In re Flowers

178 B.R. 553, 8 Fla. L. Weekly Fed. B 357, 1995 Bankr. LEXIS 193, 1995 WL 75882
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedFebruary 20, 1995
DocketBankruptcy No. 90-16199-BKC-AJC
StatusPublished
Cited by1 cases

This text of 178 B.R. 553 (In re Flowers) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Flowers, 178 B.R. 553, 8 Fla. L. Weekly Fed. B 357, 1995 Bankr. LEXIS 193, 1995 WL 75882 (Fla. 1995).

Opinion

ORDER DETERMINING REASONABLE COMPENSATION FOR THE ATTORNEY FOR THE TRUSTEE

A. JAY CRISTOL, Chief Justice.

THIS CAUSE came before the undersigned Bankruptcy Judge on Wednesday, November 30, 1994, for hearing on the pending application for compensation for the Attorney for the Chapter 7 Trustee, and the objections filed by the United States Trustee and a creditor, Lucia Flowers. The Court having received and reviewed the objections and comments on behalf of the United States Trustee and Lucia Flowers, and having further considered the argument of Trustee’s counsel which is presented through this order, and the comments of another creditor, Brian Hersh, Esq., who is familiar with the legal problems confronting the estate, the Court makes the following findings of fact:

THE CASE

The Debtor filed proceedings under Chapter 7 on September 5, 1990, and Jeanette E. Tavormina was appointed the Chapter 7 Trustee. By Order dated October 3, 1990, the Court authorized the employment of Arthur S. Weitzner of Weitzner & Co., P.A. as counsel for the Trustee on a general retainer.

Lucia Flowers is the principal creditor of this estate and is the former wife of the Debtor. Many of the problems confronting the Debtor and his former spouse were actively litigated before this Court.

The notice of the Trustee’s Final Report was served on October 18, 1994. The Trustee’s accounting discloses total receipts for this estate in the amount of $161,297.83, and total disbursements made in the amount of $60,316.38. The balance of funds in the possession of the Trustee is $100,981.45. The sizeable disbursements made in this case resulted from the payment to Lucia Flowers of property that was collected by the Trustee in which said creditor had a direct proprietary interest. This property consisted of certain former marital property and was realized through the administration of this estate.

The Debtor’s schedules reflect total property in the amount of $415,159.19, however, the property claimed as exempt by the Debt- or totalled $397,612.00. The scheduled nonexempt property was of minimal value and consisted of miscellaneous personal effects, such as clothing and jewelry, including a Superbowl ring scheduled in the amount of $7,000.00. (Formerly, the Debtor was a professional football player.)

The large recovery in this estate resulted from the disallowance of numerous exemptions, the largest of which was the interest in the Flowers Trading Company Pension Plan [554]*554and Trust which was scheduled in the amount of $109,000.00, and of which one-half of the recovery was paid to Lucia Flowers as her separate property.

The Trustee’s accounting further indicates that most of the significant receipts from the non-exempt property were realized in December 1991. Subsequent to that date, additional property in the approximate amount of $20,000.00, excluding earned interest, was realized. These receipts resulted from litigation over a tax refund due the Debtor, and an adversary proceeding commenced against a former insider. Collection of these receipts were concluded in September 1993.

The Trustee was handicapped in finalizing the administration of this estate due to the failure of a tax attorney, who had been retained for the purpose of advising the Trustee of the tax consequences of administering the non-exempt property of the estate and to prepare appropriate tax returns, to perform any valuable services. Ultimately, the tax attorney was removed and a certified public accountant was employed. The accountant promptly prepared the estate tax returns thus enabling the Trustee to pay the taxes due. Other than the award of professional compensation, this estate has been fully administered.

THE APPLICANT

Arthur S. Weitzner of Weitzner & Co., P.A. is an attorney at law who has been admitted to practice in the State of Florida since 1971. The attorney is a specialist in the area of insolvency and the attorney’s practice is specialized in the area of insolvency. The attorney is admitted to practice before the United States District Court for the Southern District of Florida as a trial attorney, the United States Court of Appeal Eleventh Circuit, and the Supreme Court of the United States. Applicant is a certified business bankruptcy specialist. He holds the highest ratings available from the Martin-dale-Hubbell rating service and is generally regarded in the community as an expert in the field of insolvency.

FEE REQUEST AND OBJECTIONS

Trustee’s counsel is seeking total compensation in the amount of $25,000, plus reimbursement of costs in the amount of $782.56. The cost request is not in dispute and will be allowed in full. Counsel has not received any interim compensation. The applicant’s request includes an enhancement to the lodestar of $4,420.00. The United States Trustee has recommended total compensation of no more than $18,080.00. The principal objections raised by the United States Trustee and the other creditor involve the following issues:

A. Whether the lodestar ought to be enhanced due to the delay in payment and contingency factors encountered at the inception of this proceeding.

B. Whether any Trustee’s duties were included in the application.

C. Whether certain assets available for liquidation were not actively pursued by the attorney.

SUMMARY OF THE ARGUMENTS

The applicant’s arguments in support of his compensation request is summarized as follows:

The applicant is a specialist in Bankruptcy. The aggregate fee request in the amount of $25,000 equals less than 25% of the amount available for distribution, however said request equals only approximately 16% of the total recovery, all of which recovery benefited the objecting creditor Lucia Flowers. In light of the extensive time necessary to properly administer this ease, the definite contingent factors involved in the early portion of the representation, and the delay in payment, Applicant’s fee request is reasonable.

Concerning professional compensation 11 U.S.C. § 330 provides as follows:

(a) After notice to any parties in interest and to the United States trustee and a hearing, and 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—
[555]*555(1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.

Counsel further points out that the United States Trustee’s basis for objection is misplaced. The overall intent of Congress as is specifically enumerated in the legislative history to § 330 is to promote specialists in this field. Succinctly, the legislative history provides as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
178 B.R. 553, 8 Fla. L. Weekly Fed. B 357, 1995 Bankr. LEXIS 193, 1995 WL 75882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-flowers-flsb-1995.