In re Okafor

595 B.R. 903
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedDecember 17, 2018
DocketCase No. 17-41679-13-btf
StatusPublished
Cited by3 cases

This text of 595 B.R. 903 (In re Okafor) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Okafor, 595 B.R. 903 (Mo. 2018).

Opinion

THE HONORABLE DENNIS R. DOW, UNITED STATES BANKRUPTCY JUDGE

Before this Court is the Debtor's Amended Objection to Notice of Postpetition Mortgage Fees, Expenses and Charges filed by Bank of New York Mellon (the "Bank" or "Creditor"). This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a) and (b)(1). For the reasons set forth below, the Debtor's Objection is overruled in part and sustained in part.

I. BACKGROUND

The facts in this case are undisputed. The Debtors' homestead was used as collateral for a loan currently held by the Bank. As of the date of the Debtors' bankruptcy *906filing, they were current on their payments.

The Bank retained Prober & Raphael (the "Attorneys"), a national law firm based in California, to review the Debtors' Plan and prepare the proof of claim. The particular attorneys were not licensed in Missouri nor admitted before this Court.

The Attorneys reviewed the Plan and subsequently filed the Proof of Claim. The Attorneys later filed their Notice of Postpetition Mortgage Fees, Expenses and Charges (the "Notice") in which they request two sets of fees: $550 for preparing the Proof of Claim, and $350 for reviewing the Plan (collectively, the "Attorneys' Fees").

The Debtors begin by pointing out that a proof of claim need not be filed by an attorney as it is often a ministerial act. They then make the following arguments: 1) that there were no triggering events pursuant to either the Promissory Note (the "Note") or the Deed of Trust to authorize payment of the Attorneys' Fees; 2) that the Attorneys failed to comply with Bankruptcy Rule 9010(b) which requires them to file a notice of appearance; 3) that under the Missouri statutes, attorney's fees are restricted to those who are licensed or otherwise admitted in this jurisdiction; 4) that if non-attorneys performed the work, then those fees cannot be collected from the Debtors; 5) that the Bank's action to incur debt to file a proof of claim for an account that was current was not reasonable; and 6) that the Bank's escrow statement lacked the specificity required under Bankruptcy Rule 3001(c)(2)(C).

The Bank counters that the filing and preparation of a proof of claim is not the unauthorized practice of law falling within the Missouri statute or under Rule 9010. It also claims that the bankruptcy filing itself was a triggering event under the Deed of Trust/Security Instrument. Essentially, it argues that the Bank complied with local and national rules and is entitled to be reimbursed for its reasonable fees.

In the Court's view, and as Debtors concede in the amended objection, three questions remain in assessing the claimed attorneys' fees: (1) are the Attorneys' Fees authorized by the Note or Deed of Trust; (2) Did the Attorneys engage in the unauthorized practice of law and therefore, are not entitled to attorneys' fees; and (3) if the Attorneys' Fees are authorized, are the requested fees reasonable? For the reasons set forth below, the Court finds that the Attorneys' Fees are authorized, but the amount requested is not reasonable.

II. DISCUSSION

A. Are the Attorneys' Fees authorized by the Note or Deed of Trust?

Pursuant to Rule 3001(b), a creditor or the creditor's agent [such as the creditor's attorney] may execute a proof of claim. Pursuant to Rule 3002.1(e), the bankruptcy court can "determine whether payment of any claimed fee, expense, or charge is required by the underlying agreement and applicable nonbankruptcy law...."

In this case, the underlying agreement consists of the Note and Deed of Trust. As the Debtors mention, attorneys' fees are authorized under Paragraph 7(E) of the Note only if the Bank accelerates the Note. Since the Debtors were current on their payments, this provision was not triggered. The Bank does not dispute this. However, Paragraph 9 of the Deed of Trust states that if "there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy...), then Lender may do and pay for whatever is reasonable or appropriate to protect *907Lender's interest in the Property and rights under this Security Instrument....Lender's actions can include ...paying reasonable attorney's fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding."

The plain language of the Deed of Trust authorizes the allowance of attorneys' fees in the case of the Debtors' bankruptcy filing. Debtors argue that the mere filing of the Chapter 13 does not significantly affect Creditor's rights and interest because the account was current. Whether or not the Debtors were in default is irrelevant. The plain language of paragraph 9 states that if there is a legal proceeding that might affect Lender's interest in the property then Lender may do whatever is reasonable to protect its rights. (emphasis added). A bankruptcy filing was specified in paragraph 9 and certainly "might" affect the Lender's interest in the property.

Debtors only cited authority is to In re Rangel , 408 B.R. 650 (Bankr. S.D. Tex. 2009), which they claim holds that this exact language does not authorize a secured creditor to recover attorney fees because the mere filing of a Chapter 13 does not significantly affect a home lender's security interest in a debtor's homestead. First, the Court notes that this case is not controlling authority. Second, Debtors failed to mention the case history as to the Valazquez debtors in Rangel . The deed of trust language in that case was the same as the language here, and the Fifth Circuit reversed and remanded the Rangel holding as to those debtors for an order from the district court allowing the requested attorney fees, which impliedly reversed the bankruptcy court's holding that the filing of a Chapter 13 case does not significantly affect the creditor's rights. See In re Velazquez , 660 F.3d 893 (5th Cir. 2011).

This Court agrees that a Chapter 13 case can have a significant effect on a lender's interest in its property or rights under the security agreement. There is always uncertainty surrounding secured property upon the filing of a Chapter 13 case regardless of what the Code says should happen with the property. Debtors often try to do things with the property other than cure and maintain such as sell or pay off the debt.

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Bluebook (online)
595 B.R. 903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-okafor-mowb-2018.