In re Migiano

242 B.R. 759, 13 Fla. L. Weekly Fed. B 76, 2000 Bankr. LEXIS 9, 2000 WL 14440
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedJanuary 3, 2000
DocketBankruptcy No. 98-34096-BKC-SHF
StatusPublished
Cited by1 cases

This text of 242 B.R. 759 (In re Migiano) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Migiano, 242 B.R. 759, 13 Fla. L. Weekly Fed. B 76, 2000 Bankr. LEXIS 9, 2000 WL 14440 (Fla. 2000).

Opinion

ORDER ALLOWING COMPENSATION TO ATTORNEY FOR CHAPTER 13 DEBTOR

STEVEN H. FRIEDMAN, Bankruptcy Judge.

THIS CAUSE came on to be heard on May 18, 1999, upon the Application for Compensation of Debtor’s Attorney, filed by Brad Culverhouse, Esquire. The hearing was conducted pursuant to Local Rule 2016—1(B)(2) and the “Chapter 13 Fee Guidelines” in effect for the United States Bankruptcy Court for the Southern District of Florida. In his Application, Mr. Culverhouse (“Applicant”) seeks total compensation in the amount of $5,129.83, together with reimbursement of expenses in the amount of $75.00. Applicant received a pre-petition retainer from the debtor in the amount of $1,359.83 and seeks to have a balance of $3,780.00 paid to him under the debtor’s Fifth Amended Plan, which was confirmed by this Court on April 28, 1999.1 The Court, having carefully considered the pending fee application, and for the reasons set forth below, finds that reasonable aggregate compensation for Brad Culverhouse, Esquire is $3,125.00 plus aggregate reimbursement of expenses in the amount of $27.40. After deducting the pre-petition retainer paid by the debt- or, the chapter 13 trustee is authorized and directed to pay the balance of the fee due to Applicant, in the amount of $1,765.17, together with the allowed reimbursement of expenses of $27.40, pursuant to the terms of the confirmed Fifth Amended Chapter 13 Plan.

The allowance of compensation represents a 39% reduction in the amount sought by Applicant. In general, the Court finds that the reduction in compensation is warranted due to the excessive amount of time unnecessarily expended resulting from counsel’s inefficient representation. In addition, upon proper analysis by Applicant, it should have been evident that this case should have been administered as a chapter 7 liquidation proceeding, rather than as a chapter 13 proceeding.

FACTORS GOVERNING ANALYSIS OF FEE REQUESTS

The various factors generally recognized as governing the analysis by a federal court of a fee request are set forth in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 562-66, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 897-901, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 429-40, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1298-1302 (11th Cir.1988); American Benefit Life Ins. Co. v. Baddock, 544 F.2d 1291, 1298-1301 (5th Cir.1977); and, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). As noted in American Benefit, 544 F.2d at 1299, the twelve factors established in Johnson are applicable to bankruptcy cases:

(1) The time and labor required;
(2) The novelty and difficulty of the questions;
[761]*761(3) The skill requisite to perform the legal service properly;
(4) The preclusion of other employment due to acceptance of the case;
(5) The customary fee;
(6) Whether the fee is fixed or contingent;
(7) Time limitations imposed by the client or other circumstances;
(8) The amount involved and the result obtained;
(9) The experience, reputation, and ability of the attorneys;
(10) The “undesirability” of the case;
(11) The nature and length of the professional relationship with the client;
(12) Awards in similar cases.

Johnson, 488 F.2d at 717-19.

The Eleventh Circuit, in Norman, 836 F.2d at 1298-99, further delineated that the lodestar approach adopted by the United States Supreme Court was designed to produce an objective estimate of the value of a lawyer’s services. Under this approach, the court establishes a lodestar by multiplying the hours reasonably expended by a reasonable hourly rate, which is the prevailing market rate for similar services by similarly-skilled lawyers in the same community. See id. at 1299. In computing the lodestar, the court may employ the twelve Johnson factors. See id. at 1299-1300. Once the lodestar is determined, the court should make adjustments for results obtained, if necessary. See id. at 1302.

CONSIDERATION OF FACTORS

(1) The Time and Labor Required: Applicant’s fee application (Court Paper No. 40) reflects that Applicant purportedly expended an aggregate of 37.05 hours in his representation of the Debtor.2 The Court has carefully reviewed the time entries of Applicant and determines that a reasonable amount of time expended would have been no more than 12.50 hours.

The Court, in analyzing the instant fee application, notes that among the services provided by Applicant are those falling within the general categories of Client Conferences, Preparation of Bankruptcy Schedules, and Preparation of Chapter 13 Plan. Applicant has charged a total of 17 hours for the referenced services. The foregoing include 4.6 hours for the client conferences. Considering the straightforward nature of this case and this Court’s conclusion that the case should have been filed as a chapter 7 Liquidation rather than as a Chapter 13 Adjustment of Debts of an Individual with Regular Income, the Court finds that the 4.6 hours expended by Applicant in conferences with the debtor is excessive to the extent of 2.6 hours.

In addition, Applicant seeks compensation for 12.4 hours in preparing the chapter 13 plan. The only unusual aspect of this case is that the debtor operated a business, a sole proprietorship known as Designersmarx, manufacturing cabinets. The debtor listed an extensive inventory of tools and supplies, and the debtor listed 26 unsecured creditors, virtually all of which appear to have been incurred in the operation of the debtor’s business. The debtor’s schedules, statements, and chapter 13 plan are otherwise unremarkable, notwithstanding the fact that Applicant prepared and filed five chapter 13 plans, the last of which ultimately was confirmed. As support for the Court’s conclusion that this case should have proceeded as a chapter 7 Liquidation and that the filing of the successive chapter 13 plans was thus unnecessary, the Court notes that the debtor proposed to sell, and did sell, his business tools and his 1992 GMC truck used in his business, during the administration of this estate and that the debtor moved to Connecticut. Since the debtor’s chapter 13 [762]*762plan provides for the liquidation of virtually all of his assets (aside from his motorcycle, the value of which was established under 11 U.S.C.

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242 B.R. 759, 13 Fla. L. Weekly Fed. B 76, 2000 Bankr. LEXIS 9, 2000 WL 14440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-migiano-flsb-2000.