In re Regino

585 B.R. 322
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMay 18, 2018
DocketCase No. 8–16–74352–reg
StatusPublished
Cited by3 cases

This text of 585 B.R. 322 (In re Regino) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Regino, 585 B.R. 322 (N.Y. 2018).

Opinion

Robert E. Grossman, United States Bankruptcy Judge

Before the Court is the Debtors' objection to Claim No. 4 filed by Tayne Law Group, P.C. ("Tayne") in the amount of $17,248.03 for legal services rendered prior to the bankruptcy. Prior to bankruptcy, the Debtor, Jamie Regino, engaged the services of Tayne to negotiate debt reductions with her unsecured creditors. The terms of the engagement were memorialized in a written agreement which entitled Tayne to collect a contingency fee of 39% of any debt reduction negotiated by Tayne. The agreement also provided that if the Debtor's balances were paid or zeroed out by a creditor, or if a debt was resolved by means of settlement or judicial action not involving Tayne, or if the agreement were terminated for any reason, Tayne would be entitled to collect a 20% flat fee on the total balance of any outstanding debt. Ultimately Tayne negotiated settlements with some of the Debtor's creditors and earned fees on the savings which were paid pre-petition. Those fees are not in dispute. However, at the time the Debtors filed bankruptcy there was still outstanding, unsettled debt and Tayne's claim represents its 20% flat fee on the balance outstanding on the petition date.

The Debtors object to the claim on the grounds that Tayne provided no documentation to support the claim that legal services were rendered, and the amount claimed is excessive given that Tayne was compensated in full for the accounts actually settled. Tayne relies primarily on the agreement signed by the Debtor setting forth its entitlement to the 20% flat fee for unsettled accounts, and argues that an early termination fee is not per se unconscionable or violative of public policy. Tayne also contends that the 20% flat fee on unsettled accounts is a safeguard allowing the firm to earn fees for work performed despite the failure or inability to settle or resolve a particular debt, and that the Debtors failed to sustain their burden to prove that the fees were disproportionate to the services performed. Finally, Tayne asserts that it gave the Debtor proper notice of her right to arbitrate fee disputes and she failed to exercise that right.

*324Generally, fee arrangements entered into freely between an attorney and client are enforceable and the Court is sensitive to the rights attorneys have to enter into a written agreement with a client that establishes the financial understanding between the parties. However, when bankruptcy intervenes between the retention and payment of the attorney's fee and the attorney files a claim in bankruptcy, the Bankruptcy Code may dictate a result different from the agreed upon engagement. Although not cited by either party, the Court finds that this dispute falls squarely within § 502(b)(4) of the Bankruptcy Code which provides that the Court must disallow a claim "if such claim is for services of an ... attorney of the debtor, [to the extent that], such claim exceeds the reasonable value of such services; ..." 11 U.S.C. § 502(b)(4).

The debt reduction services industry is growing rapidly with little to no regulation of qualifications or fees charged. The people served by this industry are often unsophisticated, have limited financial means, and are facing severe financial hardship. There are many individuals and firms in the industry that prey on these circumstances and are seemingly only interested in separating the debtor from her money. It is the responsibility of the bar, the United States Trustee and the courts to be aware of this problem and act when necessary. The case before the Court today involves a licensed attorney who appears to be operating in a professional manner and for that reason this Decision addresses what this Court believes is a small segment of the debt reduction industry. This Decision is also limited to the facts presented in that it only applies to a claim by an attorney for services rendered pre-petition. Many debt reduction services are performed by non-attorneys. However, the Court's analysis of the reasonableness of these fees could apply equally to attorneys and non-attorneys.

For the reasons set forth below, the Court finds that Claim No. 4 in the amount of $17,248.03 "exceeds the reasonable value" of the services performed by Tayne for the Debtor.

BACKGROUND AND FACTS

On August 5, 2015, Jamie Regino ("Debtor") entered into a written agreement with Tayne setting forth the terms of engagement for the "express purpose of attempting to resolve [the Debtor's] unsecured debt over a period of time through negotiation." (Agreement ¶ 1, Exh. A to Tayne Response to Objection to Claim, ECF No. 18). At the time of the engagement the Debtor sought Tayne's assistance in reducing outstanding balances of approximately $126,579.19.

The Agreement provided that the Debtor would make monthly payments to Tayne in the sum of $1,450.00, withdrawn directly from the Debtor's bank account, and used "for the purpose of paying the agreements made with your unsecured creditors and/or by this Office and/or for services provided by [Tayne] ...." (Agreement ¶ 5). The first and second monthly payments ($2,900 in total) however would operate as a non-refundable minimum fee to cover set up of the Debtor's file, "any in-person consultations and phone consultations, after the first phone call, creditor contact and any initial document review within the first 30 days." (Agreement ¶ 6). The Agreement also provides that Tayne "earns fees when an oral or written resolution is made on one or more of your accounts." (Agreement ¶ 7). "The fees are based on a contingency and are thirty nine (39%) of the savings on each account." (Agreement ¶ 7).

According to the Debtors, from August 14, 2015 through August 16, 2016, thirteen *325payments totaling $18,850.00 were made to Tayne. Over the course of the 13-month engagement, the Debtor acknowledges that Tayne negotiated settlements with some unsecured creditors entitling them to a 39% contingency fee equal to $5,339.20. These fees were paid to Tayne out of the Debtor's monthly payments and are not disputed by the Debtors. All or nearly all of the funds remaining with Tayne after payment of the $5,339.20 contingency fee and the $2,900 up-front fee appear to have been paid by Tayne to creditors on the settled accounts.

On September 21, 2016, the Debtors filed a petition ("the Petition") for relief pursuant to Chapter 13 of title 11 of the United States Code. As of the Petition date, the remaining unsettled accounts were: (1) Citibank 8285 account with a balance of $8,357.00; (2) Discover 9232 account with a balance of $20,581.66; (3) Discover 5519 account with a balance of $2,596.63; (4) Lending Club 4055 account with a balance of $32,226.18; and (5) Prosper Marketplace 2345 account with a balance of $22,855.76.

On October 5, 2016, Tayne filed Claim No. 4 in the amount of $17,248.03 which represents 20% of the Debtor's unsettled accounts as of the Petition date. The basis for the claim as stated in the proof of claim is "Legal Fees Owed for Legal Services Rendered."

On December 20, 2016, the Debtors filed an objection seeking to expunge Claim No. 4. (ECF No. 15). Tayne filed a response to the objection on February 21, 2017. (ECF No. 18). An Affirmation in Opposition and Sur-Reply was filed on behalf of Tayne on March 22, 2017.

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Bluebook (online)
585 B.R. 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-regino-nyeb-2018.