NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 11

- 1666

_____________ In re: KALLIOPI MAKRIS, Appellant

______________ APPEAL FROM THE UNITED STATES DISTRICT C OURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 09

- cv - 05911) District Judge: Honorable William J. Martini

____________ Submitted Under Third Circuit LAR 34.1(a) April 17, 2012

____________ Before: VANASKIE, BARRY and CUDAHY, * Circuit Judges (Opinio n Filed: May 23, 2012 )

____________ OPINION

____________ BARRY, Circuit Judge Appellant Kalliopi Makris (“Makris”), the debtor in an ongoing Chapter 13 bankruptcy proceeding, appeals from the District Court’s affirmance of the Bankruptcy
Co urt’s award of $54,093.75 in attorneys’ fees and costs to her creditor, Amboy National

* Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation.2 Bank (“Amboy”). Because the fee award exceeds that which is provided for under the terms of the contract governing Makris’s obligations to Amboy, we will vacate the aw ard and remand for a determination o f the proper amount of fees.
I. Background A. Underlying Mortgage, Default, and Guaranty In 1987, Amboy provided Makris with financing for the purchase of a home. Makris and Amboy executed a note memorializing the t erms of this loan (“the Note”). Among other things, the Note included the following fee provision: [Amboy] will have the right to be paid back by [Makris] for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys’ fees. In 2000, Makris defaulted on her mortgage. After initially commencing foreclosure proceedings, Amboy agreed to modify the terms of the Note and allow Makris
to keep her home on the c ondition that she provide additional security for the loan. Consistent with that agreement, Makris’s employer, Dr. Benjamin Levine (“Levine”), issued a personal guaranty (“the Guaranty”) to Amboy, making him liable for the debt in the event of default. M akris did not sign the Guaranty and was not a party to the agreement. In 2002, Makris again defaulted, and Amboy sought payment from Levine pursuant to the Guaranty. When he refused to pay , Amboy brought suit against him in the Superior Court of New Jerse y to enforce the Guaranty. In response, Levine initiated a3 “campaign of frivolous motions and counterclaims,” which included the filing of a $12 million dollar counterclaim against Amboy, lawsuits against Amboy’s general counsel and the Clerk of the Super ior Court in their personal capacities, numerous applications in Makris’s foreclosure action, and several frivolous appeals. Makris v. Amboy Bank , 2008 U.S. Dist. LEXIS 90333, at *6 (D.N.J. Oct. 23, 2008). As a result of Levine’s “prolific efforts to res ist performing on his obligations under the Guaranty,” Amboy amassed over $80,000 in attorneys’ fees. Id. at *5

- 6. B. First Fee Award and Subsequent Reversal While Amboy’s legal battle with Levine was still ongoing, it initiated foreclosure proceedings against Makris. In order to avoid losing her home, Makris filed for Chapter 13 bankruptcy on November 7, 2003, and her repayment plan was confirmed by the Bankruptcy Court on April 16, 2004. In June of 2005, Amboy, apparently weary of battling Levine, fi led a revised fee application with the Bankruptcy Court seeking reimbursement from Makris for the fees it had incurred in the Levine litigation. Thus, in addition to the principal loan amount of $109,000, Amboy sought from Makris $71,212 in attorneys’ fee s and costs, most of which were “related substantially” to its litigation with Levine and his efforts to resist payment. Id. at *6. Makris objected , and the Bankruptcy Court held a hearing to determine the amount for which she was responsible. Ultimatel y, the Bankruptcy Court determined that Amboy had a mortgage lien against Makris in the amount of $172,706, including the attorneys’ fees incurred by Amboy in the Levine4 litigation. On September 27, 2005, the Bankruptcy Court modified Makris’s Chapter 13 plan to reflect this amount. Two years later, having obtained new counsel, Makris moved for reconsideration of that ruling on the ground that she should not have been held responsible for the costs and fees incurred by Amboy in its litigation with Levine over the Guaranty. 1

C. Second Fee Award and Subsequent Affirmance On April 3, 2008, the Bankruptcy Court denied the motion for reconsideration, and Makris timely appealed to the District Court. On October 23, 2008, the District Court reversed and held that Makris was not responsible for the legal fe es incurred by Amboy in its litigation with Levine. In an opinion accompanying this order , Judge Debevoise explained that because the Note obligated Makris to bear only those attorneys’ fees incurred by Ambo y in “enforcing this Note,” she was not responsi ble for fees incurred by Amboy in its attempt to collect from Levine under the Guaranty, which was a “legally separate contract” to which Makris was not a party. Id. at *13

- 17. The case was remanded to the Bankruptcy
Court “for determination of the prope r fee allocation.” Id. at *17.

On remand, Amboy filed a revised fee application seeking approximately $92,614 in fees and costs

— over $20,000 more than had been sought in its original fee application. Althoug h this revised application did not include the fees from litigation between Amboy

1 Although Amboy argued that this motion was untimely, the Bankruptcy Court constr ued it as a request for reconsideration pursuant to Federal Rule of Bankruptcy Procedure 3008 and 11 U.S.C. § 502(j). As a bankruptcy court has discretion to consider such requests at any time prior to the close of bankruptcy proceedings, the motion was n ot time barred.5 and Levine, it did include over $61,174 in fees incurred by Amboy in unsuccessfully litigating whether Makris was responsible for the fees for the Levine litigation (so

- calle d “fees

- on - fees”). The rest of the fees in Amboy’s application were incurred in the performance of various other legal services, such as generating payoff figures, monitoring the status of payments, and holding monthly conferences. After hearing oral arg ument on the fee application, the Bankruptcy Court made a number of reductions and disallowances to Amboy’s claimed fees. Nonetheless, it ultimately held that Makris was responsible for $54,093.75 in costs and fees. The Bankruptcy Court did not provide a line

- by

- line breakdown of its figures, but it appears that the bulk of th is award, like the bulk of Amboy’s application, wa s comprised of the fees

- on - fees. 2

2 Makris states, and Amboy does not dispute, that “the bulk of the fees” awarded by the Bankruptcy Court were fees

- on - fees generated by Amboy in “unsuccessfully opposing Makris’s efforts to limit her liability to those fees incurred by Ambo y in enforcing the Note.” Although Judge Debevoise had ruled that Amboy was not entitled to fees from the Levine litigatio n, the Bankruptcy Court concluded that Amboy was entitled to fees it incurred in pursuing those fees

— even if in a losing cause

— because it was “acting in vindication of obtaining what, in [its] understanding, was the correct amount due under the note.” In other words, because the Bankruptcy Court found that Amboy had a reasonable, albeit ultimately incorrect, belief that the terms of the Note made Makris responsible for the Levine fees, it held that Makris had to reimburse Amboy for the fees it incurred in unsuccessfully litigating this question.6 Makris timely appealed the Bankruptcy Court’s ruling to the District Court. On February 10, 2011, Judge Martini, to whom the case had been assigned on the second appeal, affirmed the Bankruptcy Court’s ruling , in cluding the award of fees

- on - fees . In an accompanying opinion, Judge Martini characterized the language of the Note’s fee provision as “broad” and stated that “any reasonable actions Amboy took to enforce any of Makris’s obligations under the Note would f all under the attorneys’ fees provision.” This appeal followed.
II. Jurisdiction & Standard of Review The Bankruptcy Court had jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and the District Court had jurisdiction pursuant to 28 U.S.C. § 158(a). On appeal, we have jurisdiction pursuant to 28 U.S.C. § § 158(d)(1) and 1291. “Exercising the same standard of review as the District Court, w e review the bankruptcy court’s legal determinations de

novo , its f actual findings for clear error and its exercise of discretion for abuse thereof.” In re Am. Pad & Paper Co. , 478 F.3d 546, 551 (3d Cir. 2007) (citation and internal quotations omitted )

. III. Discussion Makris challenges the fee award on three grounds: (1) that the award exceed s that which i s provid ed for under the terms of the Note; (2) that, as a matter of law, a party may not recover fees for a matter decided adversely to it; and (3) that the amount of the award i s substantively unreasonable. Because w e are persua ded by the first of these grounds

—7 namely, that the Bankruptcy Court’s fee award exceeds that which i s provided for under the Note

— we need not reach the remaining two grounds

. Pursuant to 11 U.S.C. § 506(b), an oversecured creditor, such as Amboy, may recover “any reasonable fees, costs, or charges provided for under the agreement . . . under which [its] claim arose.” 11 U.S.C. § 506(b). Thus, for the fee award in this case to have been proper, it must have been provided for under the agreement giving rise to the claim, i.e. the Note. See United States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989); see also 4 Collier on Bankruptcy § 506.04 (“[F]ees, costs and charges are not allowable under section 506(b) . . . in the absence of a contractual or statutory entitlement.”). The atto rney s’ fee provision of the Note reads as follows: [T]he Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, r easonable attorneys’ fees. (App. at 21 (emphasis added.)) The parties agree that the phrase “in enforcing this Note” operates as a limitation on the amount of fees potentially recoverable by Amboy, as there is no dispute that Amboy is not entitled to col lect attorneys’ fees that were not incurred “in enforcing the Note.” Accordingly, the propriety of the fee award turns on the question of whether the fees claimed by Amboy actually were incurred “in enforcing the Note.” 3

3 As mentioned above, the disputed fees fall into two categories: fees

- on - fees arising from Amboy’s attempt to hold Makris responsible for fees from the Levine litigation, and other miscellaneous fees incurred after the principal amount of the claim was established. We address each type of fee separately.8 A . Fees

- on - Fees Makris argues that Amboy is not entitled to recover fees

- on - fees because its unsuccessful attempt to hold her responsible for the fees it inc urred in the Levine li tigation wa s not an action taken in “ enforcing the Note.” To hold otherwise, she argues, would in effect s till make her responsible for “the costs of the Levine actio n, but in a round

- about way.” Amboy counters that the language in the fee provision should be construed broadly. It asserts that “[a]s the ‘fee provision’ is part of the Note, the enforcement of the ‘fee provision’ is, by definition, the enforcement of the Note.” We begin with the terms of the Note itself. Because c ontract construction is a question of law, we exercise plenary review of the Bankruptcy Court’s determination of the legal operat ion of the fee provision

. Medtronic AVE, Inc. v. Advanced Cardiovascular Sys. , 247 F.3d 44, 53 n.2 (3d Cir. 2001). Absent some ambiguity, contracts should be construed in accordance with the plain and ordinary meaning of their
terms. Am. Legacy Found., R P v. Nat’l Union Fire Ins. Co. , 623 F.3d 135, 139 (3d Cir. 2010)

. “ [A] contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.” J.C. Penney Life Ins. Co. v. Pilosi , 393 F.3d 356, 364 (3d Cir. 2004) (internal citation and quotations omitted). In light of these principles, Amboy’s unsuccessful attempt to hold Makris liable for the fees incurred in the Levine litigation cannot be viewed as “enforcing the Note.”
As the Judge Martini recognized , the wo rd “enforce” is defined as “to give force or9 effect” or “compel obedience to.” Black’s Law Dictionary 549 (7th ed. 1999). Thus, i n the context of a home mortgage secured by a note, the plain and ordinary meaning of the phrase “enforcing the Note” can onl y refer to efforts to compel a borrower to perform his or her obligations under the note. A ny efforts to compel a borrower to do something that is not required under the note cannot be viewed as “enforcing the Note” in any ordinary or plain sense. Rather , such efforts aim to compel some performance beyond that which the terms of the note require. Here, Makris was not required to pay the fees incurred by Amboy in the Levin e litigation, and so Amboy’s attempt to compel Makris to pay these fees cannot reaso nably be viewed as “enforcing the Note.” Amboy maintains , however, that “[a]s the ‘fee provision’ is part of the Note, the enforcement of the ‘fee provision’ is, by definition, the enforcement of the Note.” In other words, Amboy asserts that when it s eeks fees under the Note

— even fees that it ultimately has no right to obtain

— it is “enforcing the Note,” and so Makris mus t bear Amboy’s costs if she wishes to contest the fee application. Such an interpretation of the Note’s fee provision is unreasonable , as it would place Makris in a no

- win situation: either she can simply pay the attorneys’ fees Amboy seeks, or she can contest the fee application and bear the cost of Amboy’s fe es in the resulting litigation

— even if she prevails

. In either case, Makris has to pay, and Amboy is guaranteed to recove r at least some attorneys’ fees regardless of the litigation’s outcome . Given these manifestly unjust consequences, such a construction of the contract must be rejected.10 Amboy also argues that the language use d in the fee provision

— specifically, the phrase “all its costs and expenses in enforcing this Note”

— suggests that the Note should be given a broad construction. It maintains that “the use of the word ‘all’ is a clear expression of the parties’ intent to b roadly provide for the recoupment of Amboy’s fees.” And echoing Judge Martini’s reasoning, it asserts that the word “enforcing,” as used here, “encompasses a range of legal actions, provided those actions seek ‘to give force or effect’ or ‘compel obedienc e to’ obligatio ns memorialized in the Note.” Given these definition s , Amboy claims that “any reasonable actions [it] took to enforce any of Makris’s obligations under the Note would fall under th e attorneys’ fees provision.” This argument misses the poin t , however, because the actions for which Amboy now seeks fees were not taken “to enforce any of Makris’s obligations under the Note.” To the contrary, as Judge Debevoise had made quite clear , the Note did not obligate Makris to reimburse Amboy for the Le vine litigation fees, and so Amboy was not acting to enforce an obligation of Makris when it pursued those fees. Accordingly, ascribing a broad meaning to the terms “all” and “enforcing” does not support Amboy’s ultimate position. In the end, rejecting Am boy’s application for fees

- on - fees does not require us to determine the exact contours of what counts as “enforcing the Note.” It i s clear, however, that Amboy’s failed attempt to hold Makris responsible for the fees it incurred in litigation with Levine to enforce the Guaranty

— a separate legal instrument to which Makris was not a party

— is simply too far removed from any ordinary understanding of11 the phrase “enforcing the Note” to be covered by the fee provision.
B . Other Miscellaneous Fees
A mboy does no t dispute Makris’s representation that “the bulk of the fees” awarded by the Bankruptcy Court were fees

- on - fees generated by Amboy in its unsuccessful attempt to collect fees for the Levine litigation from Makris. It appears, however, that at least some p ortion of the award reimbursed Amboy for fees incurred in the provision of other miscellaneous legal services performed after the amount of the claim was established, such as generating payoff figures, monitoring the status of payments, and holding monthly conferences to track the progress of the case. Although the Bankruptcy Court disallowed some fees incurred in simply monitoring the status of the case , it did not make available a line

- by

- line accounting of its figures and so the record does not reflect how many of these miscellaneous charges were included in the fee award. It is Makris’s position that she is not responsible for any fees incurred after Amboy filed its proof of claim because no actions to “enforc[e] the Note” were required beyond that p oint. 4

4 Makris does concede that Amboy’s filing of its proof of claim was an action taken in “enforcing the Note,” and thus she does not contest the $1,121 in fees sought by Amboy in connection with that task. This amount is in addition to $5,082 in attorneys’ fees already awarded to Amboy in connection with this action. At the hearing, the Bankruptcy Court remarked that foot

- dragging on the part of the debtor is common in Chapter 13 bankruptcy cases and requires a “whole panoply” of enforcement actions from the bank. Sig nificantly, however, the Court noted that t his12 “didn’t happen in this case,” as Makris never defaulted on any of her payments or challenged the principal amount of the lien. Still, the parties dispute whether certain costs, such as the fees incurred by Amboy in responding to various applications a nd payoff requests from Makris’s former counsel, are rightly considered “enforcing the Note.” At the hearing before the Bankruptcy Court, Makris’s current counsel stat ed that “[o]ur understanding of those other applications

. . . [is] that they were relat ed to Dr. L[e]vine and pursuing thos e fees against the Makrises.” Nonetheless, Makris’s counsel admitted that, as to at least some of previous counsel’s applications, “I was not the attorney at the time so I don’t understand if there was some other thing going on.” Given the sparse record before us, it is not even possible to tell whether the Bankruptcy Court actually awarded these fees to Amboy, let alone whether the fees should have been awarded under the terms of the Note. Accordingly, we will remand on this point so that the Bankruptcy Court may determine how much, if any, of these miscellaneous legal services were provided in “enforcing the Note.”
IV. Conclusion Because the fee awarded to Amboy exceeds that which is provided for under the
contractu al terms of the parties’ agreement, we will vacate the District Court’s affirmance of the Bankruptcy Court’s fee award and remand for a determination o f the proper amount of fees to be awarded . We would hope that the parties resolve this matter without fu rther judicial involvement.