Drew v. Latimer, Biaggi, Rachid & Godreau

395 B.R. 807, 2008 U.S. Dist. LEXIS 69696
CourtDistrict Court, D. Puerto Rico
DecidedSeptember 2, 2008
DocketCivil No. 07-1784 (JAG)
StatusPublished

This text of 395 B.R. 807 (Drew v. Latimer, Biaggi, Rachid & Godreau) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drew v. Latimer, Biaggi, Rachid & Godreau, 395 B.R. 807, 2008 U.S. Dist. LEXIS 69696 (prd 2008).

Opinion

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

Pending before the Court is a set of consolidated appeals from an Opinion and Order issued by the Bankruptcy Court denying Don Drew, the Plan Administrator’s (“Appellant”) request that the fees and expenses requested by the law firm of [810]*810Latimer, Biaggi, Rachid & Godreau (“Ap-pellee”) be denied. The appeals were referred to a Magistrate Judge, which recommended that the Bankruptcy Court’s holding be affirmed. Furthermore, the Magistrate Judge recommended that the case be remanded to the Bankruptcy Court in order to determine if interest pursuant to 28 U.S.C. § 1961 should be imposed. For the reasons set forth below, the Court ADOPTS in part and DENIES in part the Magistrate Judge’s Report and Recommendation. The Bankruptcy Court’s holding will be AFFIRM1ED.

FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 2007, Appellee filed its final application for compensation and sought the United States Bankruptcy Court for the District of Puerto Rico’s authorization for payment in the amount of $550,301.91 in connection with services rendered from July 1, 2006 through January 2007 on behalf of the debtors in the jointly administered cases of Housing Development Administration, El Com-mandante Management Corp., and El Commandante Capital Corp. (“ECCC”) (collectively “Debtors”). On March 5, 2007, Appellant in his capacity as the Plan Administrator objected to the final application for compensation filed by Ap-pellee and requested the disgorgement of all fees and expenses incurred by said law firm since November 23, 2005. On April 17, 2007, Appellee responded to Appellant’s objection and requested that the Bankruptcy Court summarily dispose of this contested matter. On May 1, 2007, Appellant filed a reply and a cross motion for summary judgment.

Appellant objected to the fee application by arguing that Appellee had a conflict of interest from, at least, November 23, 2005, which remained undisclosed until January 2007, when Appellee filed a motion withdrawing representation. According to Appellant, on November 23, 2005, FirstBank confirmed via letter that on October 4,2005, it issued a financing commitment to Camarero Race Track Corp. (“Camarero”) for the purpose of acquiring Debtor’s assets. Camarero purchased Debtor’s assets on January 4, 2007 in accordance with the confirmed plan and FirstBank financed the asset purchase. Appellant averred that in Appellee’s request for withdrawal it informed the Bankruptcy Court for the first time that FirstBank is Appellee’s principal client in other matters, and that FirstBank requested Appellee not to file any pleadings which might affect the relationship between them and Camarero.

Appellant alleged that the fees and expenses requested by Appellee should be denied in light of Appellee’s relationship with FirstBank. Specifically, Appellant claimed that all fees and expenses incurred and paid since November 23, 2005 should be disgorged, as they were incurred during the existence of the undisclosed conflict of interest. Furthermore, Appellant averred that the potential conflict of interest became an actual conflict of interest when the Indenture Trustee’s Plan became a competition plan to Debtor’s Plan of Reorganization and Appellee filed objections on behalf of Debtors requesting that the court deny the approval of the Indenture Trustee’s Plan, which proposed the sale of Debtor’s assets to Camarero with First-Bank’s financing.

In addition, Appellant argued before the Bankruptcy Court that Appellee was not entitled to compensation or payment for services rendered to ECCC because the case converted to a Chapter 7 proceeding. Appellant argues that fees incurred by Appellee in connection with representing ECCC must be sought within ECCC’s Chapter 7 case. Furthermore, Appellant [811]*811claimed that Appellee should be required to allocate the fees among the three Debtors.

The Bankruptcy Court held that Appel-lee complied with Federal Rule of Bankruptcy Procedure 2014(a)1 because Appel-lee did not have a duty to disclose its connection with FirstBank before the asset purchase took place on January 2007. The Court determined that FirstBank was not a debtor, creditor, even a party in interest, or an attorney or accountant, the United States Trustee or any person employed in the office of the United States Trustee. Furthermore, the Court noted that prior to the asset purchase, FirstBank was a mere observer of the proceedings waiting to see if its potential client would need the credit offered. Moreover, the Court stressed that FirstBank was represented by different counsel in the proceedings. As such, the Court failed to see how First-Bank’s interest were adverse to the interests of the estate. Additionally, the Court determined that FirstBank did not have a conflict of interest that warranted disqualification. Additionally, the Court stressed that Appellee “at all times during the case, showed its undivided loyalty to Debtors evidenced by the multiple oppositions to the Indentured Trustee’s proposal, and appeals of orders in favor of the Indentured Trustee and consequently, Camarero.”

Further, the Court held that Appellant waived his claim that fees incurred by Appellee in connection with representing ECCC must be sought within ECCC’s Chapter 7 case. Likewise, the Court determined that Appellant waived his request that Appellee should be required to allocate the fees among the three Debtors. The Court stressed that these objections were waived because they did not appear in any subsequent pleading nor were they argued at a status conference held by the Court. In addition, the Court noted that it would be impractical for professionals hired in the case to apportion the fees claimed among the three debtors. Furthermore, the Court clarified that all another professionals appointed by the Court had not apportioned their fees among the three Debtors. (Docket No. 11-6).

Separate appeals from the Opinion and Order issued by the Bankruptcy Court (Bankr. No. 04-10938, Docket No. 2901, appendixed in Civil Case No. 07-1784, Docket No. 11-6) were filed by Appellant, Appellee, and Housing Development Associates. (Civil Case No. 07-1841, Docket No. 13). The appeals were consolidated on motion by Appellee. (Civil Case No. 07-1784, Docket Nos. 17 and 31). Appellant appeals the Bankruptcy Court’s opinion for two reasons: first, Appellant argues that the Bankruptcy Court erred in finding that Appellee did not have a conflict of interest in the proceedings below. Appellant claims that such conflict existed because FirstBank, Appellee’s principal client in unrelated cases, became a party in interest when it filed a claim against the estate and entered into a loan relationship with Ca-marero acquiring the right to grant Ca-marero a $60 million loan to finance the purchase of estate assets. Furthermore, Appellant alleges that FirstBank was a party in interest because its name appeared twice in the Master List. Appellant avers that these conflicts of interest require Appellee to disgorge all fees and expenses related to the proceedings, “at least from the date such disclosure was required!.]”2 Second, Appellant contends [812]*812that the Bankruptcy Court erred in finding that he waived his argument that fees incurred by Appellee in connection with representing ECCC must be sought within ECCC’s Chapter 7 case.

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Cite This Page — Counsel Stack

Bluebook (online)
395 B.R. 807, 2008 U.S. Dist. LEXIS 69696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drew-v-latimer-biaggi-rachid-godreau-prd-2008.