In re Licursi

521 B.R. 343, 2014 Bankr. LEXIS 4425, 2014 WL 5320568
CourtUnited States Bankruptcy Court, C.D. California
DecidedOctober 17, 2014
DocketNo. 1:10-bk-26168-GM
StatusPublished

This text of 521 B.R. 343 (In re Licursi) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Licursi, 521 B.R. 343, 2014 Bankr. LEXIS 4425, 2014 WL 5320568 (Cal. 2014).

Opinion

AMENDED MEMORANDUM OF OPINION ON DEBTORS’ MOTION OBJECTING TO SECURED CLAIM OF CALIFORNIA BANK & TRUST

GERALDINE MUND, Bankruptcy Judge.

One of the principal issues in this case is the amount of the secured claim of California Bank & Trust (CB & T), specifically the sum of attorneys’ fees to which the bank is entitled. So that the Debtors could have an approximate figure to us in their disclosure statement and for purposes of refinancing, the Court prepared a Partial Ruling on Debtors’ Motion Objecting to Secured Claim of California Bank & Trust (dkt. # 4,02). This did not deal with the objections to interest, foreclosure fees, etc. and the Court requested further briefing on those matters, which was re[344]*344ceived from both sides (dkt. ##4.05, 406). The Debtors also filed Comments on the Partial Ruling along with an analysis and charts (dkt. ##407, 408) and CB & T filed a supplemental brief in support of its response to the objection (dkt. #409).

Having reviewed all of these newly filed papers, the Court hereby issues its final ruling on the objection to claim # 22. The charts created and used by the Court are those attached to the Partial Ruling (dkt. #402). For convenience of the parties, any changes to the Partial Ruling are indicated by strike-outs (deletions) or underlined text (additions). To the extent that corrections are not made to the Partial Ruling, the objections thereto are overruled.

THE MEMORANDUM

On December 28, 2010 John and Susan Licursi filed this case under chapter 11 of the bankruptcy code. At that time they had three types of legal relations with California Bank & Trust: a guaranty for their business Spectrum Glass & Aluminum, Inc. (which resulted in actions in the superior court against Spectrum Glass & Aluminum, Inc. and the Licursis on the note and guaranty as well as an action in the superior court against Spectrum Glass & Mirror, Inc. seeking stock, etc.), a second deed of trust on Debtors’ business property on Burbank Blvd., and a first deed of trust on a piece of vacant land in Malibu.

The Burbank Blvd. property was sold during the bankruptcy with no payment to CB & T on its second trust deed. Because the deeds of trust were not cross-collater-alized, the sale of this property resulted in an unsecured claim for the deficiency on the Burbank Blvd. loan.

The remaining secured claim is due to a the first trust deed on vacant land in Malibu. Because the various loans were not cross-collateralized, the Debtors agree that while they owe attorneys’ fees and interest on the claim secured by the Malibu property, they assert that they do not owe such monies as to work done on the Burbank Blvd. portion of the claim or the superior court action on the guaranty.

CB & T does not dispute that it is not entitled to have a lien on Malibu for fees and interest arising from the Burbank Blvd. portion of the claim or for the superi- or court action or the adversary proceedings that took place or were due to its sanctions motion.

The Debtors are now trying to refinance the Malibu property, pay CB & T off, and move forward to confirm a plan. The Debtors argue that the CB & T proof of claim is a “moving target” and that this causes a problem in obtaining the financing. As of May 1, 2014, CB & T was seeking a total of $341,594.08, of which $175,407.58 $172,776.44 was for principal, $92,533.17 was legal fees through April 30, 2014, $38,965.98 was interest and another $26,910.54 was default interest. [According to CB & T, the figures for interest and attorneys’ fees have increased and as of August 25, 2014 they are as follows: interest of $42,852.98; default interest of $26,910.54; legal fees of $101,795.88. (dkt. 385) ] The Debtors assert that the total fees attributable exclusively to Malibu are no more than $56,683.84 as of August 25, 2014.1

[345]*345In support of the objection, the Debtors prepared a detailed analysis of the fee request and ask for a credit against CB & T’s claim in the amount of at least $27,450 ($22,500 for Ms. Licursi’s time and $4,950 for counsel’s time). Thus Debtors assert that the amount of fees payable to CB & T as of August 25, 2014 should be $29,233.84.

Debtors also recalculate the default interest and they dispute the late charges in that the account was current as of the petition date and post-petition late charges may not be allowable. As to foreclosure fees, the Debtors assert that the NOD was filed erroneously by CB & T and that some appraisal fees are not substantiated, (dkt. 352, ex. G)

In response, Buchalter Neimer (BN), CB & T’s attorney, presented a chart showing that it had actually adjusted the amounts and thus had reduced its fees from the total of $209,658 to the amount that it is requesting of $101,795.88 (dkt. 385, p. 5). The amounts removed covered litigation fees of $60,759 related to the state court actions against the Debtors’ prior and present businesses; $25,814.50 incurred in defending the Debtors’ adversary proceedings; $14,875.88 in seeking sanctions against the Debtors’ third bankruptcy counsel; and $4,854.25 for fees attributable to the disposition of the Debtors’ Burbank and Studio City properties.

The parties agree that the loan documents permit CB & T to receive its fees and costs:

Attorneys’ Fees; Expenses. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit, including attorneys’ fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. Borrower also will pay any court costs, in addition to all other sums provided by law. [From the Note]
Attorneys’ Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys’ fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender’s opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit, including attorneys’ fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors’ reports, and appraisal fees, title insurance and fees for the Trustee, to the extent permitted by applicable law. Trustor also will pay any court costs, in [346]*346addition to all other sums provided by law. [From the Deed of Trust]

The background and hostility of this case are important.

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Bluebook (online)
521 B.R. 343, 2014 Bankr. LEXIS 4425, 2014 WL 5320568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-licursi-cacb-2014.