Opinion
Case No. 01-11529-RGM, Ad. Proc. No. 01-1211
April 2, 2002
MEMORANDUM OPINION
Barrie M. Peterson, the debtor in possession in this chapter 11 case, seeks a determination of the validity, extent and priority of certain liens claimed by C.F. Trust, Inc. In particular, he objects to the interest rate used by C.F. Trust in computing its claim, the validity of the proof of claim for sanctions awarded against Peterson in prior litigation and the existence of a claimed lien on the assets of First Flight Limited Partnership and Maryland Air Industries. The matter is before the court on the parties' cross-motions for summary judgment.
The parties requested, and the court set, an expedited schedule for briefing which resulted in certain informalities. As a result, the parties stipulated to the essential facts. Notwithstanding the stipulation, the court cannot resolve all issues on the present record.
Findings of Fact
1. C.F. Trust obtained two confessed judgments against Barrie M. Peterson, Nancy Peterson (his wife), and Barrie M. Peterson, Trustee, in the Circuit Court for Prince William County, Virginia, on February 1, 1996, on two notes which were in the original principal amounts of $1,600,000.00 and $4,414,903.57. The judgments bore interest at the rate of nine percent per annum. The Petersons removed the cases to the United States District Court for the Eastern District of Virginia in an unsuccessful attempt to vacate the judgments. The motions to vacate were denied by the District Court which was affirmed by the Court of Appeals. C.F. Trust, Inc. v. Peterson, 117 F.3d 1413 (table); 1997 WL 393996 (4th Cir. July 15, 1997) (unpublished opinion).
2. A charging order dated September 8, 1998, was entered by the United States District Court charging the partnership interests of Peterson, his wife and Barrie M. Peterson, Trustee, with the payment of the judgments together with post-judgment interest. The partnership interests charged were First Flight Limited Partnership, PVD Limited Partnership, Occoquan Limited Partnership and D.G. and P, L.P.
3. C.F. Trust filed a complaint in the United States District Court for the Eastern District of Virginia, against Peterson and others, Civil Action 97-2003-A, seeking to avoid as a fraudulent conveyance, Peterson's transfer of an undivided one-half interest in a piece of real property situate in Prince William County, Virginia, known as Fortuna (the "Fortuna Suit"). The court found the conveyance to be fraudulent and void. C.F. Trust v. Peterson, 1999 WL 33456231 at *11 (E.D.Va. January 8, 1999); C.F. Trust Proof of Claim, Exhibit K, Order dated January 8, 1999. It imposed a constructive trust for the benefit of C.F. Trust on the one-half undivided interest in the same order. In a later order it determined the outstanding balance on the Prince William judgment to be $4,326,590.03. C.F. Trust Proof of Claim, Exhibit B, Order dated August 11, 2000. This order was also affirmed on appeal. C.F. Trust, Inc. v. Peterson, 13 Fed.Appx. 161, 2001 WL 786634 (4th Cir. July 10, 2001).
4. The assets of First Flight Limited Partnership are almost exclusively commercial income producing real estate located in Washington County, Maryland.
5. The assets of Maryland Air Industries consist of parts inventory for certain aircraft and intellectual property relating to the manufacture of the aircraft. The parts inventory is, apparently, located in Washington County, Maryland. The situs of the intellectual property is unknown.
6. The principal place of business of First Flight is in Woodbridge, Virginia. Memorandum Opinion, ¶ 6, C.F. Trust, Inc., v. First Flight Limited Partnership, E.D.Va. Civil Action No. 99-1742-A, March 22, 2001, ("Memorandum Opinion").
7. The two Prince William County, Virginia, judgments were duly docketed in the Circuit Court for Washington County, Maryland, pursuant to the Uniform Enforcement of Foreign Judgments Act, Md. Code, § 11-801, et seq., of the Courts Judicial Proceedings Article on February 27, 1996.
8. An order was entered on March 22, 2001, in the United States District Court for the Eastern District of Virginia in C.F. Trust, Inc. v. First Flight Ltd. Partnership, 140 F. Supp.2d 628 (E.D.Va. 2001) by the Honorable T.S. Ellis which declared:
Defendant First Flight Limited Partnership and defendant Maryland Air Industries are the alter egos of Barrie Peterson and that their assets are subject to the valid judgments held by C.F. Trust, Inc. and Atlantic Funding Corporation.
The Memorandum Opinion which was also dated March 22, 2001, and which accompanied the order was amended as to certain findings of facts and conclusions of law by an order dated April 26, 2001. The amendments did not alter the March 22, 2001, order. An appeal of the order is pending in the Court of Appeals.
10. On March 13, 1996, C.F. Trust filed a suit in Massachusetts to domesticate the Virginia judgments. The suit was stayed pending the resolution of the litigation in Virginia until the Court of Appeals affirmed the judgments on July 15, 1997. The Superior Court in Massachusetts ordered the judgments enforced and Peterson appealed. The Superior Court was affirmed by the Appeals Court by order dated May 18, 2000. The court found the appeal frivolous and awarded C.F. Trust its counsel fees and double costs. C.F. Trust Proof of Claim, Exhibit E, Memorandum and Order of Massachusetts Appeals Court dated May 18, 2000.
12. The Nantucket, Massachusetts, property was seized and attached by the sheriff on October 11, 2000, and scheduled for sale on April 6, 2001. The property was owned by Peterson and his wife, Nancy, as tenants by the entireties. The day before the sheriff was to sell the Nantucket property, Nancy Peterson conveyed her interest in the property to Peterson.
13. Peterson filed a voluntary petition in bankruptcy pursuant to chapter 11 of the United States Bankruptcy Code in this court on April 6, 2001.
Conclusions of Law I. Amount of Claim
Amount of Claim. Peterson complains that C.F. Trust has overstated its claim. In particular, he asserts that interest should only be computed on the claim at the rate of nine percent per annum as provided in the original Virginia judgment, not 12% as provided in the Massachusetts judgment. Peterson argues that the 12% rate is applicable only if the Massachusetts judgment is being enforced. Peterson cannot contest the Massachusetts judgment rate. He appealed the decision domesticating the Virginia judgment in Massachusetts to the Appeals Court and lost. The judgment rate was not an issue raised or addressed by the Appeals Court. Its decision if final and this court is required to give it full force and effect. 28 U.S.C. § 1738.
The term "claim" is defined in Section 101(5) of the Bankruptcy Code. It is a "right to payment, whether or not such right is reduced to judgment." 11 U.S.C. § 101(5). The amount of the claim is the amount as of the petition date that C.F. Trust has a right to be paid, or in to put from Peterson's perspective, the amount that Peterson would have to pay C.F. Trust in order to require C.F. Trust to release all of its judgments. C.F. Trust is only entitled to one satisfaction of its claim even though it may be reduced to judgments in Virginia, Maryland and Massachusetts. It is not entitled to double or triple payment of the same claim. The amount Peterson must pay to be entitled to a release of all of C.F. Trust's judgments is the total amount due on the Massachusetts judgment. All of the judgments are identical except for the interest rates. C.F. Trust is not required to release the Massachusetts judgment until that judgment, together with the interest that accrued on it, is satisfied in full. The claim is, therefore, the total amount of the Massachusetts judgment. When it is paid in full, all of the other judgments must necessarily also have been paid in full. Until this amount is paid, C.F. Trust has a right of payment. 11 U.S.C. § 101(5). The proper amount of the claim as of the petition date is the total amount due under the Massachusetts judgment, together with interest at the Massachusetts interest rate.
Post-petition, Pre-confirmation Interest. The issue as to post-petition, pre-confirmation interest is resolved by § 506 of the Bankruptcy Code. Bankruptcy claims do not accrue interest post-petition interest unless the claim is secured by property with a value greater than the claim itself. In that event, the claimant is entitled to "interest on the claim, and any reasonable fees, costs, or charges provided for under the agreement under which the claim arose." 11 U.S.C. § 506(c). Consequently, unless C.F. Trust's claim is fully secured, no post-petition interest will be payable. As is discussed below, C.F. Trust's claim is secured as to various assets. The other principal collateral is the real property in Washington County, Maryland, presently titled in the name of First Flight and the real property in Nantucket, Massachusetts. The collateral has not been valued and, therefore, the court cannot determine whether C.F. Trust is fully secured or only partially secured. However, the mechanics of determining the claim can be established.
The amount of C.F. Trust's claim is determined for purposes of § 506(b) as to each piece of collateral in accordance with the obligation that creates the lien, in this case, the judgment liens in Massachusetts, Maryland and Virginia. Credits are first determined on the judgment which encumbers the source of funds. The payment must be broken down into its components, that is, post-petition interest, post-petition collection costs, and the claim itself (which is made up of pre-petition principal, interest and collection costs) based on the source of the funds. This is important because the claim may not be fully secured in each jurisdiction and the post-petition interest and post-petition collection costs may be limited in one jurisdiction but not in another.
After the payment is broken down into its components, it is applied as a credit to the same components of each judgment. However, it is possible that some portion of a particular payment may not be fully credited against the judgment in another jurisdiction. For example, the Massachusetts judgment will accrue interest at a higher rate than the Virginia and Maryland judgments. If a payment on the debt is made from the Massachusetts collateral (the Nantucket property), the payment would first be applied to the costs, fees and other post-petition expenses of collection, then to accrued post-petition interest, and finally to the principal amount of the claim. The costs, fees and other post-petition expenses of collection will be the same in all jurisdictions. Such costs are not specifically allocated to a particular jurisdiction but are costs of collection of the underlying obligation itself. Consequently, to the extent that a payment is only for post-petition collection costs, it would be credited against the identical post-petition collection costs in all three jurisdictions. Once the post-petition collection costs are paid, the payment is credited to interest. Here, the source of the funds is important because the Massachusetts judgment accrues interest at a higher rate. If the payment were from the Massachusetts collateral and were sufficient to pay exactly all the Massachusetts interest, but no principal, the interest on all the judgments would be satisfied to that point. This will result in a portion of the payment for the interest portion of the Massachusetts judgment not being credited at all to the Virginia or Maryland judgments. For example, if the accrued interest on the Massachusetts judgment were $100,000 while the accrued interest on the Virginia judgment were $50,000, and $75,000 were aid from the Massachusetts collateral, then the $75,000 would be credited to the interest portion of the Massachusetts judgment leaving a balance of $25,000 in interest due. Meanwhile, the Virginia judgment would be credited with $50,000 in interest and the accrued interest on the Virginia judgment would be paid in full to that point. The remaining portion of the payment, $25,000, would not be credited to the Virginia judgment because it is the interest component from the Massachusetts judgment. There is no more interest due on the Virginia judgment. This is proper because the Massachusetts judgment will grow more quickly than the Virginia and Maryland judgments and will include post-petition interest not included in them. The debtor must satisfy the claim under all three judgments, specifically including all interest that accrues on the Massachusetts judgment. Conversely, if a payment arose from the Maryland collateral and were sufficient to pay exactly all the Maryland interest, but no principal, all three judgments would be credited with the same amount of interest. However, only the Maryland and Virginia judgments would have all post-petition interest paid in full. There would be a balance due on the Massachusetts judgment for post-petition interest. For example, if $75,000 were paid from the Maryland collateral, the accrued interest on the Massachusetts judgment were $100,000 and the accrued interest on the Maryland judgment were $50,000, the $75,000 payment from the Maryland collateral would be allocated $50,000 to interest and $25,000 to principal on the Maryland judgment. The same allocation would be made on the Massachusetts judgment resulting in an interest balance of $50,000 on the Massachusetts judgment ($100,000 accrued interest less $50,000 interest payment). The principal amount of the Massachusetts judgment would be reduced by $25,000, the same amount as the principal balance on Maryland judgment is reduced.
The application to pre-petition principal, interest or costs does not generally matter in bankruptcy. The entire present value of the claim must be paid. For bankruptcy purposes, it does not matter which component is paid. It may make a tax difference to a creditor whether the recovery is interest or principal but that is beyond the scope of this case.
Payments to be credited to the principal amount of the claim are simpler. Each judgment is credited with the same amount. This would only occur if all the interest were paid in the jurisdiction from which the funds came. As in the second sample, there may be interest outstanding on the Massachusetts judgment at that time, but the payment still must go to the principal amount of the claim. This is so because the character of the payment must be retained as to each judgment upon which it is credited.
When all collateral is exhausted, if the claim has not been paid in full, then the remaining outstanding balance due to the claimant will be the remaining outstanding balance of the claim itself. Any post-petition interest or post-petition costs would not accrue, unless previously fixed, because of the limitation of § 506.
Post-Confirmation Interest. Confirmation may affect the interest rate. A proposed chapter 11 plan that does not meet the standards set forth in 11 U.S.C. § 1129(a) must meet the requirements of § 1129(b). With respect to secured creditors, the claimant must generally retain the liens securing the claim and receive the present value of the secured claim. 11 U.S.C. § 1129(b)(2)(A). The interest rate needed to assure that the creditor obtain the present value of its claim is not necessarily the contract or judgment rate. Consequently, if a chapter 11 plan is confirmed, the interest rate on any deferred payments would not be controlled by the pre-petition rates. The plan in this case does not propose periodic payments, but rather a distribution of land in satisfaction of the claim. 11 U.S.C. § 1129(b)(2)(A)(iii).
II. Liens
Lien of the Charging Order. A charging order was entered by the District Court on or about September 8, 1998, with respect to various partnership interests, including Peterson's interest, Nancy Peterson's interest and Barrie M. Peterson, Trustee's, interest in First Flight. All of the partnership interests were charged with the payment of C.F. Trust's judgments.
Section 50-73.46 of the Virginia Revised Uniform Limited Partnership Act provides:
On application to a court of competent jurisdiction by any judgment creditor of a partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the partnership interest. This chapter does not deprive any partner of the benefit of any exemption laws applicable to his partnership interest.
The charging order clearly attaches to the "profits, income, proceeds of sale, distributions or any other moneys due or that become due" to Peterson, and not to the partnership assets. Va.Code. § 50-73.46; First Union Nat'l. Bank v. Craun, 853 F. Supp. 209 (W.D.Va. 1994); Pischke v. Murry, 11 B.R. 913 (Bankr.E.D.Va. 1981) (Bostetter, J.).
Lien of Writ of fieri facias. C.F. Trust asserts that certain assets are subject to the lien of a writ of fieri facias. The record is not clear as to whether a writ was issued and if it did issue, the date it was received by the sheriff or marshal and the return date. The opposition to Peterson's motion asserts that a fi. fa. was issued by the District Court and refers to Exhibit 4, a garnishment summons. However, the fi. fa. at the bottom of the form is not completed and the receipt stamp is illegible. In its supplemental brief, C.F. Trust attached a "Process Receipt and Return" for the U.S. Marshal's office. Again, the date stamp is illegible. The receipt indicates that it is for a writ of fieri facias, but a copy of the writ itself is not attached and the return date is not known. All of these facts are necessary to determine whether a lien arose on intangibles, the date it arose and the duration of the lien. Va. Code § 8.01-505. The state of the record precludes a present adjudication of this claim.
Docketed Judgment in Massachusetts. C.F. Trust docketed its judgment in Massachusetts and attached the Nantucket property on October 11, 1998. At the time the judgment was docketed and the property attached, Peterson and his wife, Nancy, owned a luxury ocean-front vacation beach home in Nantucket as tenants by the entireties. The property was subject to three prior encumbrances: (i) a mortgage, (ii) a judgment against both Peterson and his wife assigned to Jubal, Inc., a corporation owned by Peterson's son, Scott, and (iii) Atlantic Funding's judgment against only Peterson. The sheriff of Nantucket County scheduled a sale of the property for April 6, 2001. The day before the sheriff was to sell the Nantucket property, Nancy Peterson conveyed her interest in the property to Peterson. He immediately filed his voluntary chapter 11 petition in this case.
Neither the mortgagee nor Jubal are parties to this adversary proceeding. None of the parties sought a declaration as to the validity or extent of the mortgage or the Jubal judgment lien. Consequently, the court makes no ruling and expresses no opinion on the validity or extent of the mortgage or the Jubal judgment lien.
Massachusetts law with respect to tenants by the entireties property differs from Virginia and Maryland law. In Massachusetts, a docketed lien against one tenant by the entirety creates a lien on the judgment debtor's one-half interest in the real property. M.G.L.A. c. 209, § 1; Snyder v. Rockland Trust Company (In re Snyder), 249 B.R. 40, 44 (BAP 1st Cir. 2000); Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 152, 612 N.E.2d 650, 655 (1993); Peebles v. Minnis, 402 Mass. 282, 521 N.E.2d 1372 (1988). See Janet D. Ritsko, Comment, Lien Times in Massachusetts: Tenancy by the Entirety after Coraccio v. Lowell Five Cents Savings Bank, 30 New Eng.L.Rev. 85 (1995).
"The sole issue presented on appeal is whether the individual creditors of one spouse may attach property held in tenancy by the entirety while it remains the principal residence of the other, nondebtor spouse. Because we conclude that such property may be attached, we affirm."Peebles v. Minnis, 402 Mass. 282, 282, 521 N.E.2d 1372, 1372 (1988).
Immediately, prior to Nancy Peterson's conveyance of her interest in the Nantucket property to Peterson, Atlantic Funding had a judgment lien only against Peterson's one-half interest in the Nantucket property subject only to the mortgage and the prior Jubal judgment lien. C.F. Trust had a judgment lien (i) against Nancy Peterson's one-half interest in the property subject only to the mortgage and the prior Jubal judgment lien, and (ii) a judgment lien against Peterson's one-half interest in the property subject to the mortgage, the Jubal judgment lien and Atlantic Funding's judgment lien. The last-minute conveyance did not change these priorities. Nancy Peterson's conveyance was, as a matter of law, subject to all liens and encumbrances of record at the time of the conveyance. Atlantic Funding's lien did attach to Peterson's new interest in the property, but subject to all existing liens and encumbrances. The present priority of liens is: (i) the prior mortgage; (ii) the Jubal judgment lien: (iii) the Atlantic Funding judgment lien as to one-half the property; (iv) the C.F. Trust judgment lien as to the entire property; and (v) the Atlantic Funding judgment lien (to the extent not fully satisfied by its third priority) as the remaining one-half interest in the property.
The record does not reflect whether there are any liens subordinate to the C.F. Trust judgment lien. If there are they would have priority over the fifth priority Atlantic Funding judgment lien. Nor does the record permit a determination of the value of the collateral, the Nantucket property, and no finding is made and the court expresses no opinion on the application of 11 U.S.C. § 506.
III. Claim for Attorney's Fees
The two promissory notes each provided that the makers and endorsers:
shall pay all costs and expenses incurred by the Bank in collecting this Note, with or without litigation, or in preserving, perfecting or disposing of any of the Collateral, including attorney's fees in the amount of 25% of the amount due hereunder if the Bank retains or uses the services of an attorney in connection therewith.
They also provided that:
All rights and remedies of the Bank under this Note, under any document given to the Bank in connection with this Note and under applicable law shall be cumulative and not exclusive and may a be exercised successively or concurrently. The Bank shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies and no waiver of any kind shall be deemed to have occurred unless in writing and signed by an authorized officer of the Bank.
The attorneys-in-fact that the Petersons appointed in the two notes confessed judgment against them in the Circuit Court of Prince William County on February 1, 1996. The judgment included, after amendment, attorney's fees of $20,000. The proof of claim now claims attorney's fees in the full 25% permitted by the notes less the original $20,000.00 and less $847,912.35 allowed by the District Court. C.F. Trust, Inc. v. Peterson, 1999 WL 33456231 (E.D.Va., January 8, 1999) (Brinkema, J.). The additional amount included in the proof of claim is $676,540.90 for attorney's fees, $208,950.90 for costs and $334.96 in costs awarded by the Court of Appeals in Peterson's unsuccessful appeal. 13 Fed.Appx. 161, 2001 WL 786634 (4th Cir. July 10, 2001)
Peterson argues that the additional attorney's fees are barred by the merger doctrine. He argues:
In the context of the merger doctrine, the Virginia Supreme Court has ruled that a noteholder may not claim attorneys' fees and costs in a lawsuit subsequent to entry of judgment on the note.
Complaint, ¶ 28, citing Sands v. Roller, 118 Va. 191, 86 S.E. 857 (1915).
Sands does stand for the proposition that in a suit on a note, the only attorney's fees that may be awarded are those awarded at the time the original judgment is entered. If the award turns out to be inadequate, the noteholder has no further recourse. Here, the original award of $20,000 was wholly inadequate. The costs and expenses themselves are more than ten times the award. Sands does not permit a second or third award of attorney's fees. All causes of action, including the cause of action for attorney's fees, are merged into the final judgment. Sands cannot be fully understood without reference to the District Court's opinion in Republic Insurance Co. v. Culbertson, 717 F. Supp. 415, 419 (E.D.Va. 1969). In that case, the District Court was faced with a situation very similar to Sands. However, the note made clear that the noteholder could maintain successive suits and that the attorney's fee provision was not merged into the initial judgment.
This is not the first judicial proceeding on the notes to consider the proper amount of attorney's fees. The District Court previously determined the outstanding judgment balance. C.F. Trust v. Peterson, C.A. 97-2003-A (Brinkema, J.). Judge Brinkema held in her Memorandum Opinion that:
We find that plaintiff's right to set off attorney's fees was not extinguished, despite the lack of any attorney fee clause in the confessed judgments, because the Notes upon which they are based provide that plaintiff's rights and remedies `shall be cumulative and not exclusive and may be exercised successively or concurrently.' The magistrate judge implicitly recognized the merger doctrine, but essentially held that it was waived in view of the express survival-of-rights clause contained in the Notes. This finding was not clearly erroneous or contrary to law. See Republic Insurance Co. v. Culbertson.
Memorandum Opinion at 8. In ruling on the amount of attorney's fees, Judge Brinkema held:
Based upon our determination that the merger doctrine does not extinguish the attorney fee provisions in the Notes, we find that the defendants are still obligated under them and that none of defendants' arguments have merit.
Memorandum Opinion at 10.
Peterson appealed to the Court of Appeals which affirmed. It stated, "Among other things, the district court found that the merger doctrine did not prevent C.F. Trust from setting off its attorneys' fees." C.F. Trust, Inc. v. Peterson, 13 Fed.Appx. at 165. The appeal challenged only the district court's legal conclusions, therefore, the Court of Appeals reviewed the legal conclusions de novo. It held, "Accordingly, we affirm the judgment in favor of C.F. Trust on the reasoning set forth in the district court's opinion." C.F. Trust, 13 Fed.Appx. at 165.
Peterson argues that footnote 9 of the Court of Appeals' opinion limits the merger to the facts of that proceeding, specifically where the attorney's fees were deducted from the foreclosure proceeds before the net proceeds were credited to the judgment. Those attorney's fees were provided under the deed of trust while those before this court arise only from the notes themselves. This, he argues, is the separate suit on the notes that Sands prohibits. Peterson used the same argument against C.F. Trust before the magistrate judge. He sought to show that attorney's fees under the note and attorney's fees under the deed of trust were both barred by the merger doctrine. The Court of Appeals, however, did not draw this distinction. It affirmed the judgment "on the reasoning set forth in the district court's opinion." C.F. Trust, 13 Fed.Appx. at 165. The District Court's reasoning and precise holding is clear and unambiguous, "[W]e find that the merger doctrine does not extinguish the attorney fee provisions in the Notes." Memorandum Opinion at 10.
Peterson's argument is barred by collateral estoppel. The issue has been actually litigated between the parties and decided. Attorney's fees are not merged into the original confessed judgments. C.F. Trust is entitled to claim the balance of the 25% attorney's fees provided in the notes.
Similarly, his arguments of waiver and res judicata were also rejected.
IV. Execution of Proof of Claim.
Peterson's last argument is that the proofs of claim for attorney's fees and sanctions are ineffective because they are signed by Harvey A. Levin, C.F. Trust's counsel of record. Peterson asserts that because Levin is not a member of the bar of this court, he cannot execute a proof of claim on behalf of his client. The proofs of claim are dated and filed July 17, 2001. Levin was admitted to practice before this court in this case pro hac vice on an oral motion at the beginning of the case. More fundamentally, a proof of claim can be executed by the "creditor or the creditor's authorized agent." Levin has been representing C.F. Trust for years seeking payment of the judgments obtained on February 1, 1996. He has represented C.F. Trust in this litigation in the United States Court of Appeal for the Fourth Circuit, the United States District Court for the Eastern District of Virginia, the Circuit Court of Prince William County, Virginia, and the Circuit Court for Washington County, Maryland. There is no doubt as to Levin's representational capacity. There is no Bankruptcy Rule requiring an attorney who signs a proof of claim to be a member of the bar of the bankruptcy court in which the case is pending. If Levin were signing in his capacity not as an attorney-at-law, but as an attorney-in-fact, F.R.Bankr.P. 9010(c) provides that a written power of attorney need not be filed when the attorney-in-fact is only executing or filing a proof of claim. This argument is without merit.
Conclusion
C.F. Trust's claim will be allowed in the full amount set out in the proof of claim and is secured by the real property of First Flight. The court cannot reach the other lien issues on the present record.