In re: : Mark A. Sidebottom

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3621
I N RE :
M ARK A. S IDEBOTTOM ,
Debtor-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-1639-LJM-WTL—Larry J. McKinney, Chief Judge.
____________
A RGUED A PRIL 13, 2005—D ECIDED D ECEMBER 9, 2005
____________
Before B AUER , W OOD , and W ILLIAMS , Circuit Judges.
W OOD , Circuit Judge. This case involves a tangle of
bankruptcy issues under the Code as it existed prior to
the effective date of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005 (BAPCP Act), Pub. L.
109-8, 119 Stat. 23 (2005). The debtor, Mark A. Sidebottom,
owned an eponymous construction company, Sidebottom
Builders, Inc. (SBI). David and Jamie Broyles are two of
Sidebottom’s creditors, who had contracted with SBI to
build their dream home, but were left high and dry when
SBI ceased performance. Eventually, Sidebottom personally
and SBI as a company both filed for protection under
Chapter 7 of the Bankruptcy Code; a little while later,
before the Chapter 7 proceeding was fully resolved,
Sidebottom filed a petition for relief under Chapter 13. The
bankruptcy court and district court focused on the ques-
tion whether the Broyleses’ claims for fraud and conversion

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2 No. 04-3621
could be considered a liquidated, noncontingent debt for
purposes of the Chapter 13 proceeding—if not, then
the Chapter 13 proceeding was barred under 11 U.S.C.
§ 109(e), because the debt exceeded $290,525. The dis-
trict court concluded the bar of § 109 indeed applied and
that Sidebottom was thus not eligible for Chapter 13 re-
lief. We agree that it was correct to dismiss Sidebottom’s
case, for the more fundamental reason that he was not
entitled in these circumstances simultaneously to pursue
Chapter 7 and Chapter 13 relief.
I
On April 6, 2000, David and Jamie Broyles hired SBI to
construct a new residence on their property in Indianapolis,
Indiana. The cost of the project was estimated at $968,862,
which was to be paid in stages according to a schedule set
out in the parties’ written contract. In order to receive the
scheduled payments, SBI had to submit to the Broyleses an
application for payment certifying that the stipulated work
had been completed. The contract permitted the Broyleses
to withhold payment for a variety of reasons: defective
work; the filing or threatened filing of a mechanic’s lien; the
failure of SBI to make payments properly to subcontractors
or for labor, materials, or equipment; SBI’s failure to follow
the plans or requirements of the contract; or nonperfor-
mance of the work for that stage.
During the course of construction, the Broyleses made
four payments to SBI totaling $678,205, or 70% of the full
contract price. Their last payment was made on October 20,
2000. Shortly after that date, Sidebottom notified them that
SBI could not perform the contract and that it planned to
file for bankruptcy relief. Around December 29, 2000, the
Broyleses began receiving notices from various subcontrac-
tors stating that the Broyleses were personally liable for
payments that SBI owed to the subcontractors. The

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No. 04-3621 3
Broyleses paid $21,285.62 to one subcontractor, Frank
Proctor. On January 10, 2001, the Broyleses and SBI
executed a “Contract Termination Agreement” in which SBI
acknowledged its breach. The Broyleses then hired another
construction company, Hamilton Homes, to complete the
project at an additional cost of $700,919, well in excess of
the remaining $290,658 due under the contract. On April 9,
2001, the Broyleses filed a complaint against SBI and
Sidebottom in the Superior Court of Marion County,
Indiana, seeking damages for breach of contract, fraud,
conversion, and unjust enrichment.
On April 23, 2001, hard on the heels of the Broyleses’
suit, SBI filed a voluntary petition for bankruptcy under
Chapter 7 of the Code. About nine months later, on January
23, 2002, Sidebottom followed with a personal Chapter 7
filing, which is the case of immediate relevance to this
appeal. Sidebottom’s petition naturally triggered an
automatic stay of the state court proceedings against him,
see 11 U.S.C. § 362(a). The Broyleses filed an adversary
complaint in the personal bankruptcy, claiming that their
fraud and conversion claims against Sidebottom were
nondischargeable under 11 U.S.C. § 523(a)(2)(A). The
bankruptcy court scheduled an adversary proceeding on the
matter for April 9, 2003, while it granted a general dis-
charge to Sidebottom with respect to his other debts on May
31, 2002.
At this point, matters became more complicated. Less
than two weeks before the adversary hearing, on March 24,
2003, Sidebottom filed an overlapping petition for re-
lief under Chapter 13, which insofar as the Broyleses’
claims were concerned covered exactly the same debts as
the ongoing Chapter 7 proceeding. Along with his applica-
tion, Sidebottom submitted a proposed plan and schedule of
assets and liabilities. He listed the Broyleses’ claim
as a nonpriority, unsecured, disputed, unliquidated, and
contingent claim of an “unknown” amount along with

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4 No. 04-3621
$350.14 in unsecured priority claims and $8,658.33 in other
unsecured nonpriority claims in the schedule. His proposed
plan represented that he would make 36 monthly payments
to his creditors in the amount of $100.00, totaling $3,600.
The bankruptcy court assumed that the new Chapter 13
filing required a stay of the scheduled adversary hearing in
the Chapter 7 case. On July 13, 2003, it ordered the
proceedings in the Chapter 7 nondischargeability action
stayed “until completion by the Debtor of all payments
required under a confirmed chapter 13 plan, or dismissal or
conversion of the chapter 13 case.” The Broyleses moved to
dismiss Sidebottom’s Chapter 13 petition on two grounds:
first, that it was not filed in good faith, and second, that
Sidebottom’s debts exceeded the $290,525 limit imposed by
11 U.S.C. § 109(e). The Broyleses alleged that Sidebottom
had filed the case for the sole purpose of avoiding the trial
of the pending § 523(a)(2)(A) claim in the Chapter 7 pro-
ceeding. In addition, the Broyleses alleged that their fraud
and conversion claims represented a noncontingent,
liquidated, unsecured debt and thus were covered by the
$290,525 cap in § 109(e). At the same time, the Broyleses
filed an objection to the confirmation of the Chapter 13
plan, arguing that it was not filed in good faith and that it
unfairly discriminated against them.
After an evidentiary hearing, the bankruptcy court
dismissed Sidebottom’s Chapter 13 petition on the ground
that the Broyleses’ claims constituted a liquidated,
noncontingent debt greater than the statutory cap for
eligibility under Chapter 13. The district court sum-
marily affirmed the dismissal.
II
Before this court, Sidebottom argues that the district and
bankruptcy courts were mistaken to conclude that

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No. 04-3621 5
the Broyleses’ claim was liquidated. His argument is
somewhat hard to follow, but essentially he appears to be
asserting that the only party that owes money to the
Broyleses is his company, SBI, and that there was no
reason for holding him personally liable for SBI’s debts. He
goes on to assert that any contractual liability he him-
self may have had to the Broyleses was covered by the
May 31, 2002, general discharge in the Chapter 7 proceed-
ing. The fraud and conversion claims, which he seems to
concede survived that discharge, are not readily ascer-
tainable (indeed, he goes so far as to assert that the amount
due under the contract with SBI was not readily determina-
ble either). Last, he argues that the Broyleses’ claims
against him are contingent, again because they depend on
piercing the corporate veil. The Broyleses, as one would
expect, defend the bankruptcy court’s ruling.
A. Simultaneous “Chapter 20” Filings
Although the parties have focused on § 109(e), a more
fundamental question is apparent on the face of these
proceedings, namely, whether Sidebottom was entitled to
maintain a Chapter 13 proceeding while a Chapter 7
proceeding involving the same debts was pending. A
Chapter 13 case that follows a Chapter 7 case is a special
form of serial or repetitive filing under the Bankruptcy
Code; it has been nicknamed a “Chapter 20” filing. See
Lex A. Coleman, Individual Consumer “Chapter 20” Cases
After Johnson: An Introduction to Nonbusiness Serial
Filings under Chapter 7 and Chapter 13 of the Bankruptcy
Code, 9 B ANKR . D EV . J. 357 (1992). In Johnson v. Home
State Bank, 501 U.S. 78 (1991), the Supreme Court held
that the Code did not expressly prohibit such filings where
the Chapter 13 case was initiated after the Chapter 7
case had closed. Looking at other Code provisions governing
serial filings, the Court wrote that “[t]he absence of a like

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6 No. 04-3621
1 Among the other important changes affected by the BAPCP
Act is one in this area. The BAPCP Act amended the Code to bar a
debtor from relief under Chapter 13 within four years of receiving
a discharge under Chapters 7, 11, or 12, or within two years of
receiving a discharge in a previous Chapter 13 proceeding. See
BAPCP Act § 312, amending 11 U.S.C. § 1328. Because these
changes apply only prospectively, however, see BAPCP Act § 1501,
this statutory bar does not apply to Sidebottom’s Chapter 13 case.
prohibition on serial filings of Chapter 7 and Chapter 13
petitions, combined with the evident care with which
Congress fashioned these express prohibitions, convinces us
that Congress did not intend categorically to foreclose the
benefit of Chapter 13 reorganization to a debtor who
previously has filed for Chapter 7 relief.” Id. at 87. 1
The facts in Johnson involved a Chapter 13 case that was
begun after the conclusion of the Chapter 7 proceeding.
Sidebottom’s case, in contrast, involves a debtor’s effort to
institute a Chapter 13 proceeding during the pendency of
the Chapter 7 proceeding—a move dubbed a “simultaneous
Chapter 20” by the bankruptcy bar, to distinguish it from
the Johnson-style “sequential Chapter 20.” See In re
Hodurski, 156 B.R. 353, 355 (Bankr. D. Mass. 1993) (finding
no per se prohibition against simultaneous filings but
dismissing on the basis of bad faith).
The courts are divided on the question whether a simulta-
neous “Chapter 20” filing is ever permissible. Unlike the
bankruptcy court in Hodurski, the majority has endorsed a
per se rule prohibiting a debtor from having more than one
bankruptcy case open at any time. See, e.g., In re Turner,
207 B.R. 373, 378 (2d Cir. B.A.P. 1997) (at the preliminary
injunction stage, holding that a Chapter 13 case filed before
the debtor receives his Chapter 7 discharge is a nullity); In
re Scruggs, 320 B.R. 94 (Bankr. D. S.C. 2004) (citing cases);
In re Lord, 295 B.R. 16 (Bankr. E.D. N.Y. 2003) (barring a
debtor from filing a Chapter 13 proceeding before the

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No. 04-3621 7
Chapter 7 case is closed even if the debtor has already
received a discharge in the Chapter 7 case); In re Jackson,
108 B.R. 251, 252 (Bankr. E.D. Cal. 1989) (“[o]nce a bank-
ruptcy case is filed, a second case which affects the same
debt cannot be maintained”). The majority has relied on the
Supreme Court’s decision in Freshman v. Atkins, 269 U.S.
121 (1925), which involved a debtor who had been denied a
discharge in one bankruptcy proceeding, and while that
case was pending, had filed a second petition seeking to
discharge both the debts listed in the first petition and
some new debts. The Court allowed the petition only with
respect to the new debts, writing that the “pendency of the
first application precluded a consideration of the second in
respect of the same debts.” Id. at 122. It analogized this
situation to the common law plea of “prior suit pending,”
which reflected “the general rule that the law will not
tolerate two suits at the same time for the same cause.” Id.
at 123.
A minority of courts has refrained from adopting an
absolute ban on simultaneous filings, but their rationale
is not helpful to Sidebottom. They have noted that Fresh-
man stands only for the limited proposition that a debt-
or may not maintain simultaneous applications relating
to the same debts and thus is not wholly barred from
maintaining two cases under different chapters of the Code
in other situations. See, e.g., In re Kosenka, 104 B.R. 40
(Bankr. N.D. Ind. 1989). Some courts have permitted a
debtor to file a Chapter 13 petition to reorganize the debts
that have survived the Chapter 7 discharge, provided that
the debtor has already received the Chapter 7 discharge,
even if the Chapter 7 case has not been closed. See, e.g., In
re Young, 237 F.3d 1168 (10th Cir. 2001); In re Saylors, 869
F.2d 1434 (11th Cir. 1989); In re Ragsdale, 315 B.R. 691
(Bankr. E.D. Mich. 2004); In re Hodurksi, 156 B.R. 353.
These decisions focus on the lack of an express prohibition
on this practice (in the pre-October 2005 Code, of course),

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8 No. 04-3621
and on the rehabilitative purpose of Chapter 13. Rather
than banning all Chapter 13 filings during the pendency of
a Chapter 7 case, these courts assess the propriety of the
Chapter 13 case in light of the good faith standard applica-
ble to confirmations of Chapter 13 plans.
Although the courts have differed with respect to the
permissibility of these “simultaneous Chapter 20” cases,
there is general agreement that a debtor may not main-
tain two or more concurrent actions with respect to the
same debts. Only the Tenth Circuit may have held other-
wise, in In re Young, 237 F.3d 1168. The facts of Young
are similar to those before us: the debtor received a general
discharge in his Chapter 7 case, but one of his creditors had
filed an adversary complaint alleging that the debt owed to
it was nondischargeable. Before the bankruptcy court had
a chance to resolve that dispute, the debtor “converted” his
case to a Chapter 13 proceeding. Thus, as the Tenth Circuit
saw it, nothing was left of the Chapter 7 proceeding. It
described this course of events as a “Chapter 20” procedure
and permitted the conversion. Id. at 1173. Any potential
abuse on the debtor’s part could be addressed, in the court’s
view, through the bankruptcy court’s general power to
ensure good faith in the creation and confirmation of the
Chapter 13 plan.
The Second Circuit’s Bankruptcy Appellate Panel, in
contrast, apparently takes a stricter approach. In Turner,
no general discharge had yet been granted at the time
the Chapter 13 case involving the same debt was filed, but
the BAP’s language suggests to us that simultaneous
proceedings over a debt that was excluded from the scope of
a general discharge would be impermissible in its view.
Quoting from In re Kosenka, 104 B.R. at 46, it observed that
the Code is designed “to resolve a debtor’s financial affairs
by administration of a debtor’s property as a single estate
under a single chapter within the code.” 207 B.R. at 378.

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No. 04-3621 9
In our opinion, the Second Circuit’s BAP and the majority
of other courts have the better of this debate. It is possible,
in fact, that the Tenth Circuit would not disagree about
truly simultaneous proceedings, because it appears that the
case before it was fully converted from a Chapter 7 proceed-
ing to a Chapter 13 proceeding. Whether that is so or not,
it seems to us that a debt like the Broyleses’ claim against
Sidebottom that is expressly excluded from a general
discharge under Chapter 7 falls within the rule articulated
by the Turner panel. As Freshman might have put it, the
effort to litigate the same matter simultaneously in the
Chapter 13 proceeding should have been rejected on the
grounds of “same matter pending.” This is not a case in
which the Chapter 7 proceeding was finished except for
some minor technicalities at the end, like the filing of a
trustee’s final report. Allowing Sidebottom to proceed with
the Chapter 13 case significantly affects the Chapter 7
trustee’s ability to administer the estate, because it will
change how much each creditor gets paid if the Broyleses’
claims are resolved through the Chapter 13 process.
B. Good Faith
Although the bankruptcy and district courts relied on
§ 109(e) to support dismissal of Sidebottom’s Chapter 13
case, the Broyleses also argued that it should be dis-
missed because it was filed in bad faith. Because it ruled on
the other ground, the bankruptcy court did not make
findings of fact on this point. In our view, however, it would
be difficult to conclude otherwise on this record.
When determining whether a Chapter 13 petition was
filed in good faith, courts take into account the following
nonexhaustive list of factors: (a) the nondischargeability
of the debt; (b) the time of the filing of the petition; (c)
how the debt arose; (d) the debtor’s motive for filing the
petition; (e) how the debtor’s actions affected creditors; (f)

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10 No. 04-3621
the debtor’s treatment of creditors both before and after the
petition was filed; and (g) whether the debtor has
been forthcoming with the bankruptcy court and the
creditors. See Matter of Love, 957 F.2d 1350, 1357 (7th Cir.
1992). Taken as a whole, they cast serious doubt on
Sidebottom’s petition.
Without an adjudication of nondischargeability under
11 U.S.C. § 523(a), it is impossible to say how the first
factor cuts. It does appear, however, that the Broyleses had
a nonfrivolous claim that they were prepared to pursue and
that Sidebottom went to some lengths to avoid the moment
of truth. Looking at factor two, we note that his Chapter 13
petition was filed a mere two weeks before the scheduled
adversary hearing. According to the Broyleses, at least, the
debt arose as a result of Sidebottom’s fraudulent activities
and the conversion of their money. If the bankruptcy court
had rejected the Broyleses’ position in the adversary
proceeding, their debt would have been discharged along
with all of Sidebottom’s other debts, but if it had ruled in
their favor, Sidebottom would have been faced with a
substantial debt that was nondischargeable. This, we
assume, underlies the Broyleses’ belief that Sidebottom’s
primary motive in filing the Chapter 13 case was to avoid
a negative result in the nondischargeablity action pending
in the Chapter 7 proceeding. He also had a financial
incentive to use Chapter 13, if one assumes a significant
risk of losing in the Chapter 7 adversary proceeding: his
proposed Chapter 13 plan would have forced the Broyleses
to receive a pro rata portion of the proposed $3,600 he was
offering to fund the Chapter 13 plan—a plan that is less
than forthcoming about the nature of the Broyleses’ claim.
Before Sidebottom’s eleventh-hour Chapter 13 petition, the
Broyleses had spent considerable time and resources
preparing for trial.
The record suggests that Sidebottom used the Chapter 13
filing simply to save the expense of defending the adversary
action. Addressing the question of good faith before the

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No. 04-3621 11
bankruptcy court, he reported that during the course of the
Chapter 7 proceedings, there had been discussions between
counsel with respect to his inability to fund the litigation
and to pay the costs and fees necessary to complete it.
There was also correspondence on January 15, 2003, which
included an offer of settlement and indicated that
Sidebottom was unable to participate in the adversary
proceeding and would file a Chapter 13 petition in the event
that it was necessary to do so prior to going to trial. None
of this sounds like a proper use of the bankruptcy proce-
dures to us, although in the absence of our conclusion above
about the use of simultaneous “Chapter 20” filings we
would probably remand this issue to the bankruptcy court
for a finding of fact on good faith.
C. Eligibility under 11 U.S.C. § 109(e)
Last, we address briefly the ground on which the bank-
ruptcy and district courts relied in their judgments dis-
missing Sidebottom’s Chapter 13 proceeding. As the bank-
ruptcy judge pointed out, “[u]nlike other chapters of the
Bankruptcy Code, debtors must meet specific debt require-
ments to be eligible for chapter 13 relief.” The governing
statute is § 109(e), which read as follows at the time
Sidebottom filed:
Only an individual with regular income that owes, on
the date of the filing of the petition, noncontingent,
liquidated, unsecured debts of less than $290,525 . . .
may be a debtor under chapter 13 of this title.
(Under authority granted by 11 U.S.C. § 104, the Judicial
Conference of the United States periodically revises the
dollar amounts in various sections of the Bankruptcy Code,
including § 109(e); the current amount applicable to
§ 109(e) is $307,675. This change does not affect our an-
alysis of Sidebottom’s case.)

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12 No. 04-3621
The bankruptcy court began by noting that Sidebottom’s
Chapter 13 petition listed the Broyleses’ claims as an
unsecured nonpriority claim arising out of a lawsuit in an
“unknown” amount. He checked the “contingent,” “unliqui-
dated,” and “disputed” boxes on the form. Looking be-
yond Sidebottom’s schedules to the complaint the Broyleses
had filed in the state court, the court saw that the alleged
fraud debt was $500,896.79, and the alleged converted
funds were $254,156.91, representing payments made to
SBI and Sidebottom that exceeded the value of the work
performed. This was enough, in the bankruptcy court’s
view, to make the allegation that the amount was “un-
known” misleading.
It went on to assess Sidebottom’s eligibility under § 109(e)
on the merits. The judge noted that the mere fact that a
debt is disputed does not exempt it from being included in
the § 109(e) calculation, citing Matter of Knight, 55 F.3d 231
(7th Cir. 1995), and In re Nicholes, 184 B.R. 82, 87 (9th Cir.
B.A.P. 1995). Next, the judge decided that these debts were
liquidated, because they could readily be computed by
looking at the amount paid to SBI under the contract, the
amount of the subcontractors’ claims, the amount paid to
Hamilton Homes to complete the project, and adjusting for
the initial contract price. Even using conservative numbers,
the court came up with a figure of $514,296.41, substan-
tially in excess of the statutory ceiling. Importantly,
Sidebottom did not contest these calculations: he argued
instead that the debt could not readily be determined
because his personal liability for SBI’s debts was at issue.
That point, however, does not address whether the debts
are liquidated in amount; it focuses on who must pay them.
Finally, the bankruptcy judge ruled that the debt was not
contingent, as it did not depend on any future event.
Our only concern with this analysis relates to the ques-
tion whether the debt was liquidated. The bankruptcy judge
was certainly correct to include the disputed amounts in his

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No. 04-3621 13
overall assessment of Sidebottom’s schedule. There was
nothing contingent about these debts, nor did anyone argue
that they were secured. The judge was also entitled to look
at the Broyleses’ complaint, which was a matter of public
record, to see what was at stake in the litigation. Like him,
we find Sidebottom’s indication that the amount of the debt
was “unknown” to be disingenuous; he easily could have
described the amount in controversy and said that it was
disputed. The liquidation requirement, however, is more
problematic. In a sense, the bankruptcy judge avoided it by
noting (sensibly enough) that the disputed amounts took
Sidebottom’s case well over the § 109(e) ceiling. But that is
not the same thing as saying that the amounts were readily
determinable with any precision. Because there are alter-
nate grounds on which the district court’s judgment may be
affirmed, we have no need here to decide exactly how
precise these computations must be in order to satisfy the
statute.
III
We A FFIRM the judgment of the district court, which in
turn affirmed the judgment of the bankruptcy court,
dismissing Sidebottom’s Chapter 13 petition.

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14 No. 04-3621
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-9-05

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