Starion Financial v. McCormick (In re McCormick)

523 B.R. 151
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedDecember 24, 2014
DocketNo. 14-6008
StatusPublished
Cited by5 cases

This text of 523 B.R. 151 (Starion Financial v. McCormick (In re McCormick)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Starion Financial v. McCormick (In re McCormick), 523 B.R. 151 (bap8 2014).

Opinion

SHODEEN, Bankruptcy Judge.

Starion Financial appeals from the bankruptcy court’s order denying its Motion to Compel Payment of Fees Under the Confirmed Plan of Reorganization and granting the Debtors’ Motion to Disallow Attorneys’ Fees and Costs Claimed by Starion Financial. We have jurisdiction of this appeal from entry of the bankruptcy court’s final order pursuant to 28 U.S.C. section 158(b). For the reasons set forth below, we reverse and remand for further proceedings.

BACKGROUND

Over the course of several years the Debtors and Starion entered into a series of loan transactions. Pursuant to the various promissory notes and mortgages dated December 23, 2004, January 25, 2006, June 13, 2007 and June 30, 2009 the Debtors were liable for payment of Starion’s attorney fees and costs for collection of the indebtedness. The Debtors also executed personal guarantees, in differing amounts, related to the promissory notes and mortgages'given to Starion by entities owned by the Debtors. Defaults under the loans resulted in a Workout Agreement dated July 26, 2012 between Starion and the Debtors. As part of that agreement, the Debtors consented to the entry of judgments against them to secure their personal guarantees. On July 27, 2012, based upon two properly filed confessions of judgment which were executed as part of the Workout Agreement, a North Dakota state court entered judgments against Debtors in the respective amounts of $2,078,034.26 and $1,000,000.00, plus interest.

Debtors filed a voluntary chapter 11 petition on August 29, 2012. Pre-confirmation modifications to the Debtors’ Second Amended Plan of Reorganization (“Plan”) were accomplished by a series of filed addendums. One such addendum was filed to resolve and define the payment terms for Starion’s claim (“Starion Addendum”). Specifically that addendum stated:

Collection Costs. Debtors agree to pay Starion’s allowable attorney’s fees and costs associated with both Debtors’ bankruptcy proceedings including but not limited to reasonable attorneys’ fees, consulting, appraisal, filing fees, late fees, etc. (collectively referred to as “Fees”) through the Plan. The procedure for allowance of such attorneys’ [153]*153fees and costs will be as provided in the Plan.

On September 13, 2013 the Debtors’ Plan, incorporating the Starion Addendum, was confirmed by the bankruptcy court. Section 8.01(c) of the confirmed plan defines “Allowable Attorneys’ Fees and Costs” as “a claim against the debtors for an overse-cured creditor’s attorney’s fees and costs incurred in connection with the creditor’s secured claim.” That section goes on to describe the procedure for allowance of the fees and costs as follows:

Any Allowable Fees and Costs must be approved by Debtors before payment is disbursed. At least ten days prior to the Effective Date of the Plan, the creditor and/or its counsel, shall submit an itemized statement (reflecting date, a description of the services, increments of time spent, and hourly rate being charged), to the Debtors and their counsel, for approval. If the parties cannot come to an agreement or resolution as to the amount of the Allowable Attorneys’ Fees and Costs to be paid, the matter shall be determined by the Bankruptcy Court, upon notice and hearing. No payment of Allowable Attorneys’ Fees and Costs will be due until either the agreement of the parties or a final determination by the Bankruptcy Court that those amounts are due under the Plan.

On October 3, 2013 Starion submitted an itemized statement to the Debtor for various costs including interest, late fees, real estate taxes, and appraisal and engineering fees. A few days later on October 7, 2013 Starion submitted an updated statement that included its attorneys’ fees. Taking the position that Starion was not entitled to these amounts based upon the Plan or 11 U.S.C. section 506(b) the Debtors refused to pay the amounts requested for appraisal and engineering costs, and the attorneys’ fees (collectively “Fees”).

Starion filed a motion requesting the bankruptcy court to compel payment of its Fees in the amount of $125,014.64 based upon the Plan and 11 U.S.C. section 506(b). On the same day the Debtors filed a motion seeking disallowance of the Fee request contending that: there is no agreement for the payment of Fees; the Fee request was untimely; and the Fees are not reasonable.

BANKRUPTCY COURT DECISION

On March 10, 2014, the bankruptcy court issued its Order denying Starion’s motion to compel payment of attorney fees and costs, and granting Debtors’ motion seeking disallowance of Starion’s request. The court began its analysis by noting the terms of the Starion Addendum and the Plan, and specifically determined that: “both Debtors and Starion agree that the Court’s analysis regarding Starion’s eligibility to recover attorney fees is confined to limits outlined in section 506 of the Bankruptcy Code.”

Since section 506 allows an oversecured creditor to recover reasonable fees and costs provided for under the agreement under which the claim arose, the bankruptcy court first looked at whether Starion’s claim was oversecured. The court noted that, “Debtors do not dispute Starion’s claim that it is oversecured. In fact, in their briefs, Debtors refer to Starion’s claim as oversecured.” Notwithstanding, the bankruptcy court did not ultimately decide whether Starion is oversecured, but instead assumed1 that it was for purposes of its order.

[154]*154Next, the bankruptcy court looked at whether fees and costs were all owed under an agreement under which the claim arose. It held that: “Starion’s judicial liens ‘arose’ under the Judgments, which when entered by the clerk and recorded under North Dakota law created liens on real property. N.D.C.C. § 28-20-13. Consequently, the documents this Court looks to for an agreement giving rise to the claim for attorney fees and costs are the Judgment s.” Relying upon a North Dakota statute that disfavors payment of attorney fees, the bankruptcy court concluded that the absence of “a clause or sentence [in the judgment] entitling Star-ion to collect attorney fees” was fatal to Starion’s request for payment. Accordingly, Starion’s motion to compel payment was denied and the Debtor’s motion disallowing the Fees was granted. Starion appeals the bankrupt cy court’s ruling.

STANDARD OF REVIEW

A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. First Nat’l Bank v. Pontow, 111 F.3d 604, 609 (8th Cir.1997) (quoting Miller v. Farmers Home Admin. (In re Miller), 16 F.3d 240, 242-43 (8th Cir.1994)). In this case we review de novo the bankruptcy court’s interpretation and application of 11 U.S.C. section 506(b). Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987); White v. Coors Distributing, Co. (In re White), 260 B.R. 870, 874 (8th Cir. BAP 2001).

DISCUSSION

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
523 B.R. 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starion-financial-v-mccormick-in-re-mccormick-bap8-2014.