In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3337

IN RE: MIDWAY AIRLINES, INC.,

MIDWAY AIRLINES (1987) and

MIDWAY AIRCRAFT ENGINEERING, INC.

Debtors-Appellees.

MONARCH AIR SERVICE, INC.,

Defendant-Appellant,

v.

SHELDON L. SOLOW, Trustee,

Plaintiff-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CV 2580—John A. Nordberg, Judge.

____________

ARGUED FEBRUARY 12, 2004—DECIDED SEPTEMBER 13, 2004

____________

Before CUDAHY, COFFEY and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. Unfortunately lacking a crystal

ball, in August 1990, defendant Monarch Air Service, Inc.

(Monarch) entered into an agreement with Midway Airlines,

Inc. (Midway) to provide fueling services for Midway’s aircraft. These services included, among other things, the management of Midway’s fuel storage tank farm. By March

1991, Midway and two related entities, Midway Airlines
2 No. 03-3337

(1987) (Midway 1987) and Midway Aircraft Engineering, Inc.

(Midway Engineering) (collectively, the Midway debtors)

filed for Chapter 11 bankruptcy. Monarch was required by

the bankruptcy court, together with other vendors, to continue providing services to the ailing Midway Airlines. Alas,

Midway’s financial situation took a turn for the worse, and by

November 1991, Midway unilaterally (and without notice)

ejected Monarch from the tank farm, converting to a

Chapter 7 bankruptcy two weeks later.

In January 1992, the bankruptcy court authorized the

sale of the jet fuel stored in Midway’s tank farm. Monarch

belatedly realized that this was a perfect opportunity to

assert claims that both its pre-petition and post-petition

expenses were actually secured by a common law bailee’s or

warehouseman’s lien on the jet fuel. The sale of the jet fuel

went forward, and the disputed amount of the proceeds has

been held in escrow ever since.

Eventually, it came time to dispose of the remaining

smaller claims against the Midway debtors, including

Monarch’s claims. Monarch consented to the disallowance

of its claim for pre-petition expenses. The amount in dispute

at the present juncture is Monarch’s claim for post-petition

expenses of $36,938.60. The bankruptcy court found that

Monarch had consented to the treatment of its post-petition

claim as an unsecured administrative expense, and, in the

alternative, that Monarch was not entitled to a lien on the

jet fuel in the first place. The district court affirmed on the

first ground, ignoring the second. Monarch appeals both of

the bankruptcy court’s findings, but for the reasons that

follow, we affirm.

I.

The facts in this case are essentially undisputed. Monarch

entered into an airport fueling services agreement with

Midway on August 28, 1990 (1990 Contract). (R. 1-1, tab A.)

According to this agreement, Monarch’s responsibilities
No. 03-3337 3

were twofold: supplying fueling services for Midway’s aircraft at Midway airport (which included refueling and

defueling the aircraft and transporting the fuel from

Midway’s tanks to its aircraft in Monarch’s own tanker

trucks), as well as managing Midway’s fuel storage tanks

(which consisted of operating the fuel tanks in connection

with providing fueling services and routine maintenance of

the tanks). The agreement stated that all fuel would be

ordered, purchased and owned by Midway. It also provided

that the fuel tank facilities in which Midway’s fuel was

stored were owned by the City of Chicago and leased to (and

controlled by) Midway. Midway has, however, admitted that

Monarch had sole physical possession and control over the

fuel tank facilities pursuant to the contract. (Appendix 11,

Trustee’s Rule 402(N) Response, #12.) The agreement gave

Midway the option of assuming management of its storage

facilities upon thirty days’ written notice to Monarch.

On March 25, 1991, the three Midway debtors filed

voluntary Chapter 11 bankruptcy petitions. In accordance

with these petitions, the Midway debtors obtained an injunction barring key vendors, such as Monarch, from suspending services under their contracts. The order imposing

the injunction provided that “each such defendant or party

which . . . otherwise provides goods or rendered services as

requested by the plaintiffs pursuant to the Industry

Agreements on or after March 26, 2001, shall be entitled to

payment therefor in the ordinary course of business, as an

administrative expense under 11 U.S.C. § 503(b)(1).” (Loose

Pldgs. 1-1, Exhibit B.) Monarch filed an initial proof of an

unsecured claim for pre-petition services of $75,645 on June

18, 1991 (Initial Claim). (Trustee’s Br., Supp. Appx., tab B.)

On November 13, 1991, without any notice, Midway removed Monarch from physical possession of and control

over the fuel tank facilities. At this point, Monarch was

owed approximately an additional $37,000 for its post-pe-
4 No. 03-3337

tition services. About two weeks later, Midway and Midway

Engineering converted their Chapter 11 petitions to Chapter

7 bankruptcies; Midway 1987 followed suit on March 9,

1992.

Meanwhile, the bankruptcy court had entered an order on

January 27, 1992, authorizing the sale of the fuel inventory

in Midway’s storage tanks, providing that “Liens, including

warehousemen’s liens and possessory liens, shall attach to

the proceeds.” Monarch did not receive actual notice of this

order until March 1992, at which time it informed the

trustee of the Midway debtors’ bankruptcy estate, plaintiff

Sheldon Solow (Trustee), that it held a possessory lien in

the proceeds of the sale. The disputed proceeds were placed

in escrow pending determination of the validity of Monarch’s claimed lien. More than 12 years later, these proceeds continue to be held in escrow.

On April 29, 1992, Monarch filed two proofs of claim. One

claim purported to amend its Initial Claim by asserting that

Monarch’s pre-petition expenses of $75,645 were secured by

a common law bailee’s or warehouseman’s possessory lien

on the jet fuel in Midway’s fuel storage tanks and Monarch’s tanker trucks (Claim One). (Trustee’s Br., Supp.

Appx., tab D.) The other claim was for expenses of

$112,583.19, which included both Monarch’s pre-petition

expenses of $75,645 and its post-petition expenses of

$36,938.60 (Claim Two). (Trustee’s Br., Supp. Appx., tab E.)

Like Claim One, these expenses were also said to be

secured by a common law bailee’s/warehouseman’s possessory lien on the jet fuel in Midway’s fuel storage tanks and

Monarch’s tanker trucks. However, on the same form,

Monarch also expressed an intent to claim (in the alternative)

that the $36,938.60 was a priority (unsecured) administrative expense as provided under the terms of the March 26,

1991 order. The bankruptcy court, in an order entered May

18, 1993, allowed Monarch’s post-petition claim in full as an

administrative expense under 11 U.S.C. § 503. (Trustee’s
No. 03-3337 5

1 Monarch therefore consented to the Trustee’s treatment of

Claim One.

Br., Supp. Appx., tab C.) No mention was made of any

secured status for this claim.

After nearly eight years had gone by, the bankruptcy court,

upon the Trustee’s motion, approved a claims resolution

procedure authorizing the Trustee to use a negative notice

format to resolve the remaining 11,000 or so claims by the

creditors of the Midway debtors. Pursuant to this procedure, the Trustee sent notices to the persons designated to

receive notices on Monarch’s Claim One and Claim Two

forms—Monarch’s president and Monarch’s general counsel,

respectively. The Trustee’s notice of objection to Claim Two,

served on Monarch’s general counsel in July 2001, is the

one at issue here. (Trustee’s Br., Supp. Appx., tab H.) This

notice proposed to allow the post-petition amount of

$36,938.60 in full, with the caveat that “Your distribution

will be a percentage of your Allowed Amount.” The notice

objected to the portion of the claim for pre-petition services,

stating that “[n]o distribution will be made to pre-petition

claims because the Estate lacks funds to pay all post-petition claims in full.” No explicit mention was made whether

the Allowed Amount ($36,938.60) was being treated as an

administrative expense or as a secured post-petition expense. Monarch’s president signed and returned a consent

form agreeing to this treatment dated August 3, 2001. A

second notice objecting to Claim One as being both prepetition and duplicative was sent in May 2002 directly to

Monarch’s president (Trustee’s Br., Supp. Appx., tab K),

and no response was filed.1

On February 5, 2003, the bankruptcy court issued an oral

ruling that Monarch had consented to the treatment of its

proof of secured post-petition claim as an administrative

expense and entered summary judgment in the Trustee’s
6 No. 03-3337

favor. Monarch filed a motion for reconsideration the next

day, which was denied on February 24, 2003 when the

bankruptcy court confirmed its holding that Monarch had

waived its secured claim to post-petition expenses, and, in

the alternative, that Monarch did not, in any event, have a

valid post-petition lien entitling it to secured status.

On March 6, 2003, Monarch appealed to the district court,

which by order dated July 30, 2003, affirmed the bankruptcy court’s grant of summary judgment to the Trustee on

the ground that Monarch had waived its alleged secured

claim. Monarch subsequently appealed to this court.

II.

A court of appeals applies the same standard of review to

bankruptcy court decisions as does a district court. A

bankruptcy court’s findings of fact are reviewed for clear

error, and its conclusions of law are reviewed de novo. In re

Smith, 286 F.3d 461, 464-65 (7th Cir. 2002) (internal

citations omitted). As a conclusion of law, a grant of summary judgment by the bankruptcy court is therefore reviewed de novo. A grant of summary judgment will be

affirmed if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Summary judgment

may be affirmed on any ground supported by the record,

even if it was not relied upon by the court below. Johnson

v. Gudmundsson, 35 F.3d 1104, 1115 (7th Cir. 1994).

The issues in this case boil down to two questions: (1) Did

the bankruptcy court and the district court properly find

that Monarch had waived its secured claim for post-petition

expenses against Midway? And (2), did the bankruptcy

court properly find that Monarch had failed to establish the

existence of a valid post-petition lien?
No. 03-3337 7

A.

In the 2003 proceedings, both the bankruptcy court and

the district court found that Monarch had impliedly waived its

post-petition secured claim by consenting to the Trustee’s

treatment of Claim Two. The bankruptcy court found that

Monarch had consented to the treatment of its post-petition

claim as a straight (unsecured) administrative claim, which

was indicated by the bankruptcy court’s May 18, 1993 order

and by the language of the Trustee’s objection to Claim

Two, served in July 2001. (See Monarch’s Short Appx., tab

1, at 6, 10.) The bankruptcy court additionally pointed out

that the consent form, signed by Monarch’s president and

dated August 3, 2001, stated that Monarch would receive a

percentage of the allowed amount, which is typical of

regular (unsecured) administrative expenses when the

bankruptcy estate is administratively insolvent. See id. at

12.

The district court agreed that the language of the objection indicated that the post-petition expense was being

treated as an unsecured administrative expense and that

the lack of any mention of a lien in the Trustee’s objection

form indicated that the Trustee was not proposing to allow

the claim as a secured expense. (See Monarch’s Short Appx.,

tab 5, at 12.) The district court also agreed with the bankruptcy court that Monarch unreasonably continued to rely

on its proof of claim, filed more than eight years earlier, to

maintain a secured claim in the face of the negative notice

procedure being used and the language of the objection

notice referring to recovery of a “percentage” of the allowed

amount.

Monarch argues on appeal that it asserted a secured

claim to administrative expenses in Claim Two, and that 11

U.S.C. § 502(a) and the Federal Rules of Bankruptcy

Procedure 3001(f) provide that the proof of claim is prima

facie valid and the claim is deemed allowed unless the
8 No. 03-3337

Trustee objects in writing. The bankruptcy court’s May 18,

1993 order is said not to have addressed the secured status

of Monarch’s administrative expense claim. Moreover,

Monarch argues, the Trustee did not address the secured

status of its post-petition claim in its objection to Claim

Two, and the “percentage” language in a footnote to the

objection notice should not be considered to be a written

“objection” that placed Monarch on notice that its secured

claim was being treated as an unsecured administrative

expense. On this point, Monarch further argues that being

told it would receive a “percentage” did not necessarily indicate that its claim was being treated as unsecured rather

than secured, since it is possible for secured claimants to

receive a percentage of their claims in certain circumstances.

Let us begin with a brief explanation of the types and

priorities of claims, which may be helpful here. Secured

claims are paid (or the collateral returned) before any distribution is made to priority claimants or to unsecured

general creditors. 11 U.S.C. § 725. The Bankruptcy Code

defines several categories of priority claims in § 507, all of

which are paid out after secured creditors have received

their funds. Id. at § 726. General unsecured creditors receive a distribution from the bankruptcy estate only if any

funds remain after all priority claims have been paid.

Among priority claims, administrative expenses receive

the top priority. Id. at § 507(a)(1). Typically, administrative

expenses are unsecured, due perhaps to the operation of 11

U.S.C. § 362(a)(4)’s automatic stay, which bars any entity

from “any act to create, perfect, or enforce any lien against

property of the estate.” There are a few possible exceptions,

such as in the case of extensions of post-petition credit in

accordance with 11 U.S.C. § 364(d), or, as some courts have

found, in the case of ad valorem real estate taxes, see City

of New York Dept. of Finance v. R.H. Macy & Co., Inc., 176

B.R. 315 (S.D.N.Y. 1994). These are usually classified as
No. 03-3337 9

2 A creditor may also claim “superpriority” administrative expenses when it has been granted “adequate protection” of its

collateral but the adequate protection fails. See 11 U.S.C. § 507(b).

“superpriority” administrative expenses and are paid out

before “regular” administrative expenses.2

 Although the

bankruptcy court here found § 362(a)(4)’s automatic stay

inapplicable to liens created by operation of law, a finding

with respect to which we render no opinion, this does not

change the fact that a reference to “administrative expenses” without any indication of superpriority or secured

status will typically refer to unsecured administrative

expenses.

Turning to Monarch’s claims, Claim Two (the claim at

issue here) asserted a secured claim for Monarch’s pre- and

post-petition expenses of $112,583.19. In the alternative—presumably as a fall-back position if its lien were

found invalid—Monarch asserted an unsecured claim to

priority administrative expenses of $36,938.60 pursuant to

the bankruptcy court’s March 26, 1991 order. (Trustee’s Br.,

Supp. Appx., tab E.) The March 26, 1991 order did not

indicate that a creditor’s entitlement to administrative

expenses under 11 U.S.C. § 503(b)(1) for provision of postpetition goods or services would (or could) entitle it to anything other than regular unsecured administrative expenses.

(Loose Pldgs. 1-1, Exhibit B.) Given, as we have discussed,

that administrative expenses generally refer to unsecured

expenses, when the bankruptcy court allowed Monarch’s

post-petition claim in 1993 as an administrative expense

pursuant to 11 U.S.C. § 503(b)(1) without any mention of

secured status or of Monarch’s purported lien, this action

served to allow the claim as a typical unsecured administrative expense. Implicit in this decision was the bankruptcy

court’s non-acceptance of Monarch’s secured claim to postpetition expenses.
10 No. 03-3337

3 See United States v. Darnell (In re Darnell), 834 F.2d 1263, 1265

(6th Cir. 1987) (“[A]s a general rule, if a lien is perfected, it must

be satisfied out of the asset(s) it encumbers before any proceeds of

the asset(s) are available to unsecured claimants, including those

having priority (such as holders of administrative claims).”) (citing

3 Collier on Bankruptcy para. 507.02[2] (15th ed. 1985)).

Moreover, the bankruptcy and district courts correctly

held that the Trustee’s objection to Claim Two clearly implied that Monarch’s post-petition claim would be treated as

an unsecured administrative expense. First, there is the

footnote on the objection notice indicating that Monarch

would receive a percentage of its claim for post-petition

expenses, a comment that the bankruptcy court observed to

be typical of unsecured administrative expenses. Second,

there is the Trustee’s statement that “[n]o distribution will be

made to pre-petition claims because the Estate lacks funds

to pay all post-petition claims in full.” This language indicates that Monarch’s pre-petition claim was of a lower

priority than claims for post-petition administrative expenses. If the Trustee had accepted Monarch’s claimed lien

as valid, Monarch’s pre-petition expenses would have been

allowed in full because they were secured, rather than

being given a lower priority than post-petition administrative expenses.3

In light of the aforementioned circumstances and the

eight long years that passed without any indication from

Monarch that it was continuing to assert a secured claim

for its post-petition expenses, the Trustee was entitled to

assume that Monarch’s secured claim was no longer viable

and that the Bankruptcy Code’s dual presumptions of validity and allowability with respect to this claim had been

overcome. Moreover, the Trustee’s objection to Claim Two

clearly implied that Monarch’s pre-petition and post-petition claims were being treated as unsecured. Thus, the

bankruptcy and district courts correctly held that the onus
No. 03-3337 11

was on Monarch to reassert the secured status of its claim

for post-petition expenses in the face of the Trustee’s

objection, and Monarch failed to do so. Monarch’s consent

to the Trustee’s objection to Claim Two was a consent to the

treatment of its post-petition claim as regular (unsecured)

administrative expenses.

Monarch’s contention that a hearing is necessary to

determine whether its consent to the Trustee’s objection

was an intentional relinquishment of its claimed lien is

without merit. Monarch’s designated recipient of bankruptcy notices relating to Claim Two was not “akin to a

corporation’s registered agent” or some other unaffiliated

entity (Monarch’s Br. at 31), but rather was Monarch’s own

general counsel. And Monarch’s general counsel would have

been remiss in his obligation to the corporation if he had

merely received important legal notices such as the

Trustee’s objection to Claim Two and forwarded them to

Monarch’s president without advice or comment. This is

true even if the advice consisted of simply advising Monarch’s president to consult with specialized bankruptcy

counsel before signing the consent form. It is true that a

waiver is an intentional relinquishment of a known right.

See Kontrick v. Ryan, 124 S. Ct. 906, 917 n.13 (2004). But

we have held that the Trustee’s written objection was a

clear treatment, even if by implication, of Monarch’s postpetition claim as an unsecured administrative expense.

If Monarch’s president considered himself insufficiently

well-versed in the intricacies of bankruptcy matters to know

what he was consenting to, he was surely, as a senior

corporate executive, sufficiently sophisticated to know that

he should consult with, at minimum, the company’s general

counsel. Monarch’s president was given the opportunity to

obtain the knowledge required for an informed consent to

the Trustee’s objection when that written notice of objection

was sent to Monarch’s general counsel. Due process certainly does not require that there be a warning to consult
12 No. 03-3337

counsel before giving one’s consent to the proposed treatment of a bankruptcy claim. And consent is not rendered

ineffective by the failure of a corporate executive to obtain

competent advice on bankruptcy matters. Any strategic

errors made by Monarch or its agents in pursuing its

bankruptcy claims are not for us to redress.

B.

However, even if Monarch had not consented to the treatment of its post-petition expenses as an unsecured claim for

administrative expenses, we would still conclude that

Monarch did not have a lien securing this claim and that

summary judgment was correctly granted to Midway. At

Illinois common law,

[a] bailment is defined as “the delivery of goods for some

purpose, upon a contract, express or implied, that after

the purpose has been fulfilled they shall be redelivered

to the bailor, or otherwise dealt with according to his

directions or kept [until] he reclaims them.” The elements

necessary for a bailment include (1) “an agreement by

the bailor to transfer or deliver and the bailee to accept

exclusive possession of goods for a specified purpose”;

(2) “the actual delivery or transfer of exclusive possession of the property of the bailor to the bailee”; and (3)

“acceptance of exclusive possession by the bailee.”

Spirit of Excellence, Ltd. v. Intercargo Ins. Co., 334 Ill. App.

3d 136, 147 n.1 (Ill. App. Ct. 2002) (citations omitted).

The bankruptcy court found that Monarch had “arguably

satisfied the three elements of a bailment” but found that

doing so “did not automatically give rise to a lien.” (Monarch’s

Br. at 37.) The bankruptcy court found that Monarch did

not meet the requirements for an artisan’s lien (which is a

particular form of bailee’s lien) as set out in Lake River v.
No. 03-3337 13

4 769 F.2d 1284 (7th Cir. 1985).

Carborundum Corp.,

4

 because although “Monarch certainly

provided a service to the debtors, . . . it did not add any

value to [the] jet fuel, the property upon which [it] asserts

a lien.” (Monarch’s Short Appx., tab 3, at 12.)

Monarch argues that at Illinois common law, a lien may

still be had based on the labor or services furnished by the

bailee. “The right to a lien for . . . services arises upon the

furnishing of such . . . services and by force of a statute, an

express contract, an implied contract or the usages of trade

or commerce. The right to retain possession of the property

to enforce a possessory lien continues until such time as the

charges for such . . . services are paid.” Bull v. Mitchell, 114

Ill. App. 3d 177, 181 (Ill. App. Ct. 1983). This is true even

where that labor does not result in increased market value.

See Chicago G.W.R. Co. v. American McKenna Process Co.,

1916 WL 2228, *2 (Ill. App. Ct. 1916) (“Appellant argues

that judgment on this plea is bad because the rehandling

did not enhance the value of the rails, and a lien only exists

where the work of a laborer enhances value. This is true as

a rule, but in applying it, ‘value’ does not always mean

market value.”); Restatement (First) of Security § 61, cmt.

(d).

Although Monarch has made an argument that could be

persuasive under certain circumstances, it does not work

here. Monarch’s line of reasoning fails at the very first step:

the establishment of a relationship giving rise to a lien. Let

us review what took place with respect to Midway’s jet fuel in

accordance with Midway’s contract with Monarch. Midway

arranged for jet fuel to be delivered to its fuel tank storage

farm. Monarch provided basic management services for

Midway’s tank farm and was responsible for transportation

of the jet fuel between Midway’s tank farm and Midway’s
14 No. 03-3337

5 To the extent that Monarch’s lien is claimed to arise from the

provision of transportation services and is said to attach to the jet

fuel in Monarch’s trucks, we note that Monarch was not acting as

a common carrier in its provision of transportation services. If it

were, there would be a carrier’s lien for payment of freight. But

since Monarch’s provision of transportation services was not in

the capacity of a common carrier, Monarch is not entitled to a

possessory lien at common law for transportation services. See

Restatement (First) of Security § 61, cmt. (g) (1941) (“Private carriers have less onerous duties and responsibilities [than common

carriers] and have no possessory liens unless granted by contract

or statute.”). Monarch’s contract with Midway does not provide for

any possessory liens, and Monarch has not asserted any statutory

liens, so it is not entitled to a lien on the fuel in its trucks to pay

transportation charges.

aircraft for refueling/defueling.5 Although Monarch admittedly had “possession and control” over Midway’s tank farm,

this does not mean that the jet fuel was delivered to

Monarch when it was put into the storage tanks, since

Monarch did not own or lease the storage tanks. Nor was

the jet fuel delivered to the fuel tanks “for some purpose”

that Monarch was to fulfill (e.g., storage). The “purpose” of

Monarch’s services with respect to the fuel in the storage

tanks was merely basic management of the tank farm;

Monarch was not required to do anything with or to the jet

fuel while it was stored in Midway’s tanks.

Monarch is essentially arguing that it is entitled to a lien

for management services. But Monarch’s argument that a

bailment of Midway’s jet fuel was created by virtue of

Monarch’s possession and control over Midway’s fuel tanks

fails; Monarch’s role with respect to the fuel tanks is that of

an agent. We do not believe that Monarch has demonstrated that what occurred when the jet fuel was placed in

Midway’s tanks was “the delivery of goods for some purpose,

upon a contract, express or implied, that after the purpose
No. 03-3337 15

6 Those circumstances/services recognized as giving rise to entitlement to a possessory lien include: (1) “a bailee who at the request of the bailor does work upon or adds materials to a chattel”

(which does not necessarily require the chattel’s market value to

increase); (2) transportation of a chattel by a common carrier; (3)

a hotelkeeper; (4) storage of a chattel provided by a warehouseman; (5) finding a chattel for which a specific reward is offered; (6)

sale of a chattel, if the seller is in possession; (7) advancing money

or incurring liability by an agent on behalf of his principal in

respect of a chattel in his possession; (8) a landlord who enters

and seizes chattels in the tenant’s possession after a default on

rent; and (9) a possessor of land who seizes a thing doing damage

on the land. Restatement (First) of Security § 61 (1941).

has been fulfilled they shall be redelivered to the bailor.”

Spirit of Excellence, 334 Ill. App. 3d at 147 n.1. Monarch’s

management of the fuel tank farm in which the jet fuel was

stored did not, after all, purport to impact the jet fuel

directly and is not among those services recognized at

common law as giving rise to a possessory lien.6 Cf. Restatement (First) of Security § 61 (1941) (“The service necessary

to create a lien is limited to work actually performed upon

the chattel itself. There is no lien for intellectual labor

although it may have been wholly confined to the chattel as

a subject. Thus an art expert to whom a painting has been

delivered for appraisal and opinion cannot retain the

painting as security for his fee, in the absence of a special

contract for a lien.”).

Thus, under the circumstances of this case, Monarch has

not demonstrated that a bailment ever took place. There

was no delivery of goods into Monarch’s possession for some

purpose to be served—at least, no purpose recognized by the

common law as giving rise to a possessory lien for services.

We agree with the bankruptcy court that Monarch is not

entitled to a lien on the jet fuel, and there is therefore no

basis for Monarch’s secured claim for its expenses, either

pre-petition or post-petition.
16 No. 03-3337

III.

We are, frankly, somewhat baffled by Monarch’s pursuit

of this appeal, given the high costs of litigation and the relatively small amount in dispute. But although we cannot

explain Monarch’s litigation strategy, we can express a hope

that the resolution of this claim will bring Midway Airlines

one step closer to terminating its long-standing bankruptcy

estate. For the reasons stated above, the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-13-04