Nicholas v. Oren (In re Nicholas)

496 B.R. 69
United States Bankruptcy Court, E.D. New York·Decided November 14, 2011·No. Bankruptcy No. 07-73330-CEC; Adversary Nos. 07-08222-CEC, 11-01026-CEC·Published·Cited by 11 cases

Opinion

DECISION

CARLA CRAIG, Chief Judge.

This matter comes before the Court on the submissions of the affidavits of Avrum J. Rosen (“Rosen”) and Cynthia M. Burke (“Burke”), attorneys for Stephen Nicholas (“Nicholas” or the “Debtor”), in support of requests for fees and expenses in accordance with this Court’s orders dated August 3, 2011 and August 8, 2011, which awarded Nicholas attorney’s fees and expenses incurred in defending certain claims asserted against Nicholas in state court by Matthew Oren (“Oren”), on the grounds that the assertion of those claims violated Nicholas’s discharge. The Law Offices of Avrum J. Rosen (the “Rosen Firm”) seeks $15,520 in fees and $777.81 in expenses, and Burke seeks $6,200 in fees and $43.00 in expenses. Oren filed written objections to both requests for compensation. Based upon a review of the attorneys’ affidavits and time records and Oren’s objections thereto, the Rosen Firm and Burke are awarded fees and expenses as set forth below.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and the Eastern District of New York standing order of reference dated August 28, 1996. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A). This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052.

BACKGROUND

Nicholas filed a petition for relief under Chapter 13 of the Bankruptcy Code on August 27, 2007. On November 14, 2008, the Court confirmed Nicholas’s Chapter 13 plan. Upon completing his plan, Nicholas received a discharge on October 6, 2009 pursuant to § 1328(a) of the Bankruptcy Code, and his bankruptcy case was closed.1

[73]*73Oren, a creditor in Nicholas’s bankruptcy case whose claim was paid in full under Nicholas’s Chapter 13 plan, commenced an action in state court (the “State Court Action”) on June 5, 2010, asserting various causes of actions against Nicholas, the Ro-sen Firm, Rosen, Fred S. Kantrow, Allan Katz, and Harvey Bernstein (collectively, the “Defendants”).

On November 3, 2010, Nicholas’s bankruptcy case was re-opened to allow Nicholas to seek sanctions for contempt against Oren because certain of the claims asserted in the State Court Action violated the discharge Nicholas received upon completing his Chapter 13 plan.

On January 26, 2011, the State Court Action was removed to this Court as Adversary Proceeding No. 11-01026. Shortly thereafter, Defendants moved for judgment on the pleadings dismissing Oren’s complaint. (Removed ECF Nos. 6, 14, 18, 21.)2 In response to the Defendants’ motion for judgment on the pleadings and Nicholas’s motion for contempt, Oren filed a cross-motion and cross-application. (Removed ECF No. 24; ECF No. 83.)

For the reasons stated in a decision dated August 3, 2011 (the “Decision”), the Defendants’ motion for judgment on the pleadings in Adversary Proceeding No. 11-01026 was granted, Nicholas’s motion seeking sanctions for contempt against Oren for violating his discharge was granted, and Oren’s cross-motion and cross-application were denied. Pursuant to §§ 105 and 524, Nicholas was awarded punitive damages in the amount of $5,000 for Oren’s willful violation of Nicholas’s discharge injunction. In addition, by orders dated August 3, 2011 and August 8, 2011 (the “Orders”), Nicholas was awarded attorney’s fees and expenses incurred in defending the three causes of action that violated Nicholas’s discharge, in bringing the motion to hold Oren in contempt for asserting those causes of action, and in reopening Nicholas’s bankruptcy case.

Nicholas was directed to file and serve an affidavit setting forth, with supporting documentation, the attorneys’ fees and expenses incurred in undertaking those activities. On August 15, 2011, Cynthia Burke, Esq. filed an affidavit in support of an award of attorney fees (the “Burke Affidavit”). (Removed ECF No. 41.) Av-rum J. Rosen filed an affirmation in support of an award of attorney fees for the Rosen Firm on August 17, 2011 (the “Ro-sen Affirmation”). (ECF No. 97.)

On September 6, 2011, Oren filed a letter requesting, among other things, an extension of ninety days to submit his opposition to the Debtor’s calculation of his attorney’s fees and expenses. (ECF. No. 104.) Oren then filed his objections to the Rosen Firm’s and Burke’s requests for attorney’s fees and expenses on September 20, 2011 (“Obj. to Rosen Aff.” and “Obj. to Burke Aff.”). (ECF No. 106; Removed ECF. No. 49.)

By Order dated October 7, 2011, Oren’s request for an extension of time to submit his opposition to the Debtor’s calculation of his attorney’s fees and expenses was granted, and the deadline was extended until September 20, 2011.

On September 28, 2011, the Rosen Firm filed a response to Oren’s objection to the Rosen Firm’s calculation of its fees and expenses (the “Rosen Response”). (ECF No. 108.)

DISCUSSION

A court’s principal concern when awarding attorney’s fees is to insure that [74]*74the fees awarded are reasonable. As the fee applicants, the Rosen Firm and Burke “bear[] the burden of documenting the hours reasonably spent by counsel, and the reasonableness of the hourly rates claimed.” Allende v. Unitech Design, Inc., 783 F.Supp.2d 509, 512 (S.D.N.Y.2011) (quoting General Elec. Co. v. Compagnie Euralair, S.A., 1997 WL 397627, at *4 (S.D.N.Y. July 3, 1997) (alteration in original)). The Rosen Firm and Burke must “document the application with contemporaneous time records,” which “should specify, for each attorney, the date, the hours expended, and the nature of work done.”3 New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). The Rosen Firm’s and Burke’s submissions comply with these requirements. (See Burke Aff.; Rosen Aff.; Rosen Resp., Removed ECF No. 41; ECF No. 97; ECF No. 106.)

In this case, Nicholas’s award of attorney’s fees was issued in the form of a sanction pursuant to §§ 105 and 524. When attorney’s fees are awarded under the Court’s inherent powers, courts use the lodestar approach, which has been held in this District to be “the method to be used to determine a ‘reasonable’ attorney fee in all the federal courts, including the bankruptcy courts.” In re The Korea Chosun Daily Times, Inc., 337 B.R. 758, 766 (Bankr.E.D.N.Y.2005) (quoting Matter of Cena’s Furniture, Inc., 109 B.R. 575, 581 (E.D.N.Y.1990)(citing cases)). See e.g., In re Emanuel, 422 B.R. 453, 467 (Bankr.S.D.N.Y.2010); In re Green, 422 B.R. 469, 477 (Bankr.S.D.N.Y.2010) (employing the lodestar approach in awarding attorney’s fees as a sanction pursuant to the court’s inherent powers).

This approach requires the court to determine a lodestar amount, which constitutes “[t]he traditional starting point for determining a reasonable attorney’s fee award” and “results in a presumptively reasonable fee.” Underdog Trucking, L.L.C. v. Verizon Services Corp., 276 F.R.D. 105, 108 (S.D.N.Y.)

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

Nicholas v. Oren (In re Nicholas), 496 B.R. 69 (N.Y. 2011).

496 B.R. 69 (Nicholas v. Oren (In re Nicholas)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Amy Marie Strauss
M.D. Pennsylvania, 2023
Codie B Southworth
N.D. New York, 2021
Charles Eric Kern
D. New Jersey, 2021
Yanaira Polanco
E.D. New York, 2021
Curtis James Jackson, III
D. Connecticut, 2020
In re Anmuth Holdings LLC
600 B.R. 168 (E.D. New York, 2019)
In re 29 Brooklyn Avenue, LLC
548 B.R. 642 (E.D. New York, 2016)
Parallel Iron LLC v. NetApp, Inc.
84 F. Supp. 3d 352 (D. Delaware, 2015)