In re Frigorifico Y Almacen San Miguel

103 B.R. 18, 1989 Bankr. LEXIS 2431, 1989 WL 86056
CourtDistrict Court, D. Puerto Rico
DecidedJuly 13, 1989
DocketBankruptcy No. 85-01176(SEK)
StatusPublished
Cited by1 cases

This text of 103 B.R. 18 (In re Frigorifico Y Almacen San Miguel) 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
In re Frigorifico Y Almacen San Miguel, 103 B.R. 18, 1989 Bankr. LEXIS 2431, 1989 WL 86056 (prd 1989).

Opinion

OPINION AND ORDER

SARA E. DE JESUS, Bankruptcy Judge.

Presently before the Court is Mr. José A. Colón Gil de Rubio’s request for compensation during the period he acted as operating Trustee in this case, opposed by the Debtor and the Cámara de Comerciantes Mayoristas (Cámara). Several hearings were scheduled and testimony was received. Pursuant to the evidence submitted, the Court now enters the following.

FINDINGS OF FACT

1. The Debtor, as its name implies, operates a retail grocery business, commonly referred to as “a cash and carry” in Rio Piedras, Puerto Rico. Its accounting was kept on a cash basis, as opposed to an accrual basis.

2. On August 30, 1985, Debtor filed a voluntary petition for reorganization under Chapter 11 of the U.S. Bankruptcy Code.

3. The Cámara de Comerciantes Mayor-istas, assignee of most of the unsecured claims, requested a conversion to Chapter 7 because of Debtor’s delay in filing accurate financial information, a Disclosure Statement and a Plan..

4. On June 25, 1987, the Court ordered the conversion of the case to Chapter 7, appointing Mr. José A. Colón Gil de Rubio as an operating Chapter 7 Trustee to preserve the ongoing value of the business. The Trustee was ordered to report within 30 days whether the business could be reorganized or should be liquidated.1 At the Trustee’s request, his appointment as operating trustee was extended until August 11, 1987.

5. The Trustee, Debtor and Cámara de Comerciantes asked the Court to reconvert the case to Chapter 11, on August 7, 1987.2 A review of Debtor’s finances by these entities showed it would be able to present a plan of reorganization within 20 days, offering 47.05% payment to unsecured creditors at the rate of $40,000.00 the first year, $50,000.00 the second year, $60,-000.00 the third and fourth years, and the balance payable on the fifth year. Debtor also agreed to hire an accounting firm acceptable to the Cámara, who would review the financial projections, the revised monthly reports of operations, help draft an amended disclosure statement and appropriate objections to claims. Payments under the proposed plan were to be guaranteed by mortgage notes pledged by the equity security holders.

6. The conversion to Chapter 11 was granted on September 11, 1987.

7. The Trustee filed a report of his operations indicating the sales from June 29, 1987 through September 10 of that year were $309,377.42 of which he received payments of $280,167.42, with an estimated inventory upon termination of his operations of $140,249.86 and gross profits of $48,310.38.

8. The Trustee then filed a revised application claiming the maximum compensation allowed by Section 326(a) of the Code, or $9,552.06 based upon disbursements of $312,402.00 which he made while acting as [20]*20the operating trustee.3 He attached a list of cash disbursements, subsequently submitting cancelled checks and invoices indicating cash payments.4

9. Both the Cámara and the Debtor questioned the reasonableness of the Trustee’s compensation, but presented no evidence of their own to contradict the testimony of the Trustee or that of Dr. Carlos Lastra, the expert witness.

10. The Trustee stated he devoted 83 hours to this particular case. His time was spent obtaining financial information, reviewing invoices of payments, supervising the business operations, drafting of Trustee’s reports, discussing this information and a reconversion with Cámara and the Debtor.5

11. Dr. Carlos Lastra, an economist, whose credentials include graduate studies at Harvard University and a lifelong involvement as a business consultant, occupying such posts as Secretary of Commerce for the Commonwealth of Puerto Rico, testified as to remuneration received in the community by senior management financial consultants and general managers of grocery stores. His testimony that senior management financial consultants were compensated at an hourly rate that could be as high as $200.00 per hour, is accepted by this Court. Likewise, his testimony that general managers of grocery stores could receive a yearly salary ranging from $40,-000.00 to $60,000.00, is believable.

ISSUE

Whether the Trustee’s request for compensation in this case is reasonable and should be approved?

CONCLUSIONS OF LAW

11 U.S.C. Sections 330(a)(1) and (2) provide that a trustee may be awarded: “(1) reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, time spent on such services, and the costs of comparable services other than in a case under this Title; and (2) reimbursement for actual, necessary expenses.” (our emphasis)

11 U.S.C. Section 326(a) limits this compensation to a maximum of 15% on the first $1,000.00 or less, 6% on any amount in excess of $1,000.00 but not in excess of $3,000.00, and 3% on any amount in excess of $3,000.00, “... upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.”

As explained in 1 Norton Bankruptcy Law and Practice, Sections 13.10-13.14:6

“In many cases, the trustee earns and is entitled to the maximum fee. However, the trustee is not automatically entitled to the maximum Code Section 326 fee. Code Section 330 allows the court to set ‘reasonable compensation for actual, necessary services rendered by such trustee, ... ’ in a case, but not to exceed the maximum allowable Code Section 326 fee.
As in all compensation matters, in the case of trustee compensation, the court has great discretion in awarding a fee and, on appeal, such findings are only disturbed if they are clearly erroneous or constitute an abuse of discretion. Code Section 330 requires the court, when exercising its discretion in setting trustee’s [21]*21fee or awarding any compensation under the Code, to consider and apply the following criteria:
(1) time expended;
(2) nature and extent of services rendered;
(3) value of such services to the estate; and
(4) the cost of comparable services other than in a case under this title....
Because the number of hours expended has become a significant factor in awarding compensation, most courts require the trustee to keep accurate and detailed time records as to the types of services and have warned trustees of the negative results of failure to keep accurate and detailed time records. ... [N]o padding or exaggeration of records is permissible and, if the court determines that the records are inflated or disproportionately or inaccurately reflect the time expended it can disallow the excessive time and may deny all compensation.
Of course, the type of services rendered by trustees vary widely from ministerial functions, such as completing reports and noticing for administrative purposes, to complex functions, such as operating multi-million dollar businesses.

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Cite This Page — Counsel Stack

Bluebook (online)
103 B.R. 18, 1989 Bankr. LEXIS 2431, 1989 WL 86056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-frigorifico-y-almacen-san-miguel-prd-1989.