UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: LISA M. KIRKLAND, ü
Debtor.
EDUCATIONAL CREDIT MANAGEMENT
CORPORATION, ý No. 09-1379
Plaintiff-Appellant,
v.
LISA M. KIRKLAND,
Defendant-Appellee. þ
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(6:09-cv-00002-nkm; 01-00627-WA1)
Argued: January 26, 2010
Decided: March 12, 2010
Before MOTZ, KING, and AGEE, Circuit Judges.
Reversed by published opinion. Judge Agee wrote the majority
opinion, in which Judge Motz joined. Judge King wrote a
dissenting opinion.
COUNSEL
ARGUED: Troy A. Gunderman, EDUCATIONAL CREDIT
MANAGEMENT CORPORATION, Oakdale, Minnesota, for
Appellant. Stephen Eldridge Dunn, STEPHEN E. DUNN,
PLLC, Forest, Virginia, for Appellee. ON BRIEF: James C.
Joyce, Jr., JAMES C. JOYCE, JR., PLC, Roanoke, Virginia,
for Appellant.
OPINION
AGEE, Circuit Judge:
Educational Credit Management Corporation (“ECMC”)
appeals the district court’s determination that the bankruptcy
court had jurisdiction to determine the post-petition interest
and collection costs to which ECMC was entitled as the result
of a default on a student loan that occurred after the Chapter
13 estate was closed and the debtor discharged. For the reasons
set forth below, we conclude the bankruptcy court lacked
subject matter jurisdiction as to the issues of collection costs
and post-petition interest in this case, and we reverse the judgment
of the district court.
I.
On eight separate occasions between 1989 and 1995, Lisa
M. Kirkland borrowed money from Sallie Mae in order to
finance her college education. ECMC, United Student Aid
Funds, Inc. (“USAF”), and the New Jersey Higher Education
Assistance Authority (“NJHEAA”) guaranteed the loans.
In February 2001, Kirkland filed a Chapter 13 bankruptcy
petition in the United States Bankruptcy Court for the Western
District of Virginia, properly listing all of the loans as
debts. Sallie Mae filed five proofs of claim, three of which
were allowed: claim no. 6 in the amount of $8,126.72 (guaranteed
by USAF), claim no. 7 in the amount of $2,680.59
(guaranteed by NJHEAA), and claim no. 9 in the amount of
$4,737.27 (guaranteed by ECMC). At the time Kirkland filed
her petition, none of the student loans were in default.
Kirkland’s approved Chapter 13 bankruptcy plan provided
for sixty monthly payments of $700. The plan was designed
so that Kirkland would pay the three Sallie Mae loans in full,
except for any interest that accrued on the loans during the
pendency of the bankruptcy. Kirkland timely made 55
monthly payments, totaling $38,500.00, to the Chapter 13
Trustee.
For reasons not entirely clear from the record, the Chapter
13 Trustee scheduled lower amounts to be paid on each of
Sallie Mae’s claims than what the bankruptcy court had
approved based on the filed proofs of claim. Compounding
this error, sums that were scheduled to be paid toward claim
no. 9 were actually paid toward claims no. 6 and 7, causing
an overpayment on those claims, and no payment on claim no.
9. Sallie Mae refunded the amount that had been overpaid on
claims no. 6 and 7 to the Chapter 13 Trustee. Because the
Chapter 13 Trustee’s records incorrectly showed that all the
claims in the bankruptcy estate had been paid in full, he
refunded the money received from Sallie Mae directly to
Kirkland and did not require her to make the final five plan
payments. Instead, the Chapter 13 Trustee filed a final report,
the order of discharge was entered, and, in February 2006, the
case was closed.1
Following the close of her bankruptcy proceeding, Kirkland
1It is not clear from the record why the Trustee used lower claim
amounts, as no order reduced the loan amounts as filed in each of Salle
Mae’s allowed claims. Nor is it clear from the final report how the Trustee
accounted for the supposed overpayment on claims no. 6 and 7, or the
refund that Sallie Mae paid to the bankruptcy estate.
began receiving notices that she owed Sallie Mae approximately
$5,000. Kirkland sought additional documentation,
and Sallie Mae asserted that she still owed the entire principal
loan amount reported in claim no. 9, plus the accrued interest.
In June 2007, Kirkland filed an adversary proceeding
against ECMC in the bankruptcy court, styled a Complaint to
Determine Dischargeability of Debt (“Complaint”).2 Kirkland
asserted that since the loan had been properly listed as part of
her Chapter 13 plan, it should have been paid in full by the
Chapter 13 Trustee during the pendency of her bankruptcy
estate, and the claim was thus discharged as part of the bankruptcy
proceeding. Kirkland specifically acknowledged in her
Complaint “that interest that accumulated during the term of
the Chapter 13 would be non-dischargeable,” and that she was
responsible for paying the post-petition interest that had
accrued on the loan. Accordingly, she asked the court to
determine only that the loan principal had “been paid in full
and discharged except to the extent of any interest that may
have” accrued during the bankruptcy proceeding. J.A. 5.
ECMC responded that claim no. 9 had not been paid during
Kirkland’s bankruptcy proceeding and consequently the court
could not declare that the loan had been discharged.3 ECMC
further maintained that the bankruptcy court could not now
adjudicate the student loan obligation as discharged unless it
made a finding of undue hardship, which Kirkland had neither
pled nor shown. Neither Kirkland nor ECMC asked the bankruptcy
court to make any determination as to post-petition
interest or collection costs.
In its memorandum and judgment, the bankruptcy court
concluded that it had jurisdiction “over this matter” pursuant
2Sallie Mae appeared as a co-defendant until the appeal to the district
court. For ease of reference, the opinion will refer simply to ECMC.
3ECMC also averred that Sallie Mae had assigned the student loan debt
to ECMC, who was now the holder of the debt.
to 28 U.S.C. §§ 1334(a) and 157(a), also noting that the proceeding
was a “core proceeding” under § 157(b)(2)(A). The
court then noted that student loans are nondischargeable in
bankruptcy absent proof of undue hardship, found that no
amount had been paid on Kirkland’s loan during her bankruptcy,
and held that Kirkland owed ECMC the full amount
of principal due on the loan, $4,737.27. It observed that the
Chapter 13 Trustee “cannot unilaterally reduce the amount of
an allowed claim,” J.A. 86, and that although Kirkland “was
not at fault for the return of funds to the chapter 13 trustee,
she cannot keep the money refunded to her and, at the same
time, claim that she paid it to Sallie Mae.” J.A. 87.
The bankruptcy court then stated that Kirkland and ECMC
“agree that some amount of interest has accrued to date since
the filing of” the bankruptcy petition. J.A. 87. It observed that
Kirkland had not disputed the sum ECMC included in the
documentation it filed with the court, and so it awarded
ECMC $184.40 in post-petition interest.4 Lastly, the court
stated that it was not awarding ECMC any collection costs
because ECMC “has not provided any statutory or factual
basis for the accrual of” such costs. J.A. 87.
ECMC filed a motion to alter or amend, contending that it
should have been awarded more than $184.40 in post-petition
interest because that amount ignored the full amount of “interest
incurred during the Bankruptcy and the capitalized interest
since.” J.A. 94. In addition, ECMC asserted it was entitled to
collection costs under the applicable statute and implementing
regulations, which set a fixed amount of costs to be imposed.5
4ECMC filed an exhibit in the bankruptcy court reflecting the principal
due on the loan to Kirkland of $4,737.27, but also showing interest of
$184.40. It is unclear from the record why ECMC claimed any amount of
post-petition interest in Kirkland’s discharge proceeding, or what the
amount of $184.40 represented.
5Specifically, ECMC contended the bankruptcy court lacked discretion
to deny collection costs because the federal regulation implementing 20
The bankruptcy court denied ECMC’s motion and held that
although ECMC was legally entitled to post-petition interest,
it was also responsible for providing the court with sufficient
information to determine the amount of interest due. Consequently,
it held that because ECMC had only provided documentation
of accrued interest in the amount of $184.40, that
was the only amount ECMC could recover. In addition, the
court held that under its reading of the relevant statute and
federal regulations, ECMC was only entitled to “reasonable”
collection costs based on whatever amount would be incurred
by a prudent creditor under the circumstances. Finding that
ECMC had failed to act as a prudent creditor during the pendency
of Kirkland’s bankruptcy, the court held ECMC was
partially responsible for the events resulting in post-petition
default on the loan and concluded that no collection costs
were appropriate.
On appeal to the district court, ECMC asserted for the first
time that the bankruptcy court, and now the district court,
lacked subject matter jurisdiction to make any determination
as to either post-petition interest or collection costs. The district
court rejected that contention, for the reasons discussed
below. As did the bankruptcy court’s, the district court’s substantive
analysis focused on ECMC’s failure to prove that it
was owed a greater amount of post-petition interest than
$184.40. The district court also affirmed the bankruptcy
court’s determination to award no collection costs, observing
that although a creditor was entitled under 20 U.S.C.
U.S.C. § 1091a(b)(1) — 34 C.F.R. § 682.410(b)(2) — requires the assessment
of actual collection costs or, in the alternative, the lesser of two calculations
(1) the amount the same borrower would be charged for
collection costs under the formula provided in 34 C.F.R. § 30.60, or (2)
the amount the borrower would be charged for collection costs if the loan
were held by the Department of Education. ECMC argued the bankruptcy
court mistakenly relied upon a definition of “reasonable collection costs”
that did not apply to 34 C.F.R. § 682.410(b)(2).
§ 2091a(b)(1) to reasonable collection costs, the statute did
not guarantee a specific amount.
ECMC noted a timely appeal and this Court has jurisdiction
based on 28 U.S.C. § 158(d).
II.
When reviewing a decision by a district court in its capacity
as a bankruptcy appellate court, this Court examines factual
findings of the bankruptcy court for clear error and reviews
legal conclusions de novo. See IRS v. White (In re White), 487
F.3d 199, 204 (4th Cir. 2007). Whether subject matter jurisdiction
exists is a question of law that we also review de
novo. See New Horizon of NY LLC v. Jacobs, 231 F.3d 143,
150 (4th Cir. 2000).
III.
On appeal, ECMC contends that the bankruptcy court, and
consequently the district court, lacked subject matter jurisdiction
to determine or award collection costs and post-petition
interest. Specifically, ECMC asserts the bankruptcy court
“lacked authority to discharge the post-petition interest and
collection cost part of the student loan debt” because those
obligations arose after Kirkland filed her bankruptcy petition
and were unrelated to the loan principal represented by claim
no. 9. Appellant’s Br. 21.
Although ECMC failed to raise the issue of subject matter
jurisdiction in the bankruptcy court, we can always consider
whether subject matter jurisdiction exists. New Horizon, 231
F.3d at 150. Subject matter jurisdiction cannot be forfeited or
waived, and can be raised by a party, or by the court sua
sponte, at any time prior to final judgment. Arbaugh v. Y &
H Corp., 546 U.S. 500, 514 (2006). Accordingly, ECMC’s
failure to raise the issue of subject matter jurisdiction in the
bankruptcy court is not dispositive.
“Federal bankruptcy courts, like the federal district courts,
are courts of limited jurisdiction.” Canal Corp. v. Finnman
(In re Johnson), 960 F.2d 396, 399 (4th Cir. 1992). Two statutes
govern jurisdiction over bankruptcy proceedings, 28
U.S.C. §§ 157 and 1334. Under the latter statute, district
courts “have original and exclusive jurisdiction of all cases
under title 11,” and “original but not exclusive jurisdiction of
all civil proceedings arising under title 11, or arising in or
related to cases until title 11.” § 1334(a), (b). Under § 157,
district courts can refer § 1334(a) and (b) cases to bankruptcy
courts. § 157(a). While subject matter jurisdiction is determined
by § 1334, the application of § 157(b) and (c) determines
the bankruptcy court’s authority to act once that
jurisdiction is established. See Valley Historic Ltd. P’ship v.
The Bank of New York, 486 F.3d 831, 839 n.3 (4th Cir. 2007).
The sole issue raised in Kirkland’s complaint requested that
the bankruptcy court determine the dischargeability of her
obligation to pay ECMC the principal of her loan. ECMC has
not questioned the bankruptcy court’s jurisdiction in this
regard, and the bankruptcy court clearly had subject matter
jurisdiction to determine the issue of discharge as to the principal
of the loan represented by claim no. 9.6
However, without separately analyzing its authority to do
so, the bankruptcy court proceeded sua sponte to adjudicate
collection costs and post-petition interest. The bankruptcy
court proceeded on this course despite the fact that Kirkland
specifically acknowledged in her pleading that she owed postpetition
interest to ECMC and excluded that interest from her
6Because Kirkland sought a determination that the principal obligation
had been discharged during her bankruptcy proceeding, the bankruptcy
court had jurisdiction under § 1334. In addition, even more directly on
point than the subsection identified by the bankruptcy court, § 157(b)(2)(I)
lists “determinations as to the dischargeability of particular debts” as constituting
a core proceeding. In any event, this component of the bankruptcy
court’s decision — the nondischargeability of the principal loan
obligation — is not at issue on appeal.
request to determine the dischargeability of the underlying
principal of the loan. Moreover, the record does not reflect
that either party ever requested the bankruptcy court to make
a determination as to whether post-petition interest or collection
costs were owed to ECMC, much less the amount. The
bankruptcy court’s May 2008 memorandum opinion is the
first occasion where those issues arise.
After the bankruptcy court’s memorandum and judgment
raised the matters of post-petition interest and collection
costs, ECMC challenged that decision in its motion to alter or
amend, but did not question the court’s jurisdiction to consider
those issues. Not surprisingly, the bankruptcy court did
not discuss its subject matter jurisdiction to consider the issue
of post-petition interest and collection costs when it denied
ECMC’s motion.
ECMC first questioned subject matter jurisdiction in its
brief to the district court, which noted that although ECMC
had not raised the issue in the bankruptcy court, subject matter
jurisdiction may be questioned at any stage of litigation,
including an appeal. ECMC contended that the bankruptcy
court “lacked subject matter jurisdiction to determine Kirkland’s
obligation for interest and collection costs” because
those issues “do not arise under, arise in, or relate to cases
under Title 11.” J.A. 135.
The district court reviewed the concepts of “arising in,”
“arising under,” and “related to” jurisdiction, citing our decision
in Valley Historic Ltd. Partnership v. Bank of New York
(Valley Historic), 486 F.3d at 835-36. However, the court’s
analysis seems to focus on jurisdiction to adjudicate the dischargeability
of the principal of the student loan debt, an issue
not raised or contested by the parties.7 The district court
7Among the court’s statements to this end are: “[T]he fact that Kirkland
had not paid [claim no. 9] when she brought the adversary proceeding
means that there was a ‘conceivable bankruptcy administration purpose’
offered only a conclusory statement directed to the separate
matter of subject matter jurisdiction over the issues of postpetition
interest and collection costs:
Kirkland would have never had to bring the adversary
proceeding against Sallie Mae and ECMC in
Bankruptcy Court were it not for the problems that
arose out of her closed Chapter 13 bankruptcy case.
The post-petition interest and collection costs sought
by ECMC in the Bankruptcy Court, for example,
would not have even been at issue were it not for the
maladministration of the bankruptcy plan and the
initial bankruptcy proceeding. The controversy at
issue between Kirkland and ECMC would have had
no practical existence but for the bankruptcy. Kirkland’s
case was not only one “related to” a case
under Title 11, but also one “arising in” Title 11. The
Bankruptcy Court therefore had subject matter jurisdiction
to rule on the issues before it.
J.A. 138.
We disagree, and hold that the bankruptcy court lacked
subject matter jurisdiction to determine the issues of postpetition
interest and collection costs to award ECMC.
ECMC’s claim to post-petition interest and collection costs is
not a matter “under Title 11,” nor is it a civil proceeding “arising
in,” or “related to” Kirkland’s bankruptcy petition. This is
so because ECMC’s claims to post-petition interest and collection
costs arose entirely independent from Kirkland’s
bankruptcy proceeding.
to be served . . . .” J.A. 137. “Because the adversary proceeding would not
have been necessary but for the errors contained in the plan and the Trustee’s
Report, there is a strong enough nexus to uphold the Bankruptcy
Court’s jurisdiction over this matter.” J.A. 137.
ECMC’s claim to post-petition interest or collection costs
does not “aris[e] under Title 11.” A claim “aris[es] under Title
11” if it is a cause of action created by the Bankruptcy Code,
and which lacks existence outside the context of bankruptcy.
Aheong v. Mellon Mortgage Co. (In re Aheong), 276 B.R.
233, 242-46 (B.A.P. 9th Cir. 2002). ECMC’s claim for postpetition
interest or collection costs does not satisfy this
requirement. Post-petition interest is based on a contractual
right created by the loan agreement and, as detailed below, the
right to collect such unmatured interest is not affected by or
part of the bankruptcy proceeding. Collection costs are a contractual
obligation, but in the student loan context also based
on the statutory right set forth in 20 U.S.C. § 1091a(b)(1),
providing that individuals who borrow money for higher education
through a title 20 loan are required to pay “reasonable
collection costs” in the event of a default. A cause of action
to collect on either post-petition interest or collection costs is
not found in the bankruptcy code but does clearly exist outside
the context of bankruptcy. Thus, neither can be said to be
an issue which “arises under Title 11.”
A claim to post-petition interest and collection costs is also
not a matter “arising in” or “related to” a bankruptcy proceeding.
We most recently described “arising in” and “related to”
jurisdiction in Valley Historic:
A proceeding or claim “arising in” Title 11 is one
that is “not based on any right expressly created by
title 11, but nevertheless, would have no existence
outside of the bankruptcy. Therefore, a controversy
“arises in Title 11” when it would have no practical
existence but for the bankruptcy.
. . . .
[F]or “related to” jurisdiction to exist at the postconfirmation
stage, the claim must affect an integral
aspect of the bankruptcy process—there must be a
close nexus to the bankruptcy plan or proceeding.
Practically speaking, under this inquiry matters that
affect the interpretation, implementation, consummation,
execution, or administration of the confirmed
plan will typically have the requisite close nexus.
486 F.3d at 835, 836-37 (emphasis in original) (internal quotation
marks, alterations, and citations omitted).
ECMC’s right to post-petition interest or collection costs
does not satisfy either of these jurisdictional requirements.
Post-petition interest, by definition, is interest that accrues on
an obligation during the pendency of the bankruptcy estate,
but after the bankruptcy petition is filed. 11 U.S.C.
§ 502(b)(2) prohibits post-petition interest—that is, interest
that has not matured at the time the bankruptcy petition is
filed—from being included in a proof of claim against the
bankruptcy estate. See Kielisch v. Educ. Credit Mgmt. Corp.
(In re Kielisch), 258 F.3d 315, 321-22 (4th Cir. 2001)
(observing that § 502 prohibits creditors from claiming postpetition
interest from bankruptcy estates). Thus, the debtor’s
obligation to pay post-petition interest pre-exists the bankruptcy
petition, does not become part of the bankruptcy proceeding,
and is an obligation that survives the debtor’s
discharge. Once the bankruptcy estate is closed, the debtor
remains personally liable for post-petition interest. See id. at
325 (citing Bruning v. United States, 376 U.S. 358, 363
(1964)).
Based on these principles, ECMC could not have included
post-petition interest in its proof of claim to Kirkland’s bankruptcy
estate, see id. at 323, and the Chapter 13 Trustee would
have been without authority to pay any such interest. Any
claim that ECMC has to post-petition interest exists independent
from the bankruptcy, based on the original student loan
agreement. Even though some post-petition interest matured
during the pendency of the bankruptcy, it cannot be said that
this obligation “arose in” the bankruptcy because that obliga-
tion “would have existed whether or not [Kirkland] filed
bankruptcy.” See Valley Historic, 486 F.3d at 836.
ECMC’s claim to post-petition interest also does not “relate[]
to” Kirkland’s bankruptcy. It does not “affect an integral
aspect of the bankruptcy process.” Cf. id. at 836-37. As noted
above, the post-petition interest obligation cannot be claimed
against the bankruptcy estate and is, instead, a personal obligation
of the debtor that remains at the close of the bankruptcy
proceeding and after discharge of the underlying debt
for the principal. The post-petition interest neither affects nor
is affected by Kirkland having filed bankruptcy or the administration
of her bankruptcy estate. ECMC’s claim to postpetition
interest thus lacks the requisite “close nexus” to the
bankruptcy proceeding to establish “related to” jurisdiction.
Accordingly, the issue of post-petition interest did not arise
in or relate to the bankruptcy proceeding. Kirkland’s Complaint
acknowledged as much when it asked the bankruptcy
court to determine the dischargeability of the principal loan
obligation, while admitting that she would still be liable for
any post-petition interest that accrued on the loan. The bankruptcy
court lacked subject matter jurisdiction to determine
the independent issue of whether or how much post-petition
interest Kirkland owed ECMC.
Similarly, Kirkland’s obligation to pay collection costs, if
such an obligation exists, also arose apart from Kirkland’s
bankruptcy proceeding. Under 20 U.S.C. § 1091a(b)(1), “a
borrower who has defaulted on a loan made under this [Title]
shall be required to pay, in addition to other charges specified
in this [Title], reasonable collection costs.”8
Here, it is undisputed that Kirkland was not in default at the
8The issue of whether Kirkland is in default on the ECMC loan is not
an issue on appeal and we make no determination of any kind in that
regard.
time she filed her petition. Instead, ECMC contends that Kirkland
defaulted on her obligation to pay the loan after her discharge
and the close of her bankruptcy estate. Therefore, any
right ECMC has to collection costs associated with a default,
if there was such, also arose after Kirkland’s discharge and
the close of her bankruptcy estate. Consequently, ECMC’s
claim to collection costs cannot be said to “arise under Title
11,” nor does it “aris[e] in” or “relate[] to” Kirkland’s bankruptcy
case. The claim exists irrespective of Kirkland’s bankruptcy
and had no effect on that proceeding or her bankruptcy
estate. The bankruptcy court thus lacked subject matter jurisdiction
to consider whether to award ECMC collection costs,
much less the amount of such costs.9
IV.
Accordingly, the district court erred in concluding that the
bankruptcy court had subject matter jurisdiction over postpetition
interest and collection costs that Kirkland may owe
ECMC.10 For the foregoing reasons, we reverse the district
9Because of our resolution of the matter of subject matter jurisdiction,
we do not address ECMC’s arguments based on the merits of the bankruptcy
court’s determinations as to the amount of post-petition interest or
collection costs to which ECMC may be entitled.
10In her appellate brief, Kirkland contends that the case is moot because
Sallie Mae transferred the loan at issue to USAF and ECMC no longer has
an interest in it. She relies on an August 2008 letter from Sallie Mae as
support for this assertion. In its reply brief and during oral argument,
ECMC responded to Kirkland’s assertion by contending that it continues
to hold the promissory note at issue and therefore has an ongoing interest
in the matter.
The bankruptcy court was aware of the August 2008 letter because it
refers to it in its October 2008 memorandum denying ECMC’s motion to
alter or amend. However, neither it nor the district court addressed
whether the letter made the matter moot, and neither made any factual
findings relevant to that determination.
The doctrine of mootness constitutes a part of the constitutional limits
of federal court jurisdiction. United States v. Hardy, 545 F.3d 280, 283
court’s judgment affirming the bankruptcy court’s order to
deny collection costs and awarding $184.40 in post-petition
interest.11
REVERSED
KING, Circuit Judge, dissenting:
Although I admire and respect the diligence and wisdom of
my distinguished colleagues in the panel majority, I am nevertheless
convinced that our friend Judge Moon decided this
case properly, on both the jurisdictional and merits issues. I
would therefore affirm on the basis of his fine opinion for the
district court. See Educ. Credit Mgmt. Corp. v. Kirkland, No.
6:09-cv-00002 (W.D. Va. Mar. 10, 2009).
I respectfully dissent.
(4th Cir. 2008). However, we lack the necessary factual record to determine
the significance, if any, of the August 2008 letter on ECMC’s interest
in the case. Nevertheless, we conclude that it is unnecessary to remand
the case for further development of the record on this point based on our
determination that the bankruptcy court lacked subject matter jurisdiction
over the issues raised on appeal.
11The bankruptcy court’s decision that Kirkland’s obligation on claim
no. 9 was not discharged during her bankruptcy and that Kirkland owed
ECMC $4,737.27 in principal on that claim was not challenged before the
district court or on appeal to this Court. Accordingly, that portion of the
bankruptcy court’s judgment is not affected by our conclusion that the
bankruptcy court lacked jurisdiction to decide post-petition interest and
collection costs.
