IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10458

In the Matter of: HARRY NEAL MCMILLAN, 

 Debtor

__________________________________

HARRY NEAL MCMILLAN, 

 Appellant

v.

DONAL RAY SCHMIDT, JR.; THIMOTHY S. WAFFORD, 

 Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CV-807

Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

This is an appeal of the district court’s dismissal of Appellant Harry 

McMillan’s motion for fees, costs, and damages arising from an improper 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2015

Lyle W. Cayce

Clerk

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petition for involuntary bankruptcy under 11 U.S.C. § 303. Thomas Aigner, a 

third party, entered into a Joint Prosecution Agreement with Appellees Donal

Schmidt and Thimothy Wafford to petition McMillan for involuntary 

bankruptcy based on a default judgment McMillan owed Aigner. The 

bankruptcy court dismissed the petition because it determined that Aigner 

transferred a portion of his interest in the claim to Schmidt and Wafford with 

the intention of beginning an involuntary action against McMillan. McMillan 

sought fees, costs, and damages against Aigner, Schmidt and Wafford. The 

bankruptcy court denied McMillan’s motion, and the district court affirmed as 

to Schmidt and Wafford.1 McMillan appeals the decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Aigner filed an involuntary bankruptcy petition against McMillan under 

11 U.S.C. § 303, seeking to enforce a default judgment of approximately three 

million dollars that Aigner obtained against McMillan in 1999. Though the 

judgment had gone dormant, Aigner revived it in 2011. On December 16, 2011, 

Aigner entered into a Joint Prosecution Agreement (“JPA” or “Agreement”) 

with Appellees Schmidt and Wafford.

Schmidt and Wafford’s relationship to McMillan is unrelated to Aigner’s 

default judgment. Around 2008, McMillan consulted for Sun River, a company 

owning substantial mineral rights in New Mexico, in connection with its plan 

to become a publicly traded company. In exchange, McMillan received stock 

and warrants, and he became Sun River’s largest shareholder. Some time later, 

Schmidt became the CEO and Wafford the CFO of Sun River. In December 

2011, relations broke down between McMillan and Schmidt/Wafford. 

 

1 Before the district court affirmed, it granted a motion to dismiss with prejudice all 

claims against Aigner.

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Shortly after relations soured between McMillan and the Appellees, 

Schmidt and Wafford entered into the JPA with Aigner. The Agreement grants 

Schmidt and Wafford a certain degree of control over Aigner’s involuntarybankruptcy petition. Pursuant to the Agreement, Aigner filed a petition for 

involuntary bankruptcy against McMillan on December 21, 2011. Only 

Aigner—and not Schmidt or Wafford—signed the petition. McMillan moved to 

dismiss the petition and counter-claimed for costs, fees, and actual and 

punitive damages under § 303(i).

After nine days of evidentiary hearings, the bankruptcy court dismissed 

Aigner’s petition. See Aigner v. McMillan, No. 11-47029-7, 2013 WL 2445042, 

at *7 (Bankr. N.D. Tex. June 4, 2013). It concluded that Aigner was disqualified 

to serve as a petitioner for involuntary bankruptcy because, via the Agreement 

with Schmidt and Wafford, Aigner acquired or transferred an interest in the 

claim “for the purpose of commencing an involuntary case” in violation of 

Bankruptcy Rule 1003(a). The bankruptcy court concluded, “[t]here can be no 

question but that the Agreement was executed and implemented for the 

purpose of commencing an involuntary case against McMillan.” Therefore, 

Aigner, Schmidt, and Wafford were not qualified creditors to petition for 

involuntary bankruptcy under § 303.

In reaching this disposition, the bankruptcy court noted that “the Case 

is but another battle in an ongoing war between McMillan and . . . Sun River,” 

and that it “was commenced principally at the ins[istence] of Sun River as a 

tactical measure in its disputes with McMillan.” After examining the 

Agreement, the bankruptcy court concluded that “control over prosecution of 

the involuntary case against McMillan is largely ceded to Schmidt and 

Wafford,” who “have the power under the Agreement to force and maintain 

prosecution of the Case.” Finally, the court found that “Schmidt and Wafford 

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sought out [Aigner] with the goal of forcing McMillan into bankruptcy.” Sun 

River, it concluded, is “the true prime mover for involuntary relief.”

The bankruptcy court determined that Aigner filed the § 303 petition in 

good faith. Yet it noted in footnote twenty of the order: “This is not to say that 

Sun River, Schmidt, and Wafford did not act other than in good faith, but they 

are not petitioners and are therefore not before the court.” It is this last 

determination that McMillan appeals.

Reviewing the bankruptcy court’s conclusions of law de novo and its 

factual findings for clear error, the district court affirmed, reaching two 

alternative resolutions. First, the district court held that as neither Schmidt 

nor Wafford was served with process in accordance with Bankruptcy Rule 

7004(b)(1), “the bankruptcy court never had in personam jurisdiction over 

Schmidt and Wafford, because they had not appeared as parties in the 

proceeding below.” Therefore, “absent compliance with Rule 7004(b)(1), 

entertaining McMillan’s appeal would offend due process.” Second, although 

the district court found it “unnecessary” to address the bankruptcy court’s 

ruling that Schmidt and Wafford were not petitioners, and therefore performed

no independent analysis of the legal question, it concluded that “the 

bankruptcy court did not commit reversible error in concluding that Schmidt 

and Wafford were not ‘petitioners,’ and in declining to award relief under 

Section 303(i) against them.”

Before this Court, McMillan argues that (1) Schmidt and Wafford are 

“petitioners” within the meaning of § 303(i) and (2) the bankruptcy court may 

impose costs, fees, and damages on Schmidt and Wafford without McMillan 

having to commence an adversarial proceeding against the Appellees under 

Rule 7004(b)(1). 

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II. DISCUSSION

This Court has jurisdiction over McMillan’s appeal of the district court’s 

review of a bankruptcy court’s final order under 28 U.S.C. § 158(d)(1). This 

Court reviews the district court’s decision “by applying the same standard of 

review to the bankruptcy court’s conclusions of law and findings of fact that 

the district court applied.” In re Cahill, 428 F.3d 536, 539 (5th Cir. 2005) (per 

curiam). “[C]onclusions of law are reviewed de novo, findings of fact are 

reviewed for clear error, and mixed questions of fact and law are reviewed de 

novo.” In re Nat’l Gypsum Co., 208 F.3d 498, 504 (5th Cir. 2000).

Section 303 of the Bankruptcy Code governs petitions for involuntary 

bankruptcy. “An involuntary case against a person is commenced by the filing 

with the bankruptcy court of a petition under chapter 7 or 11 of this title” by

an entity holding an undisputed, bona fide claim against the alleged debtor. 11 

U.S.C. § 303(b). After the petition is filed, “a creditor holding an unsecured 

claim that is not contingent . . . may join in the petition with the same effect as 

if such joining creditor were a petitioning creditor under subsection (b) of this 

section.” § 303(c) (emphasis added). Therefore, a “petitioning creditor” is an 

entity that files a petition under § 303(b) or one who joins the petition under § 

303(c). 

Rule 1003, using the word “petitioner” and not “petitioning creditor,” 

imposes a limitation on involuntary bankruptcy: “An entity that has 

transferred or acquired a claim for the purpose of commencing a case for 

liquidation under chapter 7 or for reorganization under chapter 11 shall not be 

a qualified petitioner.” Fed. R. Bankr. P. 1003(a). If an alleged debtor succeeds 

in getting the petition against him dismissed, then § 303(i) permits the alleged

debtor to collect fees, costs, and damages from his petitioners:

(i) If the court dismisses a petition under this section other than 

on consent of all petitioners and the debtor, and if the debtor 

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does not waive the right to judgment under this subsection, the 

court may grant judgment—

(1) against the petitioners and in favor of the debtor for—

(A) costs; or

(B) a reasonable attorney’s fee; or

(2) against any petitioner that filed the petition in bad 

 faith, for—

(A) any damages proximately caused by such filing; or

(B) punitive damages.

Ordinarily, an alleged involuntary debtor may collect fees under § 303(i) 

by filing a motion with the bankruptcy court. See Fed. R. Bankr. P. 9014 (“In a 

contested matter . . . relief shall be requested by motion . . . .”). Bankruptcy 

procedure distinguishes a contested matter—such as a petition for involuntary 

bankruptcy—from an adversary proceeding. See Fed. R. Bankr. P. 7001 

(explaining that “a proceeding to recover money or property” is an adversary 

proceeding); Fed. R. Bankr. P. 9014 advisory committee’s note (“Whenever 

there is an actual dispute, other than an adversary proceeding, before the 

bankruptcy court, the litigation to resolve that dispute is a contested matter.”). 

At issue in this appeal is whether McMillan may collect the fees 

authorized by § 303(i) from Schmidt and Wafford—who did not sign the 

original petition for involuntary bankruptcy—and whether he may do so 

without beginning an adversary proceeding.2

McMillan contends that he may recover fees and damages from Schmidt 

and Wafford because they are “petitioners” under § 303(i). Relying on 

Rosenberg v. DVI Receivables, XIV, LLC (In re Rosenberg), 471 B.R. 307 

(Bankr. S.D. Fla. 2012), and In re Oakley Custom Homes, Inc., 168 B.R. 232 

(Bankr. D. Colo. 1994), McMillan argues that “petitioner” is a broader category 

than “petitioning creditor,” and therefore that he may recover from people or 

 

2 Rule 7004 provides the requirements for service of process in an adversary 

proceeding, which begins with a summons.

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entities that caused his involuntary petition to be filed. Cf. In re Rosenberg, 

779 F.3d 1254, 1268–69 (11th Cir. 2015) (affirming the bankruptcy court’s 

award of fees from an entity it concluded was the “de facto petitioning creditor” 

though not a signatory to the original involuntary petition). McMillan stresses 

Rule 1003 contemplates that entities other than “petitioning creditors” may be 

integral to filing a petition for involuntary bankruptcy, and he invites this 

Court to define “petitioner” with reference to state-law agency principles.

We make no pronouncement today on whether the meaning of 

“petitioner” may be broader than “petitioning creditor” under the bankruptcy 

code. Instead, we hold that only “petitioning creditors”—i.e., entities that file

a petition under § 303(b) or join it under § 303(c)—are parties to the contested 

matter and therefore properly before the bankruptcy court on a motion for fees.

See DVI Receivables XIV, LLC v. Rosenberg, 500 B.R. 174, 177 (S.D. Fla. 2013)

(noting that the bankruptcy court “ordered Rosenberg to convert the Motion 

into an adversary complaint—or, in the alternative, to withdraw the Motion 

and file a new adversary complaint—so that the court could have jurisdiction 

over these additional parties” and that Rosenberg obliged).

Schmidt and Wafford were not signatories to the original involuntary 

petition; therefore, they are not parties to the contested matter, and McMillan 

must serve them with process to bring them within the jurisdiction of the 

bankruptcy court. Because he seeks to “recover money” from the Appellees,

McMillan’s action is properly brought as an adversary proceeding under Rule 

7001.3 We agree with the district court that McMillan must serve Schmidt and 

Wafford with a summons and a complaint in accordance with Bankruptcy Rule 

7004(b)(1) to subject them to the jurisdiction of the bankruptcy court.

 

3 See, e.g., In re Dean, 359 B.R. 218, 222 (Bankr. C.D. Ill. 2006) (collecting cases and 

noting that “[s]everal courts have held that if a party seeks recovery of damages . . . this falls 

within Rule 7001(1) and the matter should be brought as an adversary proceeding”).

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III. CONCLUSION

For the foregoing reason, we AFFIRM the district court’s dismissal of 

McMillan’s motion for fees.

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JAMES L. DENNIS, Circuit Judge, dissenting:

This case presents difficult questions of bankruptcy law that do not lend 

themselves to easy answers. Respectfully, however, the majority’s resolution 

of the case appears to me to be in tension with current bankruptcy court 

practice. For the reasons that follow, I respectfully dissent.

The present dispute stems from an involuntary bankruptcy petition filed 

against Harry McMillan (in bankruptcy parlance, the “alleged debtor”) by 

Thomas Aigner (the “petitioning creditor”). Before filing the petition, Aigner 

entered into a contract with two others, Donal Schmidt and Thimothy Wafford, 

giving them sole authority to select bankruptcy counsel and control the 

prosecution of the case, even though they weren’t joining it as petitioning 

creditors. The bankruptcy court, holding that this arrangement was 

impermissible (for reasons that are irrelevant to the present appeal and need 

not be elaborated upon here), dismissed the case.1 McMillan sought attorney’s 

fees, costs, and damages under 11 U.S.C. § 303(i)—which affords alleged 

debtors such relief upon dismissal of their involuntary bankruptcy cases—from 

Aigner, Schmidt, and Wafford.2 McMillan later settled with Aigner, leaving 

only Schmidt and Wafford. McMillan sought the § 303(i) attorney’s fees, costs, 

and damages from Schmidt and Wafford by serving them with a so-styled 

“motion” for relief. He did not serve them with summonses and a complaint.

 

1 Aigner, Schmidt, and Wafford have not challenged the bankruptcy court’s dismissal 

of the involuntary bankruptcy case, so for purposes of deciding this appeal I will assume that 

the dismissal was proper.

2 Section 303(i) provides: “If the court dismisses a petition under this section other 

than on consent of all petitioners and the debtor, and if the debtor does not waive the right 

to judgment under this subsection, the court may grant judgment—(1) against the petitioners 

and in favor of the debtor for—(A) costs; or (B) a reasonable attorney’s fee; or (2) against any 

petitioner that filed the petition in bad faith, for—(A) any damages proximately caused by 

such filing; or (B) punitive damages.”

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McMillan’s demand for § 303(i) attorney’s fees, costs, and damages from 

Schmidt from Wafford presents two issues. First, as a matter of procedure, did 

service of McMillan’s motion adequately bring Schmidt and Wafford within the 

jurisdiction of the bankruptcy court to allow that court to assess attorney’s fees, 

costs, and damages against them? If so, second, as matter of substantive law, 

does § 303(i) allow for such relief from persons, like Schmidt and Wafford, who 

did not join the involuntary bankruptcy petition as petitioning creditors but 

nevertheless caused the petition to be filed? The majority answers the first 

question in the negative and does not reach the second. I will address both 

questions in turn.

As to the first question, the majority holds that McMillan’s service of a 

motion for damages on Schmidt and Wafford was inadequate to bring them 

into the jurisdiction of the bankruptcy court. Ante, at 7. The majority 

concludes that, in order for the bankruptcy court to exercise jurisdiction over 

Schmidt and Wafford, McMillan must begin an adversary proceeding against 

them, which requires service of summonses and a complaint rather than a 

motion. Id. Respectfully, this holding appears to me to be in tension with the 

current prevailing practice in bankruptcy courts, as I will explain.3

The bankruptcy rules create two potential avenues through which 

disputes may be resolved: (1) adversary proceedings, Fed. R. Bankr. P. 7001, 

and (2) contested matters, Fed. R. Bankr. P. 9014. Every dispute that arises 

 

3 I note for the sake of clarity that there is no dispute as to the method of service, 

which, here, was certified mail. Whether McMillan should have served Schmidt and Wafford 

with summonses and a complaint (as the majority holds) or a motion (as he did), certified 

mail was a proper method of service under the applicable rules. See FED. R. BANKR. P.

7004(b)(1); FED. R. BANKR. P. 9014(b); In re Ballard, 502 B.R. 311, 320-21 (Bankr. S.D. Ohio 

2013) (noting that there are no differences between the permissible methods of service used 

to initiate adversary proceedings and contested matters); In re Dean, 359 B.R. 218, 221 

(Bankr. C.D. Ill. 2006) (same).

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in bankruptcy is resolved through one or the other.4 Pertinent here is that 

different documents are used to initiate adversary proceedings and contested 

matters. An adversary proceeding is initiated with a summons and complaint. 

Fed. R. Bankr. P. 7004(a)(1) (incorporating Fed. R. Civ. P. 4(c)(1)).5 A contested 

matter is initiated with a motion. Fed. R. Bankr. P. 9014(a).6 Therefore, the 

question here is whether McMillan’s demand for attorney’s fees, costs, and 

damages under § 303(i) must be asserted in an adversary proceeding or as a 

contested matter. If an adversary proceeding is the required vehicle for the 

dispute, as the majority holds, then McMillan erred when he served a motion 

rather than summonses and a complaint. But if a contested matter is a proper 

vehicle, then McMillan followed the correct procedure when he served Schmidt 

and Wafford with a motion.

Bankruptcy Rule 7001 defines the types of disputes that must be 

asserted in adversary proceedings. The subsection most relevant here is (1), 

which provides that adversary proceedings include (subject to certain 

exceptions inapposite here) “proceeding[s] to recover money or property.” It is 

certainly reasonable to hold, as the majority does, that a demand for attorney’s 

fees, costs, and damages under § 303(i) seeks “to recover money” as that phrase 

is used in Rule 7001(1) and therefore requires an adversary proceeding. 

 

4 FED. R. BANKR. P. 9014 advisory comm. notes (“Whenever there is an actual dispute, 

other than an adversary proceeding, before the bankruptcy court, the litigation to resolve 

that dispute is a contested matter.”); Matter of Zale Corp., 62 F.3d 746, 762 n.49 (5th Cir. 

1995) (“Contested matters are those issues for which Rule 7001 does not require an adversary 

proceeding.”); Ballard, 502 B.R. at 320 (“There are two different types of litigated proceedings 

within bankruptcy cases: adversary proceedings and contested matters.”).

5 See also Ballard, 502 B.R. at 320 (“An adversary proceeding is commenced through 

the filing of a complaint and requires the service of the complaint with a summons.”).

6 See also Dean, 359 B.R. at 222 (“The main difference between an adversary 

proceeding and a contested matter is that an adversary proceeding must be commenced by 

the filing and service of a complaint that meets specific notice and formatting requirements 

and which must be accompanied by a summons directed to the named defendant.”).

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However, it appears that the majority of bankruptcy courts have construed 

Rule 7001(1) more narrowly and in fact hold that at least some analogous 

disputes should be resolved as contested matters—not adversary 

proceedings—as I will now explain.

While there is no case law (not before today, at least) addressing whether 

§ 303(i) disputes with non-petitioning-creditors (like Schmidt and Wafford) 

should be resolved in adversary proceedings or as contested matters, there is

abundant case law as to whether requests for relief under a different section, 

11 U.S.C. § 362(k)—which affords debtors attorney’s fees, costs, and damages 

for violations of the bankruptcy automatic stay—should be resolved in 

adversary proceedings or as contested matters.7 And, the prevailing practice 

in the vast majority of bankruptcy courts (at least, in those that have addressed 

the issue in written opinions) is for § 362(k) disputes to be resolved as contested 

matters that are initiated by motion. See In re Ballard, 502 B.R. 311, 313 n.1 

(Bankr. S.D. Ohio 2013) (collecting cases).8 Ballard and the cases cited therein 

explain the rationale these courts adopt for resolving § 362(k) disputes as 

contested matters, and it is unnecessary for me to repeat their reasons here. 

The pertinent point is, if it is correct under the bankruptcy rules, as the 

majority of bankruptcy courts appear to believe, to resolve § 362(k) disputes as 

contested matters, then, for the sake of consistency, I see no reason that it 

 

7 The automatic stay is defined in 11 U.S.C. § 362(a). Generally, it provides that once 

a bankruptcy petition is filed, creditors are prohibited “from making collection efforts against 

the debtor or the property of the debtor’s estate.” Campbell v. Countrywide Home Loans, 

Inc., 545 F.3d 348, 353 (5th Cir. 2008) (paraphrasing § 362(a)). Additionally, courts have 

held that non-creditors, who are not attempting to collect on a debt, can violate the automatic 

stay in certain circumstances, too. See, e.g., In re Lee, 35 B.R. 452 (Bankr. N.D. Ga. 1983).

8 In allowing § 362(k) disputes to be resolved as contested matters that are initiated 

by motion, it appears that bankruptcy courts do not distinguish between demands for § 362(k) 

damages from creditors who previously received notice of the bankruptcy case, see, e.g., In re 

Meadows, 396 B.R. 485 (B.A.P. 6th Cir. 2008), and others who did not have prior notice of or 

participation in the bankruptcy case, see, e.g., In re Hill, 523 B.R. 704 (Bankr. D. Mont. 2014).

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shouldn’t also be correct for § 303(i) disputes to be resolved as contested 

matters, too. I discern no material difference between the two sections, both 

of which afford attorney’s fees, costs, and damages when the bankruptcy rules 

have been violated. Thus, the majority’s holding—that McMillan must, as a 

jurisdictional prerequisite, initiate an adversary proceeding against Schmidt 

and Wafford with service of summonses and a complaint—is contrary to the 

analogous practice of resolving disputes under § 362(k) as contested matters 

that are initiated by motion.

I note, too, that when appropriate circumstances arise, bankruptcy 

courts sometimes sua sponte exercise jurisdiction over potential violators of the 

automatic stay. See, for example, In re Lee, 35 B.R. 452, 455 (Bankr. N.D. Ga. 

1983), in which the bankruptcy court sua sponte ordered a bank, which was 

not previously part of the bankruptcy case, to show cause why its conduct 

(specifically, its closure of the debtors’ bank accounts) did not violate the 

automatic stay. The majority’s holding—that an adversary proceeding 

initiated by summonses and a complaint is a jurisdictional prerequisite here—

is also contrary to this practice of bankruptcy courts sua sponte addressing 

potential violations of the automatic stay.

To summarize, there is tension between the majority’s holding here and 

the current prevailing practices in bankruptcy court. I am hesitant to upset or 

disturb these customs in the absence of a clear indication that the law so 

requires, and I see no such indication here. Therefore, I would hold, in 

accordance with what appears to be the prevailing practice in bankruptcy 

courts as to § 362(k), an analogous provision, that § 303(i) disputes, including 

McMillan’s dispute with Schmidt and Wafford, may be initiated by motion and 

resolved as contested matters. I respectfully dissent from the majority’s 

contrary holding that the bankruptcy court here was without jurisdiction to act 

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because McMillan failed to serve Schmidt and Wafford with summonses and a 

complaint.

The second issue in this case is whether § 303(i) as a substantive matter 

allows for damages from persons, like Schmidt and Wafford, who did not join 

the involuntary bankruptcy petition as petitioning creditors but nevertheless 

caused the petition to be filed. Because the majority doesn’t reach this 

question, there is no need for me to decide it here. I will briefly note, though, 

that one of McMillan’s theories appears to have potential merit. That is, he 

argues that § 303(i) implicitly incorporates the common law doctrine of agency 

holding that principals are liable for the authorized acts of their agents. (Here, 

he claims that Aigner, the petitioning creditor, filed the involuntary 

bankruptcy petition in his capacity as an agent for Schmidt and Wafford, the 

principals.) If § 303(i) indeed implicitly incorporates common law doctrines of 

agency liability, it would not be the first federal statute to do so. See, e.g., 

Meyer v. Holley, 537 U.S. 280 (2003) (Fair Housing Act); Am. Soc’y of Mech. 

Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982) (Sherman Act); Wood v. 

Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975) (Fair Credit Reporting Act); 

Paul F. Newton & Co. v. Tex. Commerce Bank, 630 F.2d 1111 (5th Cir. 1980) 

(Securities Exchange Act); Chowdhury v. Worldtel Bangladesh Holding, Ltd., 

746 F.3d 42 (2d Cir. 2014) (Torture Victim Protection Act); 1-800-Contacts, Inc. 

v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013) (Lanham Act). The next time 

this issue arises, it deserves serious consideration.

For the foregoing reasons, I respectfully dissent.

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