Opinion
Case No. 11-03644-PB13
08-28-2012
In re MAMADY BINTA CISSE, Debtor.
WRITTEN DECISION - NOT FOR PUBLICATION
ORDER ON APPLICATION FOR
FEES AND EXPENSES
This debtor has had a difficult history in bankruptcy. He filed a Chapter 7 (09-05362) on April 23, 2009, which was dismissed May 15, 2009. Then he filed another Chapter 7 (09-06791) on May 8, 2009. That case proceeded to discharge. Then he filed a Chapter 13 (10-08858) on May 24, 2010, which was dismissed on February 24, 2011. The instant Chapter 13 case was filed March 6, 2011.
In asking this Court to extend the automatic stay after the prior dismissal of the Chapter 13 case, debtor stated in his declaration:
5. I have had a substantial change in my financial or personal affairs since the dismissal of the last case, and I believe that this case
will result in a confirmed plan that will be fully-performed. Specifically, as of November 29, 2010 I was unrepresented by counsel in the prior case. Many of the issues preventing confirmation of a plan in the prior case appear to have been avoidable with proper representation. I have retained new counsel to represent me in the present case. . . .
Debtor's initial plan proposed to make substantial monthly payments, and did not include any proposal to strip off, or down any real estate liens. As structured with step-up payments, debtor's plan did not provide enough in monthly payments for the trustee to cover the installments to be paid to the real estate creditors on their arrears in the first 12 months (the proposed installments totalled $2,383.33 while the monthly payment to the trustee was set at $2,000).
U.S. Bank objected to debtor's motion to extend the stay pointing out that in the prior case it had been granted relief from the stay. The Court continued the hearing on the motion, and continued the stay in effect in the interim. Meanwhile, JP Morgan Chase Bank filed an objection to confirmation, followed by OneWest Bank. Debtor filed an objection to the U.S. Bank claim, and a motion to extend time to file lien strip motions against Deutsche Bank and OneWest Bank. In the interim a noncontested order was entered, providing debtor was not eligible for a discharge in this Chapter 13 case.
On August 8, 2011, debtor filed lien strip motions against Deutsche Bank, Residential Funding, OneWest Bank, and Household Finance. Then Saxon Mortgage and the Chapter 13 trustee filed objections to confirmation, as did Bank of America. The lien strip motions were ordered continued by the Court for insufficient service of process. The next day, all four lien strip motions were formally withdrawn, and a week later debtor's attorney filed her motion to withdraw as counsel. In that motion, counsel stated debtor directed her to cease all work on the case on August 15, 2011, and reiterated that direction in open court on October 5.
At the hearing on counsel's motion to withdraw, debtor reiterated his concerns over counsel's handling of his case. The Court allowed counsel to withdraw, recognized that counsel had agreed to accept $4,000 for the basic case and had received $3,050, and the Court authorized the additional $950 and authorized counsel to file a supplemental application within 3 0 days for any additional fees sought.
Counsel did file a supplemental application, seeking additional fees of $2,550, comprised of the guideline fees of $500 for a contested motion to extend stay, $250 for the objection of U.S. Bank's claim, and $450 each for four lien strip motions. After hearing argument, the Court took the matter under submission.
Debtor signed a "Rights and Responsibilities" form used in this district, which specifies what a debtor can expect to pay for a routine Chapter 13 case, and what services are included in that fee. In addition, the agreement sets out a list of services not included in the basic fee, and sets forth generally allowed fees for performance of routine services not otherwise included in the basic fee. Among those additional services are a contested motion to extend the stay, a claim objection, and lien strip motions (authorized at $450 as "other" activity).
On the face of the application, counsel should be authorized the additional $2,550. Counsel's pleading indicates the fees were discussed with debtor at the time the various motions were contemplated, as well as when the "Rights and Responsibilities" form was signed. Debtor filed no written opposition to counsel's application, but he did state his opposition orally. That opposition centered around debtor's apparent belief that he could not get a lien strip because he was not eligible for a Chapter 13 discharge under 11 U.S.C. § 1328(f). He seemed to feel that counsel's efforts on his behalf were a waste of time and fees because of what he thought was the position of this Court with regard to lien strips in "Chapter 20" cases.
Whatever debtor may have thought this Court's position is on "Chapter 20" cases, the issue was not presented to the Court because at debtor's direction the lien strip motions were withdrawn. As an academic matter, the Court's position has been set out in a series of published opinions. In re Burnett, 427 B.R. 517 (2010); In re Casey, 428 B.R. 519 (2010); In re Victorio, 454 B.R. 759 (2011). Nothing in those opinions holds that a debtor is necessarily wasting his time and money seeking a lien strip when he is not eligible for a discharge.
Eligibility for a discharge is not a condition-precedent to succeeding on a lien strip motion.
In any event, counsel did prepare and file four lien strip motions, a claim objection, and a motion to extend the stay, and debtor signed the "Rights and Responsibilities" agreement which listed the presumptive fees for the effort. Based on the facts and circumstances of this case, the Court finds and concludes that attorney Powell has earned, and is hereby authorized to receive the original agreed amount of $4,000 not including filing fee, plus $2,550 for the additional services as already discussed. She received $3,050 prior to filing, and was authorized $950 more at an earlier hearing. If that has not yet been paid, she is entitled to receive whatever portion of the $950 that has not been paid, plus the additional $2,550.
IT IS SO ORDERED.
______________________
PETER W. BOWIE, Chief Judge
United States Bankruptcy Court