Cite as: Keith M. Lundin, Lundin On Chapter 13, § 136.7, at ¶ ____, LundinOnChapter13.com (last visited __________).
BAPCPA did not change the general principle that compensation allowed under § 330(a) to a debtor’s attorney in a Chapter 13 case is an expense of administration under § 503(b)(2). BAPCPA changed the priority of administrative expenses from first to second priority under § 507(a)(2), but this change in priority does not affect the entitlement of attorneys’ fees to full payment in a Chapter 13 case under § 1322(a)(2).1
One change to § 330 by BAPCPA may enhance the recovery of fees by debtors’ attorneys in Chapter 13 cases. BAPCPA amended § 330(a)(3)(E) to provide that in determining the amount of reasonable compensation to be awarded to a professional person, the court shall consider “whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field.”2 Demonstrated skill and experience in the bankruptcy field probably adds little to the compensation picture under § 330. But board certification is interesting. “Board certified” is not defined. The term seems broad enough to include state boards of professional responsibility where certification in specialties is offered and national certifying boards such as the American Board of Certification sponsored by the American Bankruptcy Institute.
The straightforward message is that board certification or other demonstration of skill and experience is a factor that bankruptcy courts should consider in awarding fees in Chapter 13 cases. It is reported anecdotally that board certification in consumer bankruptcy justifies a higher hourly rate or a higher flat fee in some districts in Chapter 13 cases. The BAPCPA amendments to § 330(a)(3)(E) are congressional recognition that board certification of a debtor’s attorney is relevant to the awarding of fees in Chapter 13 cases.
BAPCPA added three new sections to the Bankruptcy Code that regulate the relationship between debtors’ attorneys and their clients in Chapter 13 cases. Detailed elsewhere,3 the new Debt Relief Agency (DRA) rules in §§ 526, 527 and 528 will require many Chapter 13 debtors’ attorneys to change their contracting and advertising practices. When the DRA rules apply, the enforceability of a fee agreement between an attorney and a Chapter 13 debtor will depend on careful compliance with the new contracting and noticing requirements.
It is foreseeable that the new DRA rules will be tested in Chapter 13 cases in fee disputes when the claim is made that a debtor’s attorney is not entitled to fees because of failure to comply with a contracting or noticing responsibility in §§ 526–528. For example, under new § 528(a)(1), a DRA must execute a written contract with an assisted person not later than five days after the first date on which the DRA provided bankruptcy assistance services.4 Any contract for bankruptcy assistance between a DRA and an assisted person that does not comply with the five-business-day requirement is “void” and cannot be enforced by any person other than the assisted person.5 It is easy to imagine that a disgruntled debtor challenging the allowance of compensation to an attorney would raise any defect in the contracting process under the DRA rules as a bar to enforcement of the fee agreement.
It is possible that the new advertising requirements and restrictions in § 528 will have similar effects on the recovery of attorneys’ fees in Chapter 13 cases. Under new § 528(a) and (b), a DRA must “clearly and conspicuously disclose in any advertisement of bankruptcy assistance services” that the advertiser is a DRA and that “we help people file for bankruptcy relief,” and must disclose that assistance may involve bankruptcy relief. Under new § 526(c)(1), a failure of a DRA to comply with the “material requirements” of § 528 voids any contract between the DRA and an assisted person. When a debtor’s attorney is acting as a DRA in a Chapter 13 case, it would follow that any failure to comply with the new advertising requirements in § 528 could void any fee contract with the debtor.6 It seems odd, but distinctly possible, that an error in advertising by a Chapter 13 debtor’s attorney could be the basis for the denial of fees in Chapter 13 cases without regard to whether a particular debtor was even aware of the advertising.
A footnote to the treatment of attorneys’ fees after BAPCPA is the odd treatment of attorneys’ fees by the rules drafters in Official Form B22C. All Chapter 13 debtors are required to file a new Official Form B22C that attempts to be a statement of current income, a calculation of commitment period and a calculation of disposable income.7 For many reasons, the current version of Official Form B22C falls short of these goals. For Chapter 13 debtors with current monthly income (CMI) greater than applicable median family income, Parts III–VI of Official Form B22C mimic the determination of disposable income in accordance with § 707(b)(2)(A) and (B).8 Among the many deductions and adjustments to CMI that are allowed on the way to disposable income, there is no specific deduction in Official Form B22C for debtors’ attorneys’ fees. The Committee Notes explain this omission:
The Chapter 13 form does not provide a deduction from disposable income for the Chapter 13 debtors’ anticipated attorneys’ fees. There is no specific statutory allowance for such a deduction, and none appears necessary. Section 1325(b)(1)(B) requires that disposable income contributed to a Chapter 13 plan be used to pay “unsecured creditors.” A debtor’s attorney who has not taken a security interest in the debtor’s property is an unsecured creditor who may be paid from disposable income.9
The Committee Note accurately relates that debtors’ attorneys in Chapter 13 cases typically are unsecured creditors. After BAPCPA reconfigured the disposable income test in § 1325(b), the fees of debtors’ attorneys may indeed be paid from disposable income.10 But the statement in the Committee Note that there is “no specific statutory allowance” for a deduction of debtors’ attorneys’ fees in the disposable income calculation is not correct.
BAPCPA did not change the priority status of attorney compensation in Chapter 13 cases. Compensation allowed to a debtor’s attorney under § 330(a) is an administrative expense under § 503(b)(2) and that administrative expense becomes a second priority under § 507(a)(2) entitled to full payment through the Chapter 13 plan under § 1322(a)(2).
For Chapter 13 debtors with CMI greater than applicable median family income, § 707(b)(2)(A)(iv) provides that “amounts reasonably necessary to be expended—” include 1/60th of the debtor’s expenses “for payment of all priority claims.”11 This is a specific statutory allowance of debtors’ attorneys’ fees as a deduction from CMI in the calculation of disposable income for a Chapter 13 debtor with CMI greater than applicable median family income. Notwithstanding the Committee Note, a Chapter 13 debtor with CMI greater than applicable median family income should include anticipated attorneys’ fees as priority claims at Line 49 of Official Form B22C.12
The Committee Comment raises a different point about the payment of attorneys’ fees after BAPCPA. As reformulated by BAPCPA, the disposable income test calculates the amount that must be paid to unsecured creditors to accomplish confirmation under § 1325(b).13 Following the statutory directive, for Chapter 13 debtors with CMI greater than applicable median family income, priority claims for debtors’ attorneys’ fees—and all priority debts—are deducted from CMI to determine the amount of disposable income available for distribution to unsecured creditors. But then those same unsecured priority debts are paid from disposable income—reducing the amount of disposable income that will be actually paid to nonpriority unsecured creditors. This outcome is true to the strange mathematics of the disposable income test as reformulated by BAPCPA.
1 See §§ 294.1 [ Debtors’ Attorneys’ Fees ] § 136.6 Debtors’ Attorneys’ Fees before BAPCPA and 441.1 [ New and Changed Treatment of Priority Claims ] § 73.6 Treatment of Priority Claims Changed by BAPCPA.
2 11 U.S.C. § 330(a)(3)(E).
3 See § 366.1 [ WARNING! You Are a Debt Relief Agency ] § 4.1 WARNING! You Are a Debt Relief Agency.
4 11 U.S.C. § 528(a)(1), discussed in § 366.1 [ WARNING! You Are a Debt Relief Agency ] § 4.1 WARNING! You Are a Debt Relief Agency.
5 11 U.S.C. § 526(c)(1), discussed in § 366.1 [ WARNING! You Are a Debt Relief Agency ] § 4.1 WARNING! You Are a Debt Relief Agency.
6 See 11 U.S.C. § 101(3), discussed in § 366.1 [ WARNING! You Are a Debt Relief Agency ] § 4.1 WARNING! You Are a Debt Relief Agency.
7 See §§ 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19 Form 122C-1: Statement of Current Monthly Income, 379.2 [ Form B22C: Commitment Period Calculation ] § 36.20 Form 122C-1: Commitment Period Calculation and 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.
8 See § 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.
9 Committee Note, Official Form B22C.
10 See 11 U.S.C. § 1325(b), discussed in § 494.1 [ Projected Disposable Income ] § 101.1 What Do Unsecured Creditors Get?.
11 11 U.S.C. § 707(b)(2)(A)(iv), discussed in § 486.1 [ Total Priority Debts and Divide by 60 ] § 97.1 Total Priority Debts and Divide by 60.
12 See § 380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.
13 See 11 U.S.C. § 1325(b)(1)(B), discussed in § 494.1 [ Projected Disposable Income ] § 101.1 What Do Unsecured Creditors Get?.
Faitalia v. Village Park Cmty. Ass’n (In re Faitalia), No. 16-60100, 2018 WL 3301250 (9th Cir. July 5, 2018) (unpublished) (Tashima, Fletcher, Hurwitz) (Chapter 13 debtors were not entitled to recover attorney fees under Hawaii law that allows fees in successful litigation against a homeowners’ association; filing proof of claim was not a collection action against the debtors or their property for purposes of the Hawaii statute and defeating secured status was not the kind of success contemplated by the statute.).
Bayer Wishman & Leotta v. Danielson (In re Walker), No. 14-56520, 2016 WL 3262685, at *1 (9th Cir. June 14, 2016) (unpublished) (Gould, Hurwitz, Restani) (Bankruptcy court appropriately relied on a “fee study” to determine that $600 was a reasonable fee for preparation of a Chapter 13 “status report”; supplemental fee requests by debtor’s attorney for a greater sum were appropriately denied. “The fee study relied upon by the bankruptcy court . . . , consisting of 125 supplemental fee requests filed in the Riverside Division for preparation of a Chapter 13 status report . . . , provided concrete evidence of the comparative unreasonableness of BWL’s fee request. . . . $600.00 was a reasonable fee for preparing a status report.”).
Sikes v. Crager (In re Crager), 691 F.3d 671 (5th Cir. Aug. 16, 2012) (Higginbotham, Haynes, Higginson) ($2,800 no-look fee was not unreasonable when trustee complicated Chapter 13 case by raising good-faith objection to plan that paid only attorney fees.).
Fitzgibbons v. Zeman (In re Matney), No. 09-1170, 2010 WL 456911 (10th Cir. Feb. 11, 2010) (unpublished) (Gorsuch, Anderson, Brorby) (Fees substantially reduced when counsel failed to prove that adversary proceeding was required by BAPCPA or necessary to reach agreement with IRS with respect to status and treatment of tax claim for $354,004.), aff'g 407 B.R. 443 (B.A.P. 10th Cir. Mar. 11, 2009) (Cornish, Michael, Rasure).).
Henderson v. Sundquist (In re Sundquist), , ( ) ()
Henderson v. Sundquist (In re Sundquist), , ( ) ()(Bankruptcy court appropriately cancelled contingent fee agreement, awarded fees of $70,000 based on lodestar analysis and cancelled any attorney lien claimed by “barely adequate” former counsel in BOA litigation.), aff'g 576 B.R. 858, 867–68, 868 (Bankr. E.D. Cal. Nov. 15, 2017) (Klein) (In follow-up to Sundquist v. Bank of America, N.A., 566 B.R. 563 (Bankr. E.D. Cal. Mar. 23, 2017) (Klein), former debtor’s counsel is limited to $70,000 fee previously awarded. Lien claimed by attorney to “hold up” settlement is rejected. Former counsel is allowed fees in spite of “incompetent” representation. Bankruptcy court rejects “doctored, back-dated contingency fee agreement . . . that . . . exceeded the reasonable value of services within the meaning of § 329(b)[.]” Debtor’s former counsel was “in deep water, flailing with beginner strokes.”)).
Howard v. Derham-Burke (In re Howard), No. 17-1064-STaB, 2018 WL 2107787, at *1–*5 (B.A.P. 9th Cir. May 7, 2018) (unpublished) (Spraker, Taylor, Brand) (Fees incurred after completion of payments for successfully defending Bankruptcy Rule 3002.1 Notice of Final Cure are administrative expenses that are dischargeable without regard to payment and cannot be collected from the debtor personally. Counsel could have but didn’t get agreement for direct payment of remaining fees, together with a waiver or exception to discharge. Debtor could have, but didn’t, make additional payments to cover the unpaid attorney fees. Debtor can still voluntarily pay attorney under § 524(f). “The fees fall within the statutory definition of administrative expense claims. They were awarded under § 330(a)(4)(B), and such fees are specifically covered by the administrative expense statute, § 503(b)(2). . . . Moran successfully precluded PNC Bank from introducing evidence of alleged outstanding escrow advances under Rule 3002.1(i)(1) and was awarded fees and costs incurred in this matter under Rule 3002.1(i)(2). . . . Moran separately obtained a determination that Howard was current on her PNC Bank mortgage obligations under Rule 3002.1(h). However, the bankruptcy court denied Howard’s request that PNC Bank pay the balance of Moran’s fees and costs arising from the motion under Rule 3002.1(h) because that subdivision does not provide for the recovery of attorneys’ fees. . . . Because most chapter 13 plans provide for payment of all administrative expenses through the plan, such fees can be discharged upon completion of the plan even if such fees were not actually paid. . . . The postconfirmation fees Howard incurred at the end of her chapter 13 case were administrative expenses that were discharged pursuant to Howard’s chapter 13 plan. . . . We are not unsympathetic to Moran’s situation. . . . Although the completion of the plan payments and term precluded modification of the plan, it did not necessarily foreclose the debtor from making additional payments on outstanding plan obligations if required. . . . Courts may allow debtors to make payments directly to counsel on fees excepted from the discharge. . . . Even after entry of discharge, nothing prevents Howard from voluntarily repaying Moran’s approved fees.”).
Cole v. Cohen & Bordeaux, LLP (In re Cole), No. CC-17-1176-KuSA, 2017 WL 6003342 (B.A.P. 9th Cir. Dec. 4, 2017) (unpublished) (Kurtz, Spraker, Alston) (Failure to timely object to itemized fee application after presumptively effective notice was mailed is fatal to appeal of order allowing fees.).
David N. Chandler, P.C. v. McIntosh (In re McIntosh), Nos. NC-15-1029-JuTaD, NC-15-1036-JuTaD, 2015 WL 6736740 (B.A.P. 9th Cir. Nov. 3, 2015) (unpublished) (Jury, Taylor, Dunn) (Debtor's attorney breached duty of loyalty by arguing against debtor's interest in fee dispute; denial of fees and disgorgement were appropriate.).
In re Schold, No. MW 14-074, 2015 WL 3733649 (B.A.P. 1st Cir. May 22, 2015) (unpublished) (Deasy, Finkle, Cary) (Reduction of fee in business case from more than $50,000 to $10,000 is reversed because bankruptcy court did not apply lodestar analysis or explain deviation from that approach.).
Young v. Young (In re Young), 507 B.R. 286 (B.A.P. 8th Cir. Mar. 12, 2014) (Kressel, Schermer, Shodeen) (Sanctions were appropriate under Bankruptcy Rule 9011—including six-month suspension from practice in the Arkansas bankruptcy courts—based on "conduct throughout the case." Misconduct included mischaracterization of unpaid postpetition alimony as prepetition debt, double-accounting for ongoing alimony and false representation with respect to compliance with § 1325(a)(8). Notice was not sufficient with respect to sanctions under § 105(a) for misconduct by counsel at show-cause hearing.).
Dhaliwal v. Singh (In re Singh), No. NC-13-1285-DJuKi, 2014 WL 842102, at *1-*8 (B.A.P. 9th Cir. Mar. 4, 2014) (unpublished) (Dunn, Jury, Kirscher) (Disgorgement of attorney fees and monetary sanctions were appropriate when counsel failed to obtain "wet signature" by debtor on petition and other documents in violation of local rule. "[T]he debtor retained Dhaliwal as his attorney for his chapter 13 bankruptcy case. He paid Dhaliwal $2,416 as an initial retainer . . . . The debtor authorized his parents . . . to oversee his chapter 13 bankruptcy case while he worked on an out-of-town project. . . . Dhaliwal affixed the debtor's electronic signature to the plan, schedules, SOFA and Form B22C without the debtor's authorization. He also failed to obtain the debtor's original 'wet' signature for these documents. . . . Dhaliwal had special counsel appear on his behalf to represent the debtor at the § 341(a) meeting of creditors. . . . We . . . affirm the bankruptcy court's imposition of sanctions against Dhaliwal . . . because we conclude that it was enforcing its local rules as permitted under its inherent authority to manage attorney practices before it.").
Frutkin Law Firm, PLC v. Brown (In re Smith), No. AZ-13-1118-KuDPa, 2014 WL 764425, at *1-*4 (B.A.P. 9th Cir. Feb. 26, 2014) (unpublished) (Kurtz, Dunn, Pappas) (Not an abuse of discretion to limit attorney fees to $2,500 amount mistakenly contained in Bankruptcy Rule 2016 disclosure—notwithstanding corrective amended disclosure filed later in case. "Apparently, the Rule 2016 disclosure was inaccurate. As Frutkin later disclosed, instead of a $2,500 flat fee for its bankruptcy services, Frutkin had agreed with the Smiths to an hourly fee arrangement, with the $2,500 paid prepetition to be applied against any fees approved by the bankruptcy court . . . . Frutkin did not file an amended Rule 2016 disclosure until . . . over eight months after the commencement of the bankruptcy case. . . . If counsel fails to properly disclose compensation paid or agreed to, the bankruptcy court has discretion to reduce or completely deny fees, even if the error or omission in disclosure was inadvertent. . . . Frutkin's amended disclosure . . . was not sufficiently expeditious or complete to meaningfully rectify Frutkin's disclosure error.").
In re Dyer, No. 12-8030, 2013 WL 987729, at *8 (B.A.P. 6th Cir. Mar. 14, 2013) (unpublished) (Emerson, Harris, Lloyd) (Bankruptcy court abused its discretion by sua sponte ordering fee disgorgement based on mistaken legal conclusion that failure to move for extension of stay under § 362(c)(3) necessitated denial of confirmation and dismissal of case. In second case within a year, stay terminated 30 days after the petition under § 362(c)(3)(A) when debtors did not move for extension. Bankruptcy court sua sponte ordered debtors and their counsel to show cause why the case should not be dismissed and fees disgorged. Bankruptcy court denied confirmation, dismissed the case and ordered partial disgorgement of fees based solely on the failure of any party to seek an extension of the stay. "[T]he Bankruptcy Court abused its discretion when it ordered disgorgement of Gunner's fees based on the mistaken belief that Gunner's failure to move for an extension of the stay necessitated the denial of confirmation and dismissal of the Debtors' case.").
In re Alda, No. 10-8037, 2010 WL 4924615 (B.A.P. 6th Cir. Dec. 2, 2010) (unpublished) (Boswell, Fulton, McIvor) (It was not abuse of discretion to deny untimely fee application that did not explain why Chapter 13 case remained unconfirmed for more than a year.).
Lafayette v. Collins (In re Withrow), 391 B.R. 217 (Bankr. D. Mass. July 3, 2008), stay denied by 2008 WL 294523 (Bankr. D. Mass. July 25, 2008), aff’d, 405 B.R. 505 (B.A.P. 1st Cir. May 26, 2009) (After conversion from Chapter 13 to Chapter 7, bankruptcy court appropriately imposed sanctions under § 707(b)(4)(C) and (D) and Bankruptcy Rule 9011 when debtor's attorney failed to conduct a reasonable inquiry into the facts set forth in the schedules and there were numerous errors and discrepancies in the documents filed before and after conversion.).
Colpitts v. Eck (In re Rogers), 401 B.R. 490 (B.A.P. 10th Cir. Feb. 24, 2009) (McFeeley, Nugent, Thurman) (Reducing $3,904 fee to $2,300 was not an abuse of discretion in Chapter 13 case with no secured claims, one small priority claim and no litigated matters; that BAPCPA increased the cost of Chapter 13 practice does not overcome finding that fee request was excessive.).
In re Moravek, No. 18 C 3482, 2018 WL 6067247 (N.D. Ill. Nov. 20, 2018) (Castillo) (Bankruptcy court appropriately examined $7,000 fee for “simple” Chapter 13 case and reduced fee to $2,000 based on “outrageous” overcharging by attorney for hearings that did not take place, routine administrative matters and other misbehaviors. Attorney charged for attending three hearings that attorney did not actually attend, among other problems.).
Donnelly v. American Express Bank, FSB, No. 18-cv-1024-GPC-WVG, 2018 WL 4759206 (S.D. Cal. Oct. 2, 2018) (Curiel) (Debtor was not “prevailing party” in claim dispute for purposes of California’s reciprocal attorney fee statute because creditor abandoned its claim by conceding disallowance. Debtor’s attorney’s motion to compel discovery responses notwithstanding abandonment of claim was transparent attempt to recover attorney fees by another route.).
Bleichman v. Sapir (In re Heilpern), No. 16 Civ. 7854 (CM), 2018 WL 4907587 (S.D.N.Y. Sept. 27, 2018) (McMahon) (Bankruptcy court appropriately reduced counsel’s fees by $1,000 under § 329 when Chapter 13 case languished for more than a year without progress toward loss mitigation or confirmed plan and was then dismissed for unreasonable delay.).
In re Geer, No. 17-61387, 2018 WL 1989476 (N.D. Ohio Apr. 26, 2018) (unpublished) (Kendig) (When attorney charged less than the “no look” fee in the district, supplemental fee application for $345 for a stay relief motion is allowed, notwithstanding that two stay relief motions would normally be included in the no-look fee.).
McBride v. Riley, No. 1:17-01302, 2018 WL 1768602, at *5–*7 (W.D. La. Apr. 12, 2018) (Trimble) (Filing fees, credit counseling fees and credit report fees are not reimbursable to debtor’s counsel under 11 U.S.C. § 503(b)(1)(A) or § 503(b)(2) or under 11 U.S.C. § 330(a) because they are not administrative expenses of the Chapter 13 estate. “This court agrees with Judge Kolwe and finds that he (1) did not err in holding that the filing fee for a Chapter 13 case is not a post-petition expense (2) did not err in holding that the filing fee for a Chapter 13 case accrues pre-petition (3) did not err in holding that advances of filing fees, credit counseling fees, and credit report fees by debtor’s counsel in Chapter 13 are not reimbursable under 22 U.S.C. § 503 (b)(1)(A). . . . [A]llowing debtor’s counsel to advance that fee and then subsequently seek reimbursement of that fee through the plan, would take away the discretion of the Court to allow the fee to be paid in installments because of necessity, eviscerate Rule 1006(b) and divert available funds from unsecured creditors to the debtors’ counsel.”), aff'g 577 B.R. 497 (Bankr. W.D. La. Sept. 29, 2017) (Kolwe) (Although amended “no look” fee rule in district does not prohibit debtors’ attorneys from seeking reimbursement of advances for filing fee, a credit report and prepetition briefing, those advances are not administrative expenses under § 503 and are not separately reimbursable because expenses are included in the no-look amount. “Effective February 1, 2017, this District’s Bankruptcy Judges revoked the prior standing order on no-look fees and adopted a new one. . . . Under this order, the total no-look fee is $3,600, but the last $600 of the fee is not payable until the last six months of the debtor’s plan . . . . [I]t no longer expressly states that the no-look fee is inclusive of the filing fee and other advances. . . . [T]he filing fee, credit counseling fee and credit report fee are all prepetition expenses of the Debtor, not the estate. . . . [T]he advances do not provide a direct and substantial benefit to the estate. . . . [I]t only serves to satisfy the personal obligation of the Debtor to pay each of these costs. . . . This Court disagrees . . . that the filing fee is a post-petition expense. . . . [W]hile this Court acknowledges that a Chapter 13 debtor’s attorney may incur certain reimbursable expenses, the Court finds that those expenses are included in the Court’s contemplation and implementation of the no-look fee. . . . [T]he no-look fee is intended to be inclusive of all expenses. If the debtor’s attorney seeks any amount over the no-look fee, the current standing order requires a formal fee application setting forth both compensation and expenses requested. . . . [A]dvances are not reimbursable . . . as an administrative expense of the Debtor’s estate under 11 U.S.C. § 503(b)(1)(A) or (b)(2).”).
Stewart v. Sikes, No. 16-1187, 2017 WL 6567989 (W.D. La. Dec. 22, 2017) (Hicks) (Bankruptcy court appropriately denied law firm’s contingent fee application when firm did not seek approval of employment under § 328 until after performing services. Firm ordered to file fee application under § 330. Firm could have sought approval of contingent fee for representing debtor with respect to postpetition car accident had it applied for employment under § 328 before commencing representation.).
Chung & Press, LLC v. Branigan, No. GJH-17-00484, 2017 WL 4675739 (D. Md. Oct. 16, 2017) (Hazel) (Fee reduction from $14,600 to $9,760 was appropriate in “relatively routine” Chapter 13 case. $495-per-hour rate was high for the district and some routine work could have been done by staff for less cost.).
Cripps v. Foley (In re Cripps), 566 B.R. 172, 176–78 (W.D. Mich. Mar. 31, 2017) (Neff) (Attorney fee request filed after completion of plan payments was not untimely but request that it be paid as an administrative expense was untimely; allowed fees are not post-petition claims under § 1305 and would be discharged in the Chapter 13 case. After notice of plan completion from the trustee and termination of payroll deductions, debtor's attorney filed a final fee application seeking an additional fee of $686.60. Trustee objected. "While there is no deadline for a professional to seek an award of compensation, there is an implicit deadline that results from various sections of Chapter 13, which 'when considered together, require that a request for an administrative expense be made, at the latest, prior to completion of plan payments.' . . . Dietrich Law's request to have the allowed compensation paid as an administrative expense via Trustee disbursement pursuant to 11 U.S.C. § 503 was not timely because the bankruptcy case was completed. . . . [T]he awarded compensation was discharged pursuant to 11 U.S.C. §§ 524 and 1328(a), thus preventing Dietrich Law from requesting payment from the Debtors. . . . [F]ees and expenses of an attorney for a debtor in a Chapter 13 case are not post-petition claims under § 1305(a)(2). . . . [T]he majority of the courts that have considered the post-petition claim argument have rejected it.").
Demery v. Johns, 570 B.R. 44, 48 (W.D. La. Mar. 2, 2017) (Hicks) (Denial of $350 fee request for unsuccessful postconfirmation modification is remanded for explanation by bankruptcy court. District court declines to address propriety of “alleged practice of the Bankruptcy Court in the Shreveport Division of denying all attorney’s fees requests for unsuccessful post-confirmation modified plans filed on behalf of Chapter 13 debtors.”).
Harris-Courage & Grady, PLLC v. United States Bankr. Court for the N. Dist. of N.Y. Utica Div. (In re Harlander), No. 5:12-CV-1700 (LEK), 2013 WL 4478682 (N.D.N.Y. Aug. 19, 2013) (Kahn) (Costs of mailing motion to modify confirmed plan denied when attorney accepted $3,700 flat fee and local rule provided that flat fee included ordinary costs of notice and service of routine matters.).
Humpleby v. United States Bankr. Court for the N. Dist. of N.Y. (In re Dabbraccio-Titus), No. 5:12-CV-1313 (LEK), 2013 WL 3946739, at *2 (N.D.N.Y. July 31, 2013) (Kahn) (Failure to provide time records or even a rough approximation of time spent on unconfirmed case justified finding that only portion of contract flat fee was reasonable. "Although confirmation of a Chapter 13 plan is not a requirement to receive a flat fee, in any case—confirmed or unconfirmed—there should be 'sufficient detail to demonstrate compliance with the standards set forth in 11 U.S.C. § 330.'").
B.O.C. Law Group, P.C. v. Carroll (In re Humphries), 453 B.R. 261, 267, 268 (E.D. Mich. Apr. 19, 2011) (Lawson) (Failure to comply with five-business-day requirement in § 528(a)(1) did not void fee agreement under § 526(c)(1) because five-day requirement regulates conduct of Debt Relief Agencies but is not a "material term" of the contract a DRA must have with each assisted person. Although not every "encounter by a law firm with a perspective client" constitutes providing legal services, time records indicated that after initial consultation on November 17, 2009, counsel started preparing bankruptcy schedules notwithstanding that debtor left without hiring counsel. The debtor returned on December 15, 2009, and signed fee agreement, and counsel sought compensation for work done between November 17 and December 15. "The five-business-days requirement in section 528(a)(1) is directed at the conduct of a debt relief agency, not the contents of the agreement for services. In other words, that provision is a requirement of the agency, not a requirement of the contract. The requirements of the contract are described in the provisions of sections 526, 527, and 528 that prescribe the mandatory and prohibited terms of the agreement for services. The five-business-days language does not set out what must be in such an agreement; it states when the agency must execute the agreement . . . . The remedy for a violation of [§ 528(a)(1)] is set forth in subsection 526(c)(2), not subsection 526(c)(1)."), vacating No. 10-41299-R, 2010 WL 5101036 (Bankr. E.D. Mich. Dec. 8, 2010) (Rhodes) (Attorney providing bankruptcy assistance to consumer debtor is debt relief agency and must comply with § 528(a)(1) requirement for execution of written fee agreement within five days of first provision of any bankruptcy assistance services; deadline runs from first date of provision of bankruptcy assistance, without regard to when debtor decided to retain attorney. Compliance with § 528(a)(1) is mandatory to obtain fee. Awarding fee when attorney did not comply with § 528(a)(1) would conflict with § 526(c)(1) provision that any nonconforming fee agreement is void and unenforceable.).
Baker v. Peake (In re Fernandez), No. H-10-4044, 2011 WL 1404891 (S.D. Tex. Apr. 13, 2011) (unpublished) (Lake), aff'd, No. 11-20332, 2012 WL 1889621 (5th Cir. May 24, 2012) (unpublished) (Reavley, Haynes, Graves) (At preconfirmation dismissal, § 1326(a)(2) required trustee to pay contractual mortgage payments before attorney's administrative expense claim for fees.), aff'g 441 B.R. 84 (Bankr. S.D. Tex. Oct. 6, 2010) (Bohm) (At dismissal before confirmation, § 1326(a)(2) gives preconfirmation "adequate protection" payments to mortgage holder priority over unpaid administrative expenses for attorney fees; debtor's attorney is not entitled to fees incurred after it became apparent that debtor would not accomplish mortgage modification necessary to confirm a plan, and stripping of second mortgage was not necessary or beneficial because case was subsequently dismissed.).
Texas Comptroller of Pub. Accounts v. Zars (In re Zars), 434 B.R. 421 (W.D. Tex. July 27, 2010) (Rodriguez) (Unpaid attorney fees from prior Chapter 13 case are general unsecured claims in subsequent Chapter 13 case, not entitled to priority.).
Thomas v. Bankruptcy Estate of White (In re White), No. 05-71694, 2007 WL 9700881 (E.D. Mich. Mar. 13, 2007) (Rosen) (Not inappropriate for bankruptcy court to reduce requested attorney fee when counsel mistakenly did not appear at a hearing based on informal local practice that excused appearance when objecting party
In re Heykoop, No. 2:16-bk-06032-DPC, 2018 WL 6060281 (Bankr. D. Ariz. Nov. 19, 2019) (unpublished) (Collins) (In a “not particularly complicated” Chapter 13 case, three fee applications totaling $18,092 are excessive. Third application is allowed in reduced amount.).
, , ( ) () (Applying local no-look fee administrative order, $2,025 was adequate compensation for debtor’s attorney in uncomplicated Chapter 13 case that converted to Chapter 7 before confirmation. Application for additional $600 to which no objection was filed is denied.).
In re Anthony, No. 17-62120, 2019 WL 1567752 (Bankr. N.D. Ohio Apr. 10, 2019) (Kendig) (Applying no-look admin order in district, $3,300 fee was “more than” adequate for confirmed Chapter 13 that converted to Chapter 7 two years after confirmation. Additional fee request for $835 to which no objection was filed is denied.).
In re Howard, No. 18-22496-beh, 2019 WL 1495097 (Bankr. E.D. Wis. Mar. 22, 2019) (Hanan) (At dismissal before confirmation in a “typical” Chapter 13 case, fee application for $3,581.50 is reduced to $2,787.50 based on minor adjustment in hourly rate, reductions for clerical work and a “no charge” mistake in accounting.).
Ferguson v. Turtle Creek Assets, Ltd. (In re Ferguson), No. 18-40008-JJR, 2019 WL 1270451 (Bankr. N.D. Ala. Mar. 15, 2019) (Robinson) (“Of counsel agreement” between debtor’s attorney and different attorney who litigated stay violation action was a fee-sharing agreement prohibited by § 504. Fee sharing was voided and total fee reduced to smaller percentage of settlement amount.).
In re Ward, No. 15-20463, 2019 WL 994382 (Bankr. D. Me. Feb. 27, 2019) (Cary) (Fee request reduced from $9,829 to $8,613 based on some unnecessary motions and hearings.).
In re Lettie, 597 B.R. 637, 638–46 (Bankr. E.D. Wis. Feb. 22, 2019) (Hanan) (Before confirmation and on eve of conversion to Chapter 7, applying Harris v. Viegelahn, 135 S. Ct. 1829, 191 L. Ed. 2d 783 (May 18, 2015), the Code contains no mechanism for payment of attorney’s fees before return to debtor of balance held by trustee. “The debtors’ counsel have asked this Court . . . to direct the Chapter 13 trustee to pay counsel’s approved fees before the debtors proceed with their imminent intent to convert their case to Chapter 7. . . . [T]here was no confirmed plan at the time the fee order was signed. . . . [S]ection 331 itself has little bearing on the present question, as . . . the instant application cannot fairly be read to seek ‘interim’ payment. . . . [S]ection 331 is not persuasive authority to convince the Court that ordering a Chapter 13 trustee to pay counsel’s full fee request, without a confirmed plan and on the eve of conversion, is permissible under Harris v. Viegelahn. . . . Section 1326(a)(2) governs the trustee’s payment of claims in a Chapter 13 case
, , ( ) () (Fee application for $4,995 is allowed for $3,746. No-look fee was $2,335 at the time. $200 per hour for second-year associate was too high
In re Palmer, No. 18-00939, 2018 WL 7135254 (Bankr. D. Haw. Dec. 19, 2018) (Faris) (Attorneys in Hawaii who accept no-look fees in Chapter 13 cases cannot charge debtors or estates to collect general excise tax on fees.).
In re Reilly, No. DG 17-02411, 2018 WL 6584776, at *1 (Bankr. W.D. Mich. Dec. 12, 2018) (Dales) (Motion by attorneys to determine cause for payment of fees at dismissal under § 349(b)
In re Ahmadi, No. 17-34134, 2018 WL 6523094 (Bankr. S.D. Tex. Dec. 10, 2018) (Isgur) (Applying Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. Jan. 21, 1974) (Thornberry, Ainsworth, Roney), factors, bankruptcy court reduces attorney fees to reflect that second and third amended plans were not likely to be confirmed because they were dependent on success in litigation that was obviously not likely to succeed. Benefit to the estate prong of § 330 was not satisfied.).
In re Anderson, 593 B.R. 793, 794–95 (Bankr. D. Haw. Dec. 7, 2018) (Faris) (Attorney that accepts no-look fee in district cannot pass on to debtor or to Chapter 13 estate general excise tax that will be payable on that fee. “Hawaii law imposes a tax, known as the general excise tax, on the gross income of all persons engaging in business in the state. . . . It is customary for attorneys representing private clients to ‘visibly pass on’ the general excise tax. But the clients’ agreement is essential. . . . [A]ttorneys who opt in to the no-look fee process in chapter 13 cases may not pass on the general excise tax to their debtor clients (or the estate).”).
In re Ramos Carrasquillo, No. 14-08936 (ESL), 2018 WL 6445371 (Bankr. D.P.R. Dec. 6, 2018) (Lamoutte) (Debtor’s attorney is bound by $3,000 fee allowance in confirmed plan and in disclosure of compensation and cannot seek fees in excess of that amount.).
In re Redington, No. 16-18407-ABA, 2018 WL 6444387 (Bankr. D.N.J. Dec. 6, 2018) (Altenburg) ($7,300 fee app reduced to $6,500. Attorney cannot charge for correcting mistaken exemption claim. Attorney cannot charge for confirmation hearing continued at debtor’s request to allow loan modification. Attorney cannot charge for administrative tasks. Case was not complicated.).
In re Jaworski, No. 13-43296-MER, 2018 WL 6287969, at *5 (Bankr. D. Minn. Nov. 30, 2018) (Ridgway) (Absent plan provision to contrary, attorney fees are priority claim in a Chapter 13 case that must be paid through the plan before completion of payments under the plan else unpaid fees will be discharged. When debtor’s attorney filed fee application after debtor completed payments under the plan, unpaid fees are discharged and cannot be collected from the debtor. Prepetition contractual agreement that debtor would pay fees after discharge was superseded by confirmed plan that did not preserve attorney’s right to collect unpaid fees after discharge. “[I]f a portion of an attorney’s claimed fees remain unpaid upon the debtor’s completion of all plan payments, that portion should be discharged under § 1328(a). It is possible for a plan to provide – contrary to § 1322(a)(2) – for a debtor’s attorney to be paid his attorney’s fees after the plan payments are completed. However, it is the attorney’s task to work within the bankruptcy rubric to accomplish this task[.]”).
In re Karipides, No. 17-61935, 2018 WL 5099658 (Bankr. N.D. Ohio Oct. 18, 2018) (unpublished) (Kendig) ($2,700 no-look fee is reduced by $500 because counsel was not appropriately responsive to debtor’s emails and to inquiries from trustee.).
In re Richard, No. 16-42080-659, 2018 WL 5733508, at *5–*8 (Bankr. E.D. Mo. Oct. 10, 2018) (Surratt-States) (Upright Law violated § 504 by sharing fees with three attorneys to whom it referred debtors to file Chapter 13 cases. The three attorneys did not form a single firm with Upright Law for purposes of Missouri law and § 504. “This is a case about the status of three attorneys and a company with whom each attorney signed Partnership Agreements for purposes of fee-splitting. . . . This Court finds that each attorney has contracted with separate entity, Upright Law, to share fees in violation of Bankruptcy Code Section 504. This violation of Section 504 requires the disgorgement of fees paid to Upright Law. . . . Upright Law is nothing more than a lawyer referral agency that completes administrative screening work, then refers the case to attorneys to take on the legal work. . . . [T]he Local Attorneys’ status as members of separate legal entities and not a single law firm with Upright Law also means the Local Attorneys are not members, partners, or regular associates in a professional association, corporation, or partnership with Upright Law within meaning of Section 504. Violation of Section 504 requires disgorgement of fees.”).
In re Okounev, No. 16-31599, 2018 WL 4501107 (Bankr. D. Conn. Sept. 18, 2018) (Nevins) (Attorney recently moved to inactive status by State Bar of Connecticut is sanctioned for failure to adequately represent Chapter 13 clients. Attorney is barred to file bankruptcy petitions until cleared to practice by state bar. Pending fee applications are denied, some fees are ordered disgorged.).
In re Hunt, 588 B.R. 496 (Bankr. W.D. Mich. Aug. 21, 2018) (Dales) (On independent review, portion of unopposed fee request is rejected because the services related to business of extended family of debtor, only a portion of which benefitted the debtor personally.).
In re Arens, 588 B.R. 197 (Bankr. W.D. Mich. Aug. 20, 2018) (Dales) (On independent review, bankruptcy court denies unopposed fee application for $4.50 of fees and expenses of $120.84 when the cost of fee application was $143.22.).
In re Straka, No. 14-10611, 2018 WL 3816896 (Bankr. D. Me. Aug. 9, 2018) (Fagone) (After objection by trustee and microscopic examination by court, debtor’s attorney fee reduced from $24,500 to $20,000. Among the problems: counsel was excessively “granular” in recording time in one-tenth of an hour increments with each task broken into multiple mini-tasks.).
In re Hager, 587 B.R. 488 (Bankr. W.D. Mich. July 30, 2018) (Dales) (Applying lodestar analysis from Boddy v. United States Bankruptcy Court, Western District of Kentucky (In re Boddy), 950 F.2d 334 (6th Cir. Dec. 5, 1991) (Jones, Suhrheinrich, Todd), substitute counsel awarded $3,753 fee for successfully repairing Chapter 13 case.).
Decloutte v. Austin (In re Decloutte), Nos. 16-3275, 17-3237, 2018 WL 3078153 (Bankr. S.D. Tex. June 20, 2018) (Jones) (Severe sanctions imposed under local rules, bankruptcy rules and rules of professional responsibility
In re Good, No. 16-54035, 2018 WL 3025290 (Bankr. E.D. Mich. June 15, 2018) (Shefferly) (Trustee’s objection to $11,270 attorney fee is overruled because student loan dischargeability litigation under § 523(a)(8), though unsuccessful, was reasonably likely to produce benefit for the debtor. The debtor incurred $223,000 of student loans to pay for law school. Debtor confirmed plan, then unsuccessfully litigated with ECMC, ultimately dismissing the adversary proceeding without prejudice.).
In re Small, No. 18-40362-can11, 2018 WL 2938517 (Bankr. W.D. Mo. June 7, 2018) (Norton) (Debtor’s attorney ordered to disgorge retainer and fees paid when, after dismissal of Chapter 13 case for ineligibility, attorney filed a Chapter 11 case for the same debtor with intention of stopping foreclosure and then dismissing the Chapter 11 case.).
In re Regino, 585 B.R. 322, 326–28 (Bankr. E.D.N.Y. May 18, 2018) (Grossman) ($17,248.03 request by attorney for prepetition debt-reduction services exceeds the reasonable value of the services actually performed and is disallowed under § 502(b)(4) even if the fee agreement would be enforceable under New York law. Prepetition written agreement required the debtor to pay contingent fee of 39% of any debt reduction negotiated by the attorney. “Even if the contested fee would be upheld under New York law, in bankruptcy a pre-petition claim for services of an attorney for the debtor is still subject to disallowance under § 502(b)(4) if the claim exceeds the reasonable value of the services performed. . . . Among the purposes of § 502(b)(4) is the prevention of overreaching by the debtor’s attorneys and insiders. . . . ‘[R]easonable value’ under § 502(b)(4) should be measured under both a federal standard and under state rules of professional conduct.”).
In re Denny, No. 15-51918, 2018 WL 1788025 (Bankr. E.D. Ky. Apr. 12, 2018) (Schaaf) (Substantial sanctions, including suspension from practice before bankruptcy court, were warranted based on misconduct by debtor’s attorney. Counsel accepted “payoff check” from Chapter 13 client then withdrew the money for personal use. Counsel failed to maintain a required escrow account and did not comply with sanction orders in various other Chapter 13 cases.).
In re Tabor, 583 B.R. 155 (Bankr. N.D. Ill. Apr. 11, 2018) (Barnes) (Compensatory damages, including attorney fees payable to the U.S. trustee, awarded against law firm that filed Chapter 13 for ineligible debtor for “improper” purpose of buying time for debtor to attempt mortgage modification. Misconduct included using fabricated schedules that did not reflect actual assets, filing Chapter 13 petition for an obviously ineligible debtor and soliciting clients with misrepresentations about saving homes when surrender of home was standard operating procedure.).
In re Carr, 583 B.R. 458 (Bankr. N.D. Ill. Apr. 10, 2018) (Thorne) (Attorneys must disclose to Chapter 13 debtors that payment of attorney fees ahead of car lenders in early stages of Chapter 13 case could put debtor in jeopardy of losing car if plan fails before payments to car lenders are caught up. Agreement to pay attorney fees ahead of car lender in early months after confirmation is a fee agreement that must be disclosed under Local Rule 2016-1. Failure to do so bars recovery of fees by attorney but without prejudice to filing amended disclosures and new applications for fees., corrected and superseded, Nos. 17-29195, 17-25013, 2018 WL 1905047 (Bankr. N.D. Ill. Apr. 10, 2018) (Thorne).).
In re Gilliam, 582 B.R. 459 (Bankr. N.D. Ill. Mar. 28, 2018) (Barnes) (In multiple Chapter 13 cases pending and dismissed in the district, fee applications are reduced, some disallowed altogether and various other sanctions imposed when counsel altered form plan to raise the priority of payment of attorney fees and/or to reduce payments to secured creditors to accelerate and increase payment of attorney fees. Counsel failed to properly disclose the altered compensation provisions and the changes benefited only counsel
In re Standley, No. 14-36711, 2018 WL 1457242 (Bankr. S.D. Tex. Mar. 21, 2018) (Isgur) (Citing Baker Botts L.L.P. v. ASARCO, LLC, ___ U.S. ___, 135 S. Ct. 2158, 192 L. Ed. 2d 208 (June 15, 2015), bankruptcy court reduces fees for successful objection to mortgage claim to eliminate time spent defending recovery of fees. Not altogether clear but bankruptcy court appears to apply ASARCO to fees that would be payable by Ocwen, not by the Chapter 13 estate.).
In re Bedard, No. 17-20105-PGC, 2018 WL 6930470 (Bankr. D. Me. Jan. 30, 2018) (Cary) (Attorney hired by debtors after pro se petition cannot extract a postpetition retainer from debtors without court permission. Disgorgement and small penalty ordered.).
In re Bennett, No. 16-74588-ast, 2018 WL 878874 (Bankr. E.D.N.Y. Jan. 30, 2018) (Trust) (Disgorgement of $1,500 of $5,500 paid by debtors before the petition is appropriate when case was dismissed without confirmation, there were no secured creditors, there were problems with accounting during the case and debtors’ reluctance to continue should have been called to the court’s attention earlier.).
In re Allison, 578 B.R. 782, 783–86 (Bankr. W.D. Mich. Jan. 12, 2018) (Gregg) ($300-per-hour compensation for board-certified consumer bankruptcy attorney is reluctantly accepted in this case; presumptive hourly rate in district remains $250 per hour in Chapter 13 cases. “No party in interest filed an objection . . . . However, because the Applicant seeks an hourly rate of $300 per hour for two board certified attorneys, the court scheduled a hearing on the Application. . . . In this District, requirements and guidelines regarding professional compensation are set forth in the Memorandum Regarding Allowance of Compensation and Reimbursement of Expenses . . . . The Fee Memorandum establishes presumptive reasonable hourly rates and no-look fees for attorneys representing chapter 13 debtors. If an attorney is board certified and remains as such on an annual basis, the presumptive hourly rate is $250. . . . Based on the following facts, . . . the court concludes that the hourly rate of $300 per hour for the Applicant’s board certified attorneys is reasonable. . . . Applicant’s attorneys frequently appear on behalf of their clients, without charge, to advise other parties and the court when a client cannot put forth a meritorious defense. . . . Applicant’s pleadings are carefully drafted to present only valid legal arguments. . . . Applicant’s attorneys . . . attend numerous local, regional and national educational seminars on an annual basis, a factor that is consistent with the premium that has historically been placed on education in this District. . . . They volunteer their time to improve the level of practice not just within their firm, but also within this District.”).
In re Hager, 579 B.R. 823, 826–27 (Bankr. W.D. Mich. Dec. 29, 2017) (Dales) (Debtor’s attorney is entitled to reasonable fee for representing debtor in contested confirmation hearing notwithstanding that objecting creditor prevailed. Congress made choice to fee shift in favor of debtors’ counsel in consumer bankruptcy cases. “[Creditor] expresses . . . frustration at having to subordinate his prepetition claim for attorney fees to the [debtor’s attorney’s] post-petition administrative claim for attorney fees, especially because he prevailed . . . at trial regarding the original plan. . . . But, equally understandable (and dispositive) is the choice that Congress made in § 330(a)(4) to encourage competent counsel to represent debtors in chapter 13, knowing full-well that many, if not most, cases do not succeed. . . . Congress clearly intended to shift fees, even in unsuccessful chapter 13 cases. Otherwise, it would have included in § 330(a) some provision to this effect.”).
Frazin v. Haynes & Boone, LLP (In re Frazin), No. 08-3021-bjh, 2017 WL 7050632 (Bankr. N.D. Tex. Dec. 22, 2017) (Houser) (Litigation counsel are not entitled to recover fees for defending their fees after winning multi-million-dollar judgment on behalf of Chapter 13 debtor. Haynes and Boone and others successfully recovered more than $3 million in litigation on behalf of a Chapter 13 debtor. The debtor turned on his attorneys and sued for professional negligence and objected to the payment of fees. The legal malpractice actions failed, but the attorneys were refused fees for defending fees based in part on Baker Botts, L.L.P. v. ASARCO LLC, __ U.S. __, 135 S. Ct. 2158, 192 L. Ed. 2d. 208 (June 15, 2015).).
In re Jarrett, No. 1:17-bk-11112 SDR, 2017 WL 6389083, at *2 (Bankr. E.D. Tenn. Dec. 13, 2017) (unpublished) (Rucker) (Attorney fees adjusted from $3,750 to $2,894 in second case for same debtor by same law firm based on some time and effort savings. “While the court acknowledges the importance of the chapter 13 trustee’s efforts in reviewing fees and acting as a fiduciary for the distributions to creditors under chapter 13 plans, a minimum percentage paid to creditors is not an element of the reasonableness analysis. . . . Mr. Rannick stated that his hourly rate is $320, which is at the higher end of the spectrum of hourly rates charged by consumer debtor’s counsel in this jurisdiction. Mr. Rannick’s 30 plus years of experience and his certification as a consumer bankruptcy specialist support a higher rate.”).
In re Campbell, 575 B.R. 811 (Bankr. W.D. Mich. Nov. 9, 2017) (Dales) (On show cause order, debtor’s attorney ordered to disgorge fees of $1,167 based on failure to draft papers and to communicate adequately with client, which resulted in debtor’s losing home to foreclosure.).
In re Conroy, No. 8-16-71943-ast, 2017 WL 5035082 (Bankr. E.D.N.Y. Oct. 31, 2017) (Trust) (After conversion from Chapter 13 to Chapter 11, counsel’s failure to file Rule 2016 disclosure until ordered to do so coupled with failure to disclose retainer paid by debtor’s son results in denial of all but “nominal” fee for Chapter 13 work and order of disgorgement to son of most of the retainer.).
In re Riley, No. 17-80108, 2017 WL 4990441 (Bankr. W.D. La. Oct. 27, 2017) (Kolwe) (Denies stay pending appeal of order disallowing reimbursement of advances for filing fee, briefing and credit report.).
In re Pursley, No. 1:17-bk-10732 SDR, 2017 WL 4480235 (Bankr. E.D. Tenn. Oct. 6, 2017) (Rucker) (Trustee’s objection to $3,250 fee when plan payments totaled $6,300 and unsecured creditors would receive 30% of claims is overruled. Total fee request was less than no-look fee in district. Hourly rate was reasonable at $185 an hour. Fee would require attorney to represent debtor for entire case. Absence of secured creditors and relatively small amount of debt were considered but not strong factors.).
In re Hanna, No. 14-10764, 2017 WL 4011013 (Bankr. D. Me. Sept. 11, 2017) (Fagone) (After review of fee application and docket sheet and in absence of any “enduring objection,” court reduces fee for debtor’s attorney to $5,370.50, removing some clerical time and disallowing some lumped tasks.).
In re Haynes, No. 3:16-bk-30352-SHB, 2017 WL 3559509 (Bankr. E.D. Tenn. Aug. 11, 2017) (Bauknight) (In complex litigation between Chapter 13 trustee and UpRight Law with respect to fee practices and sharing of compensation under § 504, bankruptcy court comprehensively disposes of discovery disputes, including assertions of attorney-client privilege. The reported decision is a primer on privilege, Rule 26 of the Federal Rules of Civil Procedure and the trouble counsel can face under Rule 37 of the Federal Rules of Civil Procedure when privilege is asserted inappropriately.).
In re Allen, 569 B.R. 185 (Bankr. M.D. Ala. July 5, 2017) (Sawyer) (When contract for attorney fees for adversary proceeding with respect to violation of the automatic stay provided compensation of “45% of the total recovered proceeds,” total fees were limited to 45% of cash and noncash proceeds.).
In re Pastrana, No. 15-08004, 2017 WL 2804868 (Bankr. D.P.R. June 28, 2017) (Tester) (Attorney is bound by $3,000 no-look fee in district when plan ambiguously allowed both an hourly rate and the no-look amount and counsel did not act before confirmation to fix the confusion.).
Hill v. Greentree Servicing, LLC (In re Hill), 572 B.R. 793 (Bankr. N.D. Ga. June 27, 2017) (Hagenau) (Attorney fees are reduced by $1,000 because plan was ambiguous with respect to payment of a mobile home lien and litigation resulted. Debtor was granted a hardship discharge and sought release of the lien notwithstanding that payments through the plan were insufficient to pay the allowed secured claim.).
In re Harris-Nutall, 572 B.R. 184, 192-93 (Bankr. N.D. Tex. June 9, 2017) (Houser) (Agreement that debtor’s counsel would receive 25% of any fees awarded to special counsel in litigation with Nationstar was illegal fee-sharing agreement prohibited by § 504
In re Andresiak, 578 B.R. 624, 626–27 (Bankr. W.D. Mich. May 24, 2017) (Gregg) (Routine billing of one hour for preparing interim fee applications in routine Chapter 13 cases is unreasonable. “[T]his court has previously commented that an hour of time for preparation of a fee application is generally the maximum amount the court will approve in a Chapter 13 case . . . . [I]t has also cautioned that one hour may not be reasonable in all cases. . . . The Applicant’s practice of billing one hour of time in this case (and others) does not comport with the reasonable practices in Chapter 13 bankruptcy cases in this District.”).
In re Simpson, No. 15-10250, 2017 WL 2198955, at *1, *1
In re Perez, No. 12-53022-RBK, 2017 WL 1839175 (Bankr. W.D. Tex. May 5, 2017) (King) (Fee applications for responding to trustee motions to dismiss are reduced. Hourly rate is reduced from $400 to $250. Paralegal rate is reduced from $125 per hour to $95. Fee for preparing fee application is cut in half.).
In re Glidden, No. 13-20889, 2017 WL 1200924, at *1 (Bankr. D. Me. Mar. 30, 2017) (Cary) ("[T]hat the Fee Application was filed just five months after the most recent fee application, and at a time when insufficient funds are available to pay the fees sought, the Court finds that the $214.00 in fees billed in connection with the preparation and review of the Fee Application are unreasonable.").
In re Hudson, No. 14-11755, 2017 WL 1183930 (Bankr. W.D. La. Mar. 29, 2017) (Norman) (Sua sponte, court denies $145 fee request to incur debt to buy car. Attorney failed to adequately reveal “no look” fee of $500 previously awarded for modification of plan that surrendered the car being replaced.).
In re Morin, No. 16-20271, 2017 WL 83348, at *1
In re Fox, No. 16-80658-TRC, 2016 WL 7377060, at *2
In re Rose, 561 B.R. 70 (Bankr. W.D. Mich. Nov. 29, 2016) (Gregg) (Citing Baker Botts L.L.P. v. ASARCO LLC,
In re Ko, 560 B.R. 245 (Bankr. E.D. Pa. Nov. 28, 2016) (Frank) (Fee application reduced from $11,855 to $6,000 because counsel complicated lien stripping and lien avoidance by filing incorrect motions and counsel took no corrective action during the confirmation process, resulting in unnecessary fees and expenses. Counsel also improperly accepted a $4,000 postpetition payment from the debtors without obtaining court approval and without proper disclosure.).
In re Anderson, No. 14 B 11526, 2016 WL 6833907 (Bankr. N.D. Ill. Nov. 18, 2016) (Cox) (Fee request for resolving misconduct by mortgagee reduced from $3,000 to $900; debtor’s attorney cannot settle fee amount with mortgagee without court review. Attorney was subject to Court-Approved Retention Agreement. Matter was not complicated and was settled without discovery or a contested hearing. The CARA included prosecuting the motion to enforce the automatic stay against the mortgagee, and attorney was not free to settle attorney fees with the offending mortgagee without court review.).
In re Olivares, No. 16-16959-BKC-LMI, 2016 WL 6810716 (Bankr. S.D. Fla. Nov. 16, 2016) (Isicoff) (Debtor not entitled to recover attorney fees from creditor that unsuccessfully objected to confirmation under Florida reciprocal attorney fees statute. “Debtor argues that she is entitled to attorney fees pursuant to the reciprocity provisions of Fla. Stat. § 57.105(7) . . . . However, there is no document in evidence that states what is the attorney fee provision on which the Debtor relies. Moreover, a motion to value is not an ‘action to enforce the contract’ or even ‘with respect to the contract’, but rather . . . a right that arises solely under the Bankruptcy Code. The Debtor did not cite any cases that hold that a motion to value triggers an attorney fee clause in a note or mortgage.”).
In re Petrovic, 560 B.R. 312 (Bankr. N.D. Ill. Nov. 16, 2016) (Goldgar) (Trustee’s motion to review attorney fees under Bankruptcy Rule 2017 and § 329 of the Code is denied when trustee really seeks sanctions under Bankruptcy Rule 9011 for an improper filing. Debtor was visibly ineligible but filed Chapter 13 to stop state court contempt proceeding by former spouse. Debtor never intended to go forward with the Chapter 13 case; he just wanted, and got, automatic stay to stop contempt proceeding. “Section 329 is not a vehicle for sanctioning a debtor’s attorney. Its purpose . . . is to prevent attorneys from overcharging for their services. In this case, Petrovic was not overcharged. On the contrary, he got everything he paid for.”).
In re Faughnan, No. 16-45755, 2016 WL 6085880 (Bankr. E.D. Mich. Oct. 18, 2016) (Randon) (On motion to reconsider, court declines to reconsider reduction of debtor’s counsel’s hourly rate from $310 per hour to $275 per hour in part because attorney performed all bankruptcy tasks without the assistance of associate attorneys, paralegals or legal assistants who would have been billed at a lower hourly rate.).
In re Conner, 559 B.R. 526, 530
Winnecour v. Chain (In re Chain), 558 B.R. 750 (Bankr. W.D. Pa. Sept. 30, 2016) (Taddonio) (Debtor’s attorney is not disqualified and is not subject to disgorgement of retainer when unpaid administrative claim for fees was discharged in simultaneously pending Chapter 7 case, counsel waived any unpaid administrative claim in the Chapter 7 case and dismissal of the Chapter 13 case moots any other issues with respect to counsel.).
In re Fernandez, No. 11-10783-j13, 2016 WL 5400393 (Bankr. D.N.M. Sept. 27, 2016) (Jacobvitz) (Special litigation counsel for debtor is in contempt for failing to timely remit settlement proceeds to trustee. Debtor successfully prosecuted a human rights violation against the New Mexico Department of Corrections during a case. Special counsel approved for purposes of the litigation was required to remit net settlement proceeds to the trustee for distribution to creditors under the confirmed plan. Counsel did not do so. Trustee successfully prosecuted contempt action against counsel for failing to remit.).
In re Wright, No. 13-10472, 2016 WL 4734316 (Bankr. S.D. Tex. Sept. 9, 2016) (Rodriguez) (Debtor’s former counsel had financial ability to pay Chapter 13 estate $139,000 owed after finding that counsel was in contempt for mishandling settlement funds from litigation.).
In re Todarello, No. 16-60064, 2016 WL 4508188, at *1–*3 (Bankr. N.D. Ohio Aug. 26, 2016) (unpublished) (Kendig) (Partnership agreement between Ohio lawyer and Illinois LLC did not facially violate fee-sharing prohibition in 11 U.S.C. § 504. “Mr. Hausen, a licensed attorney in Ohio, is counsel for Debtors . . . . He filed the case under the name Allen Chern LLC, a law firm (“Firm”) located in Chicago, Illinois. Mr. Hausen is associated with Firm via what is called a ‘Partnership Agreement’ (“Agreement”) executed between ‘Jason Allen Law LLC, an Illinois limited liability company registered to do business in the State of Ohio as Allen Chern Law LLC’ . . . . [T]he Bankruptcy Code prohibits fee sharing. 11 U.S.C. § 504. However, an exception allows fees to be shared between attorneys in the same firm . . . . Mr. Hausen asserts that he has a formalized relationship with Firm that is protected under § 504(b) and does not require additional disclosures under Rule 2016. . . . No one has presented any argument or documentation to refute Mr. Hausen’s position. . . . It would not be fair for the court to go off on an investigation like a judge under the Napoleonic Code and then decide the issues it selected. The court might be inclined to grade its own paper on a very favorable curve. One of the fundamental changes envisioned by the rewriting of bankruptcy law with the passage of the Bankruptcy Code . . . was the removal of the judge from day to day administration and converting him or her to a neutral who decides disputes brought by adversaries.”).
Henley v. Malouf (In re Roberts), 556 B.R. 266, 280–81 (Bankr. S.D. Miss. Aug. 22, 2016) (Ellington) (Personal injury attorney could be hired without court approval during Chapter 13 case because § 327 does not apply; but attorney could not be paid without court approval because §§ 329 and 330 require court approval of fees. “[A] Chapter 13 debtor does not have to seek approval to hire special counsel. Section 327 applies to a trustee, and the Code does not impose the duties and functions of a trustee on a Chapter 13 debtor. . . . [T]he Court, however, has ‘an independent duty to review the reasonableness of the fees of any professional.’ . . . Under § 330(a)(4)(B), the Court must review compensation of an attorney . . . . [P]ursuant to § 329, [counsel] was required to file an application with the Court disclosing its compensation and to obtain Court approval of its compensation under § 330. [Counsel] did neither. Consequently, until [counsel] complies with § 329 and § 330, [counsel] is not entitled to any attorneys’ fees and expenses.”).
In re Chamberlain, 555 B.R. 14, 26-30 (Bankr. D. Colo. Aug. 4, 2016) (McNamara) (The elevation of domestic support obligations to first among priorities in § 502 does not mean that DSOs must be paid in full before all other claims; applying §§ 1322(a)(2) and 1326(b)(1), plan can pay attorney fees to debtor’s counsel ahead of payment of first-priority DSO when DSO is so large, to do otherwise would delay payment of administrative expenses for five years. Although § 507(a)(1)(A) “claims . . . are afforded an unequivocal first-priority status, the Bankruptcy Code provides an exception . . . for administrative expenses owed to the Chapter 13 Trustee. . . . Congress also elevated the position for attorney’s fees to a very high priority level: a second-priority status. 11 U.S.C. § 507(a)(2). . . . Section 1322(a)(2) does not expressly require that claims entitled to priority under Section 507 must be paid in the order listed in Section 507. . . . Section 1326(b)(1) states . . . that attorney’s fees for counsel are required to be paid ahead of, or at least concurrently with, other creditor claims. . . . [W]hile Chapter 7 expressly requires distributions ‘in the order specified in [ ] § 507,’ there is absolutely no comparable provision in Chapter 13. . . . Sections 507(a)(2), [1322(a)(1)] and 1326(b)(1) together permit the Debtor’s counsel to be paid before, or at least concurrently with, the DSO claim. In the special circumstances of this case (in which there is a single very large DSO claim that dominates all unsecured claims), payment of the Debtor’s counsel ahead of the Creditor’s DSO claim is particularly appropriate and warranted. Otherwise, the Debtor’s counsel would not be paid anything for almost five years.”).
In re Banks, 545 B.R. 241, 244-46 (Bankr. N.D. Ill. Feb. 9, 2016) (Schmetterer) ($4,000 flat fee consistent with local "no look" rule is reasonable for fee-only Chapter 13 case in which counsel successfully defended trustee's motion to dismiss for lack of good faith.).
In re Hart, 540 B.R. 363 (Bankr. C.D. Ill. Oct. 30, 2015) (Gorman) (Fees reduced to $350 when law firm committed laundry list of misconduct, including failure to supervise clerical employees, failure to verify information in statements and schedules, failure to timely correct errors in documents and failure to keep contemporaneous time records.).
In re Smith, 538 B.R. 867 (Bankr. M.D. Ala. Oct. 5, 2015) (Sawyer) (Disgorgement of fees ordered from all attorneys involved in bankruptcy case and workers' compensation action when "systematic breakdown in communication" resulted in multiple violations of Code and Rules, including conversion of $30,000 settlement proceeds that were property of estate.).
In re Ikegwu, No. 14-17367-DER, 2015 WL 5608357 (Bankr. D. Md. Sept. 23, 2015) (Rice) (Attorney fees of $10,597.75 plus expenses of $4,949.00 approved in unconfirmed, dismissed case that presented "many challenges" and was "far from routine.").
In re Fontaine, No. 1:11-bk-08109-MDF, 2015 WL 5162557 (Bankr. M.D. Pa. Sept. 1, 2015) (France) (Fifth fee application for $939.77 denied when counsel had previously been paid $2,500 in addition to initial flat fee of $3,500 in "very typical case." Counsel failed to use billing judgment in charging for time attributable to preparation of fee applications which comprised over 30% of total fees, and inappropriately billed at professional rate for nonlegal services. Counsel's "regular practice" of billing less than $1,000 in a single fee application to avoid noticing under Bankruptcy Rule 2002(a)(6) did not go unnoticed.).
In re Genatossio, 538 B.R. 615, 616-17 (Bankr. D. Mass. Aug. 31, 2015) (Hoffman) (Lamie v. United States Trustee, 540 U.S. 526, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (Jan. 26, 2004), does not preclude attorney fees for work performed before Chapter 7 case was converted to Chapter 13. "Lamie was concerned only with the interpretation of § 330(a)(1). . . . The fee request in this case is not governed by § 330(a)(1) but by § 330(a)(4)(B). . . . Lamie noted that § 330(a)(4)(B) supported the proposition that '[c]ompensation for debtors' attorneys in chapter 12 and 13 bankruptcies . . . is not much disturbed by § 330 as a whole. . . . [Section] 330(a)(4)(B) permits counsel for a chapter 13 debtor to seek an award of fees and expenses 'for representing the interests of the debtor in connection with the bankruptcy case' even when a portion of the fees and expenses w[as] incurred when the case was previously pending in chapter 7.").
In re Raabe, No. 14-13200 MER, 2015 WL 4622808 (Bankr. D. Colo. July 31, 2015) (Romero) (Disclosure in confirmed plan of increased attorney fees and of unapproved postpetition payment did not excuse failure to file amended Bankruptcy Rule 2016 disclosure or application for approval of postpetition payment.).
In re Carter, 533 B.R. 632 (Bankr. S.D. Ohio July 8, 2015) (Preston) (Nunc pro tunc appointment of special counsel to represent debtor in postpetition personal injury action approved when counsel was unaware of pending bankruptcy, counsel did not represent any adverse interests, counsel had not exhibited a pattern of inattention or negligence and no one objected. Compensation of $3,300, or 20.75% of settlement, approved.).
In re Professional Conduct of Mazzei, Misc. Proc. No. 14-00205-GLT, 2015 WL 4055475 (Bankr. W.D. Pa. July 1, 2015) (Taddonio) (Disbarment of high-volume consumer attorney not sufficient sanction when counsel routinely collected "expense retainers," failed to maintain expense records and never returned unused portions of expense retainers to clients. Reconciliations must be performed in more than 1,000 cases and former clients made whole with return of unused expense retainers.).
In re Scott, 531 B.R. 640, 645-46 (Bankr. N.D. Miss. June 9, 2015) (Olack) (Sections 327 and 328 and Bankruptcy Rule 2014 do not apply to hiring of counsel by Chapter 13 debtor to pursue workers' compensation claim; §§ 329 and 330 and Bankruptcy Rule 2016 may apply with respect to compensation. "Nothing in the Bankruptcy Code suggests that the term 'trustee' used in § 327(e) is intended to include a chapter 13 debtor. . . . [Section] 328 only applies in scenarios where a professional person is employed under § 327 . . . . [I]t follows that § 328 is also inapplicable . . . . Likewise, Rule 2014 only applies in scenarios where a professional person is employed under § 327 . . . . [D]isclosure under § 329 and Rule 2016(b), which implements § 329, is required, regardless of whether the attorney will seek compensation from the estate.").
In re Smith, No. 14-21191-13, 2015 WL 2452946 (Bankr. D. Kan. May 19, 2015) (unpublished) (Somers) ($500 in postconfirmation fees beyond original no-look fee of $2,950 disallowed when portion related to changes in mortgage payment that should have been within scope of no-look fee and portion related to unauthorized postconfirmation debt. Debtor would be liable personally for additional fee.).
In re Rogers, No. 14-40219-EJC, 2015 WL 1515203 (Bankr. S.D. Ga. Mar. 30, 2015) (Coleman) ($3,000 no-look fee was appropriate in typical Chapter 13 case that converted to Chapter 11 before confirmation; $3,000 flat fee would be allowed, but no additional amounts when attorney failed to fully reveal agreement for potentially higher fee.).
In re Parrilla, 530 B.R. 1 (Bankr. D.P.R. Feb. 23, 2015) (Lamoutte) (Debtors' attorneys are not bound by flat fee allowed without application under local rules; however, once an amount above flat fee is sought, compensation for all services will be reviewed for reasonableness. Application for $4,792.50 above no-look fee of $3,000, allowed for $3,128.50 when time entries lacked detail or were lumped and services performed by paraprofessionals were clerical.).
In re Clinkscale, 525 B.R. 399, 403-06 (Bankr. W.D. Mich. Jan. 14, 2015) (Dales, Boyd) (Monthly status reviews of Chapter 13 cases by an attorney are not categorically reasonable or unreasonable for purposes of the allowance of fees under Boddy v. United States Bankruptcy Court for the Western District of Kentucky (In re Boddy), 950 F.2d 334 (6th Cir. Dec. 5, 1991) (Jones, Suhrheinrich, Todd), but fees must be justified by counsel on case-by-case basis. Debtors' attorney sought fees for staff time and attorney time spent routinely monitoring each Chapter 13 case each month. The trustee objected. "Mr. Mapes is seeking compensation for between six and twelve minutes of a staff attorney's time (at $220.00 per hour) to prepare a 'case status review,' plus another six minutes of Mr. Mapes's time (at $250.00 per hour) to review his associate's review. . . . [T]his practice adds $47.00 per month to every chapter 13 case that Mr. Mapes is handling. Over a sixty month plan, the cost of this monitoring alone would reach $2,820.00. . . . [I]n a case involving a debtor with a stable employment and family life, payments arriving in the Trustee's office like clockwork, and good communication from the client, monthly monitoring may be unreasonable and unnecessarily paternalistic. The Fee Petitions . . . provide no basis for concluding that the monitoring entries are reasonable under the circumstances of each case. Depending upon the particular circumstances of any given case, perhaps quarterly, semi-annual, or annual monitoring would suffice.").
In re Torbett, No. 13-12314, 2014 WL 5449613 (Bankr. E.D. Tenn. Oct. 23, 2014) (Rucker) (Supplemental fee of $869.88 allowed for objections to stale claims before trustee took over review of and objection to stale claims.).
In re Swilling, No. 13-12583, 2014 WL 5449620 (Bankr. E.D. Tenn. Oct. 23, 2014) (Rucker) (Supplemental fee of $1,143.04 allowed for objections to stale claims before trustee took over review of and objection to stale claims.).
In re Alexander, No. 13-13462, 2014 WL 5449653, at *6-*7 (Bankr. E.D. Tenn. Oct. 22, 2014) (Rucker) (Supplemental fees for objecting to stale claims are for "routine services" for which additional fees will not be allowed. "[U]nder 11 U.S.C. § 330, [ ] fees [may be] reasonably necessary because benefit to the estate need not be economic benefit and need not be an economic benefit solely for the unsecured creditors. . . . Debtors' attorney did realize a net economic benefit . . . . The successful objections shortened the duration of the plan for the unsecured creditors. . . . [T]he Trustee has taken over filing these objections so he must consider these objections to serve a purpose. . . . If the Chapter 13 Trustee overlooked the objections and paid the claims and the case was later dismissed, these creditors might argue that the Debtors had revived these stale claims by voluntary payment. . . . In November of 2012, [Bankruptcy Rule 3001(c) was] amended to add additional requirements for creditors to include in their proofs of claim, such as the last payment date and the charge off date. . . . Because of the rule change requiring the creditor to disclose the dates relevant to a statute of limitations defense, the court has allowed debtors to make a statute of limitations objection to a proof of claim for revolving debt by alleging without an affidavit that: a) the claim is unenforceable because the claim arose beyond the six years prior to filing; b) the defense of the statute of limitation under the appropriate state law is applicable; and, c) nothing on the face of the claim contradicts those allegations. . . . Without the requirement of an affidavit from the debtor, the objection process is now based solely on a review of the proof of claim itself and is based on the contents of the record. This interpretation of the amendment to the rule has made such objections as routine as objections to late filed claims.").
In re Yogi, No. 13-01452, 2014 WL 3749553 (Bankr. D. Haw. July 29, 2014) (Faris) (Compensation for postpetition services denied when services were caused by attorney's honest mistake about extent of debtor's assets.).
In re Boxie, No. 10-41125, 2014 WL 2735686 (Bankr. S.D. Tex. June 12, 2014) (Isgur) (Supplemental fee request of $1,687.50 for plan modification reduced by 50% when counsel's outdated computer program led to inefficient use of time.).
In re Coleman, No. 10-21265-RAG, 2014 WL 1452594, at *1-*2 (Bankr. D. Md. Apr. 14, 2014) (Gordon) (Supplemental fee request of $2,875 denied when local $4,500 flat-fee option included waiver of "all opportunity to apply for additional work" unless counsel showed that additional fees were "'"not reasonably expected and extraordinary in nature". . . . ' . . . a strictly limited range of truly unusual services . . . ." "[R]outine contested matters, including defenses to lift stay motions and trustee motions to dismiss for payment defaults, were intended to be included within the $4,500 flat fee arrangement. Job loss is a common occurrence and a common underlying cause of the payment hiccups that lead to such motions in Chapter 13. Part of the rationale behind a presumptively reasonable fee schedule was to insure that consumer debtors—a class already teetering on the financial edge—would not be left unrepresented in the wake of confirmation when life's ordinary vicissitudes reared up to rattle them further. . . . Losing one's job is perhaps the most common of these events. $4,500 was agreed upon as a fair sum to get debtors past confirmation and then support a reasonable amount of post-confirmation services if need be. Other than [debtor's] boundless optimism, there is nothing about his job loss that makes it significantly different from the job losses suffered by thousands of other consumer debtors.").
In re Bergae, No. 13-71645, 2014 WL 1419586, at *6-*7 (Bankr. C.D. Ill. Apr. 11, 2014) (Gorman) (After sua sponte order disallowing no-look fee and directing a fee application be filed, $612.50 of $1,365 fee request allowed and compensation for paraprofessional time disallowed. Reduction justified by poor quality work, poorly supervised junior attorney, services of no benefit to debtor or estate, operating on a "'tag team' basis, with client matters simply [ ] handed off from one person to the next with very little, if any, communication or coordination" and an "apparent willful violation of the Code and Rules" by acceding to debtor's request to not list family member as creditor. Paraprofessional fees are compensable if the services "'represent a shift of tasks ordinarily performed by a lawyer or other professional, and the service is reasonable and necessary . . . .' . . . To determine whether a paraprofessional's work is compensable legal work, a court should 'look at the kind of services that are traditionally charged to overhead, the amount of discretion allowed to the paraprofessional, the experience or education required to accomplish the assignment, the responsibility delegated to the paraprofessional and the amount of supervision retained by the professional.' . . . When an applicant for professional fees seeks compensation for a paraprofessional's work, the paraprofessional's experience and qualifications must be stated. . . . Even if the work is, in fact, clearly legal in nature, the work is not compensable under § 330 unless the person rendering the services has sufficient knowledge and expertise to perform substantive legal work. Therefore, time spent by general clerical staff advising clients, drafting documents, and the like is not compensable under § 330. . . . [T]here was no evidence presented that [paraprofessional] ha[d] sufficient knowledge or expertise to perform substantive legal work or that the work actually performed by her was substantive legal work. Thus, [paraprofessional fees requested are] not compensable and the entire $420 requested . . . will be denied.").
In re Radzikowski, 507 B.R. 798, 801-02 (Bankr. W.D.N.Y. Mar. 20, 2014) (Bucki) (At dismissal before confirmation, absence of written fee agreement estops debtors' counsel from seeking payment of attorney fees from funds trustee must otherwise turn over to debtors. "Ultimately, . . . the agreement of the parties will establish an applicable protocol for payment [of attorney fees]. . . . The absence of a well-drafted fee agreement creates a controversy that is at best awkward, and perhaps even troublesome. . . . If it had clearly addressed counsel's right to those funds [undistributed at dismissal], then the retainer agreement would have served as an authorization or instruction to request payment of fees. Instead, silence on this issue served to invite a contrary instruction, which the debtors clearly expressed when they opposed the payment application. . . . Despite an expectation of vigorous advocacy on their behalf, the debtors were placed into the uncomfortable position of arguing pro se against their own counsel. Until they are relieved as counsel for the debtors, [debtors' counsel] must represent not themselves but their clients. Accordingly, they are here appropriately estopped from seeking a diversion of funds that the trustee must otherwise release to the debtors. Even if counsel were not restrained from seeking payment from the trustee, the court would deny the firm's application in the present instance. In the absence of any written fee agreement, we must look to other evidence of an understanding regarding terms of payment. Here, the . . . proposed plan . . . recites that '[p]ayment of legal fees to counsel for the debtor shall be made on a monthly basis from funds remaining after payment of trustee compensation, adequate protection payments, and equal monthly installment payments to creditors holding allowed secured claims against personal property' . . . . This arrangement follows the custom and practice for Chapter 13 cases in this district, namely that unless paid in advance of bankruptcy, legal fees are recoverable only under the terms of a confirmed plan.").
In re Garcia, No. 12-10393, 2014 WL 421337, at *1-*2 (Bankr. D. Kan. Feb. 4, 2014) (unpublished) (Nugent) (Second application for additional fees of $8,900 allowed over objections. "[T]he mere fact that a lawyer works on a pleading but doesn't file it is not, standing alone, enough to suggest that the work done was somehow unnecessary or unreasonable. . . . The attorney's time in attempting to salvage his client's chapter 13 case, even if that case did not conclude successfully, cannot be said to be of no benefit. . . . [T]here is no legal basis for denying the debtor's attorney fees for time spent defending his first fee application. Section 330(a)(6) contemplates that time spent applying for compensation is also compensable and when an attorney's fee application is challenged, resulting in an evidentiary hearing, there is no reason why that attorney should not [be] compensated for his efforts in defense of his fee[.] . . . [T]hat the amended plan might not have been confirmable and, in any event, wasn't confirmed, is not a basis for concluding that it was, as the . . . allegation has it, filed in bad faith. In the absence of any showing that [counsel] proposed the plan for some improper purpose, I refuse to deny his reasonable fees incurred in attempting to resurrect this difficult case.").
In re Garcia, No. 12-10393, 2014 WL 274350, at *7 (Bankr. D. Kan. Jan. 24, 2014) (unpublished) (Nugent) (Failure to disclose receipt of $11,000 retainer from debtor during case resulted in denial of one-third of fee request. "To [counsel's] credit, he held the funds in his trust account, but did not take them as a fee, pending the approval of this application. He entered the case in the middle and has worked diligently going forward to represent the debtor's interests. . . . [C]ourts have exercised their discretion to remedy a Rule 2016(b) violation by reducing or withholding an attorney's otherwise allowable fees. Considering that [counsel] has worked effectively in a difficult matter and that he remains on the hook to defend [debtor's] discharge at the trial on the pending adversary proceeding . . . , I decline to deny his compensation in its entirety. But he along with the other lawyers who practice in this Court need to be reminded that compliance with the rules that govern attorneys' compensation in bankruptcy is not optional. . . . [F]uture failures to disclose, particularly by lawyers of his experience and ability, will not be treated so lightly.").
In re Russell, No. 12-81754, 2014 WL 201098 (Bankr. E.D. Okla. Jan. 17, 2014) (Cornish) ($8,484.22 was reasonable attorney fee under § 330(a) for small business case that involved sales of commercial properties, monthly reports to U.S. trustee, and additional tax returns and withholding reports.).
In re Smith, No. 13-31565-KLP, 2014 WL 128385 (Bankr. E.D. Va. Jan. 14, 2014) (Phillips) (Disgorgement of all fees, suspension from practice and award of actual damages to debtor when attorney failed to advise debtor of responsibilities, filed documents never reviewed or signed by debtor, and filed fraudulent credit counseling certificate that represented debtor had received briefing prior to filing when she had not.).
In re Robb, No. 09-42851, 2014 WL 37371, at *5 (Bankr. N.D. Cal. Jan. 6, 2014) (Lafferty) (Supplemental application for $3,412.50 approved—in addition to no-look $4,800 plus $5,067 attributable to unanticipated tax litigation—as reasonable compensation for actual and necessary services under § 330(a)(1)(A). Under district's Statement of Rights and Responsibilities Agreement, supplemental fees must be substantial and relate to matters that could not have been anticipated at the time of filing. Payment of fees only allowed through plan. By agreement and court order, counsel is prohibited from accepting fee payments directly from debtor. "[T]here is no doubt whatsoever that having sought fees . . . via an application pursuant to Section 330 of the Code, and having therefore agreed to accept such fees as may be awarded through a confirmed plan, any debt created by such a fee award is discharged by debtor's successful completion of the plan pursuant to Section 1328(a). It would be as improper for counsel for a chapter 13 debtor to seek payment of a discharged debt as it would be for any creditor to attempt to do so.").
In re Lamar, No. 09-60216, 2013 WL 5726956 (Bankr. S.D. Ga. Oct. 21, 2013) (Coleman) (Personal injury special counsel fee unreasonable when counsel filed application to employ more than 10 months after retained and six months after settlement; fee reduced by $2,000, allowing $2,325.).
In re Cole, No. 10-025, 2013 WL 5429422, at *3 n.6 (Bankr. N.D. W. Va. Sept. 30, 2013) (Flatley) (Hybrid fee agreement that coupled flat fee with hourly billing after a fixed time is inconsistent with approval of flat fee at confirmation; however, $3,500 flat fee did not adequately compensate counsel in business case. Supplemental award of 40% of requested $18,104.75 was appropriate under § 330(a)(3) and Johnson factors. "The court expects counsel practicing before it to either accept a flat fee for certain disclosed bankruptcy services, regardless of the amount of time ultimately spent performing those services, or file a traditional fee application based upon hourly billing. . . . If counsel accepts a flat fee, supplemental fees should be sought only when the need arises for services that were not reasonably anticipated when the flat fee was requested; navigating a proposed Chapter 13 plan to confirmation over a trustee's disposable income objection is a reasonably anticipated service absent unusual circumstances.").
In re Green, No. 12-17945, 2013 WL 4603005 (Bankr. E.D. Cal. Aug. 28, 2013) (unpublished) (Clement) (Two-thirds reduction of $21,494 fee request in non-acrimonious, garden-variety Chapter 13 case. Loadstar not applied when there was unnecessary duplication of services by two attorneys, applicant failed to exercise prudent billing judgment, and secretarial work had been billed at paralegal rate.).
In re Brennan, No. 12-71327, 2013 WL 4046447, at *7 (Bankr. C.D. Ill. Aug. 8, 2013) (Gorman) ($3,300 no-look fee not awarded. Poor-quality work produced multiple unconfirmable plans due in part to firm's "'tag-team' approach to representing debtors where various attorneys handle bits and pieces of a case but don't communicate with each other and end up wasting significant amounts of their own time and the time of the Court and the Trustee. . . . The firm's continuing practice of handling cases in this inefficient and unprofessional manner justifies not only denying the 'no look' fee but also must result in the itemized fee request receiving a 'close look.' . . . [T]he 'close look' results in the award of a significantly reduced fee.").
In re Smith, No. 09-64409, 2012 WL 6553786, at *2 (Bankr. N.D. Ohio Dec. 14, 2012) (unpublished) (Kendig) (Postconfirmation attorney fees not previously deducted as priority claims to determine projected disposable income are payable from the "pot" designated for unsecured creditors. "The double-counting issue does not arise in this case. Debtors did not identify any priority claims on question forty-nine of the means test. No one can dispute that if they had included attorney's fees on this line, their disposable income would have been lower. Additionally, Debtors would need to [be] clairvoyant to include claims of their attorney for additional post-confirmation services.").
In re Halabu, 501 B.R. 685 (Bankr. E.D. Mich. Oct. 26, 2012) (Tucker) (At dismissal before confirmation, debtor's attorney may have an administrative expense for § 1326(a)(2) purposes entitled to priority under § 503(b), but all creditors must be given notice of that claim against funds held by the trustee so that competing administrative claims can be identified and determined.), supplemented by No. 11-59449, 2013 WL 780757 (Bankr. E.D. Mich. Mar. 1, 2013) (Tucker).).
In re Eskew, No. 11-72934, 2012 WL 4866687, at *5 n.2 (Bankr. C.D. Ill. Oct. 12, 2012) (Gorman) (Fees in excess of $3,300 no-look fee denied when attorney stated hourly rate in excess of amount actually charged. Attorney representing consumer debtors was Debt Relief Agent. While fee agreement was not entered into within five business days as required by § 528(a), "[d]eveloping case law . . . suggests that the remedy for such violations is not necessarily an automatic denial of all fees but rather a review for reasonableness . . . . See [B.O.C. Law Grp., P.C. v. Carroll (In re Humphries), 453 B.R. 261, 269 (E.D. Mich. Apr. 19, 2011) (Lawson)].").
In re Mabry, No. 09-32854, 2010 WL 1416787 (Bankr. W.D. La. Apr. 1, 2010) (unpublished) (Hunter) (Standing order in district permits attorney's fee of 10 times the monthly plan payment when the monthly payment to the trustee is less than $200 per month, with an adjustment for direct payments by the debtor and subject to a "no look" cap of $2,800.).
In re Nevels, 415 B.R. 832 (Bankr. D.N.M. Oct. 9, 2009) (Starzynski) (Because § 1322(b)(4) permits concurrent payment of attorney fees and other unsecured claims, trustee is not liable for unpaid fees when debtor stops making payments before attorney fees are paid.).
In re Bond, No. 09-30056(a)(7), 2009 WL 577278 (Bankr. W.D. Ky. Mar. 5, 2009) (unpublished) (Lloyd) (Debtor's attorney ordered to pay $500 into "Clerk of Court's library fund" as sanction for repeatedly filing "stale" briefing certificates in Chapter 13 cases.).
In re Debtors' Attorney Fees in Chapter 13 Cases, 374 B.R. 903 (Bankr. M.D. Fla. Aug. 31, 2007) (In Tampa Division of Middle District of Florida presumptively reasonable fees in Chapter 13 cases are in $3,300 to $3,600 range with various "a la carte" matters allowable; new presumptively reasonable fee is necessitated by additional requirements in BAPCPA, passage of time and need for administrative efficiency.).
In re Dacey, No. 07-62271, 2007 WL 2390814, at *2 (Bankr. N.D.N.Y. Aug. 20, 2007) (BAPCPA "necessitated an increased level of legal expertise, legal services and increased potential of malpractice for the typical bankruptcy practitioner"; court increased no-look maximum fee to $3,500. Attorney's request for $5,250 is reduced to $3,250.).
In re Moreland, No. 06-81797, 2007 WL 1830837, at *4 (Bankr. C.D. Ill. June 22, 2007) (For "a problem-free audit," in which attorney acted merely as "middleman or information clearinghouse between the DEBTORS and the auditor," requested fees of $840 are reduced to "reasonable value of $400" and copying costs are denied. Debtors responded to requests for documents in audit. Auditor reported no material misstatements. Debtors in simple audits may not need assistance of their attorney, but "in light of the fact that this is the first such request, the Court is willing to award additional attorney fees [above previously awarded $2,500 no-look fee] to be paid from the bankruptcy estate, but a reduction in the requested fee is warranted.").
In re Robinson, 368 B.R. 492 (Bankr. E.D. Va. May 17, 2007) (Request for supplemental compensation of $13,351.20 in addition to $3,000 flat fee is reduced first by 60% because supplemental request was excessive and then by further 20% because contract was difficult to read, internally inconsistent and failed the standard in § 528(a)(1).).
In re Amato, 366 B.R. 348, 352 (Bankr. D.N.J. Mar. 20, 2007) ("That the Form B22C fails to make any reference to attorneys fees is an unfortunate omission and continues an apparent knowing disregard for the need to compensate attorneys representing debtors' interests.").
In re Devlin, No. 06-16105PM, 2007 WL 1063006, at *1 (Bankr. D. Md. Mar. 13, 2007) (On objection to debtor's counsel's fee application for $4,500 "ahead of all creditors, even if the case were dismissed the day after confirmation," court allows initial payment of $1,750 followed by payments of $125 a month. "Counsel objects to the payment of the balance of his fee stating, '[t]o impose a system whereby Debtor's counsel is forced to bear the burden of risk in Chapter 13 cases that have a notoriously low rate of completion forces competent counsel to reexamine the practice of Chapter 13 bankruptcy.' What counsel is suggesting is that Chapter 13 cases are a money tree for counsel, and the interests of creditors and the debtor are to be subordinated to the fiscal wellbeing of counsel.").
In re Guidry, 366 B.R. 624 (Bankr. E.D. Tex. Mar. 12, 2007) (Local bankruptcy rule fixing no-look fee in Chapter 13 cases was raised from $2,000 to $3,000 after BAPCPA; $3,000 threshold is surpassed when counsel requested additional $500 for preconfirmation plan modification.).
In re Light, 357 B.R. 23 (Bankr. N.D.N.Y. Dec. 21, 2006) (Neither delegation of tasks to staff nor press of filing cases in October 2005 is excuse for multiple omissions and mistakes by debtors' attorney in Chapter 13 petition and other documents; Rule 9011 sanctions imposed payable in part to trustee and in part to clerk of court.).
In re Bailey, No. 06-30871-DOT, 2006 WL 3099647, at *2 (Bankr. E.D. Va. Oct. 30, 2006) (unpublished) (No-look fee increased from $1,500 to $3,000 to reflect increased attorney time under BAPCPA; counsel not entitled to supplemental fee of $396.47 above $3,000 no-look fee because debtor's failure to attend § 341 meeting is "truly one of the hazards an attorney must anticipate in representing debtors in any consumer case.").
In re Chapter 13 Fee Applications, No. Misc. 06-00305, 2006 WL 2850115, at *1, *5 (Bankr. S.D. Tex. Oct. 3, 2006) (unpublished) ("No application" fixed fee raised from $2,460 to $3,085 to reflect that BAPCPA imposed "additional time requirements that are permanent in the fabric of post-October 17, 2005 chapter 13 cases"; payment from "first available" funds means after adequate protection payments; extra $100 allowed when counsel obtains discharge because "Chapter 13 discharges are no longer automatic.").
In re Mayer, No. 06 10013, 2006 WL 2850451, at *1 (Bankr. D. Kan. Oct. 2, 2006) (unpublished) ("[T]he increased workload and responsibilities of lawyers filing chapter 13 cases in the wake of BAPCPA merit an increase in the presumptive fee from $2,000 to $2,500.").
In re McNally, No. 06-10073-HRT, 2006 WL 2348687, at *3-*16 (Bankr. D. Colo. Aug. 10, 2006) (unpublished) (Applying In re Ingersoll, 238 B.R. 202 (D. Colo. 1999), in post-BAPCPA context, presumptively reasonable fee must rise to reflect added complexity and demands of BAPCPA, but more experience with new statute is needed to fix new amount. "Ingersoll suggests Chapter 13 attorneys have a difficult job and deserve just compensation. Chapter 13 debtor's attorneys often deal with difficult clients, who consume more of the attorney's time, or their staff, than a cursory examination of the case might lead one to believe. . . . BAPCPA . . . introduced . . . a new, more complicated bankruptcy process. The complexity of the decision-making processes concerning the filing of a bankruptcy case increased exponentially . . . . Even the simplest of tasks under the old law became novel and difficult questions. . . . We do not have a revised Presumptively Reasonable Fee and probably may not have one for several more months. None of us have enough experience under BAPCPA to know where to set the bar on such a fee. . . . [T]he Court recalls allowing fees in Chapter 13 BAPCPA cases of $1,800 on the low end and in excess of $5,000 on the high. . . . [T]he Court wonders whether under BAPCPA, the nature of certain tasks that previously were characterized as clerical may no longer be so. . . . [T]he Trustee objects to an attorney billing for scanning pay stubs for electronic filing. . . . [T]he Court cannot say with certainty that this is a purely clerical task given the circumstances and the time period when this case was filed. . . . [T]he pay stubs and other scanned documents needed to be reviewed and culled to be sure that the correct pay stubs and required documents were properly included for scanning. This connotes the performance of a legal service in conjunction with clerical work necessary to complete the task. . . . Because of the demands of BAPCPA, the costs of filing Chapter 13 cases have risen. . . . [T]he exigencies of consumer practice . . . maybe . . . have increased permanently with new requirements like credit counseling, obtaining tax returns, all the new Debt Relief Agency requirements, and many other checks and balances imposed by BAPCPA. . . . Clients now have more questions about more requirements. Time frames to perform have been tightened. . . . The fees here are about $3,500. That level is considered reasonable by the Court.").
In re Mullings, No. 06-80164, 2006 WL 2130648, at *2 (Bankr. E.D. Okla. July 26, 2006) (unpublished) (Presumptive or "no look" fee in Chapter 13 cases is raised from $2,000 to $3,750. "Bankruptcy attorneys face many new requirements under BAPCPA that have a significant impact on the time spent on routine bankruptcy cases. Additional time is spent in reviewing the case, preparing additional forms, reviewing bank statements and other financial statements, verifying information provided by debtors, and preparing plans.").
In re Murray, 348 B.R. 917, 921 (Bankr. M.D. Ga. July 24, 2006) (Administrative order fixing no-look fee in Chapter 13 cases is amended from $1,501 to $2,500, with corresponding increases in amount disbursed at confirmation and the amount allowed each month after confirmation. "[T]he responsibilities, time requirements, and the expertise required of attorneys practicing in the area of bankruptcy have increased.").
In re Reid, No. 06-50147, 2006 WL 2077572, at *3 (Bankr. M.D.N.C. July 19, 2006) (unpublished) (Although DSOs are technically first priority, § 507(a)(1)(C) and § 1326(b)(1) demonstrate that plan can pay attorney's fees concurrently with and before payment in full of a DSO. "Plan does not violate § 507(a) by providing for the payment of attorney's fees before or at the time of the payment of domestic support obligations.").
In re Vinnie, 345 B.R. 386, 389 (Bankr. M.D. Ala. June 23, 2006) (Attorney fees can be paid concurrently with a higher-priority DSO. "[Section] 1326(b)(1) requires that the debtor's attorney be paid contemporaneously with other creditors. Indeed, one may reasonably argue that § 1326(b)(1) would allow the attorney to be paid ahead of [a DSO], notwithstanding the fact that it would have a higher priority in distribution in a case under Chapter 7.").
In re DeSardi, 340 B.R. 790 (Bankr. S.D. Tex. Apr. 21, 2006) (Isgur) (Adequate protection payments to car lenders are administrative expenses under § 503(b) entitled to superpriority under § 507(b) and must be paid ahead of other administrative expenses such as attorney fees, but only to the extent necessary to provide adequate protection. Debtors' attorneys' fees must be paid in full before other payments to creditors consistent with the reasoning in In re Harris, 304 B.R. 751 (Bankr. E.D. Mich. 2004). If the regular installments payable to a car lender under the plan exceed the amount necessary to provide adequate protection, then the difference cannot be paid to the car lender until other administrative expenses, such as attorneys' fees, are paid in full. Adequate protection portion must be paid to car lender both before and after confirmation ahead of any payment to debtor's attorney.).
In re Sanders, 341 B.R. 47, 51-52 (Bankr. N.D. Ala. Apr. 18, 2006) (Attorney's fees can be paid in full before first-priority DSO and concurrently with payments to secured creditors. "Section 1326(b)(1) gave the debtor the choice of paying § 507(a)(1) administrative expenses before or concurrently with other claims, so long as the administrative payments began no later than the first payment to other creditors. . . . [A]dministrative expenses include attorneys' fees to debtors' counsel. These fees must be paid either before or contemporaneously with other claimholders under § 1326(b)(1) . . . . [T]he debtors' Chapter 13 plan does not violate § 507(a), as amended, by providing first for the payment of administrative expenses, including attorney fees, as required by § 1326(b)(1)."), aff'd, 347 B.R. 776 (N.D. Ala. 2006).).
In re Attorneys' Fees in Chapter 13 Cases, No. 06-50001, 2006 WL 4860080, at *2-*3 (Bankr. D. Utah Mar. 22, 2006) ("The $2,750.00 presumptive fee shall provide compensation for legal services through: 1) Chapter 13 plan confirmation; 2) the claims review process; 3) the financial education certification[,] and[ ] 4) the final certification of readiness for discharge. . . . The $2,750 presumptive fee shall also include 'business cases.' . . . The Court declines to implement presumptive a la carte fees for postconfirmation services.").