In re Huffman

502 B.R. 205, 2012 WL 9503368, 2012 Bankr. LEXIS 6229
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedSeptember 28, 2012
DocketNo. 11-13447
StatusPublished

This text of 502 B.R. 205 (In re Huffman) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Huffman, 502 B.R. 205, 2012 WL 9503368, 2012 Bankr. LEXIS 6229 (Ohio 2012).

Opinion

ORDER APPROVING APPLICATION FOR DEBTOR’S ATTORNEY’S FEES

JEFFREY P. HOPKINS, Bankruptcy Judge.

Before the Court is an Application for Allowance of Fees (the “Application”) for services related to the Debtor’s Chapter 13 case filed by James K. Ferris. See Doc. 93. The issue before the Court is whether a total fee of $11,822 calculated on the basis of 61.6 billable hours is reasonable for counsel’s services considering the Debtor’s inability to obtain confirmation of her Chapter 13 plan. For the reasons that follow, the Court approves the Application for attorney’s fees, but in the reduced amount of $6,206.67.

BACKGROUND

From the start, this case has had a troubled history in this Court. The case was initially filed under Chapter 7 on June 2, 2011 (Doc. 1), but was converted to Chapter 13 the following day (Doc. 8). Counsel for the Debtor has since explained that the Chapter 7 petition was filed inadvertently and that the case originally was meant to be filed under Chapter 13. The ease has been pending for more than a year without any meaningful progress towards confirmation. Multiple plans, more or less similar in substance, content and design, have been filed in the case. None of the plans have met the rather rigorous standards that apply under §§ 1322 and 1325 for confirmation of a Chapter 13 case involving the sale of real estate as the primary mechanism for funding a plan. Ultimately, the case will be dismissed.

The Debtor filed the original Chapter 13 plan of reorganization on July 14, 2011. The plan provided for the payment of all allowed secured claims and priority claims, and a 100% distribution to unsecured creditors. The plan further stated that funding would come primarily from the liquidation of real property. See Doc. 18. Plymouth Park Tax Services, LLC (“Plymouth”) and Fifth Third Mortgage Company, creditors in the case, filed objections to the plan contending that the plan failed to meet the standards under § 1322(b)(5). See Docs. 27 and 32. The plan did not provide adequate protection payments to secured creditors, did not offer a viable strategy for selling the properties in order to fund the plan, and failed to provide payment for certain creditor’s claims.

Subsequently, on October 7, 2011, the Debtor filed an amended plan. The amended plan stated that if Plymouth’s claim was not paid in full before May 1, 2012, the Debtor would commence making $1,200 in conduit payments to the Chapter 13 trustee, or in the alternative, the Debt- or would retain an auctioneer to conduct sales of certain properties. See Doc. 38. A hearing on the Amended Plan was held [208]*208on February 14, 2012, and by February 23, 2012, a second amended plan (“Second Amended Plan”) was filed along with counsel’s first application for compensation in the amount of $6,549. See Docs. 49 and 50.

Much like the first two plans, the Second Amended Plan relied primarily upon the liquidation of real property for funding the plan. Unlike the other plans, however, the Debtor set out a detailed time frame for the sale of three of the estate properties. One property was to be sold by August 2012 while the other two properties were to be sold within 18 months from the filing of the Second Amended Plan. See Doc. 49. The Second Amended Plan did not provide a default remedy for creditors in the event the Debtor failed in her efforts to consummate a sale. See Doc. 49. On March 6, 2012, the Court denied confirmation of the Second Amended Plan and directed the Debtor to either convert the case to one under Chapter 7 or 11 or file a third amended plan. See Doc. 51.

On March 20, 2012, Plymouth filed motions for relief from the automatic stay on three properties upon which it held liens. See Docs. 54, 56, and 58. Prior to the hearing on Plymouth’s motions for relief from stay, the Debtor filed her Third Amended Plan. In the plan, she proposed to modify the sale dates and added default provisions. See Doc. 65. At the April 16, 2012, hearing, the Court expressed continued concern about the feasibility of the Debtor’s Third Amended Plan. Concerned with the Debtor’s inability to sell certain of the properties or to satisfy Plymouth’s claim, the Court issued an order conditioning the stay. See Doc. 75. Under the order conditioning the stay, the Debtor had until June 1, 2012, to sell the property located at 4038 Burwood Avenue, Nor-wood, OH 45212 or the stay would be lifted. The Court also granted the Debt- or’s motion to sell real property (Doc. 85), to retain a real estate broker (Doc. 82), and to retain an auctioneer (Doc. 86), strategies that perhaps should have been incorporated in the original plan as filed.

A confirmation hearing on the Debtor’s Third Amended Plan was held on June 12, 2012. During the hearing, counsel for the Debtor informed the Court that the Debt- or’s planned sale of the Burwood Property was unsuccessful. The Court again denied confirmation and continued the confirmation hearing to July 17, 2012. The Court also indicated that the Debtor would have one last opportunity to propose a feasible Chapter 13 Plan before the case would be converted or dismissed. On July 9, 2012, counsel for the Debtor filed a second application for fees, this time in the amount of $11,822. Thereafter, on July 11, 2012, instead of amending the plan, the Debtor moved to dismiss her case pursuant § 1307. See Doc. 94.

DISCUSSION

The Bankruptcy Code provides that after notice and hearing, a court may award “reasonable compensation for actual, necessary services” rendered by professionals. 11 U.S.C. § 330(a)(1)(A) and (B). Where a fee agreement “exceeds the reasonable value of any such services,” § 329 provides that the court may cancel the agreement to the extent excessive of the reasonable value. In re Radford, No. 10-21983, 2011 WL 5827316, at *2, 2011 Bankr.LEXIS 4389, at *4-5 (Bankr.N.D.Ohio Nov. 18, 2011). In determining the reasonable value of services, a court must consider “the nature, the extent, and the value of such services,” taking into account all relevant factors, including whether the services were necessary to the administration of the case, or beneficial at the time the service was rendered toward completion of the case. 11 U.S.C. § 330(a)(3)(C). Further, it is well settled [209]*209that the reasonableness determination is made by the use of the Lodestar method, which calls for the multiplication of the attorney’s reasonable hourly rate by the number of hours reasonably expended. In re Boddy, 950 F.2d 334, 337 (6th Cir.1991).

Generally, “there is a strong presumption that the Lodestar amount represents ‘reasonable compensation.’ ” In re Big Rivers Elec. Corp., 252 B.R. 676, 686 (W.D.Ky.2000) (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564-65, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). However, “[t]he product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Additional factors can be considered and the court can adjust an award upward or downward to achieve a reasonable result. In re Boddy, 950 F.2d at 338. The additional factors to be considered are:

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Cite This Page — Counsel Stack

Bluebook (online)
502 B.R. 205, 2012 WL 9503368, 2012 Bankr. LEXIS 6229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-huffman-ohsb-2012.