McComb Financial, Inc. v. Webster (In re Webster)

573 B.R. 653
CourtUnited States Bankruptcy Court, S.D. Mississippi
DecidedJuly 7, 2017
DocketCASE NO. 15-03467-NPO; ADV. PROC. NO. 16-00013-NPO
StatusPublished

This text of 573 B.R. 653 (McComb Financial, Inc. v. Webster (In re Webster)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McComb Financial, Inc. v. Webster (In re Webster), 573 B.R. 653 (Miss. 2017).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ATTORNEY’S FEES

Neil P. Olack, United States Bankruptcy Judge

This matter came before the Court for hearing on June 20, 2017 (the “Hearing”), on the Motion for Attorney’s Fees (the “Motion”) (Adv. Dkt. 90)1 filed by Kenny C. Webster (“Kenny Webster”) and Helena M. Webster (“Helena Webster” or, together with Kenny Webster, the “Debtors”), the original defendants in the Adversary,2 and the Plaintiffs Response to Motion for Attorney’s Fees Dk # 90 (the “Response”) (Adv. Dkt. 93) filed by the plaintiff, McComb Financial, Inc. (“McComb Financial”). Also before the Court was the Affidavit (the “Affidavit”) (Adv. Dkt. 94) of Arnold D. Lee (“Lee”) filed by the Debtors. At the Hearing, Lee represented the Debtors and L. Jackson Lazarus (“Lazarus”) represented McComb Financial. Having fully considered the matter and being fully advised in the premises, the Court finds as follows:

Jurisdiction

The Court has jurisdiction over the parties to and the subject matter of the Adversary pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). Notice of the Motion was proper under the circumstances.

Facts

McComb Financial is a small finance company that makes consumer loans, usually for amounts less than $5,000.00 (Resp. at 2). On August 23, 2011, Helena Webster borrowed $3,802.34 from McComb Financial at an annual interest rate of 34.55% (Debtor’s Hr’g Ex. 1), followed by $5,332.00 on May 15, 2012, at a 34.65% annual rate of interest (Debtor Hr’g Ex. 2), $5,633.33 on July 8, 2013, at a 34.62% annual rate of interest (Debtors Hr’g Ex. 3), and $4,701.68 on August 19, 2014, at a 33.17% annual rate of interest (Debtors Hr’g Ex. 4). The collateral for each of these loans was a 1995 MAGNA Pole Trailer (the “Trailer”), which was titled solely in Helena Webster’s name (Adv. Dkt. 77 at 2, 7).3

I. Bankruptcy Case

After Helena Webster entered into the four (4) loan transactions as outlined above, the Debtors filed a joint voluntary [657]*657petition for relief pursuant to chapter 7 of the Bankruptcy Code on November 6,2015 (Bankr. Dkt. 1). In their statements and schedules (Bankr. Dkt. 3), the Debtors listed McComb Financial as an unsecured creditor with a claim in the amount of $12,792.00. (Bankr. Dkt. 3 at 14).4 After the chapter 7 panel trustee issued a report stating there was no property available for distribution from the estate over and above that exempted by law, the Debtors were granted a discharged under 11 U.S.C. § 727 on April 11, 2016. (Bankr. Dkt. 45). On March 6, 2016, prior to the discharge in the Bankruptcy Case, McComb Financial filed the Complaint to Declare Certain Debt Non-Dischargeable (the “Complaint”) (Adv. Dkt. 1). The subsequent discharge did not discharge the debt to McComb Financial pending the outcome of the Adversary.

II. Adversary

The Complaint named both Kenny Webster and Helena Webster as defendants and alleged that the Trailer had been intentionally destroyed and sold for scrap as early as 2009, before Helena Webster first pledged it as collateral. (Compl. at 2). McComb Financial alleged that it relied on Helena Webster’s representation “that she had valid and existing collateral” when it made the loans, that Helena Webster knew at the time that the representation was false and that she made the false representation with the intent of deceiving McComb Financial, and that it would not have made the loans had it known that Helena Webster did not actually possess the Trailer. (Id.). As such, McComb Financial requested that Helena Webster’s debt to McComb Financial in the amount of approximately $9,545.71, together with attorney’s fees, interest, and costs, be declared non-dischargeable under § 523(a)(2)(A) and (B), as to both. Helena Webster and Kenny Webster.5 (Id.). With the Court’s permission, McComb Financial filed the Amended Complaint on August 4, 2016, to add fraudulent conveyance as an additional count. McComb Financial did not allege any wrongdoing by Kenny Webster in the Complaint or in the Amended Complaint. On January 31, 2017, Kenny Webster filed the Defendant Kenny C. Webster, Jr.’s Motion to Dismiss (Adv. Dkt. 69), alleging that the Amended Complaint should be dismissed against him for failure to state -a claim for relief under Rule 7012 of the Federal Rules of Bankruptcy Procedure. The Court entered the Order on March 22, 2017, holding that McComb Financial failed to plead facts against Kenny Webster in the Amended Complaint that would make the claim against him plausible on its face. (Order at 7). Based on the facts plead, relief against Kenny Webster was not possible because the debt was not owed by Kenny Webster, and a non-existent debt cannot be held nondischargeable. (Id.).

A trial on the adversary was set to take place on June 2, 2017. (Adv. Dkt. 79). On May 5, 2017, McComb Financial filed the Plaintiffs Motion to Dismiss Adversary Proceeding (the “Motion to Dismiss Adversary”) (Adv. Dkt. 86). In the Motion to Dismiss Adversary, McComb Financial asserted that an asset search suggested that the recovery of any money from Helena Webster was doubtful; therefore, McComb Financial concluded that dismissal would be in the parties’ best interest. (Mot. to [658]*658Dismiss Adversary at 2). The Court entered the Order of Dismissal (Adv. Dkt. 88) on May 9, 2017.6 There is no dispute that the dismissal of the Adversary resulted in the discharge of the debt owed to McComb Financial in the Bankruptcy Case.

The Debtors filed the Motion, alleging that pursuant to § 523(d), they are entitled to reasonable attorney’s fees. (Mot. at 1). Attached as an exhibit to the Motion was the Time Sheet re McComb Fin. Inc. v. Webster Southern District of Mississippi Bankruptcy Court; Case #: 16-00013 (the “Timesheet”) (Mot. Ex. A). According to the Timesheet, Lee spent 32.1 hours defending the Adversary. (Timesheet at 4). At his hourly rate of $200.00 per horn.', Lee claimed total attorney’s fees in the amount of $6,420.00, according to the Timesheet. (Id.). He did not seek any costs in the Timesheet or in the Motion.

In the Response, McComb Financial argued that attorney’s fees are not warranted under § 523(d) because the Complaint and the Amended Complaint were substantially justified. (Resp. at 1). According to McComb Financial, the Complaint was filed “after a thorough investigation and was substantially justified.” (Id.). McComb Financial contended that it had a reasonable basis in law and fact for filing the Complaint, and it had a reasonable expectation that it would prevail. (Id. at 2). Additionally, because it is a ‘ “mom-and-pop finance company, without significant or extensive assets,” McComb Financial argued that the loans it made to Helena Webster were “quite large” for such a small company. (Id).

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Cite This Page — Counsel Stack

Bluebook (online)
573 B.R. 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccomb-financial-inc-v-webster-in-re-webster-mssb-2017.