Opinion
05-Civ-03958 (RPP), 05-Civ-03332 (RPP), 05-Civ-03959 (RPP).
December 19, 2005
Attorneys for Appellant Carey Associates LLC New York, NY, Attn: Michael Q. Carey Natasha P. Concepcion.
Attorney for Appellees Rudolf J. Ernst and Angelika L. Ernst Koerner Silberberg Weiner, LLP New York, NY, Attn: Joseph L. Fox.
Attorneys for Appellees Franklin Community Bank, NA and Larry A. Heaton DLA Piper Rudnick Gray Cary US LLP New York, NY, Attn: Christopher Campbell Thomas R. Califano Vincent J. Roldan.
DLA Piper Rudnick Gray Cary US LLP The Marbury Building Baltimore, MD, Attn: Richard M. Kremen Jodie E. Buchman.
OPINION AND ORDER
Appellant Michael Q. Carey d/b/a Carey Associates ("Carey") in his motion for reconsideration dated November 19, 2005, argues that Judge Blackshear's finding that Carey "billed `needless hours on unrelated matters for . . . the sole purpose of racking up interest on a legitimate account stated,'" should not have been adopted by this Court because there was no evidence in the record to support such finding and that, therefore, the Bankruptcy Court's finding was clearly erroneous. (Mem. in Support at 3.) Carey also argues that the proper remedy for any improper fees is a disallowance of those fees in the entirety, rather than a reduction in interest. (Id. at 10.)
Carey also disputes this Court's conclusion that he allowed this case to linger for years while he explored the defendants' assets and his claim against the debtors' son. (Mem. in Support at 4-5.)
This Court held that Judge Blackshear did not err as a matter of law in reducing the rate of interest, nor was his determination to reduce the interest rate clearly erroneous. From the daynotes submitted, Judge Blackshear could have reasonably concluded that the extent of the delay in moving for summary judgment was unreasonable and resulted in unnecessary interest. Though Carey is correct in his assertion that the remedy for an invalid fee expense is to disallow it in its entirety, an initially valid fee may be wrongfully inflated through improper delay, resulting in an increase in interest due. However, since Judge Blackshear deprived Carey of a hearing on his fee application, and since the Bankruptcy Court will be holding a hearing on Carey's fee application pursuant to this Court's Opinion and Order of November 8, 2005, efficiency and sound administration may best be served by allowing the Bankruptcy Court to reach a full consideration of the reasonableness of both Carey's fee application and the interest to be awarded thereon. Accordingly, the motion to reconsider is granted and the issue remanded to the Bankruptcy Court together with the issue of the reasonableness of Carey's fee application.
IT IS SO ORDERED.