Opinion
CASE NO. 09-62576.
August 10, 2010
MEMORANDUM OF OPINION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the general order of reference entered in this district on July 16, 1984. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (O).
This opinion is not intended for publication or citation. The availability of this opinion, in electronic or printed form, is not the result of a direct submission by the Court.
BACKGROUND
Debtor Trinity Cody ("debtor") retained Debra Booher Associates LPA ("Booher Associates") for the purpose of filing a chapter 13 bankruptcy. Debtor's petition was filed on June 25, 2009. The Statement Pursuant to 2016(b) filed with the petition indicates that the debtor agreed to a fee of $3,000 with $2,000 paid up front. According to the Statement, the only service expressly excluded from the $3,000 fee is representation of the debtor in adversary proceedings.
In April of 2009, the debtor terminated Booher Associates and retained Nicole Rohr as bankruptcy counsel. On May 19, 2010, Booher Associates filed an application for attorney fees. The fees requested total $5,000. On June 9, 2010, the debtor objected to Booher Associates' attorney fees as excessive.
A hearing was held on July 14, 2010. Nicole Rohr represented the debtors and Dynele L. Schinker represented Booher Associates. At hearing, Nicole Rohr stated that, while she thought a fee of $5,000 was excessive, she did not object to a fee of $3,000. The Court took the matter under advisement and ordered that Booher Associates file a copy of its retention agreement with the debtor. The order provided that confidential or privileged information could be redacted from the retention agreement.
On July 22, 2010, Booher Associates filed a supplement to its application for attorney fees. The supplement included the retention agreement, which had been redacted down to the following two paragraphs:
Exhibit
LAW AND ANALYSIS
The burden of proof as to the entitlement to and reasonableness of fees sought rests on the applicant. In re Four Star Terminals, Inc., 42 B.R. 419, 429 (Bankr. D. Alaska 1984); In re Crutcher Transfer Line, Inc., 20 B.R. 705, 710 (Bankr. D. Ky. 1982). Entitlement and reasonableness are separate issues. For example, if a fee is not allowed under a retention agreement, an attorney is not entitled to it even if it is reasonable.
The Court requested the retention agreement in this case to determine if Booher Associates is entitled to the fee it requests. Unfortunately, the two paragraphs provided are unhelpful because they fail to describe what services fall under the $3,000 flat fee and what services are "additional services" charged at $185 per hour. As such, Booher and Associates has failed to meet its burden of proving that it is entitled to fees greater than $3,000.
Accordingly, the application for attorney fees is allowed in the amount of $3,000 and disallowed to the extent that it seeks compensation greater than $3,000.
An order will issue with this opinion.