In re Yovtcheva

590 B.R. 307
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedSeptember 19, 2018
DocketBankruptcy No. 17-17779-AMC
StatusPublished
Cited by3 cases

This text of 590 B.R. 307 (In re Yovtcheva) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.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 Yovtcheva, 590 B.R. 307 (Pa. 2018).

Opinion

Ashely M. Chan, United States Bankruptcy Judge

I. INTRODUCTION

When Silvia Yovtcheva ("Debtor") became entitled to receive $250,000 from the *309life insurance policy of her ex-husband shortly after filing this case, Terry Dershaw, the Chapter 7 trustee ("Trustee"), was statutorily required to collect the proceeds from the policy and distribute them to the Debtor's creditors. Although the Trustee was permitted to retain counsel to assist him with the legal tasks associated with executing his statutory duties under § 704(a), a significant portion of the work performed by the Trustee's counsel was actually nonlegal work that should have been performed by the Trustee as part of his statutory duties. Given the clear impropriety of this, the Court will significantly reduce the fees of the Trustee's counsel and intends to closely scrutinize whether the Trustee is entitled to the maximum percentage of his commission under § 326(a) when the Trustee files his final report in this case.

II. FACTS AND PROCEDURAL HISTORY

On November 15, 2017, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code. Case No. 17-17779 ECF No. ("ECF") 1. On the same date, Terry Dershaw was appointed as the Trustee in this case. ECF 2. The Debtor disclosed that she was the beneficiary of a term life insurance policy ("Policy") on the life of her ex-husband on Schedule B. Schedule B ¶ 31. She also disclosed on her Statement of Financial Affairs ("SOFA") that her only source of income in 2017 was $12,672.00 from child support and $17,487.00 from disability payments. SOFA ¶ 5.

On December 13, 2017, the Trustee conducted the § 341 meeting of creditors ("Meeting"). On the same day, the Debtor amended her SOFA to disclose a debt consolidation case ("Litigation") which had been resolved in her favor prior to filing her case. ECF 11. She also amended: (1) Schedule B to reflect that she held $1,500 in a savings account related to proceeds from the Litigation and (2) Schedule C to fully exempt such proceeds. ECF 9, ECF 10. On December 14, 2017, the Trustee filed a report of no distribution ("Report") stating that there was no property available for distribution from the estate.

On January 23, 2018, the Debtor's ex-husband died. Trustee's Mot. for Turnover ("Mot.") ¶ 7. The Debtor promptly notified the Trustee of his death and, on January 30, 2018, the Trustee filed a praecipe to withdraw his Report and a notice to change the status of the case from a no-asset case to an asset case. ECF 13, ECF 14. The Trustee filed an application to retain Fox Rothschild LLP ("Fox") as counsel to represent the Trustee on January 31, 2018, which was ultimately approved by the Court on March 14, 2018. ECF 15, ECF 21. In the meantime, the Debtor amended her schedules to reflect her entitlement to receive, and exempt a small portion of, the $250,000 payable under the Policy. ECF 16, ECF 17.

Despite repeated attempts by the Debtor to obtain a copy of her ex-husband's death certificate ("Certificate"), she was unable to immediately obtain a copy of the Certificate, apparently because the marriage ended before his death. See Debtor's Obj. to Fee Appl. ("Debtor's Obj.") Ex. A, at 4. The Debtor was concerned about the delay in obtaining a copy of the Certificate, which was needed to make a claim under the Policy, because the survivor benefits that she began receiving from Social Security for her daughter after her ex-husband died were less than the child support payments that she had been receiving while he was alive, and she was accordingly struggling to pay her bills. Id. at 5. On March 6, 2018, the Debtor ultimately obtained the Certificate and sent it to Fox. Id. at 6-8.

*310On March 26, 2018, Edward DiDonato ("Counsel") from Fox sent a letter to Voya Life ("Voya"), the maker under the Policy, notifying it that: the insured under the Policy was deceased, the Debtor was the beneficiary under the Policy, and all proceeds payable under the Policy were property of the Debtor's bankruptcy estate. Mot. Ex. A. Counsel requested that Voya process the claim, but Voya refused to do so. See id.

On April 26, 2018, Counsel filed a Motion for Turnover Pursuant to 11 U.S.C. § 542 ("Motion") requesting that the Court direct Voya to turn over the proceeds of the Policy to the Trustee. Mot. 1, ECF 23. The Motion was a simple pleading, consisting of eleven paragraphs, and merely set forth the factual background leading up to the request. It did not contain any case law or legal discussion. The Motion was uncontested and, on May 30, 2018, the Court entered an order granting the Motion. ECF 33.

On July 2, 2018, Counsel filed an Application for Allowance of Compensation and Reimbursement of Expenses of Fox Rothschild LLP, Counsel to Trustee, for the Period January 31, 2018 through June 21, 2018 ("Application"). ECF 36. The Application sought reimbursement of fees in the amount of $18,625.00 and expenses in the amount of $14.02, and stated that Fox had "reviewed the Debtor's assets with the Trustee, investigated the life insurance benefits due the Estate, and prepared the necessary documents for turnover of the life insurance benefits." Counsel's App. 3. The Application also stated that the Trustee had approximately $260,000 on hand to pay claims totaling $82,000. Id.

Of the 29.2 hours billed by Fox in the Application, 24.7 hours were billed by Counsel at an hourly rate of between $660.00-$695.00. See Counsel's App. Ex. A. However, most of this time was spent performing nonlegal services. In fact, Counsel only spent 2.2 hours performing legal services in this case -- .5 hours drafting Fox's retention application and 1.7 hours drafting the Motion. See id. Counsel spent over 6 hours unsuccessfully trying to obtain a copy of the Certificate. See id. There were numerous entries billed by Counsel for: correspondence and calls to Voya, the Debtor, and Debtor's counsel regarding the Policy; review of claims and calls/correspondence with creditors; ministerial acts such as preparation of certificates of no objection; and review of the Debtor's financial management certificate, Counsel's retention order, and the discharge order. See id.

On July 13, 2018, the Debtor filed a pro se letter objection ("Objection") to the Application. ECF 37. The Debtor vehemently objected to the amount requested in the Application based upon her view that her case was not complex, there was no novelty involved in the representation of the Trustee, and no special legal expertise was needed to handle the case. Debtor's Obj. 11. In addition, the Debtor argued that Fox improperly seeks compensation for services that should have been performed by the Trustee as part of his statutory duties under § 704(a).

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Cite This Page — Counsel Stack

Bluebook (online)
590 B.R. 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-yovtcheva-paeb-2018.