In re BDT Farms, Inc.

152 B.R. 642, 1993 Bankr. LEXIS 400, 1993 WL 85640
CourtDistrict Court, W.D. Oklahoma
DecidedMarch 23, 1993
DocketBankruptcy No. BK-88-07083-LN
StatusPublished
Cited by1 cases

This text of 152 B.R. 642 (In re BDT Farms, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re BDT Farms, Inc., 152 B.R. 642, 1993 Bankr. LEXIS 400, 1993 WL 85640 (W.D. Okla. 1993).

Opinion

ORDER ON MOTIONS FOR RECONSIDERA TION

PAUL B. LINDSEY, Bankruptcy Judge.

BACKGROUND

On February 16, 1993, this court entered its order herein, addressing certain issues raised by Debtor in its request for an order requiring the Chapter 12 standing Trustee (hereafter, “Trustee”) to close this Chapter 12 case. The court also addressed in that order, sua sponte, the propriety of the collection by Trustee of a percentage fee on plan payments at “a rate equivalent to 11.111111% of plan payments.”

Trustee and the United States Trustee (hereafter, “UST”) timely filed motions to reconsider. Trustee urged the court to reconsider each of the issues decided in the order. UST urged reconsideration of only certain of the court’s findings and conclusions. Supporting briefs were filed and debtor filed responses to the motions. A hearing was held before this court on March 17, 1993, at which movants and Debtor were represented by counsel. At the conclusion of the hearing, this court announced its reaffirmation of each of the decisions contained in its February 16 order and provided a detailed explanation on the record of the court’s reasons for its decision.

Counsel for UST requested the court to formalize its decision on reconsideration in a written order, and although the court did not, and does not consider it necessary, it has consented to do so.1

In the February 16 order, the court made three separate determinations:

(1) That an increase of the percentage fee to be collected by Trustee made by order dated May 6, 1991, was effective only from and after the date of the order, and not retroactive to April 1, 1991, as it purported to be, and that the increased fee was not properly applied to any funds received on April 4, 1991, portions of which were not distributed by Trustee until September and November of that year.
(2) That Trustee was not entitled to a percentage fee on a payment made by Debtor directly to debtor’s counsel pursuant to the plan in 1989.
(3) That the application of a percentage fee equivalent to 11.111111% on plan payments was in excess of the authority conferred by 28 U.S.C. § 586(e), and was therefore invalid and unenforceable.

CONTENTIONS

UST does not contest or request reconsideration of this court’s decisions on the retroactive application of the increased percentage fee or on the entitlement of Trustee to a percentage fee on the direct payment by Debtor. Trustee challenges each of the court’s decisions.

UST asserts that the percentage fee to Trustee should be calculated as of the date the funds are disbursed to creditors by Trustee, rather than when they are received. Both UST and Trustee assert that [644]*644the percentage fee interpretation found by this court to be invalid is in fact the correct interpretation. Both provide examples in support of their positions, which provide a somewhat better explanation of the basis for their positions than the court has previously been provided.

DISCUSSION

The Retroactive Fee Increase.

The court notes that the contentions of Trustee on this issue are simply a reiteration of those asserted earlier, which were addressed and rejected in the February 16 order.'

Without repeating the analysis and discussion of this issue contained in the earlier order, which this court believes to be correct, the court notes that it did not, and does not, as Debtor urges it to do, base its determination on this issue on constitutional due process grounds. The decision was, and is, based on a lack of statutory authority, fairness to debtors, and a desire to avoid administrative chaos.

This court’s determination is supported by Exhibit 3 to Trustee’s motion and brief requesting reconsideration. That exhibit consists of a copy of a letter, dated May 15,1991, from a bankruptcy analyst in the Wichita, Kansas headquarters office of the United States Trustee for this region, addressed to Trustee. The letter encloses a copy of the May 6, 1991 order increasing the percentage trustee’s fee to 10%, effective April 1, 1991. The letter makes no mention whatever of the purported retroactive application of the increase. Instead, it provides that “all payments, in all cases, should include a 10% trustee fee starting immediately.” Thus, the office to which Trustee is directly responsible directed Trustee to apply the increase prospectively, from a date more than six weeks after Debtor’s April 1991 payments had been made to Trustee and, for the most part, disbursed by Trustee to creditors.

This court reaffirms its determination that the increased fee may not be applied retroactively to Debtor’s April 1991 payments to Trustee.

The Direct Payment by Debtor.

In neither brief nor argument on this issue has Trustee addressed, or even mentioned, 28 U.S.C. § 586(e)(2), which provides that the standing trustee under either Chapter 12 or 13, “shall collect such percentage fee from all payments received by such individual [the standing trustee] under plans_” [Emphasis supplied.]

While this court does not foreclose the possibility that direct payments by debtors, in some circumstances, might be subjected to percentage trustee fees, such could not be the case in the absence of good cause therefor, and of specific language to that effect in the plan. Here, no cause whatever is alleged or shown, and the plan provides no language which would either mandate, or even permit, the collection of a percentage fee by Trustee on Debtor’s direct payment to its counsel.

The court reaffirms its determination that the direct payment by Debtor to its counsel, contemplated by the confirmed plan, is not subject to any percentage trustee fee.

The UST Interpretation Regarding Computation of the Percentage Fee.

UST contends that this court has found that the percentage fee should be based upon funds disbursed rather than funds received by Trustee. Such is not the case. This court believes that the fee should be calculated based upon amounts to be disbursed by Trustee to creditors.

UST also contends that the calculation should be made only upon disbursement of the funds by Trustee. This court disagrees. Although it is anticipated that in the vast majority of instances, disbursement of funds to creditors will be contemporaneous with their receipt by Trustee, in some instances this may not be possible. In this case, absent the confusion over the percentage fee and the need to pay additional interest on one creditor’s claim, all funds paid to Trustee by Debtor would have been disbursed to creditors within 24 hours of their receipt by Trustee.

The court is aware that UST procedures permit Trustee to collect the percentage [645]*645fee only upon disbursement of the funds. The fee should be calculated, however, when the funds are received, at the rate then in effect.

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Related

Westpfahl v. Clark (In Re Westpfahl)
168 B.R. 337 (C.D. Illinois, 1994)

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Bluebook (online)
152 B.R. 642, 1993 Bankr. LEXIS 400, 1993 WL 85640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bdt-farms-inc-okwd-1993.