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In re Volpert

April 1, 1997

IN THE MATTER OF:

THOMAS R. VOLPERT, JR.,

DEBTOR,

APPEAL OF: BERNARD M. ELLIS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 95 C 1722 Harry D. Leinenweber, Judge.

Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED DECEMBER 4, 1996

DECIDED APRIL 1, 1997

The appellant, Bernard M. Ellis, while representing a debtor in bankruptcy court, repeatedly filed untimely responsive pleadings and repeatedly failed to give notice of pleadings to opposing counsel. Explicitly relying on 28 U.S.C. sec. 1927 for authority, the bankruptcy judge fined Mr. Ellis $1,000 for his actions. The district court affirmed the bankruptcy court's sanction order. Mr. Ellis now appeals the district court's judgment. We affirm.

I.

BACKGROUND

On June 30, 1993, Thomas Volpert filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. secs. 101 et seq. Attorney Bernard M. Ellis represented Volpert in the bankruptcy proceedings. After Volpert filed his petition, Volpert's uncle filed a seven-count complaint, which Volpert was required to answer by January 29, 1994. Volpert did not respond by that deadline. Instead, on February 2, Mr. Ellis appeared at a status hearing before the bankruptcy court and received an additional fourteen days to answer. When the new deadline came and went without an answer being filed, Volpert's uncle moved for an order of default. On April 21, Mr. Ellis, in response, appeared before the bankruptcy court and succeeded in having the hearing on the motion for default continued until May 11.

On May 2, Mr. Ellis filed a motion to dismiss the uncle's complaint on the ground that the uncle had no standing. In addition, he sought the dismissal of counts 1, 2, 3 and 6 on other grounds. The bankruptcy court denied the motion to dismiss for lack of standing and ordered Mr. Ellis to respond to counts 4, 5 and 7 within seven days. On May 11, however, Mr. Ellis did not file an answer. Instead, he asked the bankruptcy court to reconsider the denial of the motion to dismiss. The bankruptcy court declined to reconsider its prior ruling and warned Mr. Ellis that failure to respond to counts 4, 5 and 7 by May 18 would result in an entry of default on those counts.

Despite repeated assurances that he would file an answer by May 18, Mr. Ellis again missed the deadline. Rather, on May 19, he again moved to dismiss counts 4, 5 and 7. In the alternative, Mr. Ellis asked for a more definitive statement with respect to each of those counts. On May 25, the bankruptcy court denied the motion to dismiss, but it ordered the uncle to file a more definitive statement within fourteen days. The bankruptcy court also ordered Mr. Ellis to answer counts 4, 5 and 7 after the more definitive statement was to be filed.

On June 22, almost five months from the date an answer was originally due, Mr. Ellis finally filed an answer to counts 4, 5 and 7. The answer, though, was found to be legally insufficient by the bankruptcy court. On July 1, the bankruptcy court struck the answer and entered an order of default on counts 4, 5 and 7. On July 11, Mr. Ellis moved to vacate the default order and for leave to file an amended answer. Because Mr. Ellis had failed to serve opposing counsel with a copy of the proposed amended answer, the bankruptcy court denied the motions. The bankruptcy court noted that this occasion was not the first time that Mr. Ellis had failed to serve counsel, notwithstanding the fact that both attorneys had their offices in the same building. Mr. Ellis again failed to serve counsel, this time on July 15, with a motion to reconsider the bankruptcy court's denial of the July 11 motions.

On July 25, the bankruptcy court gave Mr. Ellis until July 27 to give opposing counsel proper notice of the proposed amended answer. On July 28, the bankruptcy court vacated its default order and allowed Mr. Ellis to file the amended answer. By that time, six months had elapsed since Mr. Ellis was first ordered to file an answer. Volpert's uncle then moved for sanctions pursuant to 28 U.S.C. sec. 1927. The bankruptcy court ruled that Mr. Ellis' delays in filing Volpert's answer, the legal insufficiency of the answer that was filed, and Mr. Ellis' repeated failure to serve opposing counsel with proper notice demonstrated conduct that unreasonably and vexatiously multiplied the bankruptcy court's proceedings. Accordingly, the bankruptcy court granted the motion for sanctions and awarded Volpert's uncle $1,000 in attorney's fees under sec. 1927. See Volpert v. Ellis (In re Volpert), 177 B.R. 81 (Bankr. N.D. Ill. 1995).

Mr. Ellis appealed the sanction to the district court. Before the district court, Mr. Ellis contended that, because bankruptcy courts are not "court[s] of the United States," they do not have the authority to order sanctions under sec. 1927. The district court took the view that bankruptcy courts are not "court[s] of the United States" because their judges do not serve during good behavior. Nevertheless, the district court held, bankruptcy courts are empowered indirectly with the authority of the district courts to impose sanctions under sec. 1927. The district court reasoned that, because 28 U.S.C. sec. 151 states that bankruptcy judges "shall constitute a unit of the district court," bankruptcy courts are subsumed within the district court apparatus and have the authority, as arms of the district ...


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