Pikco Finance, Inc. v. Staten (In re Staten)

559 B.R. 666, 2016 Bankr. LEXIS 3997

• Court: United States Bankruptcy Court, S.D. Mississippi
• Decided: September 16, 2016
• Docket: CASE NO. 15-50355-KMS; ADV. NO. 15-06017-KMS
• Status: Published

Opinion

FINAL JUDGMENT AND ORDER AWARDING ATTORNEY’S FEES

Judge Katharine M. Samson, United-States Bankruptcy Judge

This matter is before the Court on the Application in Support of Request for At-torneys Fees (Adv. Dkt. No. 20), filed by Pikco Finance, Inc. (“Pikco”); the Re-sponse to Application in Support of Re-quest for Attorneys Fees (Adv. Dkt. No. 21), filed by Terri Denise Staten; the Re-buttal to Debtor’s Response (Adv. Dkt. No. 25), filed by Pikco; and the Response to Plaintiffs Rebuttal (Adv. Dkt. No. 27) filed by Staten. On March 15, 2016, the parties stated on the record at a telephonic hear-ing that they had agreed to a nondis-chargeable judgment in the amount of $1,347.90 on the underlying debt but left the amount of attorney’s fees to the Court’s determination. Adv. Dkt. No. 31. Having considered the fee itemization sub-mitted and the objections thereto, the Court finds that Pikco should be awarded attorney’s fees and costs in the amount of $1,655.00.¹

I.Jurisdiction

The Court has jurisdiction over the parties to and the subject matter of this ad-versary proceeding pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (/), and (0).

II.Findings of Fact

Pikco and Staten agreed to a nondis-chargeable judgment in the amount of $1,347.90 on the underlying debt but left the amount of attorney’s fees to the Court’s determination. Adv. Dkt. No. 31. Pikco requests $5,465.00, including $5,080.00 in fees and $385.00 in expenses. Adv. Dkt. No. 20 at 4. The fee itemization attached to Pikco’s application shows that its attorneys billed 32.90 hours on this adversary. Adv. Dkt. No. 20-1 at 5. Four individuals appear on the itemization, but the rate for all billing parties other than Stacey Moore Buchanan is $0.00 per hour. The rate billed for the services rendered by Buchanan is $200.00 per hour. See Adv. Dkt. No. 20-1. The promissory note be-tween Staten and Pikco provides the basis for the Court’s award of reasonable attor-ney’s fees. It states:

DEFAULT, ACCELERATION, AND POST MATURITY INTEREST: Upon default by Borrower (1) Lender may (i) bring suit for the delinquent payments without accelerating the remaining balance and/or (ii) with or without notice to Borrower, declare the remaining balance immediately due and payable, less any rebate of unearned Finance Charges as provided for above, and (2) Borrower shall pay all of Lender’s attorney’s fees and Lender’s legal expenses, whether or not there is a lawsuit, including attor-ney’s fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction, and actions to object to discharge and/or dis-chargéability), and appeals.

Adv. Dkt. No. 1-1 at 2. According to Pik-co’s proof of claim, Staten was $114.00 in arrears at the time of filing. Claim 6-2 at 1.

Pikco argues that the fees it seeks are reasonable. Staten argues that the re-quested fees are excessive considering the factors for. reasonableness, especially the amount of the underlying debt. Adv. Dkt. No. 21 at 1. Staten further argues that the fee award should be' reduced to “one third of the debt which is reasonable plus any expenses incurred.” Adv. Dkt. No. 21 at 3.

III.Conclusions of Law

Although “the Bankruptcy Code does not expressly award attorney’s fees to a creditor who successfully contests the dischargeability of his claim[,] ... creditors are entitled to recover attorney’s fees in bankruptcy claims if they have a con-tractual right to them valid under state law.” Jordan v. Se. Nat’l Bank (In re Jordan), 927 F.2d 221, 226-27 (5th Cir. 1991) (internal quotation marks omitted), overruled on other grounds by Coston v. Bank of Malvern (In re Coston), 991 F.2d 257, 260-61 (5th Cir. 1993). Where an award of attorney’s fees is based on sub-stantive state law, then state law governs the reasonableness of that award. Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (“State law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision.”) Because Pikco’s entitlement to fees is based on a contract governed by Missis-sippi law, the Court will apply Mississippi law to determine whether the requested fees are reasonable. In most cases in Mis-sissippi, whether state or federal law ap-plies is a distinction without a difference because the lodestar method and John-son ² factors applied by federal courts are “almost identical” to those applied by the Mississippi Supreme Court and codified in Rule 1.5 of the Mississippi Rules of Profes-sional Conduct. See Mauck v. Columbus Hotel Co., 741 So.2d 259, 272 (Miss. 1999); Ill. Cent. R.R. Co. v. Harried, No. 5:06cv160, 2011 WL 283925, at *7 (S.D. Miss. Jan. 25, 2011) (holding that “though Mississippi law governs the amount of the fee award here, because the factors considered under state and federal law are nearly identical, both state and federal cases are instructive”).

The Mississippi Code provides that

In any action in which a court is author-ized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.³

Miss. Code Ann. § 9-1-41 (1990).⁴ The “proper procedure” for determining a rea-sonable'award of attorney’s fees in Missis-sippi is to determine a “reasonable fee, based on the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate” then “consider[] the eight factors enumerated in [Mississip-pi] Rule⁵ 1.5_” In re Estate of Gillies, 830 So.2d 640, 646 (Miss. 2002). Those factors are:

(1) the time and labor required, the nov-elty and difficulty of the questions involved, and the skill requisite to • perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the profes-sional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers perform-ing the services; and

(8) whether the fee is fixed or contin-gent.

Miss. R. Prof 1 Conduct 1.5(a). A trial court must support any award with “findings of fact and conclusions of law,” though indi-vidual consideration of each factor has never been specifically required. See Bell-South Pers. Commc’ns, LLC v. Bd. of Supervisors of Hinds Cnty., 912 So.2d 436, 446 (Miss. 2005) (quoting Miss. Power & Light Co. v. Cook, 832 So.2d 474, 487 (Miss. 2002)). Consideration of the factors need not be taken in a particular order.

A. The Reasonable Fee / Lodestar

Counsel for Pikco has included 32.90 billed hours in the fee itemization. Some of the entries are billed at $0.00 per hour, and counsel voluntarily reduced the bill by $400.00 or two hours billed at Bu-chanan’s rate. After review of the itemization, the Court finds that Buchanan is seeking payment for 25.4 hours. The Court further finds that Buchanan’s rate of $200.00 is reasonable.⁶ Therefore, the lode-star amount is $5,080.00 (25.4 times $200.00). The Court now turns to the Mis-sissippi Rule 1.5 factors to see whether the amount should be reduced or increased.

B. The Mississippi Rule 1.5 Factors

The Court finds that the fourth, third, and first factors, when considered together, merit a substantial reduction in the amount of the award and analyzes those factors first. The remaining factors, though analyzed, contribute little to the Court’s decision and do not merit a change in the fee awarded.

Fourth Factor: The Amount Involved and the Results Obtained

Pikco filed a proof of claim in the amount of $1,347.90. Claim 6-2. Ultimately, Staten agreed that the entire claim amount would be nondischargeable. Successful representation in and of itself does not justify an increase in the base fee because “the 'results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as [an] independent bas[i]s for increasing the basic fee award.” Mauck, 741 So.2d at 272 (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). Further, the underlying claim amount involved in this litigation is relatively small. Other courts applying this identical factor from Johnson have held that an attorney’s fee “almost double” the amount in dispute was excessive. Driftwood Manor Owners Ass’n v. Borgus (In re Borgus), 544 B.R. 315, 325 (Bankr. E.D.N.C. 2016) (“The court cannot find any basis upon which to justify a fee award that is so much larger than the underlying debt.”); see also Meeks v. State Farm Mut. Auto. Ins. Co., 460 F.2d 776, 780 (5th Cir. 1972) (“The amount of the district court’s award is nearly eighty per cent of the amount of [the] recovery. Without minimizing the complexity of the issues, both of law and fact, we think it might well be said that, measured by the amount involved, the fee allowed is more than the traffic should bear.”); Adams v. Hernandez (In re Hernandez), Bankr. No. 13-12479, 2014 WL 2609795, at *7 (Bankr. D. Colo. June 11, 2014) (finding that billing “nearly 20 hours to demonstrate damages of $3,500.00 ... resultfed] in a fee that is high in relation to the amount reasonably at issue under a nondischargeability .theory and the results obtained”). Additionally, compelling Mississippi case law suggests that the award of attorney’s fees should rarely exceed the amount of the recovery, regardless of the work actually performed.⁷ See Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 915 (Miss. 1993) (fee for recovery under open account statute and for defense of counterclaim which was greater than jury award “appeared to be excessive”).

The agreed amount of the underlying debt is $1,347.90 and the fee request is nearly quadruple that amount. The Court finds no basis to justify an award of fees so much greater than the amount recovered. This factor merits a 75% reduction in the fees, especially when the third and first factors are also considered. The lodestar amount is reduced to $1,270.00.

Third Factor: The Fee Customarily Charged in the Locality for Similar Legal Services

Staten argues that the customary fee for actions' of this type is one-third of the amount of the indebtedness.⁸ Adv. Dkt. Nos. 21 at 2, 27 at 5-6. This has been the experience of the Court. In previous suits for nondischargeability for small consumer loans, the Court has awarded attorney’s fees in the amount of one-third of the debt. See, e.g., Pikco Fin., Inc. v. Crumedy (In re Crumedy), Bankr. No. 13-50513, 2014 WL 4352066, at *5 (Bankr. S.D. Miss. Sept. 2, 2014) (awarding attorney’s fees of “33 1/3% of the unpaid balance of the loan” pursuant to promissory note and security agreement on successful nondischargeability action); Country Credit, LLC v. Tillman (In re Tillman), Bankr. No. 11-04315, 2012 WL 5993712, at *5 (S.D. Miss. Nov. 30, 2012) (same); Country Credit, LLC v. Kornegay (In re Kornegay), Bankr. No. 11-00067, 2012 WL 930818, at *4 (S.D. Miss. Mar. 19, 2012) (same); cf. Barvié v. Broadus (In re Broadus), Bankr. No. 12-52517, Adv. No. 13-05002, slip op. at 7 (Bankr. S.D. Miss. Mar. 9, 2016) (awarding fees slightly more than one-third of amount recovered where fee entitlement came from loan agreement but agreement did not limit fee to percentage); Westwood Square Ltd. P’ship v. Broome (In re Broome), Bankr. No. 11-50528, Adv. No. 11-05047, slip op. at 2 (Bankr. S.D. Miss. Mar. 6, 2014) (awarding slightly less than one-third of amount under similar contract provision).⁹ This factor also supports a reduction in the amount of the fee. However, in light of the reduction made above, no further reduction will be taken.

First Factor: The Time and Labor Re-quired, the Novelty and Difficulty of the Questions Involved, and the Skill Requi-site to Perform the Legal Service Properly

The Court finds that the questions presented were not novel or difficult. The Court further finds that “nothing in the record indicates that the nature of the litigation involved in this adversary pro-ceeding varies drastically from the average bankruptcy-related representation under-taken by” Buchanan. Schermerhorn v. CenturyTel, Inc. (In re Skyport Global Commc’ns, Inc.), 450 B.R. 637, 654 (Bankr. S.D. Tex. 2011). Most of the time billed was for discovery conducted after settlement negotiations failed. However, discovery must be “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Bankr. P. 7026 (adopting this rule for adversary proceedings).¹⁰ Parties are to consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26 (b)(1).

At the time of the settlement negotiations, Pikco had questioned the debtor at the Section 341 meeting, reviewed proofs of claim filed by other creditors, served subpoenas on and reviewed documents from creditors listed in Staten’s schedules. It had discovered what it needed to support its claim. As Pikco noted in its rebuttal, it had already spent more than the amount of the debt pursuing the debt at the time that the settlement negotia-tions fell apart. Dkt. No. 25 at 2. Yet when the parties could not agree on the amount of contractual attorney’s fees, Pikco served interrogatories, requests for admissions, and document requests on Staten. Dkt. No. 9, At this point, Pikco’s discovery was no longer proportional to the needs of the case. The parties should have then, as they eventually did, submitted the question of attorney’s fees to the Court rather than needlessly drive up the fees by continuing to litigate. A contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary. Cf In re 900 Corp., 327 B.R. 585, 594 (Bankr. N.D. Tex. 2005) (“The purpose of the reasonableness requirement of section 506(b) is to ensure that a creditor is not given a blank check to incur attorneys’ fees which will be reimbursed out of its collateral.” (internal quotation marks omitted)). “If proper restraint is not exercised, the costs of any ‘overlawyering’ should be borne by the Creditor, rather than Debtors.” Id. (quoting In re Center, 282 B.R. 561, 567 (Bankr. D.N.H. 2002)).

This factor also supports a reduction in the amount of the fee. However, in light of the reduction made above, no further re-duction will be taken.

Second Factor: The Likelihood, if Appar-ent to the Client, that the Acceptance of the Particular Employment mil Preclude Other Employment by the Lawyer

It is the Court’s experience that Buchanan regularly represents Pikco before this Court. “Typically, preclusion of employment presumes that an attorney does not generally engage in the sort of representation for which fees are being requested and, therefore, is prevented from undertaking a customary amount of additional work due to the increased time demand of that particular case.” In re Skyport Global Commc’ns, 450 B.R. at 653-54 (citing In re El Paso Refinery, L.P., 257 B.R. 809, 826 n.30 (Bankr. W.D. Tex. 2000)). “The professionals involved in this litigation may have been precluded from commencing representation of other clients, but such preclusion is simply due to the natural limitations on billable hours. ...” Id. at 654, Consequently, this factor does not merit any change to the base fee award.

Fifth Factor: The Time Limitations Im-posed by the Client or by the Circum-stances

The Court is aware of no unusual time limitations in this case imposed by either Pikco or the circumstances of the ease justifying a change in the lodestar. “Time limitations are part and parcel of all bank-ruptcy representation, so its consideration adds nothing to the analysis.” In re El Paso Refinery, 257 B.R. at 826 n.30.

Sixth Factor: The Nature and Length of the Professional Relationship with the Client

As stated above, Buchanan and her law firm have a long standing relationship with Pikco. Counsel for Pikco argues that this “enabled [them] to handle this case more efficiently than if it were the only case of this nature handled by counsel.” Adv. Dkt. No. 20 at 3-4. While this may be true, the Court finds that that does not justify an increase in the lodestar. See Wells Fargo Equip. Fin., Inc. v. Beaver Constr., LLC, No. 6:10-0386, 2011 WL 5525999, at *4 (W.D. La. Oct. 18, 2011) (finding that long standing professional relationship with client was adequately compensated in the lodestar amount).

Seventh Factor: The Experience, Reputation, and Ability of the Lawyer or Law-yers Performing the Services

Buchanan and her law firm are known to this Court and within the local bankruptcy bar as well qualified attorneys and practitioners, who regularly bring suits for nondischargeability on behalf of their clients. As the Fifth Circuit has held, this factor is generally already reflected in the lodestar amount and will only merit an increase in the “rare and exceptional” case. TransAmerican Natural Gas Corp. v. Zapata P’ship, Ltd. (In re Fender), 12 F.3d 480, 488 (5th Cir. 1994). This case is neither rare nor exceptional.

Eighth Factor: Whether the Fee is Fixed or Contingent

The Court does not know how much Buchanan was paid by Pikco because her contract with the creditor is not before the Court. See Jack Cole-Dixie Hwy. Co. v. Red Ball Motor Freight, Inc., 254 So.2d 734, 741 (Miss. 1971) (“It would be a mis-take ,, to allow an attorney to recover not only the amount agreed upon with his client under the employment contract but also an additional amount based upon the value of a services actually necessary to the recovery.”). But even were that infor-mation known, the Court would find this factor irrelevant to its analysis. See In re Skyport Global Commc’ns, 450 B.R. at 653 (finding this factor to be irrelevant in a typical bankruptcy action). The fee ar-rangement in this case is neither fixed nor contingent because it was not established as between Pikco and its counsel but rather by a separate contract between Pikco and Staten.

C. Expenses Requested

Having fully examined the fee itemization, the Court turns to the expenses re-quested. Pikco requested $385.00 in ex-penses, which are included as a separate category in the fee itemization. Adv. Dkt. No. 20-1 at 5. Staten did not challenge the claimed expenses in her objection, and the Court finds the expenses listed are reasonable. Accordingly, the Court finds that Pik-co is entitled to ■ the full amount of ex-penses requested.

IV. Conclusion

Having considered the Mississippi Rule 1.5 factors and the lodestar amount, the Court finds that Pikco" is entitled to collect $1,270.00 in attorney’s fees and $385.00 in expenses for a total award of $1,655.00. This amount shall be added to the debt Staten owes Pikco, which the parties previ-ously agreed to be nondischargeable in the amount of $1,347.90. See In re Jordan, 927 F.2d at 226-28 (holding that where party has contracted to pay attorney’s fees for collection of nondischargeable debt, attor-ney’s fee award also will not be discharged in bankruptcy). Accordingly, the total non-dischargeable debt Staten owes Pikco is $3,002.90.

IT IS HEREBY ORDERED AND AD-JUDGED that the relief sought in the Complaint (Adv, Dkt. No. 1) is GRANTED and the debt Terri Denise Staten owes Pikco Finance, Inc. is nondischargeable in the amount of $1,347.90.

FURTHER ORDERED AND AD-JUDGED that Pikco Finance, Inc.’s re-quest for attorney’s fees and costs is GRANTED IN PART in the amount of $1,655,00 for a total nondischargeable judgment in the amount of $3,002.90, to-gether with interest thereon from the date of the entry of this Final Judgment at the rate provided in 28 U.S.C. § 1961.

SO ORDERED.

1 . Pursuant to Federal Rule of Civil Procedure 52, made applicable to this adversary by Fed-eral Rule of Bankruptcy Procedure 7052, the following constitutes the findings of fact and conclusions of law of the Court.

2 . See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) abrogated in part by Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (holding that contingency fee contract did not cap award of attorney's fees where Johnson had so held).

3 . But see Speights v. Speights, 126 So.3d 76, 82 (Miss. Ct. App. 2013) ("[W]here there are many billable hours that the court is unable to observe or lacks knowledge of, it is incumbent upon the party requesting fees to place before the court evidence as to the reasonableness of the amount of the award, so that the record as a whole can support the award of attor-ney's fees.”). The Court’s local rules require attorneys requesting fees to submit itemiza-tions and supporting affidavits with any fee request. See Miss. Bankr. L.R. 7054-l(b)(2)(A)-(B). It is a rare case where this Court will not require that the local rule be followed because few hours that attorneys bill in nondischargeability actions are spent in front of the Court.

4 . This statute applies to cases where the basis for an award of attorney’s fees is contractual, not just where the fee award is statutory. See, e.g., Philips Med. Capital, LLC v. P & L Contracting, Inc., No. 2:10cv092, 2012 WL 860324, at *4 (N.D. Miss. Mar. 13, 2012).

5 . For convenience, references to the Missis-sippi Rules of Professional Conduct are short-ened to "Mississippi Rule-”,

6 . "The ‘reasonable hourly rate’ for the lode-star calculation is ‘calculated according to the prevailing market rates in the relevant com-munity’ and must be ‘in line with those pre-vailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.' ” Idom v. Natchez-Adams Sch. Dist., No. 5:14cv38, 2016 WL 320954, at *3 (S.D. Miss. Jan. 25, 2016) (quoting McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011)).

7 . Cases awarding fees in excess of the recov-ery pursuant to federal civil rights fee-shifting statutes carry no weight here. See Wal-Mart Stores, Inc. v. Qore, Inc., 647 F.3d 237, 248 (5th Cir. 2011) (holding that a case awarding fees under 42 U.S.C. § 1988 "has no application in [a] private claim for attorney’s fees sounding in Mississippi contract law”). Those fee awards are predicated on "particular leg-islative intent to encourage private enforcement” of civil rights guaranteed by the Con-stitution. Id. at 247. This case .involved no important constitutional or policy issues.

8 . As part of her argument, Staten points to the standard fee in collection actions. The Mississippi Supreme Court has "traditionally approved as reasonable awards of attorneys’ fees in collection matters in the amount of one-third of the indebtedness” finding that a "fee in that amount is fairly standard in col-lection practice.” Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 986 (Miss. 1992). In awarding attorney’s fees in a collection action, the court substitutes the lodestar amount for one-third of the indebtedness because that amount is a presumptively reasonable fee. Id. That presumption may be rebutted by application of the factors from Mississippi Rule 1.5. Id. Several of the cases addressing the standard fee involved issues more complicated than this case. See, e.g., Shackelford v. Cent. Bank of Miss., 354 So. 2d 253, 254-55 (Miss. 1978) (awarding fees in amount of one third of debt in collection matter involving personal jurisdiction dispute); Cox, 619 So.2d at 912-15 (awarding one-third fees in collection matter involving question whether contract mandated arbitration). Even if the Court were to rely on Dynasteel, and use one-third as a starting -point, Pikco has established that it would be entitled to an increase under Mississippi Rule 1.5 because of the initial discovery it had to undertake to file its complaint. See Adv. Dkt. No. 25 at 1-2.

9 . Pikco previously used a standard contract that provided that Pikco would receive “one third attorneys fees for any litigation.” Adv. Dkt. No. 21 at 1. Other finance companies in Mississippi have also included a one-third cap on the attorney’s fee provisions in their loan contracts. See Paul Kiel, When Lenders Sue, Quick Cash Can Turn Into a Lifetime of Debt, ProPublica (August 10, 2016, 4:10 PM), https://www.propublica.org/article/when-lenders-suequick-cash-can-tum-into-a-lifetime-of-debt (stating that Tower Loan’s “loan contracts specify that if the company is required to sue to collect, it is entitled to a reasonable attorney’s fee of 33 1/3% of the amount delinquent” (internal quotation marks omitted)).

10 . The rule was amended during the pen-dency of this case to reinforce the necessity of considering the proportionality of discovery, but it "d[id] not change the existing responsi-bilities of the court and the parties to consider proportionality.” Fed. R. Civ. P. 26 advisory ' committee’s note on 2015 amendment.