Opinion
Bankruptcy No. B-03-13874C-13G, CIVIL NO. 1:04CV00411.
December 6, 2004
MEMORANDUM OPINION and ORDER
Appellant Peggy S. Willis seeks review of the order of the bankruptcy court entered on March 29, 2004, denying her motion for allowance of attorney's fees pursuant to Section 506(b) of the Bankruptcy Code. Appellant contended before the bankruptcy court and before this court that the attorney's fees sought were necessary because of a failure of the Debtor Jesse Ed Carter, Jr., to provide insurance on residential property owned by the Debtor and subject to a deed of trust securing a promissory note held by the Appellant. The bankruptcy court held a hearing and received evidence which was conflicting. Thereafter, the bankruptcy court ruled that the Appellant had the burden of proof to establish entitlement to the fees sought, including a showing that the services were necessary to protect her interests, and that, having weighed the conflicting evidence and considered the credibility of witnesses, the Appellant failed to carry her burden of proof. As a result, the bankruptcy court held that the Appellant failed to show that the services performed by her attorney were necessary and denied her request for attorney's fees from the assets of the bankruptcy estate.
Appellant contends that, without her counsel initiating a suit against the Debtor, the Debtor would not have obtained the requisite insurance. The bankruptcy judge, as the fact finder, weighed the conflicting evidence, determined the credibility of witnesses, and concluded that the Appellant failed to show by a preponderance of the evidence that the Debtor failed to maintain insurance coverage on the property and, as a result, failed to show that the services performed by her attorney were necessary. In resolving issues of the sufficiency of evidence, an appellate court does not weigh evidence or review witnesses' credibility.United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). The credibility of witnesses is within the sole province of the fact finder. United States v. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996). After hearing the contradictory evidence the bankruptcy judge determined that the Debtor's evidence was more credible than that presented by the Appellant. Appellant has offered no reason to disturb the bankruptcy court's decision as to the sufficiency of her evidence. Therefore, the decision of the bankruptcy court, entered March 29, 2004, will be affirmed.
The court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
NOW, THEREFORE, IT IS ORDERED that the decision and order of the bankruptcy court, entered March 29, 2004, denying Appellant's request for attorney's fees is hereby AFFIRMED.