In re Snow

603 B.R. 114
CourtUnited States Bankruptcy Court, W.D. Oklahoma
DecidedMay 9, 2019
DocketCase No. 18-14846-JDL
StatusPublished
Cited by2 cases

This text of 603 B.R. 114 (In re Snow) is published on Counsel Stack Legal Research, covering United States Bankruptcy 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 Snow, 603 B.R. 114 (Okla. 2019).

Opinion

Janice D. Loyd, U.S. Bankruptcy Judge *116I. Introduction

Quicken Loans Inc. ("Quicken") is the holder of a first mortgage on the Chapter 13 Debtor's residence. Debtor challenges the reasonableness of Quicken's claim of $1,000 for pre-petition foreclosure attorney's fees and $900 for post-petition attorney's fees. Before the Court for consideration are: (1) the Debtor's Amended Motion for Determination of Fees, Expenses, or Charges Pursuant to Rule 3002.1(E) ("the Motion") [Doc. 47]; (2) Debtor's Amended Objection to Proof of Claim #1 (the "Objection") [Doc. 48]; (3) Response to Amended Objection to Claim by Debtor filed by Quicken [Doc. 52]; and (4) Response to Amended Motion for Determination of Fees, Expenses, or Charges Pursuant to Rule 3002.1(E) filed by Quicken [Doc. 53].

On April 12, 2019, the matter came on for evidentiary hearing.1 After consideration of the arguments of counsel, the evidence submitted and the applicable law, the Court announced its decision from the bench. For the reasons stated in open court which are incorporated herein by reference, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a), made applicable to these bankruptcy proceedings by Fed.R.Bankr.P 7052 and 9014(c)2 .

II. Jurisdiction

This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a) and the Order of Reference contained in Local Rule LCvR 81.4 of the United States District Court for the Western District of Oklahoma. This is a contested matter under Rule 9014 to determine whether attorney's fees incurred pre-petition and post-petition in a Chapter 13 case by a creditor holding a claim secured by a mortgage encumbering a debtor's principal residence are allowable under Rules 3001 and 3002.1(e), respectively. Thus, this is a "core proceeding" under 28 U.S.C. § 157(b)(2)(B) - allowance or disallowance of claims against the estate - and the court may enter a final order herein. Both parties have participated fully in the litigation of this matter without challenging the jurisdiction of this Court to enter final orders and have thus consented to the same.

III. Findings of Fact

1. On November 20, 2018, Debtor filed a voluntary petition for relief pursuant to Chapter 13 of Title 11 of the United States Bankruptcy Code. [Doc.1].

2. In her Schedule D, Creditors Who Have Claims Secured by Property, the Debtor listed the claim of Quicken which *117was secured by the Debtor's principal residence at $68,392 and valued the residence at $59,000. [Doc.1, pg.18].

3. On December 28, 2018, pursuant to Rule 3001, Quicken timely filed a Proof of Claim (POC) (Official Form 410) in which it listed the amounts due on the petition date under the Note and the Mortgage, including principal, interest, prepetition fees and charges, escrow deficiency, and the calculation of the prepetition arrearage. [POC 1-1]. In its POC, Quicken asserted a secured claim in the amount of $69,168.99 based on a first mortgage on the Debtor's principal residence. [POC 1-1]. The POC Part 5: "Loan Payment History from First Date of Default" itemized $1,000 in attorney's fees (in separate amounts of $600 and $400), expenses of $125 for a title report, $15 for a property inspection, $975 for title costs, $272.14 for court filing fees, $25 for notice of lis pendens and $300 for process server's fees, bringing the total to $2,778.92 in pre-petition fees and costs. Only the claim for attorney's fees in the amount of $1,000 is at issue.

4. Kim S. Jenkins, an attorney at the Baer & Timberlake law firm representing Quicken in the state foreclosure proceedings brought against the Debtor, testified, consistent with her Affidavit filed in the case and introduced as a trial exhibit, [Doc. 34-1; Quicken Ex.1], that the standard hourly fee which experienced attorneys at Baer & Timberlake charge is $350 and staff charges at $125 per hour. Jenkins testified that Quicken is normally charged at the preferential rate of $275 per hour. Jenkins testified that the time records of Baer & Timberlake indicated that the firm had expended 9.1 hours for work on the foreclosure. Jenkins' Affidavit stated that had Baer & Timberlake charged its normal preferential contractual hourly rate with Quicken of $275 per hour, the amount charged for the foreclosure up to the filing of bankruptcy would be $2,502.50. If the firm had charged its customarily hourly rate of $350 per hour and staff charges of $125 per hour, the amount charged would be $1,418.75. [Doc. 34-1; Quicken Ex.1].

5. These hourly charges, however, were never billed to Quicken, nor are they sought to be recovered as a claim in this bankruptcy. Jenkins testified that in normal foreclosure matters Baer & Timberlake had a contractual "flat fee" arrangement with Quicken of $1,000 for the filing of a foreclosure, the amount of attorney's fees also claimed in the POC. [Doc. 34-1; Quicken Ex.1].

6. After the filing of its POC, on January 11, 2019, pursuant to Rule 3002.1(c), Quicken filed Official Form 410S2 - "Notice of Postpetition Mortgage Fees, Expenses, and Charges" - claiming an additional $900, comprised of $150 attorney's fees for "Plan Review", $500 attorney's fees for "Bankruptcy/ Proof of Claim fees" and $250 for "other - 410A" fees and expenses. [POC 1-1, doc., 1/11/19]. No further detail or documentation regarding the fees was provided in the Form 410S2.

7. Matthew Hudspeth, an attorney in practice for 27 years including 16 years with Baer & Timberlake responsible for handling bankruptcy matters for Quicken, testified, consistent with his Affidavit and time records of Baer & Timberlake, as to post-petition attorney's fees expended by the firm in the Debtor's bankruptcy. As with the testimony of Jenkins, Hudspeth testified that while experienced attorneys at Baer & Timberlake customarily charged clients $350 per hour and staff at $125 per hour, the hourly fee normally charged Quicken was the preferential hourly rate of $275. The time records testified to by Hudspeth indicated the time expended for "plan review" was 1.4 hours, and 4.95 *118hours spent on "POC preparation and filing". [Doc. 36-1 & 2; Quicken Ex. 4 & 5]. Hudspeth testified that the time entries on the records were not made contemporaneously with the description of the work contained therein. The time was "reconstructed" by examining the firm's computer system which contained the date, nature of the service provided and the name of the person performing the same.

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Cite This Page — Counsel Stack

Bluebook (online)
603 B.R. 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-snow-okwb-2019.