In re Volador Equity/Income Fund '86-'87

131 B.R. 739, 1991 Bankr. LEXIS 1342, 1991 WL 185114
CourtDistrict Court, W.D. Oklahoma
DecidedJune 17, 1991
DocketBankruptcy No. BK-89-5060-BH
StatusPublished
Cited by2 cases

This text of 131 B.R. 739 (In re Volador Equity/Income Fund '86-'87) is published on Counsel Stack Legal Research, covering District 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 Volador Equity/Income Fund '86-'87, 131 B.R. 739, 1991 Bankr. LEXIS 1342, 1991 WL 185114 (W.D. Okla. 1991).

Opinion

ORDER DENYING THE TRUSTEE’S REQUEST FOR COMPENSATION

RICHARD L. BOHANON, Chief Judge.

The issue presented is whether the trustee, Kenneth L. Spears, is entitled to a fee in connection with this case and, if so, the amount that ought to be allowed. The holder of a secured claim, Western Farm Bureau Life Insurance Company, and numerous holders of unsecured claims object to any allowance to him for compensation.

The facts are undisputed and show that the debtor possessed apartment complexes in Oklahoma City and Phoenix when an involuntary petition was filed against it. Soon afterwards the trustee was appointed,1 and he operated the apartments but never proposed a plan of reorganization nor filed a disclosure statement. The Phoenix property was abandoned and as-sumedly foreclosed by the holder of the secured claim. At this time the only asset of the estate is some $10,000 which results from unclaimed security deposits left behind by former tenants of the apartments.

[740]*740The trustee employed a manager for the Oklahoma City apartments who has been paid his monthly management fee and a $5,200 commission resulting from the sale of the complex.2

After nine months the trustee noticed the Oklahoma City apartments for sale pursuant to § 363 of the Code. He did not obtain an appraisal of the apartment complex but knew that Western was owed in excess of $700,000 on its note secured by the first mortgage.

Eventually the trustee obtained an offer for $650,000 through the efforts of his property manager-broker and entered into a contract for this amount. The buyer failed to close on the date agreed and the trustee sued.3 After the trial commenced the buyer paid the purchase price which resulted in net receipts to the trustee of approximately $576,000 after closing costs, payment of property taxes, the commission and other adjustments. This sum has been ordered paid to Western to apply on its $700,000 note.

The trustee now claims a fee of some $19,980 based upon disbursements of approximately $660,000. The sum requested is the maximum allowable under 11 U.S.C. § 326. Virtually the entire fee request is calculated upon the proceeds received from the sale of the apartments in which the estate had no interest.

Though the title to the trustee’s request states that it also seeks reimbursement of expenses, no request for reimbursement is made nor is any information concerning expenses provided.

The objectors first contend that no fee is allowable since the property sold was fully secured. It is abundantly clear from the language of § 326, however, that trustees may be compensated for disbursements made to holders of secured claims. “This provision was added for the purpose of insuring to trustees compensation commensurate with the trustees’ services. Secured claims and those entitled to priority constitute a large proportion of the average estate; their administration frequently presents complex issues.... The crucial test seems to be, however, whether or not the particular property or fund has been justifiably administered by the court, or whether or not the trustee has properly performed services in relation thereto.” 2 Collier on Bankruptcy 11326.01[4][b] at pp. 326-23, 326-24 (L. King 15th ed. 1991) (emphasis supplied).

It is necessary to remember that § 326 provides the maximum fees the court may allow to a trustee and in all cases the allowance must be found to be reasonable. “[T]he trustee is never entitled to maximum compensation as a matter of right and the amount of compensation, within the maximum rate, is subject to the discretion of the court in light of the reasonable value of the services.” 2 Collier, supra, 11326.01[1] at p. 326-6.

It is thus necessary to examine what the trustee did, and did not do, in administering the estate and determine from that what, if any, fee is reasonable which may not exceed the $19,980 maximum he has requested.

While the trustee offered no evidence in support of his request, some facts become obvious from a review of the file and statements made at the hearing.

Section 1106 provides the starting point and details the duties of a trustee in a case under chapter 11. It first states that he or she must perform some specified duties listed in § 704. Generally, these include accounting for all property received; making an examination of proofs of claims; furnishing information requested by creditors; filing the reports required by the United States Trustee; and making the final report. The trustee apparently complied with some of these requirements but did not file the reports required by the United States Trustee in an operating case. He merely filed the reports prepared [741]*741monthly by the Oklahoma City property manager which, according to the objecting creditors, “contain a variety of indecipherable computerized spread sheets”. There were no reports made for the Arizona property.

The requirements of § 1106 then require that the trustee make the investigation of the assets and business of the debtor. While there was no evidence of the trustee’s efforts, his time records were submitted in a supplement to the fee request. They do not indicate any efforts aimed at a reorganization or any negotiations or discussions with this goal in mind. Nor do they indicate any investigation concerning whether the debtor may have made any avoidable transfers in the period preceding the filing. An investigation of the desirability of continuing the business is a prime consideration of § 1106(a)(3), and it appears that a minimal attempt in this regard would have disclosed that since the estate had no assets, continuation of the business of operating the two apartments was futile.

Section 1106(a)(5) then requires that the trustee, as soon as practicable, file a plan or report of why a plan will not be filed together with a recommendation concerning the case. Neither the plan nor the report nor the recommendation were filed in this case.

Much of the trustee’s time was spent seeking to enforce the contract with the buyer arranged by the broker. Initially it is difficult to comprehend why the trustee pursued this effort at all once he knew that the highest bid was at least $50,000 less than the amount of the secured note. As indicated previously, no appraisal was obtained concerning the value of the apartments but once the contract was made the trustee plainly knew that the transaction would contain nothing for the estate. The obvious question is why the trustee did not abandon the property when he saw that it would not realize enough to pay Western’s note? This question is not answered.

The trustee had a property manager-broker whose fees have been allowed, albeit in a reduced amount, and he is the one who managed the apartments, located the buyer, and arranged the sale. Additionally the trustee had a lawyer, whose fees and expenses also have been allowed. It was the attorney for the trustee who conducted the lawsuit against the buyer until he was substituted by Western’s attorney. These lawyers all have been compensated by Western, and it is their efforts that resulted in the contract of sale finally closing. It is difficult to see that the trustee made any essential contribution towards this effort.

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Cite This Page — Counsel Stack

Bluebook (online)
131 B.R. 739, 1991 Bankr. LEXIS 1342, 1991 WL 185114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-volador-equityincome-fund-86-87-okwd-1991.