In re Linn

106 B.R. 264, 1989 Bankr. LEXIS 1787, 1989 WL 123322
CourtDistrict Court, W.D. Oklahoma
DecidedSeptember 5, 1989
DocketBankruptcy Nos. BK-88-711-TS, BK-88-712-TS
StatusPublished

This text of 106 B.R. 264 (In re Linn) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Linn, 106 B.R. 264, 1989 Bankr. LEXIS 1787, 1989 WL 123322 (W.D. Okla. 1989).

Opinion

ORDER REGARDING COMPENSATION OF TRUSTEE

JOHN TeSELLE, Bankruptcy Judge.

Background

After extensive efforts were made by Ann A. Linn and James P. Linn to settle with their creditors and avoid bankruptcy, involuntary Chapter 7 bankruptcy petitions were filed against each of the Debtors on February 3, 1988. Upon Debtors’ motions, both cases were converted to Chapter 11 on February 24, 1988.

The scheduled indebtedness of the two individual Debtors, most of which was joint indebtedness, exceeded $205,000,000.0o.1 Debtors’ scheduled assets, many of which [265]*265were jointly owned, totalled more than $75,000,000.00.2

The substantial assets involved in these cases galvanized the creditors and their attorneys into action and thereafter, an unsecured creditors’ committee was formed in each case. The law firm of Crowe & Dunlevy was initially appointed temporary counsel for both of those committees, but later withdrew. Subsequently, the law firm of McKinney, Stringer & Webster was employed to represent the unsecured creditors’ committee in Mrs. Linn’s case. That firm served less than twelve weeks when on August 23, 1988, Mrs. Linn converted her case to one under Chapter 7. Thereafter, on August 25, 1988, the Assistant United States Trustee (hereinafter the “AUST”) appointed Mr. Ainslie Perrault, Jr., to serve as interim trustee in Mrs. Linn’s case.3

Though much lip service was given by the parties to a “global settlement,” before the conversion of Mrs. Linn’s case from Chapter 11 to Chapter 7 the prospect of any kind of settlement prior to exhaustion of the estate assets appeared dismal at best. The ongoing divorce action between Debtors, and the hostility existing between Debtors and Creditors throughout the Chapter 11 proceedings served as deterrents to the resolution of these cases. Upon the appointment of Mr. Perrault as Interim Trustee, the Creditors’ animosity towards Debtors shifted to and became focused upon Mr. Perrault and his counsel, and continues so to this date. However, this did not. prevent Mr. Perrault from changing the whole tenor of these proceedings from one of “let's fight,” to one of “let’s settle.”4

Mr. Perrault, in addition to being knowledgeable in business and the law, demonstrated a rare gift for understanding and accommodating the intricate human aspects of these cases. Though he and his appointment were constantly under attack, he never wavered or lost sight of his stated objective, which was to bring about a collective settlement by December 81, 1988.5 On December 28, 1988, only 125 days following Mr. Perrault’s appointment, the Court was presented with Compromise and Settlement Agreement providing for settlement of both cases (hereinafter the “Settlement Agreement”).

These cases appear to be unique in the annals of bankruptcy lore. Never, in the memory of this Court, has an individual accomplished so much, for so many, against such great odds, in such a short time, while at the same time being subjected to such scorn by those whose clients benefitted most from his efforts.6

Fee Dispute

The Settlement Agreement provides that Mr. Perrault’s compensation is not to exceed $75,000.00 for services rendered through December 31, 1988. On June 20, 1989, Trustee’s Application for Allowance of Compensation and Disbursements (hereinafter the “Application”) was filed. The Application included a request for additional compensation for distributions made to creditors subsequent to December 31, 1988.7

A hearing was held on the Application on July 18, 1989. At the commencement of the hearing, Mr. Perrault agreed to limit his request for fees and expenses to a total of $150,000.00. Even then, his Application was vehemently opposed by Creditors. [266]*266Creditors’ position was that the 1989 distributions were within the purview of the Settlement Agreement. At the conclusion of the hearing, the Court took the matter under advisement.

The Court’s preparation of its decision was halted when it learned a settlement of the fee dispute was likely. Thereafter, on August 25, 1989, the parties entered into a Stipulation Regarding Trustee’s Application for Allowance of Compensation and Reimbursement of Expenses (hereinafter the “Stipulation”). The Stipulation was submitted to the Court, together with a proposed agreed order. While the Court normally welcomes and encourages the parties to enter into and submit to the Court agreed proposed orders, the Court is of the opinion this matter deserves a more thorough treatment than that provided by the parties’ abbreviated proposed order.

Commendations

The Stipulation having resolved the monetary aspects of the pending fee dispute, the Court is no longer called upon to decide the merits of that dispute. However, in view of the fact these bankruptcy proceedings are nearing conclusion, the Court would be remiss in not commending all the parties for having reached, in record time, a comprehensive settlement of these very difficult Chapter 7 bankruptcy cases.

The Court is aware that no settlement of this magnitude is achieved by one person alone. The collective efforts of numerous parties, many of whom are unknown to this Court, made this settlement possible. The following persons are among those whose efforts have come directly to the attention of the Court. No doubt there are others, including some in Dallas, whose efforts are not known to the Court, but who also warrant acknowledgement.

Mr. Michael Freeman, the AUST for this District, has been the object of much unwarranted criticism in these Chapter 7 cases. Such criticism was initially directed at his appointment of Mr. Perrault as Interim Trustee in Mrs. Linn’s Chapter 7 case. He was further criticized for contesting the validity of many of the Creditors’ ballots cast in an attempted election of a trustee conducted at the First Meeting of Creditors in Mrs. Linn’s Chapter 7 proceeding.

It should be noted, though, that had Mr. Freeman not recognized the rare combination of attributes possessed by Mr. Per-rault, caused him to be added to the Chapter 7 panel of trustees,8 and resisted the acrimonious desires of Creditors to turn these proceedings into a battle ground, Mr. Perrault would not have been appointed or been permitted to continue to serve as Trustee in these cases. Without Mr. Per-rault’s guidance, the comprehensive settlement achieved in these cases would likely not have occurred. It is the opinion of the Court that Mr. Freeman performed his duties as AUST in these Chapter 7 proceedings in an exemplary manner.

The efforts of Ms. Judy Morse, on behalf of the Creditors, and particularly her heroic efforts during the month of December 1988, are especially commendable. Her long and often late hours of diligent, effective efforts made the timely settlement of these cases possible.

Though plagued with serious conflicts when he entered these proceedings, Mr. Mike Kirschner, as counsel for Trustee, through his patience and unrelenting efforts, also contributed to the successful conclusion of these cases.

The willingness of Mr. Jerry Tubb9 to provide the Court with his perspective of the events leading up to the Settlement [267]*267Agreement is commendable. Mr.

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Bluebook (online)
106 B.R. 264, 1989 Bankr. LEXIS 1787, 1989 WL 123322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-linn-okwd-1989.