In re Chardon, LLC

536 B.R. 791, 2015 Bankr. LEXIS 2989, 61 Bankr. Ct. Dec. (CRR) 150, 2015 WL 5174586
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedSeptember 2, 2015
DocketBankruptcy No. 13-B-81372 (Jointly Administered)
StatusPublished

This text of 536 B.R. 791 (In re Chardon, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Chardon, LLC, 536 B.R. 791, 2015 Bankr. LEXIS 2989, 61 Bankr. Ct. Dec. (CRR) 150, 2015 WL 5174586 (Ill. 2015).

Opinion

MEMORANDUM OPINION

Thomas M. Lynch, United States Bankruptcy Judge

Chardon, LLC and the seven affiliated entities who commenced voluntary Chapter 11 cases2 seek to employ attorneys Neal L. Wolf and associated attorneys as bankruptcy counsel pursuant to 11 U.S.C. § 327(a). (EFC No. 56.) The United States Trustee and a secured creditor, FirstMerit Bank, N.A., object. For the reasons set forth herein, the Chardon Corporate Debtors’ application is GRANTED.

JURISDICTION

The application seeks court authorization of the employment of attorney Wolf and several of his colleagues to represent the eight corporate debtors as debtors-in-possession under Section 327(a) of the Bankruptcy Code. The matter, therefore, arises under title 11 and this court has jurisdiction to decide the matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0) in which this court has constitutional authority to enter final orders.

PROCEDURAL BACKGROUND AND FINDINGS OF FACTS

The following sets forth the court’s findings of fact as provided by Fed. R. Civ. P. 52(a) and Fed. R. Bankr.P. 7052.3

[796]*796Attorney Neal Wolf filed voluntary Chapter 13 petitions on behalf of each of the eight Chardon Corporate Debtors on April 17, 2013. With each petition, Mr. Wolf and his associates entered their appearances as attorneys of record for the Debtors. On or about April 30, 2013, the Chardon Corporate Debtors filed several “first-day” motions, including motions to use cash collateral, motions to continue to use prepetition bank accounts and a motion to extend the time to file schedules. On May 9, 2013, this court granted the Chardon Corporate Debtors’ motions for joint administration of their eight cases, designating the Chardon, LLC case as the lead case and separately extended the time to file schedules or provide required information to May 15, 2013. Within that time the Chardon Corporate Debtors filed a second extension request which was granted and the deadline was extended through May 31, 2013.

On May 17, 2013, Neal Wolf filed the Debtors’ application to employ himself and his then-law firm, Neal Wolf & Associates (“NW & A”).4 The application disclosed the hourly rates of the attorneys and legal staff, ranging from $75/hour for a legal assistant to $580/hour for Neal Wolf. The application also disclosed that NW & A had received a $25,000 retainer on December 19, 2012 from The Rink of Crystal Lake, Inc., and retainers of $50,000 on March 22, 2012 and $200,000 on April 11, 2012 from Wolf Builders Corporation, a non-debtor affiliate of the Chardon Corporate Debtors. It further revealed that NW & A had applied $70,246 in fees and $10,195.49 in expenses against the retainer for pre-petition services, leaving a balance of $194,558.51 in the firm’s IOLTA client trust account. In support of the application, attorney Wolf submitted a declaration attesting that “to the best of my knowledge [I] have determined that neither I nor NW & A have any connections to the Debtors’, officers and directors, creditors, any other parties in interest, their respective accountants and attorneys, the United States Trustee, or any person employed in the office of the United States Trustee.”

On May 29, 2013, FirstMerit Bank, N.A., a secured lender to several of the Chardon Corporate Debtors, filed its objection to the employment application in which it asserted: (i) that NW & A had failed to disclose in its application that NW & A had represented certain equity holders and co-obligors of the Debtors and failed to file its fee agreement or to describe in detail the nature of the retainers it had received from a non-debtor related entity, (ii) that NW & A’s current or past representation of non-debtor affiliates created a conflict of interest and presents a “manifest lack of disinterestedness” and (iii) that NW & A failed to demonstrate excusable neglect for the filing of its application more than a month after the cases commenced.5 On [797]*797the same date, the United States Trustee filed his objection in which he asserted that NW & A had neither filed a copy of its fee agreement nor disclosed the connections to the non-debtor affiliates identified by FirstMerit. The United States Trustee further objected that NW & A had had not offered any explanation for its delay in filing the employment application and requested additional information on certain post-petition disbursements.

The eight Chardon Corporate Debtors filed their schedules and statements of financial affairs on June 1, 2013. Three days later attorney Wolf filed a supplemental declaration in support of the application to employ in which he described NW & A’s prior - representation of three individuals who either directly or indirectly own one or more of the Chardon Corporate Debtors: Donald Wolf, Sr., Donald Wolf, Jr., and David Wolf (collectively the “Wolf Individuals”) (no relation to attorney Neal Wolf) and attached a copy of an April 17, 2013 engagement letter to the Chardon Corporate Debtors.

According to the supplemental declaration:

• Attorney Wolf first met the Wolf Individuals in the fall of 2012 when they were looking for counsel for a potential restructuring of their companies and companies’ debts.
• FirstMerit filed a lawsuit against Wolf Family Partnership, LLC and the Wolf Individuals in the Northern District of Illinois on December 12, 2012.
• Shortly thereafter, one of the Wolf Individuals telephoned Neil Wolf to inform him about the district court action and to hire NW & A for the debt restructuring matters.
• On December 18, 2012, Neil Wolf contacted FirstMerit’s counsel to ask for a short extension of the time through January 18, 2013 in which to file their response to the district court complaint, while NW & A would attempt to negotiate a global restructuring or resolution of the Wolf Individuals’ and Chardon Corporate Debtors’ “obligations to First-Merit.”
• FirstMerit, through its attorney, conditioned agreement to the requested extension upon attorney Wolf (i) accepting service of process on behalf of all defendants, including the Wolf Individuals, and (ii) filing an appearance on behalf of all the defendants in the district court litigation. In order to obtain the requested extension and prevent entry of a default judgment, Wolf accepted FirstMerit’s conditions.
• Attorney Wolf entered an appearance on behalf of the defendants in the district court law suit on December 26, 2012.

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Bluebook (online)
536 B.R. 791, 2015 Bankr. LEXIS 2989, 61 Bankr. Ct. Dec. (CRR) 150, 2015 WL 5174586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-chardon-llc-ilnb-2015.