Opinion
Case Nos. 99-28754-L, 99-21476-L, 99-24670-L.
December 23, 1999
OPINION
BEFORE THE COURT in these Chapter 7 cases are applications for compensation filed by the attorneys for the debtors. In each case the United States Trustee has objected that the attorney for the debtor, who is not employed pursuant to 11 U.S.C. § 327, is not entitled to compensation from the Chapter 7 estate. For the following reasons, the Court concludes that reference to the attorney for the debtor was inadvertently omitted from 11 U.S.C. § 330(a)'s list of persons eligible for compensation from the estate. This is a core proceeding. FED. R. BANK. P. 7052.
I.
Each of these three cases presents the issue of whether an attorney for a Chapter 7 debtor is entitled to compensation from the bankruptcy estate. The material facts in each of the individual cases are as follows:
A.
Eggleston Works Loudspeaker Company filed its Chapter 7 petition on July 26, 1999. Mr. William M. Gotten prepared the petition, and schedules and statement of financial affairs which were subsequently filed on August 23, 1999. The day after the filing of the petition a motion to dismiss was filed by Capital Management Partners, alleging in essence that the filing of the petition lacked appropriate corporate authority. The motion was ultimately resolved without a hearing, but not before Mr. Gotten and the law firm of Bateman Gibson Childers, LLC, had expended considerable effort in the preparation of a memorandum in opposition to the motion to dismiss. Mr. Gotten and Bateman, Gibson Childers, LLC, assert that but for their efforts, there would be no bankruptcy estate to administer. On September 10, 1999, they jointly filed an Application of Debtor's Counsel for Approval of Attorneys Fees and Reimbursement of Expenses and to Authorize Trustee to Pay Same. Mr. Gotten seeks compensation for 35.5 hours worked at $200.00 per hour ($7,100.00) plus expenses in the amount of $6.50. Mr. Gotten received a pre-petition retainer in the amount of $1,425.00. He seeks to apply the retainer to the fees incurred and be paid the balance of $5,681.50 from the bankruptcy estate.
Mr. William C. Bateman, Jr. and Mr. Scott B. Peatross, of Bateman Gibson Childress, LLC, claim fees in the amount of $5,012.50 and expenses in the amount of $152.73. The firm received a pre-petition retainer in the amount of $1,400.00. After application of the retainer, the firm seeks an award of $3,765.23 from the bankruptcy estate.
In addition to the United States Trustee, the case trustee, Mr. Richard T. Doughtie, III, has also filed an objection to the application.
B.
Hilburn's Paint and Body Shop filed its Chapter 7 petition, schedules and statement of financial affairs on February 3, 1999. Mr. Norman P. Hagemeyer acted as attorney for the debtor. Mr. Hagemeyer filed an application on October 8, 1999, seeking $2,240.00 in fees and $10.20 in expenses for his efforts on behalf of the debtor and the estate. Mr. Hagemeyer received a prepetition retainer in the amount of $1,000.00, thus Mr. Hagemeyer seeks an award of $1,250.20 from the bankruptcy estate. The United States Trustee timely filed an objection to the application on the basis that Mr. Hagemeyer had not been retained by the Chapter 7 trustee.
C.
Susan Elaine Melton filed her Chapter 7 petition, schedules and statement of financial affairs on April 16, 1999. Ms. Melton neglected to inform her attorney, Herbert D. Hurst of Raymond Weber Associates, P.A. ("RWA"), that she was a beneficiary of the estate of her mother, Norma Maxine McNally, deceased, and that as such, she had become the beneficiary of certain annuity contracts. One of these contracts paid Ms. Melton a lump sum benefit in the amount of $80,629.89 some 33 days prior to the filing of her petition. Upon discovery of these assets, the Chapter 7 trustee initiated an adversary proceeding against Ms. Melton which resulted in a settlement whereby Ms. Melton paid $36,457.36 to the Trustee. Unsecured non-priority claims against the estate are scheduled at $18,738.07, thus the estate is now solvent.
Mr. Hurst was not aware of the debtor's concealment of these assets, and fully cooperated with the Trustee upon their discovery. He represented the debtor in connection with the adversary proceeding which led to substantial amendments to the debtor's schedules and statement of financial affairs, and eventually to the settlement which will result in payment of all claims. Mr. Hurst seeks approval of fees in the amount of $2,175.00 and expenses of $150.55 (the cost of the transcript of Ms. Melton's deposition).
II.
Pursuant to 11 U.S.C. § 503(b)(2), compensation and reimbursement awarded under 11 U.S.C. § 330(a) is allowed as an administrative expense of the bankruptcy estate. Pursuant to 11 U.S.C. § 507 (a)(1), such expenses have first priority in the distribution of the assets of the bankruptcy estate. 11 U.S.C. § 330(a)(1) was substantially amended by the Bankruptcy Reform Act of 1994. Prior to amendment, that section specifically contemplated the award of compensation to the debtor's attorney. As amended, 11 U.S.C. § 330(a)(1) provides for an award of compensation to "a trustee, an examiner, a professional person employed under section 327 or 1103." The prior reference to the debtor's attorney has been deleted. Section 330(a) was further amended to specifically provide for the award of compensation to the attorney for an individual debtor in a Chapter 12 or 13 case "for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section." 11 U.S.C. § 330(a)(4)(B).
Prior to amendment, 11 U.S.C. § 330(a)(1) provided:
(a) After notice to any parties in interest and to the United States trustee and hearing, subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor's attorney —
(1) reasonable compensation for actual necessary services rendered by such trustee, examiner, professional person, or attorney. . . .
Prior to the 1994 amendment, it was clear that not all services performed by counsel on behalf of a Chapter 7 debtor were compensable from the estate. Only those services which were actual and necessary to the preservation of the estate were to be paid from the estate. Thus it was said that counsel might be compensated from the estate only for assisting the debtor in performing his legal duties as opposed to exercising his legal privileges. In re Woodward East Project, Inc., 195 B.R. 372, 375 (Bankr. E.D. Mich. 1996) quoting In re Dawson, 180 B.R. 478, 479 (Bankr. E.D. Tex. 1994). The duties of a debtor in Chapter 7 in aid of which debtor's counsel might be compensated were the following:
The fee application in Woodward East Project was filed prior to effective date of the 1994 amendments, and thus those amendments did not apply.
1) Filing the debtor's schedules of assets and liabilities, list of creditors, and statement of financial affairs;
2) Filing a statement of intention to claim exemptions or reaffirm debts;
3) Cooperate with the Trustee, by delivering all property of the estate and all of the debtor's records to the Trustee, to enable him to administer the estate;
4) Attend and submit to an examination (First Meeting of Creditors);
5) Attend any hearings on objections to discharge or dischargeability;
6) Attend the discharge hearing.
Woodward East Project, 195 B.R. at 375, citing In re Taylor, 66 B.R. 390, 395 (Bankr. W.D. Pa. 1986) and In re Olen, 15 B.R. 750 (Bankr. E.D. Mich. 1981). Services rendered by a debtor's attorney beyond those associated with legal duties were not `necessary' to the administration of the estate, and thus not compensable from the estate. Woodward East Project, 195 B.R. at 375, quoting Dawson, 180 B.R. at 479 which cited Office Products of Am., Inc., 136 B.R. 964, 974 (Bankr. W.D. Tex. 1992).
The issue of whether the 1994 amendments to section 330 were intended to exclude the debtor's attorney from receiving compensation from a Chapter 7 estate has not been decided by the United States Court of Appeals for the Sixth Circuit. There is no agreement among the reported decisions from other courts.
Some courts and legal commentators have concluded that the omission of any reference to the debtor's attorney in section 330 was inadvertent. See In re Century Cleaning Services, Inc., ___ F.3d ___, 1999 WL 1041832 (9th Cir., Nov. 18, 1999); Ames Department Stores, Inc., 76 F.3d 66 (2d Cir. 1996); In re Bottone, 226 B.R. 290 (Bankr. D. Mass. 1998); In re Miller, 211 B.R. 399 (Bankr. D. Kan. 1997); 3 COLLIER ON BANKRUPTCY ¶ 330.LH[5] at 330-75 60 330-76.
Century Cleaning Services, Inc. was originally filed as a Chapter 11 case and subsequently converted to Chapter 7. Counsel for the debtor-in-possession received a pre-petition retainer in the amount of $27,860.34 to be applied to post-petition services and expenses. Counsel filed an application for Chapter 7 attorney fees and expenses in the amount of $12,770.87. The United States trustee filed an objection stating that 11 U.S.C. § 330 did not permit attorney fees to be paid out of estate assets. Counsel argued that its services were necessary to the administration of the estate as the services were performed at the request of the court, the Chapter 7 trustee, and one of Century's creditors.
The bankruptcy court held that the Bankruptcy Code did not authorize counsel to be paid from the estate, but that counsel had a valid state law lien against the pre-petition retainer, and thus that it could recover reasonable fees from the retainer. Century Cleaning Services, 1999 WL 1041832 at *1. The Bankruptcy Appellate Panel affirmed. Id. The United States trustee appealed, contending that the Bankruptcy Appellate Panel had correctly determined that § 330 precludes compensation to a Chapter 7 debtor's attorney, but that Oregon law does not permit a lien for postpetition services, and § 330 preempts any state law to the extent that it allows such a lien in Chapter 7 cases. Id.
The Court of Appeals vacated, reversed, and remanded for further proceedings, holding that "[t]he history of the Bankruptcy Code, the legislative history of the Reform Act, and applicable policy considerations all point toward the same conclusion: the drafting error in the Reform Act lies in the deletion of `attorney' from the first list in § 330(a)(1), not the retention of the term in the second." Id. at *7.
Ames Department Stores is concerned with an award of fees to counsel for the debtor in a Chapter 11 case. The court cites with approval Collier's assertion that the exclusion of any reference to debtors' attorneys in section 330 was inadvertent. Ames Dept. Stores, 76 F.3d at 71-72. The court reasons that, "Where the benefits of services to the estate are the same, it makes no sense to treat performances of such benefits by debtors' attorneys differently than performance by other retained professionals." Id. at 72. "[I]f the services of debtor's attorney `are reasonably likely to benefit the estate, they should be compensable.'" Id. quoting 2 Collier ¶ 330.04 at 330-43.
Bottone concerned payment of legal fees incurred by the debtor in a Chapter 7 case that was subsequently converted to Chapter 13. The conversion resulted from the filing by the Chapter 7 Trustee of an adversary proceeding to avoid the pre-petition transfer of the debtor's interest in his marital residence to his non-debtor spouse. There was no dispute that the legal fees were rendered solely on the debtor's behalf during the Chapter 7 case. Had the case not been converted, the attorney could have sought payment from the debtor's post-petition income, which was not property of the Chapter 7 estate. Upon conversion to Chapter 13, however, the debtor's post-petition income became property of the estate. Among other issues, the court decided that the omission of the debtor's attorney from section 330(a) was inadvertent, and thus that "counsel to a Chapter 7 debtor is entitled to compensation from the estate as an administrative claimant to the extent the factors set forth in In re Pine Valley Machine, Inc., 172 B.R. 481, 487-89 (Bankr. D. Mass. 1994) are satisfied (services compensable from estate if limited and transitive; of benefit to the estate; not duplicative of services provided by the trustee; and rendered in good faith without obstructing or impeding the administration of the estate).
In Miller, Bankruptcy Judge Pusateri points to certain anomalies in section 330 which lead him to conclude that the statute is ambiguous and therefore in need of interpretation. First, Judge Pusateri points out that section 330(a)(4)(B) provides an exception to the general rule set out in subsection (a)(4)(A) that courts may not allow fees for services that involve unnecessary duplication or were not either reasonably likely to benefit the estate or necessary to administration of the estate. Section (a)(4)(B) provides for payment from the estate for some services that provide benefit solely to the Chapter 12 or 13 debtor. Judge Pusateri reasons that if section 330(a)(1) is read to exclude compensation to debtors' attorneys for costs of administration, section 330(a)(4)(B) would have the effect of providing compensation only to debtors' attorneys in Chapters 12 and 13 and then only for services that benefitted the debtor, rather than the estate.
Judge Pusateri further points to the fact that section 330(a) as amended does not contain the expected conjunction "or" before "a professional person" in the list of persons who may receive compensation from the estate. In addition, the list of persons covered in subsection (a)(1) includes "attorney" while the list in subsection (a) does not. Prior to amendment, "attorney" in the list under section (a)(1) clearly referred back to "debtor's attorney" in section (a).
Finally, Judge Pusateri points out that section 329 allows an attorney to be paid before the filing of a petition by the debtor "for services rendered or to be rendered in contemplation of or in connection with" a bankruptcy case. If section 330 precludes allowance of fees to the debtor's attorney as an administrative expense, and if pre-petition retainers are to be treated as property of the estate, then, reasons Judge Pusateri, the retainer would not be available for payment of the debtor's attorney fees, rendering some portions of section 329 surplusage.
Collier notes that the legislative history concerning the amendment to section 330 indicates that the changes were intended to clarify "`the standards for court award of professional fees in bankruptcy cases. These changes should help foster greater uniformity in the application for and processing and approval of fee applications.'" 2 Collier, ¶ 330.LH[5], at 330-75, quoting 140 CONG. REC. H10,769 (daily ed. October 4, 1994). The legislative history nowhere contemplates a dramatic change in the class of persons who may receive compensation from the estate. As the exception of debtors' counsel from those who may receive compensation from the bankruptcy estate would be inconsistent with then current case law, and is not supported by the legislative history, Collier concludes that the omission was unintended. Id. at 330-76.
Notwithstanding the prior authorities, the majority of courts that have considered this issue have concluded that the omission of references to the debtor's attorney in section 330(a)(1) precludes the court from compensating debtor's counsel from estate assets. See, e.g., Matter of Pro-Snax Distributors, Inc., 157 F.3d 414 (5th Cir. 1998); In re Skinner, 240 B.R. 225 (Bankr. W.D. Va. 1999); In re Johnson, 234 B.R. 671 (Bankr. S.D. Tex. 1999); In re Fassinger, 191 B.R. 864 (Bankr. D. Or. 1996); In re Friedland, 182 B.R. 576 (Bankr. D. Colo. 1995); In re Kinnemore, 181 B.R. 520 (Bankr. D. Id. 1995).
In Pro-Snax Distributors the Fifth Circuit affirmed the decision of the district court that the plain meaning of section 330(a) precluded an award of fees to the debtor's attorney after the appointment of a chapter 11 trustee. The court noted that it "decide[s] the issue before us bound by our conventions of statutory construction, even though common sense might lead the lay observer to conclude that a different result is perhaps more appropriate." Pro-Snax Distributors, 157 F.3d at 424-25. Because, the court said, the statute is clear on its face in excluding attorneys from the professional persons who may be compensated from a bankruptcy estate, it was not permitted to consider "exogenous sources" such as the legislative history. Id. at 425.
In Skinner, Bankruptcy Judge Ross W. Krum reviewed the various decisions which have discussed the issue created by the amendment to section 330(a), and sided with the majority of courts who have found section 330(a) to be clear and unambiguous. Skinner, 1999 WL 966288, at *2. In addition to concluding that the statute is clear on its face, the court also noted that it has now been five years since the enactment of the Bankruptcy Reform Act of 1994, and Congress has not enacted any corrective legislation. Id. at *2.
Johnson involved the question of whether the court may approve a pre-petition retainer for an attorney's services if the services were performed both before and after the appointment of a Chapter 11 trustee. Johnson, 234 B.R. at 673. The court found that its determination with respect to services rendered after the appointment of the trustee, was governed by Pro-Snax Distributors. It concluded that there can be no compensation of debtor's counsel from the bankruptcy estate once a Chapter 11 trustee is appointed.
In Fassinger, the bankruptcy judge for the District of Oregon held that the 1994 Bankruptcy Reform Act's elimination of any reference to the debtor's attorney in section 330(a) left the bankruptcy court without authority to award attorney fees from estate funds to a debtor's attorney in a Chapter 7 case. Fassinger, 191 B.R. at 865, citing In re Friedland, 182 B.R. 576 (Bankr. D. Colo. 1995); and In re Kinnemore, 181 B.R. 520 (Bankr. D. Id. 1995). The court rejected the argument that § 503(b)(1)(A) provides an independent basis for awarding fees from the estate.
In Friedland, the bankruptcy judge held that § 330(a) as amended is not ambiguous; that Congress intentionally deleted any reference to the debtor's attorney in § 330(a)(1); and that the bankruptcy court is without authority to award fees or other reimbursement of expenses to counsel for Chapter 7 debtors out of estate assets. Friedland, 182 B.R. at 557; In re Kinnemore, 191 B.R. at 521. The judges in Friedland and Kinnemore were convinced that the provision for payment of the debtor's attorney in cases under Chapter 12 and 13 under subsection 330(a)(4) necessarily excluded Chapter 7 attorneys for compensation from the bankruptcy estate.
While this Court recognizes that the majority of reported decisions now weigh in favor of excluding the Chapter 7 debtor's attorney from receiving compensation from the bankruptcy estate, the Court feels that the better reasoned approach is that of the minority. This Court agrees that § 330(a) as amended is awkward and ambiguous, and thus must be interpreted in light of available legislative history and long-standing bankruptcy practice. This Court is persuaded by the most recent opinion of the Ninth Circuit in Century Cleaning Services and the well-reasoned opinion of Judge Pusateri in Miller. The Court agrees especially with Judge Pusateri with respect to his reading of the purpose of subsection (a)(4)(B), that is, that the subsection provides an exception to the general rules set out at (a)(4)(A) that the court may not allow fees that either were not reasonably likely to benefit the estate or necessary to the administration of the estate. Subsection (a)(4)(B) is intended to provide a vehicle for debtor's attorneys in Chapter 12 and 13 cases to receive compensation for services rendered for the benefit of the debtor in addition to compensation for services rendered for the benefit of the estate. In Chapter 12 and 13 cases, where the debtor's post-petition income remains property of the estate at least to the extent necessary to pay plan payments, there potentially would be no other source of payment of the debtor's attorney fees. A similar provision is not necessary in Chapter 7 cases where the attorney for an individual debtor can expect to be paid from the debtor's post-petition earnings. This Court disagrees with those courts who have concluded that subsection (a)(4)(B) is intended to provide for the only type of compensation available to debtor's attorneys under § 330.
This Court concludes that the omission of reference to the debtor's attorney in section 330(a) was inadvertent. Counsel for the debtor in a Chapter 7 case may receive compensation from the estate, but only to the extent that the services rendered fall within the guidelines of § 330(a)(3)-(6). Specifically, the court may not award fees from the estate for services rendered solely for the benefit of the Chapter 7 debtor or any officer or shareholder of the Chapter 7 debtor. The Court will consider the application of these principles to the facts of each of these cases before it. The Court will be guided by the factors set out in Woodward East Project.
III. A. Eggleston Works Loudspeaker Company
The question presented by the applications of Messrs. Gotten, Bateman, and Peatross is whether their opposition to the motion to dismiss the bankruptcy petition were either reasonably likely to benefit the estate or necessary to the administration of the case. At the hearing on the application, Mr. Richard T. Doughtie, III, the Chapter 7 Trustee, indicated that the motion to dismiss was filed early in the case before he had hired counsel; that he did not take an active role in opposing the motion, in part because Debtor's counsel was already doing so; and that he generally supported the application, but did not support immediate disbursement as requested by the attorneys.
Because the Trustee did not oppose the motion to dismiss, the efforts of Messrs. Gotten, Bateman, and Peatross will not duplicate the efforts of the Trustee. Further, it can be said that their efforts were made in cooperation with the Trustee and in fact enabled him to administer the estate. Thus it would appear that the efforts of Debtor's counsel were within the spirit, if not the letter, of the duties of a Chapter 7 debtor as enumerated in Woodward East Project.
There does appear to have been certain services rendered by these attorneys for the benefit of Mr. Eggleston individually. There was apparently certain litigation pending or contemplated against Mr. Eggleston which is not compensable from the bankruptcy estate. Mr. Gotten expended 2.60 hours on matters related to this litigation. At Mr. Gotten's rate of $200.00 per hour, this results in a downward adjustment of $520.00.
The statement of Bateman, Gibson and Childress, LLC, is actually addressed to Mr. Eggleston who is referred to in the narrative portions as the "client." Nevertheless it appears that the bulk of that firm's efforts related to opposition to the motion to dismiss. The Court is concerned, however, that there appears to have been some duplication of services provided by Mr. Gotten. The Court does not believe that it was necessary for all three attorneys to appear for the hearing on the motion to dismiss at which Mr. Gotten merely announced the terms of settlement with Capital Partners. A downward adjustment of $300.00 to Mr. Bateman's application and $225.00 to Mr. Peatross' application is required. It also is evident that Mr. Peatross attended certain meetings with the Trustee, Mr. Gotten, and Mr. Eggleston. The Court believes that Mr. Peatross served as the representative of Mr. Eggleston at those meetings. Thus an additional downward adjustment of $150.00 will be made to Mr. Peatross' application.
The fees to be awarded to Mr. Gotten after appropriate adjustments are $6,580.00. Reimbursement of expenses in the amount of $6.50 is approved. Mr. Gotten may apply his prepetition retainer to the fees and expenses awarded herein, but the Court will not compel any disbursement from the estate at this time over the objection of the Trustee.
The fees to be awarded to Bateman, Gibson and Childress are $4,337.50 ($5,012.50 less $675.00). Reimbursement of expenses and advances in the amount of $152.73 are approved. Bateman, Gibson and Childress, LLC, may apply its pre-petition retainer of $1,400.00 to these fees, expenses, and advances, but must wait for further distribution from the estate.
B. Hilburn's Paint and Body Shop
Mr. Hagemeyer, attorney for Hilburn's Paint and Body Shop, has requested compensation for 12.8 hours at $175.00 per hour, for total fees of $2,240.00, together with reimbursement of expenses in the amount of $10.20. Each of the entries in Mr. Hagemeyer's application appears to fall within one or more of the legal duties enumerated in Woodward East Project. Mr. Hagemeyer met with Mr. Hefflin to obtain information needed for the preparation of the petition, schedules, and statement of financial affairs, prepared those documents, conferred and cooperated with the United States Trustee and the case trustee, and attended the meeting of creditors. Mr. Hagemeyer also provided notice of the filing of the petition in the lawsuits pending in the state courts against the Debtor. Mr. Hagemeyer is awarded fees in the amount of $2,240.00 and should be reimbursed his expenses in the amount of $10.20. Mr. Hagemeyer may apply his pre-petition retainer to these amounts and is entitled to be paid the balance from estate assets. The timing of this distribution will be left to the Trustee, Mr. Montedonico.
C. Susan Elaine Melton
Mr. Herbert D. Hurst of RWA seeks fees for services comprised of 14.50 hours at the rate of $150.00 per hour, or $2,175.00. RWA also seeks reimbursement of the $150.55 cost of a transcript of the deposition of its client. Approximately 2.5 hours of Mr. Hurst's efforts related to the preparation of the debtor's petition, schedules, and statement of financial affairs and attendance at the meeting of creditors. The balance of Mr. Hurst's time related to advising Ms. Melton concerning the adversary proceeding filed by the Trustee seeking, in part, denial of the debtor's discharge. Mr. Hurst, and indeed the debtor, appear to have been cooperative with the trustee throughout this process. The debtor voluntarily paid over some $36,457.36 to the trustee which is more than adequate to satisfy all unsecured, non-priority claims against the estate, which are scheduled at $18,738.07. The activities of Mr. Hurst all related to representation of the debtor in connection with her legal duties as listed in Woodward East Project. Mr. Hurst assisted the debtor in the preparation and amendment of the debtor's petition, schedules and statement of financial affairs; assisted her in cooperating with the Trustee's investigation of assets; and assisted her in connection with the Trustee's objection to discharge, including submission to examination by the Trustee. The services rendered by Mr. Hurst were actual, necessary expenses incurred by the debtor in discharging her legal duties. In addition, this estate is now fully solvent. The application of RWA will be approved as filed and paid from estate assets.
IV.
Orders will be entered in each of these cases consistent with the findings and conclusions of this opinion.