsecured
Creditors ( In re Trism, Inc.), 282 B.R. 662, 667 (B.A.P. 8th Cir. 2002)).
20

In re Martin, 212 B.R. 316, 319 (B.A.P. 8th Cir. 1997) (citations

omitted).
21

Id. (citations, internal quotation marks, and brackets omitted).

22

In re Racing Services, 332 B.R. at 586 (citation omitted).
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Here, the Bankruptcy Court found that the Debtors’ claims against the Bank
were speculative at best. Indeed, the Debtors schedules originally valued these claims
at zero. The history of the litigation, including the fact that no attorney had
represented them in any of the state court or federal district court litigation, supports
that finding. The Court also noted that the Trustee, to whom the claim belonged, did
not have the funds to pursue protracted litigation in the district court. The settlement
proposed by the Trustee was, we conclude, within the range of reasonable
compromises. The Bankruptcy Court did not err in approving it.
REQUEST FOR ORAL ARGUMENT
The Debtors have requested oral argument. After examination of the briefs and
record, we conclude that the facts and legal arguments are adequately presented in the
briefs and record and that the decisional process would not be significantly aided by
oral argument.23 The request for oral argument is, therefore, DENIED.
CONCLUSION
For the foregoing reasons, the Bankruptcy Court’s Order approving the
settlement between the Trustee and MidWestOne Bank is AFFIRMED. The Debtors’
request for oral argument is DENIED.

23

Fed. R. Bankr. P. 8012.
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