In re Michaelson

222 B.R. 595, 1997 Bankr. LEXIS 2308, 1997 WL 910476
CourtUnited States Bankruptcy Court, C.D. Illinois
DecidedJuly 31, 1997
DocketNos. 96-83059, 96-83061, 96-83607, 96-83650 to 96-83653, 97-80003 to 97-80008, 97-80176 to 97-80183
StatusPublished
Cited by2 cases

This text of 222 B.R. 595 (In re Michaelson) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Michaelson, 222 B.R. 595, 1997 Bankr. LEXIS 2308, 1997 WL 910476 (Ill. 1997).

Opinion

OPINION

WILLIAM V. ALTENBERGER, Chief Judge.

In each of these twenty-one Chapter 7 eases, the matter before the Court is how much should be awarded as attorney fees to the attorney representing the various debtors.

The starting point of the analysis is § 329 and § 330 of the Bankruptcy Code, 11 U.S.C. § 329 and § 330. Section 329, requiring dis[597]*597closure by a debtor’s attorney, provides in pertinent part as follows:

§ 329. Debtor’s transactions with attorneys.
(a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, ... for services rendered or to be rendered in contemplation of or in connection with the case by such attorney ...
(b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive.

Section 330, setting forth the basis for allowing compensation, provides in pertinent part as follows:

§ 330. Compensation of officers.
(a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a ... professional person ...
(A) reasonable compensation for actual, necessary services rendered by the attorney ...; and
(B) reimbursement for actual, necessary expenses.
(2) The court may, ... award compensation that is less than the amount of compensation that is requested.
(3)(A) In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including—
(A) the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and
(E)whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.

The 1997 Collier pamphlet edition of the Bankruptcy Code contains the following editor’s note:

[Ed. Note: Section 224 of the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, rewrote section 330(a). In doing so, the 1994 Act added two subparagraphs numbered 330(a)(3)(A). It appears that the first reference to paragraph 330(a)(3)(A) is extraneous.]

The legislative history to § 329 provides in part as follows:

Payments to a debtor’s attorney provide serious potential for evasion of creditor protection provisions of the bankruptcy laws, and serious potential for overreaching by the debtor’s attorney, and should be subject to careful scrutiny.

As to the legislative history of § 329, Collier states:

Under prior law, as under the Code, compensation of the attorney for the debtor was scrutinized more closely than the compensation of other officers and professional persons. The rationale for such scrutiny is clearly stated in the House Report that accompanied H.R. 8200. Payments to a debtor’s attorney provide “serious potential” for both “evasion of creditor protection provisions of the bankruptcy laws” and “overreaching by the debtor’s attorney”. Accordingly, section 329 is designed in recognition of “the temptation of a failing debtor to deal too liberally with his property in employing counsel to protect him in view of financial reverses and probable failure”.

3 Collier on Bankruptcy, ¶ 329. LH, p. 329-29 (15th Rev.Ed.1997).

Bankruptcy Rules 2016 and 2017 implement the provisions of § 329 and § 330 of the Bankruptcy Code. Bankruptcy Rule 2016(b) provides in pertinent part as follows:

[598]*598(b) Disclosure of Compensation Paid, or Promised to Attorney for Debtor. Every attorney for a debtor, whether or not the attorney applies for compensation, shall file and transmit to the United States trustee within 15 days after the order for relief, or at another time as the court may direct, the statement required by § 329 of the Code ... A supplemental statement shall be filed and transmitted to the United States trustee within 15 days after any payment or agreement not previously disclosed.

Bankruptcy Rule 2017 provides in pertinent part as follows:

(a) Payment or Transfer to Attorney Before Order for Relief. [T]he court ... may determine whether any payment of money or any transfer of property by the debtor, made directly or indirectly and in contemplation of the filing of a petition under the Code by or against the debtor or before entry of the order for relief in an involuntary case, to an attorney for services rendered or to be rendered is excessive.
(b) Payment or Transfer to Attorney After Order for Relief. [T]he court ... may determine whether any payment of money or any transfer of property, or any agreement therefor, by the debtor to an attorney after entry of an order for relief in a case under the Code is excessive, ...

In Collier’s discussion of Bankruptcy Rule 2017, it states:

Section 60d [of the Bankruptcy Act] was enacted in recognition of the “the temptation of a failing debtor to deal too liberally with his property in employing counsel to protect him in view of financial reverses and probable failure”. In re Wood, 210 U.S. 246, 253 [28 S.Ct. 621, 52 L.Ed. 1046] (1908). This rule, like § 60d of the Act and § 329 of the Code, is premised on the need for and appropriateness of judicial scrutiny of arrangements between a debtor and his attorney to protect the creditors of the estate and the debtor against overreaching by an officer of the court who is in a peculiarly advantageous position to impose on both the creditors and his client.

9 Collier on Bankruptcy, App.2017[l] p.2017-12.

In determining whether a debtor’s attorney’s fees are reasonable, the District Court for the Central District of Illinois in In re Depco, Inc. No. 91-4103 (April 14, 1992) (J. McDade) directed this Court to apply the twelve factors cited in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).

In In the Matter of First Colonial Corp. of America,

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Cite This Page — Counsel Stack

Bluebook (online)
222 B.R. 595, 1997 Bankr. LEXIS 2308, 1997 WL 910476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michaelson-ilcb-1997.