In re Vastadore

516 B.R. 772, 2014 Bankr. LEXIS 4073, 2014 WL 4749076
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedSeptember 24, 2014
DocketBankruptcy No. 09-29225JAD
StatusPublished

This text of 516 B.R. 772 (In re Vastadore) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Vastadore, 516 B.R. 772, 2014 Bankr. LEXIS 4073, 2014 WL 4749076 (Pa. 2014).

Opinion

MEMORANDUM OPINION

JEFFERY A. DELLER, Chief Judge.

The matter before the Court is the proper disposition of funds presently held by the Chapter 13 Trustee (as a result of early termination of the of the Debtors’ Chapter 13 plan). The Debtors have requested that the funds on hand be refunded to them. The Trustee has opposed such a request.

I.

This case has had somewhat of a tortured history. In the years leading up to this case, the Debtors had been in bankruptcy in two prior cases. In 2003, the Debtors hired attorney Jason Mazzei, Esq., who filed a chapter 7 case on their behalf and obtained a discharge. In 2008, the Debtors hired different counsel (attorney David Colecchia, Esq.) and commenced a chapter 13 case. In that case, the Debtors’ relationship with prior counsel deteriorated. The end result was that the 2008 case was dismissed. The Debtors then re-retained attorney Mazzei and commenced the instant chapter 13 case on December 16, 2009.

Over the course of this case, the Debtors filed a total six (6) Chapter 13 plans, which were all confirmed by orders of the Court. The primary purpose of the plans were to provide for the cure and reinstatement of the Debtors’ mortgage. Secondary purposes behind the plans were to provide for other creditors, such as the creditor holding a lien on the Debtors’ motor vehicle, counsel fees and an unknown or uncertain sum for unsecured creditors, if any.

The record further reflects that the Debtors participated in the Court’s loss mitigation program (“LMP”), whereby the Debtors obtained a favorable mortgage modification at or near the conclusion of this case; and the Debtors successfully avoided their second mortgage, resulting in such claim being deemed wholly unsecured.

Fifty-one (51) months into this case, as a result of the successful mortgage modification and the avoidance of the second mortgage obligation, the Debtors were authorized to conclude their most recent iteration of their Chapter 13 Plan. The early conclusion of the plan, however, was not done without much consternation on the part of the Debtors.

The record reflects that the Debtors wrote numerous letters complaining about the level of services provided by counsel. The complaints of the Debtors included allegations that delays in the case were occasioned by counsel giving the Debtors the “run around,” that counsel would not return phone calls, or that counsel was “stalling & making excuses” for the delays associated with the LMP process.1

[774]*774A fair reading of the record, however, is that much of the misunderstanding between the Debtors and counsel in this regard is due to a lack of communication between counsel on the one hand, and the Debtors on the other. The Court reaches this conclusion because it appears that (a) much of the delays in the LMP process were due to actions or inactions of the creditor at issue and not attorney Mazzei or his office, (b) calls or letters from the Debtors to counsel either went unanswered or return communications were delayed, and (c) when calls were taken by counsel’s office, they were received and/or returned by non-lawyer staff so that the Debtors, at times, did not have the benefit of advice from a lawyer regarding the bankruptcy and/or LMP process at moments when it would have been beneficial to the Debtors to be apprised as such.

The communication problem in this case was further exacerbated by the fact that not one person from Mr. Mazzei’s law office handled this case from start to finish. Rather, it was admitted by Mr. Mazzei that different personnel, including non-lawyer personnel, handled different aspects of the case. For example, one person might have prepared the schedules, while another person handled loss mitigation, and yet another person might have been responsible for plan amendments or other similar events. It therefore appears to the Court that the proverbial “right hand did not necessarily know what the left hand was doing.”

Of course, the Court is mindful that counsel does operate a busy law office. However, it appears that the breakdown of communication is what has caused much of the consternation and frustration on the part of the Debtors. Had the level of attorney-client communication been better, more involved, and more consistent, perhaps the level of acrimony and dissatisfaction between the parties would not have been as great.

The complaints of the Debtors also included the fact that, without the express consent of the Debtors, counsel caused the Debtors’ wages to be attached at a higher amount than what was required.2 In this regard, the record reflects that the Debtors were ultimately approved for a loan modification, that reduced the Debtors’ payment obligation to their mortgagee. However, inexplicably, counsel filed an amended plan that increased (rather than decreased) the monthly payment obligations of the Debtors under their Chapter 13 plan. Counsel also filed an amended wage attachment providing for the attachment of wages at the higher sums, thereby causing the Debtors to write letters to the Court complaining, yet again, about legal counsel and the progress of this case.

After these complaints, the Court held a number of hearings and afforded the Debtors, their counsel, and the Chapter 13 Trustee an opportunity to be heard. The Court then vacated the higher wage attachment order and returned the Debtors’ to the status quo ante, and counsel filed what became the sixth Chapter 13 plan in the case (which reduced the Debtors’ payment obligations and reduced the plan term to fifty-one (51) months). The Court also authorized the Chapter 13 Trustee to refund (the “Refund”) to the Debtors $2,198.31 in payments that the Debtors had involuntarily made, but were subject [775]*775to as a result of the ultra vires wage attachment submitted by counsel.

As a result of these hearings, and with the consent of the Chapter 18 Trustee, the Court was persuaded that the sixth plan should be confirmed on April 25, 2014, that the Debtors had met their plan base and goals, and that a finding that the Debtors had completed their sixth plan as “paid in” was appropriate. The case did not end, however, because after payment of the Refund, and above and beyond the payment to secured creditors and other priority creditors, the Chapter 13 Trustee is holding $3,754.12 in funds on hand (the “Funds on Hand”). It is these funds that the Debtors have requested be returned to the Debtors, and of which the Chapter 13 Trustee opposes.

II.

Having canvassed the record in this ease, and reviewing the accounting submitted by the Chapter 13 Trustee, the Court determines that the Chapter 13 Trustee’s objection should be sustained and that the remaining Funds on Hand should be distributed pro rata to the unsecured creditors in accordance with the Chapter 13 Trustee’s Amended Notice of Claims Filed and Intention to Pay Claims (filed at Docket No. 192).

The Court reaches this conclusion because the most recent iteration of the confirmed plan in this case states, in relevant part, the following:

Debtor(s) UNDERSTAND that a MINIMUM of $0.00 shall be paid to unsecured, non-priority creditors in order to comply with the liquidation alternative test for confirmation. The total pool of funds estimated above is NOT the MAXIMUM amount payable to this class of creditors.

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Cite This Page — Counsel Stack

Bluebook (online)
516 B.R. 772, 2014 Bankr. LEXIS 4073, 2014 WL 4749076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vastadore-pawb-2014.