In re Wright

509 B.R. 250, 2014 WL 1689045, 2014 Bankr. LEXIS 1979
CourtUnited States Bankruptcy Court, D. Arizona
DecidedMarch 31, 2014
DocketNo. 2:09-bk-32244-SSC
StatusPublished

This text of 509 B.R. 250 (In re Wright) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wright, 509 B.R. 250, 2014 WL 1689045, 2014 Bankr. LEXIS 1979 (Ark. 2014).

Opinion

DECISION ON DISCHARGEABILITY OF POST-CONFIRMATION DEBT

SARAH SHARER CURLEY, Bankruptcy Judge.

I. INTRODUCTION

This matter comes before the Court on a “Motion for Order Establishing that Country Mutual’s Claim for Post-Effective Date Attorneys’ Fees is Not Subject to Being Discharged Under Debtor’s Plan” (the “Motion”) filed on October 31, 2013 by Country Mutual Insurance Company (“Country”). Timothy Ray Wright (“Debt- or” or ‘Wright”) filed a Response on November 18, 2013, and Country filed a Reply on November 27, 2013. The Court held a hearing on the matter on December 3, 2013, and took the matter under advisement at that time.

In this Memorandum Decision, the Court has set forth its findings of fact and conclusions of law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. The issues addressed herein constitute a core proceeding over which this Court has jurisdiction. 28 U.S.C. §§ 1334(b) and 157(b) (West 2013).

II. FACTUAL BACKGROUND

The Debtor filed his Chapter 11 petition on December 14, 2009. Prior to the petition date, on or about January 23, 2009, Wright filed a lawsuit against Country and others in the Maricopa County Superior Court, CV2009-002285 (the “State Court Lawsuit”), arising out of claims for damages and a turnover of insurance proceeds under Policy No. A02K6384937 for damage resulting from a fire on January 25, 2008, at the residence located at 9121 N. 69th Street, Paradise Valley.

On May 21, 2010, Country filed its original Proof of Claim (“POC”) with this Court, asserting a claim for attorneys’ fees and costs incurred in the State Court Lawsuit in the amount of $28,41.69.1 Country filed an amended Proof of Claim (“Amend[252]*252ed POC”) in the amount of $104,992.09 on November 3, 2011, revising its claim for attorneys’ fees and costs incurred, and continuing to incur, in the State Court Lawsuit.2 Country’s claim was contingent on Country prevailing in the State Court Lawsuit, and obtaining an order or judgment from the state court awarding Country its attorneys’ fees and costs. An attachment to both the POC and Amended POC states, in pertinent part, as follows: “By filing this claim Country is not waiving and hereby reserves any and all rights, remedies and arguments it may have that any fees and costs incurred post-petition are not subject to discharge. See, e.g., In re Ybarra, 424 F.3d 1018 (9th Cir.2005).”3

The Debtor filed an Objection to Country’s claim on January 25, 2012, and Country filed a Response on February 8, 2012. Thereafter the parties filed a Stipulation resolving the Debtor’s objection to Country’s proof of claim on March 16, 2012.4 The Stipulation was approved by the Court on April 12, 2012.5 The relevant portion of the Stipulation, for purposes of this dispute, provides as follows:

C. The Claim For Post-Confirmation Fees And Costs
15.Country asserts that any award it obtains for attorneys’ fees and costs it incurs following the Effective Date (the “Post-Confirmation Fee Award”) should not be included as part of its Remaining Fee Award and treated as an Allowed Class 3 General Unsecured Claim, but instead is a post-bankruptcy claim that is not subject to discharge under the Plan, and it shall be fully due and owing from Debtor over and above any payments to be made under the Plan. Debt- or asserts that any such Post-Confirmation Fee Award should be included as part of Country’s Remaining Fee Award and treated accordingly.
16. For purposes of this Stipulation, the parties agree that this issue will not be decided unless and until the a Post-Confirmation Fee Award is entered in the State Court Litigation, and further agree that (i) Country reserves all rights, claims and arguments it has that any such Post-Confirmation Fee Award is not subject to discharge under the Plan, and (ii) Debtor reserves all rights, claims and arguments that any such Post-Confirmation Fee Award is subject to discharge under the Plan.
17. If there is a Post-Confirmation Fee Award, and Wright prevails on its argument that such Award is subject to discharge, then the parties agree that (i) the Award shall be treated and paid as part of Country’s Allowed Class 3 General Unsecured Claim discussed above, and (ii) if the existing Unsecured Retained Funds are not sufficient to cover this additional Award, then Wright shall recalculate the pro rata shares due to the holders of Allowed Class 3 Claims and shall first pay a “make-up” payment to Country at the next Quarterly Distribution prior to making payment to the other holders of Allowed Class 3 Claims in an amount necessary to pay Country its pro rata share for said Post-Confirmation Fee Award.6

The Court entered an order confirming the Debtor’s Plan of Reorganization on May 17, 2012. The Plan’s Effective Date was June 1, 2012 (the “Effective Date”). [253]*253The parties continued to litigate the State Court Lawsuit during the course of these bankruptcy proceedings. On June 24, 2013, the state court entered a judgment in favor of Country and against Wright, awarding Country (among other things), Country’s attorneys’ fees and costs up through June 1, 2012 (the Plan’s Effective Date) in the amount of $139,570.03 ($133,-459.60 in fees and $6,110.43 in costs), and awarding Country its attorneys’ fees and costs from and after the Effective Date (the “Post-Confirmation Fee Award”) in the amount of $145,545.26 ($134,558 in fees and $10,987.26 in costs).7 The parties agree that the issue to be addressed is whether the Post-Confirmation Fee Award is subject to being discharged in this case.

III. DISCUSSION

Country argues that the March 16, 2012 Stipulation between the parties specifically left open the issue of whether any post-confirmation fees and costs awarded to Country in the State Court Lawsuit would be subject to discharge in the bankruptcy case. Country requests that the Court enter an order holding that the post-effective date fees and costs are not subject to discharge. According to Country, Wright chose to pursue his claims against Country following the confirmation of the Plan, and is, therefore, personally responsible for the Post-Confirmation Fee Award (fees and costs incurred by Country after the Plan’s Effective Date).

The Debtor makes two arguments. First, Wright argues that the motion is time-barred because Country failed to file an objection to the Debtor’s discharge by the November 29, 2011 deadline set forth in the Court Order dated October 13, 2011.8 According to Wright, as of the Stipulation between the parties, Country had already missed the deadline and had lost its right to object to the dischargeability of the post-effective-date fees and costs. During oral argument, counsel for the Debtor conflated the argument as to whether the Debtor should receive a discharge with an argument that Country’s debt should not be excepted from discharge under 11 U.S.C. § 523 (West 2013).

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Bluebook (online)
509 B.R. 250, 2014 WL 1689045, 2014 Bankr. LEXIS 1979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wright-arb-2014.