Matter of Ferkauf, Inc.

42 B.R. 852
CourtUnited States Bankruptcy Court, S.D. New York
DecidedSeptember 25, 1984
Docket19-10251
StatusPublished
Cited by20 cases

This text of 42 B.R. 852 (Matter of Ferkauf, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Ferkauf, Inc., 42 B.R. 852 (N.Y. 1984).

Opinion

*853 DECISION & ORDER

HOWARD C. BUSCHMAN, III, Bankruptcy Judge.

Ferkauf, Inc. (“Ferkauf” or “Debtor”), a member firm of the New York Stock Exchange (“NYSE” or “Exchange”), was notified in March of 1974 that it was in violation of the Exchange’s minimum capital requirements and would be obliged to terminate its membership as of the close of business March 29, 1974. As a result of this notice, Ferkauf immediately initiated discussions with another NYSE member, J.H. Kern & Co. (“Kern”), concerning the possible acquisition of certain Ferkauf assets by Kern. After a tentative agreement reached by the two brokerage houses was abandoned by Kern, a petition was filed in this Court on August 21, 1974, pursuant to § 59b of the Bankruptcy Act commencing an involuntary proceeding for the liquidation of Ferkauf’s assets. By order of this Court, Ferkauf was adjudicated bankrupt September 5, 1974.

I

Presently, nearly one decade after the commencement of this action, we are asked to undertake the unsavory task of reviewing the fee applications of the trustee, Allan Feingertz and his counsel, Alex Rosen (1974-1976) and Paul Krohn (1976 to present). No creditors have filed objections to these fee applications; this Court nevertheless is duty bound thoroughly to review fee applications, sua sponte, in order to determine whether the compensation requested is reasonable. York International Building, Inc. v. Chaney, 527 F.2d 1061, 1077 (9th Cir.1975). In re Aminex Corp., 15 B.R. 356, 360, 5 C.B.C.2d 155 (Bankr.S.D.N.Y.1981). Further, this Court retains broad discretion in awarding appropriate fees in matters before it. Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.1977) cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); In re Auto-train Corp, 15 B.R. 160, 161 (Bankr.D.C.1981). Such discretion, however, is not personal in nature but is of general application and formed by appropriate precedent and procedure. Matter of First Colonial Corp. of America, 544 F.2d at 1298 (5th Cir.1977); Massachusetts Life Insurance Co. v. Brock, 405 *854 F.2d 429, 432 (5th Cir.1968) cert. denied, 395 U.S. 906, 89 S.Ct. 1748, 23 L.Ed.2d 220 (1969). 1 Aware of these responsibilities, we proceed.

II

The Fee Application of Current Counsel to the Trustee

A.

Pursuant to an order of this Court issued August 13, 1976, Paul Krohn replaced Alex Rosen as general counsel for the trustee. As such, Krohn consequently carries the burden of establishing the entitlement to and the reasonableness of a professional fee from the assets of the Debtor. York International Building, Inc., 527 F.2d at 1077; In re Crutcher Transfer Line, Inc., 20 B.R. 705, 710 (Bankr.W.D.Ky.1982). Krohn has attempted to satisfy that burden by presenting this Court with an application for allowance which includes a time schedule itemizing those hours spent by both Krohn and David Helfant, of Counsel, accompanied by descriptions of the services performed. See, In re Hudson & Manhattan R.R., 339 F.2d 114, 115 (2d Cir.1964); see also, In the Matter of Beverly Crest Convalescent Hospital, Inc., 548 F.2d 817, 820 (9th Cir.1976); In re Meade Land & Development Co., Inc., 527 F.2d 280, 284 (3rd Cir.1975).

While the hours logged by an attorney are highly material to the derivation of a reasonable fee, the time spent on a case by counsel to a trustee in bankruptcy is not, and should not be, “assigned the paramount role in our fee determinations.” In re Aminex Corp., 15 B.R. 356, 361 (Bankr.S.D.N.Y.1981); see also, In re Borgenicht, 470 F.2d 283, 284 (2d Cir.1972). Counsel for the trustee should only spend time on those reasonable and necessary functions which preserve and benefit the estate. See, In re Crutcher Transfer Line, Inc., 20 B.R. 705, 710 (Bankr.W.D.Ky.1982). Consequently, the result which counsel is able to achieve as measured by the value of the product to the creditors and the estate, is a primary focus of this Court’s review. Matter of J.J. Bradley & Co. Inc., 6 B.R. 529, 6 B.C.D. 1109, 2 C.B. C.2d 1245, 1257 (Bankr.E.D.N.Y.1980).

Considering the time spent as indicated on the summary, and the value of the results obtained by general counsel in this case, we find that Krohn’s work was characterized by delay and nonproductivity. The Sixth Circuit has observed:

While a bankruptcy trustee is undoubtedly charged with a duty of preserving property which comes into his custody ... he is also charged with the duty of expeditiously liquidating the estate and avoiding all unreasonable expense either in its preservation or distribution.

Rife v. Ruble, 107 F.2d 84, 86 (6th Cir. 1939). Identical standards apply to counsel of the trustee who, upon accepting the engagement, shoulders a duty to his client, to the court and to the creditors of the estate to expedite both the liquidation of the debtor’s assets and the disbursement of the proceeds to the creditors. See, Herzog, Fees and Allowances in Bankruptcy, 36 Conn.B.J. 374 (1962); 2 Collier on Bankruptcy, 330.05, 330-26 (15th ed. 1981). Krohn and Helfant have failed to persuade this Court that they have adequately fulfilled that duty.

B.

Initially, we should note that trustee’s counsel in this case was not entirely non *855 productive. Rather, upon inheritance of this proceeding from Rosen in mid-1977, applicants were able to successfully complete several actions of significant value to the estate which had been instituted previously. First, after successfully negotiating a settlement with Ferkauf's former counsel, Kleinberg, Kaplan, Wolff & Cohen, which arranged for essential documents concerning Ferkauf’s financial status to be released to the trustee, 2 Krohn took over a promising litigation against United Auto Auctions Systems, Inc. (“UAA”) claiming securities law violations and common law fraud in connection with the public offering of UAA’s shares pursuant to Regulation A (17 C.F.R. § 230.2 (1956)) by Ferkauf as underwriter. Prior to the effective date of that public offering, UAA’s license to conduct its auctioneering business had been revoked and the issuer had failed to disclose this to Ferkauf before the offering.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michelle Corbin Hillman
N.D. New York, 2024
In Re Kieffer
306 B.R. 197 (N.D. Ohio, 2004)
In Re Poseidon Pools of America
216 B.R. 98 (E.D. New York, 1997)
In Re Keene Corp.
205 B.R. 690 (S.D. New York, 1997)
In Re Bennett Funding Group, Inc.
213 B.R. 234 (N.D. New York, 1997)
In Re Poseidon Pools of America, Inc.
180 B.R. 718 (E.D. New York, 1995)
In Re Dorn
167 B.R. 860 (S.D. Ohio, 1994)
In Re Griggs
168 B.R. 174 (S.D. Ohio, 1994)
Bodine v. Federal Kemper Life Assurance Co.
138 B.R. 88 (M.D. Florida, 1992)
In Re Summit Ventures, Inc.
135 B.R. 478 (D. Vermont, 1991)
In Re Pettibone Corp.
74 B.R. 293 (N.D. Illinois, 1987)
In Re Wildman
72 B.R. 700 (N.D. Illinois, 1987)
In Re S.T.N. Enterprises, Inc.
70 B.R. 823 (D. Vermont, 1987)
In Re Esar Ventures
62 B.R. 204 (D. Hawaii, 1986)
In re Anderson
62 B.R. 206 (D. Hawaii, 1986)
In Re Ferkauf, Inc.
56 B.R. 774 (S.D. New York, 1985)
In Re Neibart Associates Press, Inc.
58 B.R. 212 (E.D. New York, 1985)
Matter of Stable Mews Associates
49 B.R. 395 (S.D. New York, 1985)
In Re Jensen-Farley Pictures, Inc.
47 B.R. 557 (D. Utah, 1985)
In Re Kam Kuo Seafood Corp.
42 B.R. 558 (S.D. New York, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
42 B.R. 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-ferkauf-inc-nysb-1984.