In re American Housing Foundation

498 B.R. 713, 2013 WL 5442425, 2013 Bankr. LEXIS 4089
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedSeptember 30, 2013
DocketNo. 09-20232-11
StatusPublished

This text of 498 B.R. 713 (In re American Housing Foundation) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re American Housing Foundation, 498 B.R. 713, 2013 WL 5442425, 2013 Bankr. LEXIS 4089 (Tex. 2013).

Opinion

MEMORANDUM OPINION

ROBERT L. JONES, Bankruptcy Judge.

I.

The Court addresses the following fee applications: (1) Second and Final Fee Application of Gardere Wynne Sewell LLP for Allowance of Fees and Reimbursement of Expenses [Docket No. 1987]; (2) Fourth and Final Motion for Approval of Fees and Expenses to Mullin Hoard & Brown, L.L.P., as Counsel for the Unsecured Creditors Committee [Docket No. 1772]; (3) Third and Final Fee Application for Allowance of Compensation and Reimbursement of Expenses of Focus Management Group USA Inc., Financial Advisor for the Trustee [Docket No. 1997]; (4) Final Motion for Allowance of Compensation of Walter O’Cheskey, Chapter 11 Trustee [Docket No. 1991]; and (5) Fourth and Final Motion for Allowance of Compensation and Reimbursement of Expenses of Tarbox Law, P.C., Counsel for the Trustee [Docket No. 1988]. All such fee applications concern services provided through confirmation of the chapter 11 plan in this case. By the Court’s prior interim order of September 7, 2011 [Docket No. 3198], it authorized interim payments on account of the fee applications to the various applicants and abated final decision on the fee applications pending conclusion of the trial in adversary proceedings O’Cheskey v. Templeton and O’Cheskey v. Miller [Adversary Nos. 10-02016 and 10-02017, respectively]. On December 19, 2012, the Court issued a second interim order [Docket No. 3472] that, in effect, increased the amount of the interim distributions to an amount equal to 85% of the preconfirmation fees requested by the moving parties.1

[716]*716As the Court noted by its September 7, 2011 order, the fee applications in this case are highly contested and the hearings were consolidated to allow the Court to consider each fee application in context of all other fee applications. A major issue of contention concerns services provided in connection with the many adversary proceedings that have been filed by the Trustee in this case. In light of the Fifth Circuit’s standard to be used by the Court in considering professional fees and expenses, the Court determined it should consider the outcome of certain pending litigation before it issued a final opinion on the fee applications. See Andrews & Kurth, L.L.P. v. Family Snacks, Inc. (In re Pro-Snax Distribs., Inc.), 157 F.3d 414 (5th Cir.1998). The Court issued its Findings of Fact and Conclusions of Law in the O’Cheskey v. Templeton adversary proceeding on March 30, 2013 [Docket No. 299; Adv. No. 10-02016]; it is presently on appeal in the District Court.

Then, as the Court stated in its March 28, 2013 Interim Order [Docket No. 3498], it was concerned with the sheer amount of fees being incurred in connection with the many adversary proceedings that have been filed by the Trustee. Both the number of adversary proceedings filed and the time devoted to the litigation raised by the adversary proceedings has far exceeded what the Court anticipated or expected at the time of confirmation of the chapter 11 plan. The Court set a hearing at which time the Trustee and Trustee’s counsel provided a status of the case to date. Trustee’s counsel provided an analysis of claims allowed and disallowed, assets available for distributions, and a plan for completion of this case. Such hearing was held on July 15, 2013. Each of the applications under consideration were reopened for purposes of the Court receiving and considering the information provided at the status hearing.

II.

A. The Statute

Section 330(a) of the United States Bankruptcy Code states:

(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee ... or a professional person employed under section 327 or 1103—
(A) reasonable compensation for actual, necessary services rendered by the trustee, ... professional person, or attorney and by any paraprofessional person employed by any such person; and
(B) reimbursement for actual, necessary expenses.
(2) The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested.
(3) In determining the amount of reasonable compensation to be awarded to [a] ... trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including—
(A) the time spent on such services;
(B) the rates charged for such services;
[717]*717(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
(E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
(4)(A) Except as provided in subpar-agraph (B), the court shall not allow compensation for—
(i) unnecessary duplication of services; or
(ii) services that were not—
(I) reasonably likely to benefit the debtor’s estate; or
(II) necessary to the administration of the case.
(B) In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debt- or 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.
(5)The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331 and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
(6) Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.
(7) In determining the amount of reasonable compensation to be awarded to a trustee, the court shall treat such compensation as a commission, based on section 326.

11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
498 B.R. 713, 2013 WL 5442425, 2013 Bankr. LEXIS 4089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-american-housing-foundation-txnb-2013.