Commercial Litigation and Arbitration

Re-Asserting Position Previously Rejected by the Courts, and Failing to Cite to Judicial Rejections (Including Those Handed Down during Pendency of Appeal), Sanctionable under § 1927

Parker v. CitiMortgage, Inc., 2012 U.S. App. LEXIS 21585 (10th Cir. Oct. 17, 2012):

The only remaining issue is CitiMortgage's motion for sanctions against the trustee's lawyer. Title 28 of U.S.C. § 1927 provides in pertinent part that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." "An attorney becomes subject to § 1927 sanctions by acting recklessly or with indifference to the law, as well as by acting in the teeth of what he knows to be the law. . . . Section 1927 permits a court to insist that the attorney bear the costs of his own lack of care." Braley v. Campbell, 832 F.2d 1504, 1511 (10th Cir. 1987) (internal quotation marks omitted).

The trustee's lawyer has previously prosecuted four appeals in this court concerning the same issues and based on the same claims for relief that he raises in this appeal. In each instance, we squarely rejected the arguments he repeats in this, his fifth appeal. Prior to filing his opening brief in this case, we announced our decision in Commonwealth, 680 F.3d 1194, which the lawyer chose to ignore.

[Footnote 1 The other decision was announced the same day the lawyer filed his reply brief. Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 474 F. App'x 732 (10th Cir. 2012).] And by the time he filed his reply brief, our decisions in two of his other appeals had also been announced. See Scarborough v. LaSalle Bank N.A., 460 F. App'x 743 (10th Cir. 2012); Commonwealth Prop. Advocates v. U.S. Bank N.A., 459 F. App'x 770 (10th Cir. 2012). Again, the lawyer never bothered to mention these decisions in his reply brief.

In accordance with our rule, the trustee's lawyer was given an opportunity to respond to CitiMortgage's motion for sanctions. See Braley, 832 F.2d at 1514. We have carefully combed that response and cannot find a single, cogent argument to justify his pursuit of this appeal in the face of our previous decisions, particularly in light of the fact that he represented the appellants in those cases. As such, we award sanctions against the trustee's lawyer (not the trustee or Mr. Chandler).

The judgment of the district court is AFFIRMED. We GRANT CitiMortgage's Motion for Sanctions, and REMAND to the district court to determine the amount of costs, expenses, and reasonable attorneys' fees incurred by CitiMortgage in defending this appeal and to be paid by the trustee's lawyer.

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