In re Grasso

506 B.R. 626, 2014 WL 186406, 2014 Bankr. LEXIS 232, 59 Bankr. Ct. Dec. (CRR) 10
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJanuary 17, 2014
DocketNo. 12-11063-mdc
StatusPublished
Cited by2 cases

This text of 506 B.R. 626 (In re Grasso) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Grasso, 506 B.R. 626, 2014 WL 186406, 2014 Bankr. LEXIS 232, 59 Bankr. Ct. Dec. (CRR) 10 (Pa. 2014).

Opinion

MEMORANDUM

MAGDELINE D. COLEMAN, Bankruptcy Judge.

INTRODUCTION

Now pending before this Court is the Second Interim and Final Application for Compensation and Reimbursement of Expenses of the Law Offices of Paul J. Win-terhalter, P.C. dated December 28, 2012 (the “Final Application”), wherein the Law Offices of Paul J. Winterhalter, P.C. (the “Firm”), counsel for Joseph Grasso (the “Debtor”), requested (i) compensation in the amount of $69,468.75 for actual and necessary services rendered, and (ii) $566.56 for the reimbursement of expenses expended on behalf of the administration of the Debtor’s Chapter 11 estate for the Period of July 1, 2012 through October 31, 2012.

Previously, the Firm filed a First Interim Application for Compensation and Reimbursement of Expenses of the Law Offices of Paul J. Winterhalter, P.C. dated July 17, 2012 (the “First Application,” collectively with the Final Application, the “Applications”), wherein the Firm requested (i) compensation in the amount of $47,912.50 for actual and necessary services rendered, and (ii) $1,388.66 for the reimbursement of expenses expended on behalf of the administration of the Debt- or’s Chapter 11 estate for the Period February 6, 2012 through June 30, 2012.1 The Applications are pending in this Chapter 7 bankruptcy case that was converted from Chapter 11 by this Court’s Order dated June 12, 2013, and seek compensation ¡from the estate pursuant to 11 U.S.C. § 503 for services rendered prior to this Court’s appointment of a Chapter 11 Trustee.

The Firm received two retainer payments: (1) a prepetition payment in the amount of $25,000 (the “Prepetition Retainer”) paid by Avalon Breeze Development, LLC, an entity controlled by the Debtor;2 and (2) a postpetition payment in the amount of $30,000 (the “Postpetition Retainer,” collectively with the Prepetition Retainer, the “Retainer Payments”) paid by Curtis Investors, L.P. (“Curtis Investors”), an entity controlled by the Debtor.3 All compensation previously paid to the Firm is subject to disgorgement pending this Court’s final § 330 determination. 11 U.S.C. § 330(a)(5); In re Mariner Post-Acute Network, Inc., 257 B.R. 723, 730 (Bankr.D.Del.2000).

Madison Capital Company, LLC (“Madison”) filed an Objection to the Final Application dated February 5, 2013 (the “Madison Objection”). In the Madison Objection, Madison requested that pursuant to § 328(c) this Court deny the payment of any compensation to the Firm, and pursuant to § 330(a)(5) order the disgorgement of any compensation previously paid to the Firm pursuant to the First Application because (1) the Firm acquired, [631]*631during the course of its representation, an interest adverse to the Debtor’s Chapter 11 estate; (2) the Firm billed the Debtor’s Chapter 11 estate for services performed on behalf of 15th and Sansom, L.P. (the “Sansom Partnership”); (3) Paul J. Win-terhalter, Esq. (“Winterhalter”), the primary attorney from the Firm representing the Debtor, failed to be forthcoming with the Court when he denied his involvement in the purchase of the Proof of Claim dated March 15, 2012, filed by Wilmington Savings Fund Society, FSB (“WSFS”) evidencing a secured claim against the Debt- or in the amount of $929,259.69 (the “WSFS Claim”); and (4) the Firm’s services injured the Debtor’s Chapter 11 estate by facilitating the diversion of estate assets.

The Madison Objection was later joined by Christine C. Shubert, the Chapter 7 Trustee (the “Trustee,” together with Madison, the “Objecting Parties”) who filed an Objection to the Final Application dated May 24, 2013 (the “Trustee Objection,” collectively with the Madison Objection, the “Objections”). The Trustee requested that this Court deny the Final Application and grant any such other relief that may be appropriate, including the disgorgement of any compensation previously paid to the Firm pursuant to the First Application, because of (1) the grounds asserted in the Madison Objection; (2) the Debtor’s Chapter 11 estate did not receive any actual benefit from the services provided by the Firm; and (3) the Firm’s services, whether by act or omission, facilitated the diversion of estate assets and therefore caused injury to the Debtor’s Chapter 11 estate.

In its defense, the Firm contends that Winterhalter represented the Debtor in connection with the purchase of the WSFS Claim and therefore did not represent an interest adverse to the Debtor’s Chapter 11 estate. Transcript 9/24/2013, 20:21-21:14. Additionally, the Firm argues that Winterhalter’s representation, at the time the services were rendered, was beneficial to the administration of the estate.4 Finally, the Firm argues that any injury to the Debtor’s Chapter 11 estate, including the diversion of estate assets, may not be attributed to Winterhalter’s conduct.

As discussed below, this Court will sustain the Objections and deny the Applications in their entirety due to, among other reasons, (1) the existence of an actual conflict that arose from Winterhalter’s admitted simultaneous representation of the Debtor’s estate and the Debtor’s adverse personal interests, and (2) Winterhalter’s wholesale abdication of his fiduciary and professional obligations that resulted in the diversion of estate assets and substantial harm to the Debtor’s estate. This Court is convinced that Winterhalter’s conduct is sufficiently extreme so as to warrant a complete denial of compensation and will order that the Firm disgorge to the Trustee any payments, including but not limited to the Retainer Payments, previously received as compensation for services performed in the Firm’s capacity as counsel for the debtor-in-possession.5

[632]*632 BACKGROUND

Consistent with this Court’s prior rulings, Winterhalter’s involvement in the sale of 1500-1504 Sansom Street, 124, 134 5. 15th Street, 1502-05 Moravian Street, Philadelphia (the “Sansom Property”) and the subsequent use of the Debtor’s share of the proceeds of that sale to purchase the WSFS Claim is central to this Court’s consideration. In this Court’s Order dated October 16, 2012 (the “Appointment Order”) that was further amplified by its Memorandum Opinion dated April 4, 2013,6 this Court made substantial findings relating to the conduct of the Debtor while he remained in possession including his involvement with the Sansom Partnership’s alleged purchase of the WSFS Claim.7 The Objecting Parties rely in part on the factual findings contained therein. The findings contained in the Appointment Order are relevant and determinative of this Court’s consideration of the Applications and whether, during the course of its representation of the Debtor’s estate, the Firm acquired an interest adverse to the estate.8

After months of continuances, this Court held a hearing on September 24, 2013 (the “Hearing”), to address the Final Application and the Objections. The Firm, Madison and the Trustee appeared at the Hearing. At the Hearing, this Court heard the testimony of Bonnie R. Golub (“Golub”) and the testimony of Charles N. Persing (“Persing”). Golub was called by the Firm in support of its Application. Persing was called by the Trustee in support of the Objections.

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Related

In re Grasso
586 B.R. 110 (E.D. Pennsylvania, 2018)
Shubert v. Grasso (In re Grasso)
537 B.R. 216 (E.D. Pennsylvania, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
506 B.R. 626, 2014 WL 186406, 2014 Bankr. LEXIS 232, 59 Bankr. Ct. Dec. (CRR) 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grasso-paeb-2014.