In re Sousa

61 B.R. 105, 1986 Bankr. LEXIS 6146
CourtDistrict Court, D. Rhode Island
DecidedMay 1, 1986
DocketBankruptcy No. 8201021
StatusPublished
Cited by1 cases

This text of 61 B.R. 105 (In re Sousa) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sousa, 61 B.R. 105, 1986 Bankr. LEXIS 6146 (D.R.I. 1986).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.

On June 20, 1985, the standing Chapter 13 trustee was allowed $1,901.22 for fees and expenses. He filed a motion for reconsideration of the award, and after hearing on December 23 on the debtors’ objection, for the reasons discussed below, an order was entered awarding an additional $3,000. The debtor appealed. We review herein the travel of this case, and the trustee’s services in connection with the Sousa bankruptcy, in support of the reasonableness of the award in question.

The facts may be summarized briefly as follows: On December 9, 1982, the debtors filed a joint Chapter 13 petition, with the plan to be funded, in part, through the sale of real estate at 62-64 Grove Avenue, East Providence, Rhode Island. The property was subject to a first mortgage to Old Stone Bank. Certain unanticipated events, including Mr. Sousa’s failure to receive disability benefits which he intended to pay into the Chapter 13 plan, required the plan as filed to be modified.

The debtors held a second mortgage on two houses (59 Walnut Street and 61-63 Walnut Street, East Providence, owned by their daughter), which they proposed to sell (with their daughter’s consent), and to contribute to the plan their share of the proceeds from the sale. Alternatively, the debtors agreed to make monthly payments, under an amended plan, in the event the proposed method of funding did not achieve a one hundred percent distribution to creditors. As it developed, the sale of the real estate took much longer to accomplish than expected.

On a number of occasions, by agreement of the parties, usually either in court or in chambers, after hearing progress reports, the confirmation hearing was continued until arrangements for the sale of the real estate were completed. Finally, in April 1983 we approved the trustee’s application [106]*106to sell the three properties. Notices of intended sale of both Walnut Street parcels were filed by the trustee on July 13, 1983, and the closings took place in September 1983. The proceeds of the two sales, $35,-291.30 and $23,080.04, respectively, were received by the trustee, who then forwarded a check for $57,590.52 (the payoff balance) to Brian Spero, Esq., attorney for Old Colony Cooperative Bank, which held a blanket first mortgage.

On December 13,1983, the trustee filed a notice of intended sale of the 62-64 Grove Avenue property, to which the debtors objected, on the ground that the proposed sale price of $50,000 was not “fair and reasonable.” The trustee appeared at the scheduled hearing on January 20,1984, and informed the Court that, based on an independent appraisal, the debtors had withdrawn their objection. After this five week delay, which, with hindsight, at least, appears to have been unnecessary, the Grove Avenue property was sold in March 1984, and proceeds in the amount of $44,462.44 were turned over to the trustee, who disbursed $30,469.19 to Old Stone, the first mortgagee.

The issue of trustee’s fees was first raised by the debtors at a continued confirmation hearing on April 19, 1984, in opposition to the trustee's contention that he was statutorily entitled, and in fact required to collect ten percent of all monies disbursed, and that the Court had no authority to review and/or alter the statutory fee. See Trustee’s Memorandum of Law in Response to Debtors’ Objection to Trustee’s Fee. In a decision dated October 19, 1984, we rejected the trustee’s argument and concluded that in pilot, as well as in non-pilot jurisdictions, the Court retains the authority and responsibility to make determinations concerning the reasonableness of all fees, including compensation to the standing Chapter 13 trustee. See In re Sousa, 46 B.R. 343, 344 (Bankr.D.R.1.1984). Upon motion of the United States Trustee to amend findings, an amended decision was issued on February 8, 1985, which clarified, supplemented and reaffirmed our holding that fees to the standing Chapter 13 trustee are judicially reviewable. In re Sousa, 46 B.R. 343 (Bankr.D.R.1.1985).1 The trustee was invited therein to “submit an application and itemized accounting of his time and effort in support of the reasonable value of his services,” Id. at 347, and he did so. After reviewing the documentation, and based on our independent recollection of all that had happened in this case, it was clear that the $1,900 then thought to be remaining in the Sousa account would be inadequate to fully compensate the trustee. Accordingly, we awarded him the entire balance, without determining the reasonable value of his services, since there were not sufficient assets to pay a reasonable fee in any event.

On November 27, 1985, the trustee filed a motion requesting reconsideration of the June 20 fee award, based on an accounting dated November 27, 1985 which showed $4,051.66 in the Sousa account. The trustee conceded that the earlier balance he had provided to the Court, $1901.22 {see trustee’s letter dated June 3, 1985), was incorrect, through clerical error. Memorandum in Support of Trustee’s Motion for Reconsideration of Fees. The debtors objected to the trustee’s request for additional compensation, and an acrimonious hearing was held on December 23, 1985. After considering the arguments of counsel, and considering for the first time the issue of reasonable compensation, an order was entered on January 14, 1986, awarding the trustee an additional $3,000. It is that order, which the debtors have appealed, to which these findings of fact and conclusions of law apply.2

[107]*107The shortage of guidance or precedent regarding the standards to be used in awarding compensation to a standing Chapter 13 trustee in a pilot jurisdiction, on other than the statutory basis, does not persuade us to alter our prior holding in In re Sousa, supra,3 although we acknowledge that we are proceeding in a gray area. Further obscuring matters is the fact that the trustee (understandably) has not been keeping contemporaneous time records for each Chapter 13 case. See trustee’s letter dated April 23, 1985.

Where objections are raised to the standing Chapter 13 trustee’s fees, or as is often the case, the Court decides, sua sponte, to initiate a review, the central inquiry should, as always, be the reasonable value of the services in question. See Foster v. Heitkamp (In re Foster), 670 F.2d 478, 491-493 (5th Cir.1982) (ten percent fee is a maximum; nothing in Code prevents court from making adjustment on a fair and equitable standard). Since the majority of services performed by the trustee in this case were more legal in nature than administrative, as should be evident below, we think it appropriate to consider, where applicable, the factors 4 for awarding compensation discussed in King v. Greenblatt, 560 F.2d 1024 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), as well as the “lodestar”5 approach adopted by the First Circuit in Furtado v. Bishop, 635 F.2d 915 (1980), Because of the lack of contemporaneous time records, however, we do not approach the question here with the same requirement for detail as would be appropriate in the context of a typical application for attorneys’ fees.

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62 B.R. 398 (D. Rhode Island, 1986)

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Bluebook (online)
61 B.R. 105, 1986 Bankr. LEXIS 6146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sousa-rid-1986.