Venture Bank v. Howard L. Lapides , 800 F.3d 442 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3085
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Venture Bank
lllllllllllllllllllllAppellant
v.
Howard L. Lapides
lllllllllllllllllllllAppellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: June 9, 2015
Filed: August 25, 2015
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Before LOKEN, BYE, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Howard Lapides (Howard) and his wife, Mary Holter-Lapides (collectively,
“the Lapideses”), renewed a loan from Venture Bank secured by a third mortgage on
their home. Howard subsequently filed for Chapter 7 bankruptcy. After Howard’s
personal debts were discharged, the Lapideses executed two “Change in Terms
Agreements,” each of which extended the maturity date of the loan for six months.
When Howard ceased making payments under these agreements, Venture Bank filed
suit in Minnesota state court seeking, among other relief, a declaratory judgment that
the agreements were valid and enforceable. The Lapideses removed the suit to
bankruptcy court, and Howard asserted in a counterclaim that Venture Bank’s efforts
to obtain payments after his discharge violated the discharge injunction. See 11
U.S.C. § 524(a)(2). After a trial, the bankruptcy court1 entered judgment denying
Venture Bank’s claim for a declaratory judgment and awarding Howard damages and
attorney’s fees on his counterclaim. Venture Bank appeals the district court’s2
decision affirming the bankruptcy court. Reviewing the bankruptcy court’s factual
findings for clear error and its conclusions of law de novo, we affirm. In re M & S
Grading, Inc., 526 F.3d 363, 367 (8th Cir. 2008) (standard of review).
I. Background
On August 30, 2007, Howard as President of his seafood import business
signed a secured $400,000 promissory note evidencing a revolving line-of-credit loan
by Venture Bank. Part of the collateral was a third mortgage on the Lapideses’ home.
Bank of America and Citizens Bank held the prior mortgages. In March 2008, the
Lapideses signed a new $400,000 promissory note (number 12897) amending and
restating the prior loan at a lower rate of interest. In September and November 2008,
the Lapideses as borrowers signed Change in Terms Agreements extending the
maturity date and modifying the credit terms of loan 12897. They signed a new
promissory note (number 13317) in the amount of $357,456.35 in February 2009
providing that final payment was due three months later, and a new promissory note
1
The Honorable Anita L. Shodeen, United States Bankruptcy Judge for the
Southern District of Iowa, sitting in the District of Minnesota by designation.
2
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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(number 13440) for $345,644 on June 30, 2009, payable on August 2, 2009. All
notes and agreements were secured by the third mortgage on their home.
Howard filed for Chapter 7 bankruptcy protection on August 11, 2009. On
October 12, Howard met with Venture Bank’s president, Michael Zenk, and loan
officer Nathan Urfer to discuss Venture Bank refinancing all three mortgages so the
Lapideses could keep their home. Howard agreed to pay $3000 per month on loan
13440 to reestablish his credit with the Bank. On November 9, the Lapideses signed
a Debt Re-Affirmation Agreement in which they promised to make five monthly
payments of $3000, followed by payment of the outstanding principal and interest on
May 9, 2010, and Venture Bank agreed to permit the Lapideses “the continued use
and possession” of their home. Although Howard and Venture Bank knew the Re-
Affirmation Agreement was unenforceable because Howard’s bankruptcy attorney
refused to sign the Agreement and it was never filed with the bankruptcy court, see
11 U.S.C. § 524(c), Howard continued to make regular loan payments to the Bank.
Howard’s personal debts were discharged on November 16, 2009. On May 9,
2010, and November 9, 2010, the Lapideses executed Change in Terms Agreements
extending the maturity date of Note 13440 to Venture Bank by six months. Each
Agreement provided for payment in five monthly installments of $3500 followed by
a final payment of the unpaid balance. Howard testified that he understood these
agreements reflected the understanding reached at the October 12, 2009, meeting that
he would make regular loan payments to reestablish his credit with Venture Bank to
induce the Bank to refinance his three mortgages. The Lapideses made twelve $3500
payments to Venture Bank between June 2010 and May 2011. During this time, loan
officer Urfer sent Howard numerous emails reminding him that payments were due
and asking him to pay additional principal and accrued interest. Venture Bank never
refinanced the mortgages. Howard ceased making monthly payments in May 2011.
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In July 2011, Venture Bank sued the Lapideses in state court, asserting a claim
against borrower Holter-Lapides under the November 9, 2010, Change in Terms
Agreement; foreclosure of the Bank’s third mortgage on the Lapideses’ home; and a
declaratory judgment that the Change in Terms Agreement was enforceable against
Howard. The Lapideses removed the case to bankruptcy court, and Howard filed a
counterclaim for damages, alleging that Venture Bank’s efforts to obtain loan
payments after his debts were discharged violated the discharge injunction imposed
by 11 U.S.C. § 524(a)(2). Citizens Bank, holder of the second mortgage, foreclosed
on the Lapideses’ home and it was sold at public auction in December 2012. Venture
Bank received none of the sale proceeds.
After the bankruptcy court remanded Venture Bank’s claim against Holter-
Lapides and the foreclosure claim to state court, the parties filed cross motions for
summary judgment on the retained claims. In denying Venture Bank’s motion for
summary judgment and setting the case for trial, the bankruptcy court ruled that, to
be valid and enforceable, the post-discharge Change in Terms Agreements must
either comply with the requirements of a reaffirmation agreement under 11 U.S.C.
§ 524(c), which they admittedly did not do, or they must contain “all of the essential
elements of a contract” under state law. After trial, the court concluded that the post-
discharge agreements did not meet two essential elements of a valid and enforceable
contract, consideration and mutual assent. The court further found that all monthly
payments made by Howard after the first Change in Terms Agreement were
involuntary, see § 524(f), and Venture Bank’s efforts to obtain those payments
violated the discharge injunction. The district court affirmed, concluding the post-
discharge agreements lacked consideration because Venture Bank did not provide the
Lapideses new consideration and Venture Bank had violated the discharge injunction.
Correcting an error in calculating the number of monthly payments, the district court
increased the damage award to $42,000. Venture Bank appeals.
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II. Discussion
A bankruptcy discharge extinguishes only the debtor’s personal liability; a
secured creditor’s right to foreclose on loan collateral, such as a mortgage on the
debtor’s residence, “survives or passes through the bankruptcy.” Johnson v. Home
State Bank, 501 U.S. 78, 83 (1991). When a debtor’s schedule of assets includes
debts secured by property of the bankruptcy estate, the debtor must file a statement
of his intent to surrender or retain the property and, if he elects to retain non-exempt
property, whether he will redeem the property (i.e., pay off the secured loan before
discharge) or “reaffirm debts secured by such property.” 11 U.S.C. § 521(a)(2)(A);
see In re Pratt, 462 F.3d 14, 18-19 (1st Cir. 2006) .
A. Validity of the Post-Discharge Agreements
“A reaffirmation agreement is one in which the debtor agrees to repay all or
part of a dischargeable debt after a bankruptcy petition has been filed.” In re Duke,
79 F.3d 43, 44 (7th Cir. 1996). Prior to 1978, the Bankruptcy Act looked to state law
to determine the validity of reaffirmation agreements. In many States, the moral
obligation to repay a discharged debt was regarded as sufficient consideration. See
In re Bennett, 298 F.3d 1059, 1066 (9th Cir. 2002). In the 1978 Bankruptcy Code,
Congress sought to equalize the unequal bargaining positions of experienced
creditors and unsophisticated bankruptcy debtors by enacting § 524(c) of the Code,
which provides in relevant part:
(c) An agreement between a holder of a claim and the debtor, the
consideration for which, in whole or in part, is based on a debt that is
dischargeable in a case under this title is enforceable only to any extent
enforceable under applicable nonbankruptcy law . . . only if --
(1) such agreement was made before the granting of the discharge
...;
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(2) the debtor received the disclosures described in subsection (k)
...;
(3) such agreement has been filed with the court . . . .
Section 524(c) “reflects Congress’s intent to . . . safeguard[] debtors against unsound
or unduly pressured judgments about whether to attempt to repay dischargeable
debts.” In re Jamo, 283 F.3d 392, 398 (1st Cir. 2002).
Under § 524(c), reaffirmation agreements are enforceable only if they are
enforceable under state law and meet the requirements of federal law in § 524(c).
See, e.g., Bennett, 298 F.3d at 1066. Thus, the bankruptcy court erred in ruling that
the Change in Terms Agreements are valid if either (1) “the post-petition agreements
comply with the requirements of 11 U.S.C. section 524(c) or (2) all of the essential
elements of a contract are present in the post-petition agreements.” If the Agreements
violate § 524(c), they are unenforceable as a matter of federal law, whether or not
they would be enforceable under applicable state law contract principles.
It is undisputed that the post-discharge Change in Terms Agreements were not
enforceable § 524(c) reaffirmation agreements, most obviously because they were
entered into after Howard’s bankruptcy discharge and were not filed with the
bankruptcy court. Venture Bank argues, however, that the agreements are
nonetheless valid because they are supported by consideration separate from
Howard’s discharged personal debt. The Bank had a right to foreclose on the family
home after Howard’s discharge lifted the automatic stay in bankruptcy, and its
agreement not to foreclose was adequate consideration under Minnesota law and
protected co-borrower Holter-Lapides (who did not file for bankruptcy) from a
deficiency judgment.
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As we have explained, we need not consider whether a promise not to foreclose
on a mortgage is adequate consideration under Minnesota law if the Change in Terms
Agreements were contrary to § 524(c). The Agreements served no purpose other than
reaffirmation agreements in which Howard agreed to repay all of his discharged
personal debt. The Agreements were titled Change in Terms; like the pre-petition
Change in Terms Agreements, the change in terms extended the maturity date of
“Promissory Note #13440,” a pre-petition debt. The Agreements contained Howard’s
promise to pay the unpaid principal balance of note 13440 and described the pre-
petition collateral Howard provided for note 13440, including his personal residence.
Like Howard’s prior post-petition voluntary payments, the Agreements were entered
into to induce Venture Bank to refinance the Lapideses’ heavily mortgaged residence.
They were not part of a complex refinancing; rather, they incorporated the terms of
the parties’ failed attempt to fashion an enforceable § 524(c) reaffirmation agreement
prior to Howard’s discharge. Instead of continuing to accept Howard’s voluntary
payments, a post-discharge arrangement both parties were free to continue, Venture
Bank insisted that Howard again promise to repay the entire discharged personal debt
in order to continue the refinancing negotiations.
When a post-discharge agreement does nothing but obligate a debtor to repay
a discharged debt, it is inconsistent with § 524(c), a statute declaring that agreements
removing specific personal debts from the benefits of discharge must be negotiated
and filed with the court before discharge, when a debtor has the protection of his
bankruptcy attorney and the bankruptcy court. Venture Bank relies on In re
Heirholzer, 170 B.R. 938, 940-41 (Bankr. N.D. Ohio 1994), which held that a secured
creditor’s post-discharge promise to forbear from foreclosing on a mortgage was
“new and sufficient consideration to support a binding post-discharge obligation” to
repay the discharged secured debt. Like the bankruptcy court and our sister circuits
that have considered Heirholzer’s holding, we instead conclude that a secured
creditor’s post-discharge forbearance is not sufficient to take a reaffirmation
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agreement outside the purview of § 524(c). See In re Am. Rice, Inc., 448 F. App’x
415, 420 (5th Cir. 2011); In re Lopez, 345 F.3d 701, 710 (9th Cir. 2003).
When post-discharge agreements have included significant contractual terms
going well beyond the debtor’s promise to pay all or part of a discharged pre-petition
debt, unlike the Change in Terms Agreements in this case, we find the prior case law
and expert commentary replete with irreconcilable conflict and confusion. Some
cases, like our decision in DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022-23
(8th Cir. 2002), have upheld payments under a voluntary post-discharge agreement
involving new collateral despite the lack of a pre-discharge § 524(c) reaffirmation
agreement. Other cases have declined to void a broad new post-discharge agreement
but have declared unenforceable terms in which the debtor promised to pay a
discharged debt. See In re Rajotte, 81 F. App’x 29, 33-34 (6th Cir. 2003); In re
Smith, 224 B.R. 388, 398-99 (Bankr. N.D. Ill. 1998). Other authorities have broadly
asserted, without analyzing the meaning of the word “dischargeable” in § 524(c), that
a post-discharge agreement to pay a discharged debt “is without legal effect.” 4 Alan
N. Resnick & Henry J. Sommer, Collier on Bankruptcy ¶ 524.04 at 524-41 (16th ed.
2015). We decline to take a position on the appropriate legal standard for deciding
these more difficult cases. We simply conclude that the post-discharge Change in
Terms Agreements are unenforceable because they were nothing more than
reaffirmation agreements that did not comply with § 524(c).
III. Violation of the Discharge Injunction
As the bankruptcy court and the district court recognized, Venture Bank did not
necessarily violate the discharge injunction simply because it accepted monthly
payments made pursuant to Change in Terms Agreements that are unenforceable.
Discharge “operates as an injunction against . . . an act, to collect, recover or offset
any [discharged] debt as a personal liability of the debtor.” 11 U.S.C. § 524(a)(2).
But discharge does not “prevent[] a debtor from voluntarily repaying any debt.”
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§ 524(f). After trial, the bankruptcy court concluded that Venture Bank violated the
discharge injunction because the “Bank’s communications and post-petition conduct
were designed to obtain payments and enforce the debt” and therefore Howard’s
monthly payments under the post-discharge Change in Terms Agreements were
involuntary.
On appeal, Venture Bank argues that the bankruptcy court’s finding of
involuntariness was clearly erroneous because Howard testified at trial that he made
the payments “voluntarily” to induce the Bank to refinance his mortgages, and
because Howard, not the Bank, initiated discussions about making payments for that
purpose.3 We disagree. “Voluntary” as used in § 524(f) is defined “in an objective
sense as referring to repayment that is free from creditor influence or inducement,
regardless of whether the debtor was motivated by forces unrelated to the creditor.”
DuBois, 276 F.3d at 1023 (quotation omitted). The term must be understood in the
context of a discharge injunction that “is intended to preclude virtually all actions by
a creditor to collect personally from the debtor.” In re Nassoko, 405 B.R. 515, 521-
22 (Bankr. S.D.N.Y. 2009) (quotation omitted). “[T]he ‘coerciveness’ involved in
each case must be assessed on its particular facts.” In re Pratt, 462 F.3d at 20.
Here, ample evidence of pressure and inducement supports the bankruptcy
court’s finding of involuntariness. The Bank encouraged Howard to believe that, if
he made regular payments, it would consider helping him refinance his home. It then
3
Venture Bank did not argue to the bankruptcy court, and does not argue on
appeal, that its conduct in seeking payments from Howard was protected by § 524(j),
which states that § 524(a)(2) “does not operate as an injunction against an act by a
creditor that is the holder of a secured claim, if (1) such creditor retains a security
interest in real property that is the principal residence of the debtor; (2) such act is in
the ordinary course of business between the creditor and the debtor; and (3) such act
is limited to seeking or obtaining periodic payments associated with a valid security
interest in lieu of pursuit of in rem relief to enforce the lien.” Accordingly, we need
not consider this fact-intensive issue.
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required him to sign agreements obligating him to repay the entire discharged debt,
rather than continue to make monthly payments, and sent numerous emails reminding
him that payments were “due” and seeking payment of additional principal and
interest. The Bank’s “Marginal & Substandard Loan Improvement/Workout Plan”
listed as an “action item” that the Bank “[k]eep the pressure on [Howard] for principal
reductions.” Unlike DuBois, where post-discharge fees from a pre-petition
automobile lease were folded into a new lease, 276 F.3d at 1021, Venture Bank did
not refinance the three mortgages on the Lapideses’ home. It simply dangled the
possibility of refinancing to induce Howard to sign agreements promising to repay
the entire discharged debt. The bankruptcy court did not clearly err in finding that
Howard’s payments were not voluntary within the meaning of § 524(f). Accordingly,
the district court did not err in affirming the bankruptcy court’s decision that Venture
Bank violated the discharge injunction.
The judgment of the district court is affirmed.
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