Opinion
Case No. 12-00026-PB11
09-26-2014
In re DAVID M. ANDERSON, Debtor.
WRITTEN DECISION - NOT FOR PUBLICATION
ORDER ON FIFTH INTERIM FEE APPLICATION OF COUNSEL FOR DEBTOR-IN-POSSESSION
Procopio, Cory, Hargreaves & Savitch, LLP (Applicant) filed its fifth interim fee application for allowance of attorneys' fees incurred and reimbursement of costs advanced as counsel for debtor-in-possession David Anderson (Debtor) for the period October 1, 2013 through April 30, 2014. Applicant seeks allowance of fees of $264,311.50 and costs of $13,386.05 on an interim basis.
The sole opposition to the Application was filed by James Lessley and Victoria Place, LLC (collectively Lessley). Lessley asserts a claim in this case of approximately $12 million. Debtor disputes that claim in its entirety. Debtor and Lessley are litigating the claim in the state court. Depending upon the results in the state court, Lessley may end up with no claim in this case.
The essence of Lessley's objection to the fee application is that all the money in this bankruptcy estate is money that was misappropriated by debtor from Lessley and Victoria Place. Moreover, Lessley and Victoria Place continue to argue that they had the case settled until debtor's counsel sabotaged the agreement. In support of their argument, they even invited the Court to contact the state court judge to get his assessment of what occurred. The Court declines to seek ex parte information not on the record, and notes in passing that if there were a settlement in the state court litigation Lessley and Victoria Place have a forum in which to seek enforcement of any such settlement.
The Court has considered the Application, Lessley's opposition and the reply thereto. The Court has decided to allow the fees and costs requested on an interim basis. The interim allowance is of course subject to application for final allowance and is subject to disgorgement, should the fees ultimately be denied. In the event Lessley prevails in state court and establishes a claim, in this case, he is of course welcome to renew his objections upon final application.
Applicant shall lodge and serve an order consistent herewith within thirty (30) days of the entry of this decision.
IT IS SO ORDERED.
DATED: SEP 26 2014
/s/_________
PETER W. BOWIE, Judge
United States Bankruptcy Court
CERTIFICATE OF MAILING
The undersigned, a regularly appointed and qualified clerk in the office of the United States Bankruptcy Court for the Southern District of California, at San Diego, hereby certifies that a true copy of the attached document, to wit:
ORDER ON FIFTH INTERIM FEE APPLICATION OF COUNSEL FOR DEBTOR-IN-POSSESSION
was enclosed in a sealed envelope bearing the lawful frank of the bankruptcy judges and mailed to each of the parties at their respective addresses listed below: Philip J Giacinti, Jr.
Procopio Cory Hargreaves & Savitch
525 "B" Street, Suite 2200
San Diego, CA 92101
Todd Neal
Procopio Cory Hargreaves & Savitch
525 "B" Street, Suite 2200
San Diego, CA 92101
Nicholas A. Boylan
Law Offices of Nicholas A. Boylan, APC
444 West "C" Street, Suite 405
San Diego, CA 92101
Said envelope(s) containing such document was deposited by me in a regular United States Mail Box in the City of San Diego, in said District on September 26, 2014.
/s/_________
Lisa Cruz, Deputy Clerk
Notice Recipients
| District/Off: 0974-3 | User: tbobis | Date Created: 9/26/2014 |
| Case: 12-00026-PB11 | Form ID: pdfO1 | Total: 2 |
| Recipients of Notice of Electronic Filing: aty Philip J Giacinti, Jr. pjg@procopio.com | TOTAL: 1 |
| Recipients submitted to the BNC (Bankruptcy Noticing Center): db David M. Anderson 12359 Sage View Road Poway, CA 92064 | TOTAL: 1 |