FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 7, 2011

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16146

________________________

D. C. Docket No. 09-01537-CV-2-RBP,

BKCY No.07-03515-TBB-13

IN RE:

TERRY D. JACKS, 

SANDRA C. JACKS, 

 Debtors.

________________________________________________________________

TERRY D. JACKS, 

SANDRA C. JACKS, 

 Plaintiffs-Appellants,

versus

WELLS FARGO BANK, N.A., 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(June 7, 2011)
Before MARTIN, COX and BLACK, Circuit Judges.

BLACK, Circuit Judge:

Plaintiff-Appellants Terry and Sandra Jacks filed this purported class action

as an adversary proceeding before the bankruptcy court. Their amended complaint

alleged their mortgage lender, Wells Fargo Bank, N.A., violated various

provisions of the Bankruptcy Code and Bankruptcy Rules by failing to disclose

certain fees on the proof of claim it filed in the Jacks’ Chapter 13 bankruptcy case. 

Prior to considering class certification, the bankruptcy court chose to address the

merits of the Jacks’ individual claims. Following a hearing in which it made

findings of fact and conclusions of law, the bankruptcy court granted summary

judgment in favor of Wells Fargo on all counts. The Jacks appealed this decision

to the district court, which affirmed the bankruptcy court’s decision. 

We affirm the grant of summary judgment in Wells Fargo’s favor as to all

claims except those based on actions that Wells Fargo may take after the Jacks’

bankruptcy case is dismissed or discharged. We determine to the extent the Jacks’

claims are based on events that may take place later, they are not ripe, and we

dismiss them. 

I. BACKGROUND

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In November 2004, Terry and Sandra Jacks obtained a home mortgage from

Washington Mutual Bank. In March 2007, the mortgage was assigned to Wells

Fargo. Later that year, on August 8, 2007, the Jacks filed a voluntary petition for

Chapter 13 bankruptcy in the U.S. Bankruptcy Court for the Northern District of

Alabama. The petition disclosed that Wells Fargo held a

secured claim as a mortgage on the Jacks’ home. 

On September 6, 2007, Wells Fargo filed a proof of claim asserting a

secured claim of $162,205.57. Exhibit A to the proof of claim was an “Itemization

of Claim and Summary of Supporting Documents.” This exhibit listed the Jacks’

total debt of $162,205.57. It did not list any pre-petition attorney fees or costs,

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but stated at the end of the itemization section:

Please be advised that reasonable fees and costs for the

review of the bankruptcy pleadings, review of client

information, preparation and filing of the Proof of Claim

will be charged to the lender/servicer for post-petition

services rendered subsequent to the filing of this

bankruptcy matter. Further, note that future fees and costs

for bankruptcy related services are expected to accrue

throughout the life of this bankruptcy case, and will be

charged to the lender/servicer. If such fees and costs or

charges are not paid through the bankruptcy, the lender

reserves the right, at the lender’s discretion, to seek future

 The proof of claim also asserted an arrearage in the amount of $1,191.83. According to 1

Wells Fargo, the arrearage was claimed in error, and the Jacks’ monthly mortgage payments were

current when the proof of claim was filed.

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reimbursement for the fees, costs and charges related to

services rendered and expenses incurred pursuant to the

terms provided for in the underlying security instrument,

the bankruptcy code and other applicable law. 

After the proof of claim was filed, Wells Fargo’s outside law firm submitted

to Wells Fargo an invoice documenting $310 in fees and expenses associated with

preparing and filing the proof of claim in the Jacks’ case. 

On October 17, 2007, the Jacks filed an Amended Chapter 13 Plan. The

plan called for the Jacks to continue to make their regular monthly payment

directly to Wells Fargo. It did not list any arrearage to be paid by the trustee. The

plan also noted, “Debtors also may have a potential lawsuit against Wells Fargo

Home Mortgage for violations of the automatic stay, § 506 and Rule 2016 for

assessing post-petition fees and costs which were undisclosed on the proof of

claim and/or may have a potential declaratory judgment action regarding language

used in the proof of claim as being unnecessary or deceptive. The Debtors hereby

wish to preserve said causes of action in their bankruptcy case.” The bankruptcy

judge entered a confirmation order on December 28, 2007. 

On July 29, 2008, the Jacks filed a complaint against Wells Fargo in the

U.S. Bankruptcy Court for the Northern District of Alabama. The Jacks, claiming

to act on behalf of themselves and a class of similarly situated mortgagors, alleged

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Wells Fargo violated several provisions of the Bankruptcy Code and failed to

comply with the Federal Rules of Bankruptcy Procedure by improperly

“charg[ing], assess[ing], impos[ing] and/or collect[ing] impermissible fees” on the

plaintiffs’ and similarly situated mortgagors’ accounts. In the Jacks’ case, they

alleged Wells Fargo had “charged or assessed” $310 in bankruptcy-related fees to

the Jacks’ account without disclosing these fees in the proof of claim or seeking

approval from the bankruptcy court. The complaint further alleged Wells Fargo

was “attempting to collect this amount or will collect this amount during the

pendency of the case, once the Debtors have received their discharge, or once they

are dismissed from the case, whichever occurs first.” 

The $310 in fees had been recorded on the Jacks’ “Customer Account

Activity Statement” as two charges in the amount of $150 each and one charge for

$10 posted on October 25, 2007. A litigation representative for Wells Fargo

explained in her deposition testimony that the Customer Account Activity

Statement tracks payments and disbursements related to the servicing of a loan,

including bankruptcy-related fees and expenses. It may include fees paid by Wells

Fargo that are provisionally assessed to the loan for bookkeeping purposes. In this

case, the fees were attorney’s fees and other costs paid by Wells Fargo to its

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attorneys to review the Jacks’ bankruptcy plan and to prepare Wells Fargo’s proof

of claim. 

The record reflects that the Jacks became aware of the proof of claim fees

when the Customer Account Activity Statement was sent to Sandra Jacks after she

called Wells Fargo to request the activity history on her account. The Customer

Account Activity Statement is the only document in evidence that lists the $310 in

fees. Sandra Jacks stated in her deposition she had never been billed for or asked

to pay the charges or told she would be expected to pay them. Similarly, Terry

Jacks testified Wells Fargo had never done anything to attempt to collect these

fees. Wells Fargo continued to send statements for the regular monthly payment

due under the mortgage and did not add any additional charges to these statements.

The bankruptcy court addressed the merits of the Jacks’ claim prior to

considering class certification and entered summary judgment for Wells Fargo on

all counts. The district court affirmed. 

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II. DISCUSSION

 At the district court, the Jacks’ case was consolidated with that of another set of 2

plaintiffs–Alan and Cynthia Isom. These cases originally remained consolidated on appeal to

this Court, however, this Court in March 2010 dismissed the Isoms’ appeal after concluding we

lacked jurisdiction.

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The Jacks contend on appeal the district court erred in affirming the

bankruptcy court’s grant of summary judgment on: (1) their claims that Wells

Fargo violated the automatic stay provisions in 11 U.S.C. § 362; (2) their claims

that Wells Fargo violated 11 U.S.C. §506(b) and Bankruptcy Rule 2016 by failing

to disclose the fees; and (3) their objection to the proof of claim. “As the second

court of review of a bankruptcy court’s judgment, this court examines

independently the bankruptcy court’s . . . determinations” and employs the same

standard of review as the district court. In re Club Assocs., 951 F.2d 1223, 1228

(11th Cir. 1992) (internal quotation marks omitted). We review de novo an order

granting summary judgment. Id. at 1229. 

A. Claims for Violations of the Automatic Stay 

Upon the filing of a bankruptcy petition, 11 U.S.C. § 362(a) imposes,

subject to certain exceptions, an automatic stay of various acts that are attempts to

enforce prepetition claims or that would otherwise affect or interfere with property

of the estate or debtor. Collier on Bankruptcy, 16th ed., 3-362, ¶ 362.01. Section

362 “is one of the fundamental debtor protections provided by the bankruptcy

laws” because it “gives the debtor a breathing spell from his creditors,” “stops all

collection efforts, all harassment, and all foreclosure actions,” and “permits the

debtor to attempt a repayment or reorganization plan.” H.R. Rep. No. 95-595, at

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340 (1978). The automatic stay also protects creditors by preventing a race for the

debtor’s assets and enabling an orderly liquidation process. Id. 

The Jacks claim Wells Fargo violated three separate automatic stay

provisions: (1) section 362(a)(3), which prohibits “any act to obtain possession of

property of the estate or of property from the estate or to exercise control over

property of the estate;” (2) section 362(a)(5), which prohibits “any act to create,

perfect, or enforce against property of the debtor any lien to the extent that such

lien secures a claim that arose before the commencement of the case under this

title;” and (3) section 362(a)(6), which prohibits “any act to collect, assess, or

recover a claim against the debtor that arose before the commencement of the case

under this title.” Wells Fargo contends the Jacks cannot establish any automatic

stay violation because the mere recordation of charges on the Customer Account

Activity Statement is not an “act” in violation of the automatic stay. 

We consider each of the Jacks’ automatic stay violation claims below, and

as to each claim, we affirm the grant of summary judgment in favor of Wells

Fargo.

1. Section 362(a)(3).

As stated above, 11 U.S.C. § 362(a)(3) prohibits “any act to obtain

possession of property of the estate or of property from the estate or to exercise

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control over property of the estate.” The Jacks claim Wells Fargo acted to protect

its security interest in the house–which was property of the estate prior to the

confirmation of the Jacks’ plan–by paying a law firm to file claims in the

bankruptcy case. According to the Jacks, these fees then became a lien on their

home by virtue of the terms of the mortgage. As such, the Jacks argue, Wells

Fargo acted to obtain possession of property of the estate or otherwise exercise

control over property of the estate.

As Wells Fargo points out, however, while the loan documents may give it

the right to modify the mortgage to include the fees at issue, there is no evidence

Wells Fargo has actually exercised this right by adding these fees to the loan

balance, nor is there evidence it has otherwise collected or attempted to collect the

$310 in bankruptcy-related fees. In fact, as Sandra Jacks testified, the monthly

statements sent by Wells Fargo after the filing of the bankruptcy petition reflected

only the normal payment due under the mortgage and did not include any

additional fees. The Jacks learned of the recordation of these fees only because

Sandra Jacks specifically requested a copy of the account history. 

The mere recordation of fees incurred by Wells Fargo on its internal

records, without any attempt to collect these fees from the debtor or estate or to

modify the mortgage, is not an “act” in violation of § 362(a)(3). The First Circuit

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reached this same conclusion in considering the claims of debtors who learned

through records obtained in a discovery proceeding that their mortgage lender had

posted bankruptcy-related fees to its internal records. See Mann v. Chase

Manhattan Mortg. Corp., 316 F.3d 1, 3 (1st Cir. 2003). As that court explained,

“unilateral accruals of amounts assertedly due, but in no manner communicated to

the debtor, the debtor’s other creditors, the bankruptcy court, nor any third party,

plainly are not the sort of ‘act’ Congress sought to proscribe.” Id.; see also Kerney

v. Capital One Fin. Corp. (In re Sims), 278 B.R. 457, 471 (Bankr. E.D. Tenn.

2002) (explaining that a creditor “could produce all kinds of paperwork which if

communicated to the debtor or a third party would violate the stay, but absent that

communication, some overt act, or resulting effect on the debtor, no violation has

occurred”). Neither possession nor control of the property was affected by Wells

Fargo’s entry of the fees on its internal records. Absent some other overt attempt

by Wells Fargo to recover these fees from the estate or to gain advantage over

other creditors, the entries on the Customer Account Activity Statement do not

constitute a violation of the automatic stay. We therefore conclude Wells Fargo

was entitled to summary judgment on this claim.

2. Section 362(a)(5).

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The Jacks also claim Wells Fargo violated § 362(a)(5), which prohibits “any

act to create, perfect, or enforce against property of the debtor any lien to the

extent that such lien secures a claim that arose before the commencement of the

case under this title.” This claim suffers from the same deficiency as the Jacks’

claim under § 362(a)(3). While the Jacks may face potential future liability for the

charges under the terms of the mortgage, they have not offered any evidence that

Wells Fargo has actually undertaken any act to modify the lien. “[A] mere

potentiality of future liability reasonably cannot be considered the ‘creation’ of a

new and enlarged lien.” Mann, 316 F.3d at 4. As such, Wells Fargo was entitled

to summary judgment on this claim.

3. Section 362(a)(6). 

Section 362(a)(6) prohibits “any act to collect, assess, or recover a claim

against the debtor that arose before the commencement of the case under this

title.” As an initial matter, we note some doubt over whether this section–which

applies to actions regarding pre-petition claims–applies to actions in connection

with fees that accrued post-petition. In any case, however, the Jacks’ claim under

§ 362(a)(6) fails for the same reason as their other claims for violations of the

automatic stay: Wells Fargo has not committed any “act” in violation of the stay. 

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Section 362(a)(6) “prevents creditors from attempting in any way to collect

a prepetition debt.” H.R. Rep. No. 95-595, at 342 (1978). As explained above,

Wells Fargo has not attempted to collect the proof-of-claim fees from the Jacks. It

has merely recorded on internal documents fees it incurred in association with the

Jacks’ account. It has not charged these fees against the Jacks’ account, added

them to the balance due on the mortgage, or communicated them to the Jacks in

any form that could be construed as an attempt to collect. Wells Fargo was 3

therefore entitled to summary judgment on this claim. 

B. Claims Relating to Wells Fargo’s Failure to Disclose the Proof of Claim

Fees

The Jacks claim that district court erred in affirming summary judgment in

favor of Wells Fargo on their claims that Wells Fargo violated the Bankruptcy

Code and Rules by recording the fees without disclosing them. Specifically, the

Jacks contend Wells Fargo’s failure to disclose the postpetition fees violated

 The Jacks cite to several bankruptcy court cases for the proposition that a creditor’s

3

placement of a charge on its books can amount to a violation of the automatic stay. Unlike the

facts here, those cases involved fees that had been charged to the balance on the debtor’s account.

See McCormack v. Fed. Home Loan Mortg. Corp. (In re McCormack), 203 B.R. 521, 524-525

(Bankr. D. N.H. 1996) (noting the fees had been added to the negative escrow balance and were

reflected in year-end statements and adjusted monthly mortgage payment amounts); Dean v. First

Union Mortg. Corp. (In re Harris), 280 B.R. 876, 883 (S.D. Ala. 2001) (noting the “major relief

to be accorded [the debtors] is to have the fee wiped off their account balances”) (emphasis

added). Here, there is no indication that the fees have ever been added to the balance of the

Jacks’ mortgage loan or otherwise “charged” to their account.

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Section 506(b) of the Bankruptcy Code and Bankruptcy Rule 2016. The Jacks

4

seek both damages and injunctive relief. 

Section 506 addresses the “Determination of secured status” on a creditor’s

claims. Subsection (b) provides: 

To the extent that an allowed secured claim is secured by

property the value of which, after any recovery under

subsection (c) of this section, is greater than the amount of

such claim, there shall be allowed to the holder of such

claim, interest on such claim, and any reasonable fees,

costs, or charges provided for under the agreement or State

statute under which such claim arose.

Rule 2016(a) governs an “Application for compensation or reimbursement.” 

It requires, “An entity seeking interim or final compensation for services, or

reimbursement of necessary expenses, from the estate shall file an application

setting forth a detailed statement of (1) the services rendered, time expended and

expenses incurred, and (2) the amounts requested.” Bankr. Rule 2016(a).

According to the Jacks, these provisions promote the Bankruptcy Code’s

goal of giving debtors a “fresh start.” See Marrama v. Citizens Bank of Mass., 549

U.S. 365, 367; 127 S. Ct. 1105, 1007 (2007) (“The principal purpose of the

 The Jacks also claim that Wells Fargo’s failure to disclose the fees in the proof of claim 4

violated Bankruptcy Rule 3001(f). This provision simply governs the evidentiary effect of a

properly filed proof of claim. The district court did not err in affirming the bankruptcy court’s

grant of summary judgment on this claim.

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Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.”)

(quotation marks omitted). The Jacks claim this “fresh start” cannot be achieved,

however, if Wells Fargo or other similarly situated creditors may avoid disclosing

fees that could be treated as part of the arrearage claim payable through the

bankruptcy plan. In the absence of disclosure, a debtor might pay all the amounts

necessary to cure the arrearage only to emerge from bankruptcy to discover he is

facing additional fees he knew nothing about. See In re Watson, 384 B.R. 697,

707 (Bankr. D. Del. 2008) (“If the Court and Chapter 13 Trustee fully administer a

case through completion of a . . . Chapter 13 plan, only to have the debtor

promptly re-file on account of accrued, undisclosed fees and charges on her

mortgage, it could fairly be said that we have all been on a fool’s errand . . . .”). 

The Jacks rely on a line of bankruptcy court decisions that, in varying

degrees, support the proposition that pursuant to § 506(b), Rule 2016, or both of

these provisions, a secured creditor must disclose and obtain court approval of

postpetition legal expenses. See, e.g., Jones v. Wells Fargo Home Mortg. (In re

Jones), 366 B.R. 584, 594 (Bankr. E.D. La. 2007) (concluding postpetition

charges that may be included in the debts necessary to cure a default under a

bankruptcy plan “must be disclosed and are subject to review by the bankruptcy

court for reasonableness”); Dean v. First Union Mortg. Corp. (In re Harris), 280

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B.R. 876, 884 (Bankr. S.D. Ala. 2001) (concluding “creditors cannot obtain

postpetition/ preconfirmation fees from chapter 13 debtors without disclosure”). 

Bankruptcy courts that have addressed the issue, however, have not uniformly

reached this conclusion. As Wells Fargo notes, at least one bankruptcy court has

concluded “whatever merits [] the policy arguments may have,” neither § 506(b)

nor Rule 2016(a) applies to a secured creditor who incurs postpetition legal

expenses chargeable to the debtor under the terms of the mortgage when the

creditor makes no attempt to obtain payment for these expenses during the

bankruptcy case. Padilla v. GMAC Mortg. Corp. (In re Padilla), 389 B.R. 409,

437-43 (Bankr. E.D. Penn. 2008).

Although we express no opinion as to the specific holdings in those cases, 

we note many of the cases on which the Jacks rely involved creditors who had

actually collected or attempted to collect the undisclosed fees either during the

bankruptcy or upon discharge. See, e.g., Rodriguez v. Countrywide Home Loans,

Inc. (In re Rodriguez), 421 B.R. 356, 372 (Bankr. S.D. Tex. 2009) (noting the

mortgage holder “admits that it attempted to collect fees and expenses, which

accrued during the Plaintiffs’ cases, after the Plaintiffs had emerged from

bankruptcy” and that it “threatened foreclosure on account of the unpaid fees and

expenses” (footnote omitted)); In re Jones, 366 B.R. at 594 (noting the

15
undisclosed attorney’s fees “were unwittingly paid by Debtor through the

application of either Trustee payments or Debtor’s direct mortgage payments”). 

Here, on the other hand, there is no evidence Wells Fargo has collected or

attempted to collect the fees during the pendency of the Jacks’ bankruptcy. 

Assuming arguendo that § 506(b) and Rule 2016(a) require disclosure of

postpetition fees in some circumstances, we hold those provisions are not violated

when a creditor merely records costs it has incurred in association with a

mortgagee’s bankruptcy for internal bookkeeping purposes and makes no attempt

to collect the fees or otherwise add them to the debtor’s balance. Therefore, to the

extent the Jacks’ disclosure claims rely on events that have occurred during the

course of their Chapter 13 case, the district court did not err in affirming the

bankruptcy court’s order granting summary judgment in Wells Fargo’s favor. 

5

This conclusion does not entirely resolve the Jacks’ disclosure claims,

however, because the Jacks claim the failure to disclose the fees renders them

uncollectible at any point, including when their case is either discharged or

 We note that the Jacks also raise the issue of whether the bankruptcy court erred in 5

determining § 105(a) could not be used to award damages for alleged violations of these

provisions. Because we find no violation of these provisions has occurred, we do not address the

parties’ arguments regarding the bankruptcy court’s authority to provide relief for these

violations, or the appropriate scope of such relief, pursuant to its § 105(a) powers. 

16
dismissed. As such, in addition to requesting damages, the Jacks also requested an

injunction prohibiting Wells Fargo from collecting these fees in the future. 

We do not reach these arguments because we conclude these claims are not

ripe for adjudication. “The ripeness doctrine raises both jurisdictional and

prudential concerns.” Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995). “It

asks whether there is sufficient injury to meet Article III’s requirement of a case or

controversy and, if so, whether the claim is sufficiently mature, and the issues

sufficiently defined and concrete, to permit effective decisionmaking by the

court.” Id. In deciding whether a claim is ripe, we consider: “(1) the fitness of the

issues for judicial decision, and (2) the hardship to the parties of withholding court

consideration.” Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct.

1507, 1515 (1967). A claim is not ripe when it is based on speculative

possibilities. Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1341 n.7

(11th Cir. 2000).

Here, we do not know whether the Jacks’ bankruptcy will end in a discharge

or a dismissal. We note that Wells Fargo represents on appeal that it will not seek

to collect the charges if the Jacks successfully complete their Chapter 13 plan and

receive a discharge. Although we are “reluctant to accept mere bald assurances

. . . it cannot be said with any confidence that [Wells Fargo’s] collection efforts are

17
inevitable.” See Mann, 316 F.3d at 6 n.8. In addition, we note that an attempt to

collect the undisclosed fees post-dismissal may present legal issues distinct from

those raised by an attempt to collect post-discharge. Therefore, to the extent the

6

Jacks’ claims are based on events that may take place in the future, these claims

are dismissed for lack of jurisdiction. See, e.g., Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1574 n.7 (11th Cir. 1989) (“[R]ipeness goes to whether

the district court had subject matter jurisdiction to hear the case.”). 

C. Objection to the proof of claim

Finally, the Jacks contend the bankruptcy court erred in granting summary

judgment in Wells Fargo’s favor on their objection to the proof of claim. Section

502 governs the “Allowance of claims or interests.” Section 502(a) makes clear,

“A claim or interest, proof of which is filed under section 501 . . . is deemed

allowed, unless a party in interest . . . objects.” Section 502(b)(1), the provision

on which the Jacks rely, provides that if an objection is made, the court should

determine the amount of the claim and “shall allow such claim in such amount,

except to the extent that [] such claim is unenforceable against the debtor and

 For example, Wells Fargo argues the Jacks would not be entitled to the “fresh start” 6

afforded by the Bankruptcy Code if they fail to fully comply with their bankruptcy plan and the

case is dismissed pursuant to 11 U.S.C. § 349. See 11 U.S.C. 349(b); S. Rep. No. 95-989, at 49

(“The basic purpose of [this] subsection is to undo the bankruptcy case, as far as practicable, and

to restore all property rights to the position in which they were found at the commencement of

the case.”). 

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property of the debtor, under any agreement or applicable law for a reason other

than because such claim is contingent or unmatured.” The bankruptcy court

concluded Wells Fargo’s failure to disclose fees in the proof of claim was not a

valid basis for an objection. Because the amount claimed in the proof of claim did

not actually include the allegedly improper proof of claim fees, the bankruptcy

court concluded, there was nothing in the proof of claim for the Jacks to object to.

We agree Wells Fargo’s failure to include the proof of claim fees on the

proof of claim does not provide a valid basis for an objection. Under § 502(b)(1), 

a claim asserted in a proof of claim is allowed in the amount asserted “except to

the extent that [] such claim is unenforceable.” “Such claim” refers to the claim

actually asserted on the proof of claim. As to this amount–in this case,

$162,205.57–the Jacks have identified no reason why such amount is

unenforceable. Wells Fargo was therefore entitled to summary judgment. 

III. CONCLUSION

To the extent the Jacks’ claims are based on events that have occurred

during the pendency of their bankruptcy, we hold that Wells Fargo was entitled to

summary judgment in its favor on these claims. To the extent the Jacks premise

claims on events that have not yet occurred, we conclude these claims are not ripe,

and we dismiss them. 

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AFFIRMED in part and DISMISSED in part.

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