Margulies Law Firm, APLC v. Placide (In Re Placide)

459 B.R. 64, 2011 WL 5341295
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedOctober 5, 2011
DocketBAP No. CC-10-1466-KiSaPa. Bankruptcy No. LA 10-36656 AA
StatusPublished
Cited by26 cases

This text of 459 B.R. 64 (Margulies Law Firm, APLC v. Placide (In Re Placide)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Margulies Law Firm, APLC v. Placide (In Re Placide), 459 B.R. 64, 2011 WL 5341295 (bap9 2011).

Opinion

*67 OPINION

KIRSCHER, Bankruptcy Judge.

Appellant, The Margulies Law Firm, APLC (f/k/a Law Offices of Craig G. Mar-gulies, APLC) (“MLF”), appeals an order from the bankruptcy court sustaining ap-pellees’ objection to MLF’s claim for pre-petition attorney’s fees and costs MLF incurred representing appellees against chapter 7 2 debtor, Lamar Edison (“Edison”). The bankruptcy court found that MLF’s claim for $80,869.33 was unreasonable, and it disallowed the claim in its entirety. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Placides’s suit against Edison.

In 2004, appellees, Ontson F. Placide and Lori A. Placide (“Placides”), entered into a contract with Edison for construction and remodeling services on their home. The relationship soured, and in February 2005 Placides sued Edison in state court for breach of contract and various other claims. Before trial, Placides entered into a stipulation with Edison, agreeing to settle the matter for $82,000, plus attorney’s fees and costs should any be incurred to enforce the stipulation. Edison soon defaulted under the stipulation, which entitled Placides to a judgment of $82,000 plus attorney’s fees and/or costs. Edison filed a chapter 7 petition for relief on November 21, 2006, before the judgment could be entered.

In February 2007, Placides retained MLF to file an adversary proceeding against Edison. According to the terms of the Engagement Letter, dated and signed by Placides on February 13, 2007, Placides agreed to pay all of MLF’s fees and costs, regardless of the outcome of the case. Craig Margulies (“Margulies’O, the firm’s sole attorney, charged an hourly rate of $300. Payments were due upon receipt of invoice and, in the absence of any written objection by Placides within seven days of receipt, Placides were deemed to have accepted and acknowledged the invoice as correct for the relevant period. The Engagement Letter states that it consists of the “entire agreement” between Placides and MLF.

In the adversary complaint filed on February 16, 2007, Placides sought to except their debt from Edison’s discharge under sections 523(a)(2)(A), (a)(4), and (a)(6), and to deny Edison’s discharge pursuant to sections 727(a)(2), (a)(4)(A), (a)(5), and (a)(7). In connection with their claims against Edison, Placides also sued Edison’s non-debtor spouse, Viola, in order to attempt to recover an alleged fraudulent transfer of Edison’s interest in their marital residence, which Placides believed had significant equity. 3 As Edison’s largest unsecured creditor (holding $82,000 out of the $85,128 of debt listed in Edison’s Schedule F), Placides stood to gain from any recovery by the estate of the residence, subject to administrative costs and a $6,000 priority IRS claim.

Timothy Yoo, the chapter 7 trustee in Edison’s case (“Trustee”), was named as a *68 co-plaintiff in the adversary proceeding. Trustee later filed a First Amended Application to employ MLF as his special bankruptcy counsel in the Edison/Viola adversary proceeding. The application stated that because the estate had no assets available for litigation expenses, Placides, pursuant to the Engagement Letter with MLF, would be paying all fees and costs incurred. The application also provided that MLF would receive a 40% contingency fee on all sums recovered for the estate. An order approving MLF’s employment was entered on December 6, 2007. Placides were served a copy of the employment order.

A two-day trial against Edison and Viola took place on February 7 and 8, 2008. 4 The bankruptcy court entered a judgment on May 9, 2008. Plaintiffs succeeded in denying Edison’s discharge under sections 727(a)(4)(A) and (D), including Placides’s debt of $82,000. However, the court found that the residence had been transmuted from community property to Viola’s separate property. Hence, the estate recovered nothing. Since Edison was denied a discharge, Placides opted to not pursue their nondischargeability claims against him.

For the suit against Edison and Viola, MLF’s fees and costs totaled $124,161.80 ($106,631.25 in fees and $17,530.55 in costs). The vast majority of the fees were incurred by February 2008, which includes MLF’s time billed for trial. Until January 2008, Placides had made regular payments to MLF totaling approximately $39,000. After that, Placides’s payments to MLF became sporadic. Between March and July 2008, Placides made four $5,000 payments by check to MLF, but they later stopped payment on two of the checks. All payments ceased after July 2008. Ultimately, Placides paid MLF $49,123.96. 5 About 18 months later, in January 2010, MLF sent Placides a final demand letter attempting to collect the outstanding balance, to no avail. In May 2010, MLF sued Placides in state court for the unpaid fees and costs. MLF incurred an additional $6,075.00 in attorney’s fees and costs for prosecuting the collection action. MLF’s collection action was stayed once Placides filed a chapter 13 petition for relief on June 29, 2010.

B. MLF’s proof of claim.

MLF timely filed its proof of claim in Placides’s bankruptcy case for the unpaid attorney’s fees and costs. MLF asserted an unsecured claim for $80,869.33 ($65,-061.80 in principal, plus $9,732.53 interest to date, plus $6,075.00 in attorney’s fees and costs incurred for the collection action).

Placides objected to MLF’s claim in its entirety as grossly unreasonable under section 502(b)(4). Specifically, Placides contended that MLF’s total billed fees and costs of $124,161.80 were grossly disproportionate to their potential $82,000 recovery from Edison, and MLF was not entitled to more than one third, or $27,000. As such, contended Placides, the $49,000 already paid to MLF was more than sufficient to satisfy its claim. While Placides did not contest the enforceability of the Engagement Letter, they claimed that Margulies orally represented to them that Trustee would absorb one-half of MLF’s attorney’s fees and costs. Placides also asserted that, just before trial, Margulies *69 informed them that trial could cost them up to approximately $15,000, at which point they agreed to proceed. Placides further argued that MLF’s collection action fees were not recoverable under California law, and that MLF’s interest figure was unsupported.

MLF opposed Placides’s objection, arguing that its claim should be allowed in its entirety. According to MLF, Placides knew Edison’s estate had no assets, which is why they pursued Viola and the residence; it was the only way they could get paid. Yet, despite the risks, Placides wished to continue. MLF rejected Plac-ides’s allegation that Trustee was liable for half of the fees and costs. Per the terms of the Engagement Letter, Placides knew they were liable for all fees and costs whether or not the residence became an asset of the estate. MLF further contended that it properly scaled its fees; they were not extravagant given the complexity of the adversary with two defendants and difficult family law issues. Plus, MLF obtained a judgment for Placides.

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Cite This Page — Counsel Stack

Bluebook (online)
459 B.R. 64, 2011 WL 5341295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margulies-law-firm-aplc-v-placide-in-re-placide-bap9-2011.