In Re Sure-Snap Corp., 983 F.2d 1015 (11th Cir. 1993). · Go Syfert
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In Re Sure-Snap Corp., 983 F.2d 1015 (11th Cir. 1993). Cases Citing This Book View Copy Cite
116 citation events (77 in the last 25 years) across 36 distinct courts.
Strongest positive: Griego v. FGMS Holdings LLC (txwb, 2023-09-21)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
cited Cited as authority (rule) Griego v. FGMS Holdings LLC
Bankr. W.D. Tex. · 2023 · confidence medium
Id. at 1018.
cited Cited as authority (rule) In Re: Mallinckrodt plc
D. Del. · 2022 · confidence medium
Siegel, 143 F.3d at 533-34 ; Sure-Snap, 983 F.2d at 1018.
examined Cited as authority (rule) United States Pipe and Foundry Company LLC v. Michael H. Holland (3×) also: Cited "see"
11th Cir. · 2022 · confidence medium
See 8 Collier on Bankruptcy ¶ 1141.05 (“The discharge operates on all claims that arose before the date of con- firmation.”); In re Piper Aircraft, 58 F.3d at 1577 (holding that one prerequisite for discharge is that the “basis for liability” of the debtor be the debtor’s pre-confirmation conduct); In re Sure-Snap, 983 F.2d at 1018 (holding that there was no discharge where the basis for the liability of the debtor was the debtor’s post-confirma- tion conduct).
examined Cited as authority (rule) Rescap Liquidating Trust v. PHH Mortgage Corp. (In re Residential Capital, LLC) (3×) also: Cited "see"
S.D.N.Y. · 2016 · confidence medium
Id. at 1034-37, *4-5.
examined Cited as authority (rule) In re Residential Capital, LLC (3×)
Bankr. S.D.N.Y. · 2015 · confidence medium
The chapter 11 debtor filed an action in the bankruptcy court seeking a declaration that its indebtedness under a mortgage and security agreement was void under Vermont law. 983 F.2d at 1017.
cited Cited as authority (rule) Ceres Environmental Services, Inc. v. Colonel McCrary Trucking, LLC
11th Cir. · 2012 · confidence medium
Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1148 (11th Cir.1993); Sure-Snap Corp. v. State of Vermont, 983 F.2d 1015, 1017 (11th Cir.1993).
cited Cited as authority (rule) Avaya, Inc. v. Matthews (In Re Matthews)
Bankr. N.D. Ga. · 2011 · confidence medium
(In re Sure-Snap Corp.), 983 F.2d 1015, 1018 (11th Cir.1993).
discussed Cited as authority (rule) Garrett v. Cook
10th Cir. · 2011 · confidence medium
Shure v. State of Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1018-19 (11th Cir.1993) (reversing district court's determination that debtor was not liable for fees and costs resulting from debtor's post-confirmation appeal from pre-confirmation judgment upholding validity of agreement); see also Boeing N. Am., Inc. v. Ybarra (In re Ybarra), 424 F.3d 1018, 1024 (9th Cir.2005) ("[P]ost-petition attorney fee awards are not discharged where post-petition, the debtor voluntarily pursued a whole new course of litigation, commenced litigation, or returned to the fray voluntarily.” (internal quo…
examined Cited as authority (rule) In Re Nancy Elaine Ybarra, Debtor, Boeing North American, Inc., Successor for Limited Purposes to Rockwell International Corporation v. Nancy Elaine Ybarra (3×)
9th Cir. · 2005 · confidence medium
Shure, 983 F.2d at 1017.
examined Cited as authority (rule) Boeing North American, Inc. v. Ybarra (3×)
9th Cir. · 2005 · confidence medium
Shure, 983 F.2d at 1017.
discussed Cited as authority (rule) In Re R. J. Reynolds-Patrick County Memorial Hospital, Inc.
Bankr. W.D. Va. · 2003 · confidence medium
Section 524(e) specifies that the debt still exists.... ”); Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1018, 1019 (11th Cir.1993) (holding that confirmation did not terminate debtor-creditor contract, and instead “prevented ... enforcing the terms of the Agreement ... to collect pre-confir-mation debt,” so that the discharged contract could therefore support award of attorney’s fees incurred post-confirmation); Copeland v. Merrill Lynch & Co., Inc., 162 B.R. 743, 746, 747 (E.D.La.1993) (“the bankruptcy reorganization plan did not extinguish or ‘novate’ the obligatio…
discussed Cited as authority (rule) Ybarra v. Boeing North American, Inc. (In Re Ybarra)
9th Cir. BAP · 2003 · confidence medium
The court quoted an observation from other cases that bankruptcy is not intended to insulate the debtor from the costs of post-bankruptcy acts and said that the discharge protected Siegel "from the results of his past acts, including attorney's fees associated with those acts, [but] did not give him carte blanche to go out and commence new litigation about the contract without consequences." Id. at 534 ; Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1018 (11th Cir.1993); In re Hadden, 57 B.R. 187, 190 (Bankr.W.D.Wis.1986).
discussed Cited as authority (rule) IAG Federal Credit Union v. Burne (2×) also: Cited "see"
Mass. Super. Ct. · 2000 · confidence medium
Id. at 1018.
discussed Cited as authority (rule) Larry M. Siegel Selwyn Gerber v. The Federal Home Loan Mortgage Corporation J.I. Kislak Mortgage Corporation Gunther Torriani Carolyn Paz
9th Cir. · 1998 · confidence medium
By choosing to appeal the validity of the Agreement after confirmation, Sure-Snap did so at the risk of incurring post-confirmation costs involved in its acts. “[Bjankruptcy was intended to protect the debtor from the continuing costs of pre-bankruptcy acts but not to insulate the debtor from the costs of post-bankruptcy acts.” Id. at 1018 (citation omitted); see also Irmas Family Trust v. Madden (In re Madden), 185 B.R. 815, 819 (9th Cir. BAP 1995); Danzig Claimants v. Grynberg (In re Grynberg), 113 B.R. 709, 713 (Bkrtcy.D.Colo.1990), aff'd, 966 F.2d 570 (10th Cir.1992); In re Hadden, 57 …
cited Cited as authority (rule) In Re Mathews
Bankr. N.D. Ala. · 1997 · confidence medium
“Federal courts apply state law when ruling on the interpretation of contractual attorney fee provisions.” Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1017 (11th Cir.1993).
discussed Cited as authority (rule) United States v. Conston, Inc. (In Re Conston, Inc.)
D. Del. · 1995 · confidence medium
Section 524(e) specifies that the debt still exists .... ”); Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1018, 1019 (11th Cir.1993) (holding that confirmation did not terminate debtor-creditor contract, and instead “prevented ... enforcing the terms of the Agreement ... to collect pre-confirmation debt,” so that the discharged contract could therefore support award of attorney’s fees incurred post-confirmation); Copeland v. Merrill Lynch & Co., Inc., 162 B.R. 743, 746, 747 (E.D.La.1993) (“the bankruptcy reorganization plan did not extinguish or ‘no-vate’ the obligati…
examined Cited as authority (rule) Polysat, Inc. v. Union Tank Car Co. (In Re Polysat, Inc.) (4×) also: Cited "see"
Bankr. E.D. Pa. · 1993 · confidence medium
In re Sure-Snap Corp., 983 F.2d at 1018-19.
discussed Cited "see" Padilla Constr. Co. of Nev. v. Big-D Constr. Corp. C/W 67397
Nev. · 2016 · signal: see · confidence high
See In re Sure-Snap Corp., 983 F.2d 1015 , 1018-19 (11th Cir. 1993) (explaining that confirmation of bankruptcy plan did not terminate pre-petition contract and contractual attorney fees incurred post-confirmation in defending pre- petition litigation brought by debtor); see also In re Mariner Post-Acute Network, Inc., 312 B.R. 520, 523 (2004) (holding that post-petition statutory attorney fees awarded to a prevailing party are an actual loss and are not precluded by the bankruptcy petition).
discussed Cited "see" Padilla Constr. Co. of Nev. v. Big-D Constr. Corp. C/W 67397
Nev. · 2016 · signal: see · confidence high
See In re Sure-Snap Corp., 983 F.2d 1015 , 1018-19 (11th Cir. 1993) (explaining that confirmation of bankruptcy plan did not terminate pre-petition contract and contractual attorney fees incurred post-confirmation in defending pre- petition litigation brought by debtor); see also In re Mariner Post-Acute Network, Inc., 312 B.R. 520, 523 (2004) (holding that post-petition statutory attorney fees awarded to a prevailing party are an actual loss and are not precluded by the bankruptcy petition).
cited Cited "see" David Azar v. National City Bank
11th Cir. · 2010 · signal: see · confidence high
See Sure-Snap Corp. v. State of Vermont, 983 F.2d 1015 , 1017 (11th Cir.1993).
discussed Cited "see" In Re Phoenix Petroleum Co.
Bankr. E.D. Pa. · 2001 · signal: accord · confidence high
Accord, e.g., In re Sure-Snap Corp., 983 F.2d 1015 , 1018 *404 (11th Cir.1993); see also First Fidelity Bank v. McAteer, 985 F.2d 114 (3d Cir.1993) (a creditor may recover the full amount of the original obligation from the debtor’s insurer rather than the smaller “cram down” amount provided in the debt- or’s confirmed chapter 13 plan notwithstanding the discharge).
discussed Cited "see" Joiner v. General Electric Company (2×)
11th Cir. · 1996 · signal: see · confidence high
See, Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir.1993) (“The district court’s conclusion of law is subject to complete and independent review by this court.”) (quoting, In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993)); Bradley, 42 F.3d at 436-37 .
discussed Cited "see" Mercantile Club, Inc. v. Scherr
Md. Ct. Spec. App. · 1995 · signal: see · confidence high
See In re Sure-Snap Corp., 983 F.2d 1015 , 1019 (11th Cir.1993); Underhill v. Royal, 769 F.2d 1426, 1432 (9th Cir.1985) (noting that “the bankruptcy court could not discharge the liability of a nondebtor as part of a reorganization plan to discharge the liability of the debtor”); Allen v. Kaplan, 255 Md. 409, 415 , 258 A.2d 211 (1969) (stating that “[t]here is ample authority to support the general proposition that a discharge in bankruptcy has no effect on the obligation of the person jointly liable with the bankrupt.”).
cited Cited "see" James R. Cohen and Joanne D. Cohen v. The United States
Fed. Cir. · 1993 · signal: see · confidence high
See In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993) (district court’s conclusion of law subject to complete and independent review). 9 .
discussed Cited "see" K. Kay Shearin v. The United States
Fed. Cir. · 1993 · signal: see · confidence high
See In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993) (district court’s conclusion of law subject to complete and independent review); Gould, Inc. v. United States, 935 F.2d 1271, 1273 (Fed.Cir.1991) (de novo review).
discussed Cited "see" Matter of Celotex Corp.
Bankr. M.D. Fla. · 1993 · signal: accord · confidence high
Accord Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1017 (11th Cir.1993), holding the law in Florida is well settled that the interpretation of contracts is governed by the law of the state where the contract was made, making no reference to Tang How v. Edward J.
discussed Cited "see" Celotex Corp. v. AIU Insurance (In re Celotex Corp.)
Bankr. M.D. Fla. · 1993 · signal: accord · confidence high
Accord Shure v. Vermont (In re Sure-Snap Corp.), 983 F.2d 1015, 1017 (11th Cir.1993), holding the law in Florida is well settled that the interpretation of contracts is governed by the law of the state where the contract was made, making no reference to Tang How v. Edward I Gerrits, Inc., 961 F.2d 174 (11th Cir.1992); Shapiro v. Associated Int'l Ins.
discussed Cited "see, e.g." Picerne Construction Corp. v. Castellino Villas, A. K. F. LLC (In Re Castellino Villas, A. K. F. LLC)
9th Cir. · 2016 · signal: see also · confidence low
We therefore rejected the debtor’s argument that the state lawsuit “should be considered continuous litigation, rather than the commencement of a new suit post-petition,” and we instead concluded that the debtor’s “actions to revive the state suit were sufficiently voluntary and affirmative to be considered ‘returning to the fray.’ ” Id. at 1027; see also In re Sure-Snap Corp., 983 F.2d 1015 , 1018-19 (11th Cir. 1993) (holding that when a debtor’s liabilities under an agreement were discharged in bankruptcy, but the debtor challenged the validity of the agreement through a po…
discussed Cited "see, e.g." FB Acquisition Property I, LLC v. Gentry
10th Cir. · 2015 · signal: see also · confidence low
Real Estate Fund, Inc., 922 F.2d 592 , 601 (10th Cir.1990); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1019 (11th Cir.1993); F.D.I.C. v. Municipality of Ponce, 904 F.2d 740, 748 (1st Cir.1990); In re Sandy Ridge Dev.
discussed Cited "see, e.g." Philip E. Ruben v. Lauralee K. Bell
7th Cir. · 2014 · signal: see also · confidence low
Suppose the bankrupt’s postpetition activity, whether aggressive or defensive, is wasteful, improvident; then deny- ing discharge of the expense he incurs in that wasteful activi- ty is a proper sanction, for “even if a cause of action arose pre-petition, the discharge shield cannot be used as a sword that enables a debtor to undertake risk-free [postpetition] litigation at others’ expense.” In re Ybarra, 424 F.3d 1018 , 1026 (9th Cir. 2005); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1018 (11th Cir. 1993).
discussed Cited "see, e.g." In re Ruben
7th Cir. · 2014 · signal: see also · confidence low
Suppose the bankrupt’s postpetition activity, whether aggressive or defensive, is wasteful, improvident; then denying discharge of the expense he incurs in that wasteful activity is a proper sanction, for “even if a cause of action arose pre-petition, the discharge shield cannot be used as a sword that enables a debtor to undertake risk-free [postpetition] litigation at others’ expense.” In re Ybarra, 424 F.3d 1018 , 1026 (9th Cir.2005); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1018 (11th Cir.1993).
cited Cited "see, e.g." Bechtold v. Gillespie (In Re Gillespie)
9th Cir. BAP · 2014 · signal: see also · confidence medium
See id. at 1023-24 ; see also In re Sure-Snap Corp., 983 F.2d at 1018; In re Hadden, 57 B.R. at 190 .
discussed Cited "see, e.g." In re: Paul Duncan Gillespie
9th Cir. BAP · 2014 · signal: see also · confidence low
Rather, the focus of the Ybarra inquiry is on the 10 debtor’s motivation for engaging in the postpetition litigation 11 and whether the debtor “returned to the fray” to press his 12 disputed claims and property interests or for some other purpose. 13 See id. at 1023-24 ; see also In re Sure-Snap Corp., 983 F.2d at 14 1018; In re Hadden, 57 B.R. at 190 . 15 We acknowledge that these three decisions do not specify 16 where the line between voluntary and involuntary always should be 17 drawn.
discussed Cited "see, e.g." Airlines Reporting Corp. v. Sarrion Travel, Inc.
E.D. Va. · 2012 · signal: see also · confidence low
See also In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993) (state law applies where interpreting contractual attorney’s fees provision in a diversity case); Northern Heel Corp. v. Compo Industries, Inc., 851 F.2d 456, 475 (1st Cir.1988) (same); Roger E.
discussed Cited "see, e.g." Arthur Ghee v. Retailers National Bank
11th Cir. · 2008 · signal: see also · confidence low
A discharge in bankruptcy does not affect the liability pf a third party on the same debt. 11 U.S.C. § 524 (e); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1019 (11th Cir.1993) (same, relating to third-party guarantor).
discussed Cited "see, e.g." Deakter v. Menendez
Fla. Dist. Ct. App. · 2002 · signal: see, e.g. · confidence medium
See, e.g., Sure-Snap Corp. v. State of Vermont, 983 F.2d 1015, 1019 (11th Cir.1993) (holding that the discharge of a debt in bankruptcy does not discharge the obligations of a third-party guarantor of that debt); see also 11 U.S.C. § 524 (e) (1993).
discussed Cited "see, e.g." Southwest Marine Incorporated v. Richard Danzig 1 , Secretary of the Navy
9th Cir. · 2000 · signal: see also · confidence low
See 8 Collier on Bankruptcy, ¶ 1141.02[1] (15th Rev. ed.2000); Holywell Corp. v. Smith, 503 U.S. 47, 53-54 , 112 S.Ct. 1021, 1025 , 117 L.Ed.2d 196 (1992) (trustee appointed under plan-established trust liable for post-confirmation taxes because binding nature of the confirmed plan reaches only preconfirmation obligations); see also Shure v. State of Vermont (In re Sure-Snap Corp.), 983 F.2d 1015 (11th Cir.1993) (confirmation discharged pre-confirmation liabilities only; debtor not protected from post-confirmation creditor for debt arising from voluntary post-confirmation activity related to …
discussed Cited "see, e.g." Feuer v. Krasnyansky
Mass. Super. Ct. · 1995 · signal: see also · confidence low
See also In re Sure-Snap Corp., 983 F.2d 1015 , 1019 (11th Cir. 1993); F.D.I.C. v. Municipality of Ponce, 904 F.2d 740, 747-48 (1st Cir. 1990); In re American Hardwoods, Inc., 885 F.2d 621, 625-26 (9th Cir. 1989); UnderhM v. Royal, 769 F.2d 1426 , 1432 (9th Cir. 1985) (“When a bankruptcy court discharges the debtor, it does so by operation of the bankruptcy laws, not by consent of the creditors”); Union Carbide v. Newboles, 686 F.2d 593, 595 (7th Cir. 1982); R.I.D.C.
discussed Cited "see, e.g." Hodges v. Secretary of Department of Health & Human Services
Fed. Cir. · 1993 · signal: see also · confidence low
See Trayco, Inc. v. United States, 994 F.2d 832, 835 (Fed.Cir.1993) (conclusions of law subject to complete and independent review); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir. 1993).
discussed Cited "see, e.g." Hodges v. Secretary Of Health And Human Services
Fed. Cir. · 1993 · signal: see also · confidence low
See Trayco, Inc. v. United States, 994 F.2d 832, 835 (Fed.Cir.1993) (conclusions of law subject to complete and independent review); see also In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993).
cited Cited "see, e.g." Trayco, Incorporated v. The United States
Fed. Cir. · 1993 · signal: see also · confidence low
See also In re Sure-Snap Corp., 983 F.2d 1015 , 1017 (11th Cir.1993) (conclusions of law subject to complete and independent review).
Retrieving the full opinion text from the archive…
Bankr. L. Rep. P 75,146 in Re Sure-Snap Corporation, Debtors. Elaine J. Shure, Sure-Snap Corporation
v.
The State of Vermont Acting by and Through the Vermont Industrial Development Authority, State Street Bank and Trust Company, Bradford National Bank as Trustee of Two Industrial Development Revenue Bonds Issued by the Vermont Industrial Development Authority, Bradford National Bank
91-5446.
Court of Appeals for the Eleventh Circuit.
Feb 16, 1993.
983 F.2d 1015
Cited by 17 opinions  |  Published

983 F.2d 1015

Bankr. L. Rep. P 75,146
In re SURE-SNAP CORPORATION, Debtors.
Elaine J. SHURE, Sure-Snap Corporation, Plaintiffs-Appellees,
v.
The STATE OF VERMONT Acting By and Through the VERMONT
INDUSTRIAL DEVELOPMENT AUTHORITY, State Street
Bank and Trust Company, Defendants,
Bradford National Bank As Trustee of Two Industrial
Development Revenue Bonds issued by the Vermont
Industrial Development Authority,
Bradford National Bank,
Defendants-Appellants.

No. 91-5446.

United States Court of Appeals,
Eleventh Circuit.

Feb. 16, 1993.

Charles W. Throckmorton, Kozyak Tropin Throckmorton & Humphreys, P.A., Miami, FL, for Bradford Nat. Bank.

Glenn J. Waldman, Peter Hirsch, Stroock & Stroock & Lavan, Miami, FL, for plaintiffs-appellees, Elaine J. Shure and Sure-Snap Corp.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH, Circuit Judge, HILL and SMITH[*], Senior Circuit Judges.

EDWARD S. SMITH, Senior Circuit Judge:

[*~1015]1

Bradford National Bank (Bradford) appeals an order entered by the United States District Court for the Southern District of Florida denying Bradford's motion for attorney fees as the prevailing party on appeal.[1] The district court had previously entered a judgment in favor of Bradford in an appeal filed by Sure-Snap Corporation (Sure-Snap) and its guarantor, Elaine Shure, from the United States Bankruptcy Court for the Southern District of Florida.[2] The district court then issued its order holding that Bradford was not entitled to attorney fees because the parties' mortgage and security agreement (the Agreement), which contained an attorney fee provision, was terminated by the confirmation of Sure-Snap's Chapter 11 plan of reorganization. We reverse and remand with instructions for the district court to grant reasonable appellate attorney fees to Bradford.

Issues

2

Bradford appeals two issues. First, did the district court err in ruling that the confirmation of Sure-Snap's Chapter 11 plan terminated Sure-Snap's contractual liability for Bradford's attorney fees, where those fees were incurred in a post-confirmation appeal initiated by Sure-Snap from a pre-confirmation adversary proceeding upholding the validity of the Agreement? Second, did the confirmation of Sure-Snap's Chapter 11 plan discharge Elaine Shure's liability, as Sure-Snap's guarantor, for Bradford's appellate attorney fees?

Background

3

Sure-Snap, a Chapter 11 debtor, filed an action in the Bankruptcy Court for the Southern District of Florida on 21 April 1988 seeking a declaration that its indebtedness under a mortgage and security agreement held by Bradford was void under Vermont law. The bankruptcy court upheld the enforceability of the Agreement by its order of 20 June 1988. While the declaratory judgment action was pending, Sure-Snap filed its Chapter 11 plan of reorganization. The bankruptcy court confirmed Sure-Snap's plan on 28 June 1988. Pursuant to the plan, Sure-Snap's obligations under the Agreement were discharged in consideration of Sure-Snap's conveyance of certain mortgaged real property to Bradford.

The Post-Confirmation Appeal

4

On 12 August 1988, Sure-Snap and Elaine Shure appealed to the United States District Court for the Southern District of Florida the final judgment of the bankruptcy court upholding the validity of the Agreement. The district court affirmed the bankruptcy court's decision by memorandum opinion dated 15 September 1989. As the prevailing party, Bradford filed a motion to tax appellate attorney fees and costs against Sure-Snap. The district court denied Bradford's motion on the ground that confirmation of Sure-Snap's Chapter 11 reorganization plan had terminated the Agreement and consequently had extinguished Bradford's contractual basis for an award of attorney fees.

Standard of Review

5

The district court held, as a matter of law, that there was no contractual or statutory basis for an award of attorney fees to Bradford. The district court's conclusion of law is subject to complete and independent review by this court. In re Thomas, 883 F.2d 991, 994 (11th Cir.1989), cert. denied, Thomas v. Southtrust Bank, 497 U.S. 1007, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990).

Sure-Snap's Liability for Attorney Fees

[*~1016]6

Federal courts apply state law when ruling on the interpretation of contractual attorney fee provisions. See American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826, reh'g denied en banc, 892 F.2d 89 (11th Cir.1989); In re East Side Investors, 694 F.2d 242 (11th Cir.1982), reh'g denied, 702 F.2d 214 (11th Cir.1983). The law is well settled in Florida, the forum state, that matters bearing on the validity and interpretation of a contract are governed by the law of the state where the contract was made. In re Interstate Markings, Inc., 73 B.R. 1 (Bankr.M.D.Fla.1987); Goodman v. Olsen, 305 So.2d 753 (Fla.1974). The dispute in this case involves the interpretation of an attorney fee provision in the Agreement. Since Bradford and Sure-Snap executed the mortgage and security agreement in Vermont, its law of contract interpretation controls. Under Vermont law, attorney fees are not awarded unless authorized by legal authority or as a matter of contract. In re Appeal of Gadhue, 149 Vt. 322, 544 A.2d 1151 (1987); Myers v. Ambassador Ins. Co., 146 Vt. 552, 508 A.2d 689 (1986).

7

Bradford relies on a specific contractual provision found in the Agreement for its claim for attorney fees. The Agreement provides:

8

(7) Court Proceedings.... [I]f the Company [Sure-Snap] is in default hereunder, the Trustee [Bradford] may enforce the provisions of this Agreement by appropriate legal proceedings ... and may recover damages caused by any breach by the Company of the provisions of this Agreement, including court costs, reasonable attorney's fees and other costs and expenses incurred in enforcing the obligations of the Company hereunder.

[*~1017]9

The district court erroneously refused to award Bradford's appellate attorney fees based on the reasoning that "[t]he provision in the parties' mortgage and security agreement for the award of attorney's fees no longer is in force, given the termination of that agreement by virtue of the confirmation and consummation of the Appellant corporation's Chapter 11 plan."[3] There is no statutory support for the district court's conclusion that confirmation of Sure-Snap's Chapter 11 plan "terminated" the Agreement. The Bankruptcy Code provides that "[e]xcept as otherwise provided ... in the plan, or in the order confirming the plan, the confirmation of a plan ... discharges the debtor from any debt that arose before the date of such confirmation." 11 U.S.C. § 1141(d)(1)(A) (1988). The confirmation of Sure-Snap's Chapter 11 plan did not terminate the Agreement; rather, confirmation prevented Bradford from enforcing the terms of the Agreement against Sure-Snap to collect pre-confirmation debt. See Wagner v. United States, 573 F.2d 447 (7th Cir.1978) ("[A] discharge does not cancel the obligation; the obligation still exists. A discharge merely disables the creditor from enforcing its claim." Id. at 453.); In re Tinsley, 98 B.R. 791 (Bankr.S.D.Ohio 1989) (contractual obligation made unenforceable by the discharge). Furthermore, neither the plan nor the order confirming the plan provided for termination of the Agreement.

10

The confirmation of Sure-Snap's Chapter 11 plan discharged its pre-confirmation liabilities under the Agreement. The attorney fees Bradford seeks were incurred by Bradford in defending a post-confirmation appeal initiated by Sure-Snap. Sure-Snap voluntarily continued to litigate the validity of the Agreement after confirmation of its Chapter 11 plan. Bradford had no choice but to defend. By choosing to appeal the validity of the Agreement after confirmation, Sure-Snap did so at the risk of incurring post-confirmation costs involved in its acts. "[B]ankruptcy was intended to protect the debtor from the continuing costs of pre-bankruptcy acts but not to insulate the debtor from the costs of post-bankruptcy acts." In re Hadden, 57 B.R. 187, 190 (Bankr.W.D.Wis.1986) (contractor-creditor awarded post-petition attorney fees where Chapter 7 debtor voluntarily continued to litigate a pre-petition breach of contract action initiated by debtor). Accord In re Grynberg, 113 B.R. 709 (Bankr.D.Colo.) (judgment creditors awarded post-petition appellate attorney fees where Chapter 11 debtor voluntarily chose to appeal an underlying pre-petition judgment), aff'd, 143 B.R. 574 (D.Colo.1990), and aff'd, 966 F.2d 570 (10th Cir.1992).

11

We reject Sure-Snap's argument that the underlying adversary proceeding in this case is not the type of action covered by the attorney fee provision of the Agreement. Sure-Snap asserts that the plain language of the contract applies only to proceedings initiated by Bradford to enforce obligations due under the Agreement in a default situation. An interpretation of the contractual attorney fee provision as advocated by Sure-Snap would lead to inequitable results.

[*~1018]12

Under Sure-Snap's interpretation, a debtor in default could always avoid a bargained-for attorney fee provision by first filing a declaratory judgment action. We hold that Bradford's attorney fees were manifestly "incurred in enforcing [Sure-Snap's] obligations" as that term is used in the contract. Bradford stood to lose either the property Sure-Snap had conveyed in satisfaction of its obligation as provided by the confirmation order, or a substantial sum of money if the bankruptcy court's decision upholding the validity of the Agreement had been reversed. See Universal Drilling Co. v. Camay Drilling Co., 737 F.2d 869 (10th Cir.1984); Duryea v. Third Northwestern Nat'l Bank, 606 F.2d 823 (8th Cir.1979); Michael-Regan Co. v. Lindell, 527 F.2d 653 (9th Cir.1975). The Supreme Court of Vermont recently addressed a similar argument and held that the sellers of a freight airline company were entitled to contractual attorney fees in defending a counterclaim initiated by the buyer because "defending the counterclaim was necessary to collect the debt." Wright v. Doolin, 607 A.2d 1137, 1140 (Vt.1992).

Elaine Shure's Liability for Attorney Fees

13

Elaine Shure, as guarantor under the Agreement, is liable for Bradford's appellate attorney fees. First, confirmation of Sure-Snap's Chapter 11 plan discharged neither Sure-Snap nor Elaine Shure for attorney fees incurred by Bradford in the post-confirmation appeal initiated by Sure-Snap. Confirmation of a Chapter 11 plan "discharges the debtor from any debt that arose before the date of such confirmation." 11 U.S.C. § 1141(d)(1)(A) (1988) (emphasis added). The appellate attorney fees Bradford is seeking pursuant to the Agreement arose after confirmation as a direct result of Sure-Snap's voluntary act of appealing the underlying adversary proceeding.

14

Second, confirmation of a debtor's Chapter 11 plan does not discharge the obligations of a third-party guarantor. The Bankruptcy Code provides that "discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt." 11 U.S.C. § 524(e) (1988). See also In re Stoller's Inc., 93 B.R. 628 (Bankr.N.D.Ind.1988) (guarantors liable for post-petition interest and attorney fees as allowed by terms of guarantee); In re Scranes, Inc., 67 B.R. 985 (Bankr.N.D.Ohio 1986) (liability of a guarantor is not altered by discharge of the debtor). The confirmation of Sure-Snap's Chapter 11 plan discharged Sure-Snap's liability for its pre-confirmation obligations to Bradford, but did not alter Elaine Shure's liability to Bradford for appellate attorney fees as Sure-Snap's guarantor.

Conclusion

[*~1019]15

The district court erred in holding that the confirmation of Sure-Snap's Chapter 11 plan "terminated" Sure-Snap's contractual liability for Bradford's attorney fees incurred in the post-confirmation appeal initiated by Sure-Snap from a pre-confirmation adversary proceeding upholding the validity of the parties' mortgage and security agreement. Furthermore, the confirmation of Sure-Snap's Chapter 11 plan did not alter Elaine Shure's guarantor liability to Bradford for post-confirmation attorney fees. The decision of the United States District Court for the Southern District of Florida is REVERSED and REMANDED with instructions to award reasonable appellate attorney fees to Bradford.

*

Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation

1

The other named parties in the adversary proceeding, State Street Bank and Trust Co. and the State of Vermont, are not interested parties to this appeal

2

In re Sure-Snap Corp., No. 88-2095-CIV-Kehoe (S.D.Fla. Sept. 15, 1989) (mem.)

3

In re Sure-Snap Corp., No. 88-2095-CIV-Kehoe (S.D.Fla. Nov. 6, 1990)