Stein v. Hemker

157 F.2d 740, 1946 U.S. App. LEXIS 3091
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 24, 1946
DocketNo. 13314
StatusPublished
Cited by9 cases

This text of 157 F.2d 740 (Stein v. Hemker) is published on Counsel Stack Legal Research, covering Court of Appeals 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
Stein v. Hemker, 157 F.2d 740, 1946 U.S. App. LEXIS 3091 (8th Cir. 1946).

Opinion

RIDDICK, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Missouri allowing appellant, attorney for the debtor, The Embassy Company, and for the voting trustees of its stock, $2,000 for appellant’s services in connection with the reorganization of the debtor under Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Appellant asked an allowance of $12,000 as reasonable compensation for his services in the reorganization proceedings. 11 U. S.C.A. §§ 641-643. In this appeal he contends that the District Court in limiting .his compensation to $2,000 was guilty of an abuse of discretion, induced by an error of law which resulted in failure of the District Court to take into account and properly evaluate all of the services of appellant which were beneficial in the administration of the estate and which contributed to the plan of reorganization confirmed by the court.

The Embassy Company is the creature of a reorganization of the Koplar Company which, at the time of its reorganization, owned the equity in an apartment building in St. Louis, Missouri. By the plan confirmed in the Koplar reorganization, Embassy took title to the apartment building; and issued its first mortgage income bonds maturing December 1, 1944, exchangeable bond for bond for the outstanding bonds of the Koplar Company, and its common stock, delivered to voting trustees to be held for the benefit of the holders of Embassy bonds and the general creditors and preferred stockholders of Koplar under an arrangement whereby, in the event of a default by Embassy in the payment of its bonds at maturity, the voting trustees were to deliver all of the Embassy stock to the holders of its bonds. Under this plan a default by Embassy in the payment of its bonds eliminated Koplar creditors and stockholders.

In October, 1944, Embassy was confronted with the maturity on December 1, 1944, of its authorized income bonds in the face amount of $460,900. Its principal asset was the apartment building. There were no general unsecured creditors, except possibly those holding claims for current operating expenses. Embassy was without funds with which to meet its maturing bond issue. Its default on December 1, 1944, was certain. In these circumstances the debtor and its voting trustees, three in number, employed the appellant, an attorney experienced in bankruptcy matters.

After investigating the question of the right of the debtor to relief under Chapter 10 of the Bankruptcy Act, in view of the fact that it was the creature of the reorganization of Koplar, and after a consideration of the debtor’s financial situation and the obligations in respect to the stock of the debtor imposed upon the voting trus-' tees by the Koplar reorganization, appellant advised the institution of the present proceeding. He devoted about five days to the consideration of the legal problems mentioned and to the preparation of the debtor’s petition for reorganization.

The debtor’s petition was duly approved by the District Court; the appellee Hemker, an attorney, was appointed trustee; the apartment building was appraised at $400,-000; and thereafter the steps taken in the reorganization resulted in the confirmation of a plan under which the apartment building was sold for ° $475,000, a sum exceeding the amount required to pay the principal amount of debtor’s bonds by $14,100.

In the course of the proceeding appellant as counsel for the voting trustees prepared and submitted to the District Court a petition asking for directions from the cou'rt to the voting trustees with reference to their duties relative to the distribution of the stock held by them under the Koplar reorganization. The debtor was in default at the time of the submission of the peti- ■ tion to the District Court which took the petition under advisement. Appellant devoted about three days to preparing to re[742]*742sist and in resisting a motion filed by a bondholder to dismiss the proceeding. Appellant never appeared in court either in support of or in opposition to any of the three plans for reorganization eventually presented to the court. He did participate in conferences with the trustee appointed by the court, the voting trustees of Embassy, representatives of the Securities and Exchange Commission which intervened, and other interested parties concerning plans for the debtor’s reorganization. But neither appellant nor other interested parties prepared and proposed a plan of reorganization within the time fixed by the court. Accordingly, the trustee prepared and submitted a conventional plan which in substance called for a repeat performance of the Koplar plan — a new corporation in place of Embassy and a new issue of capital stock and bonds in exchange for Embassy stock and bonds.

Although the evidence of appellant is to the contrary, the trustee testified that, from the outset and throughout the conferences mentioned above, appellant and the trustee agreed that a preferable reorganization should provide for the sale of the apartment building at a public sale. Both appellant and the trustee had negotiations to that end with possible purchasers. But since all parties were agreed that the sale should be at an upset price equal to the appraised value of the apartment and since no bidder on these terms appeared or could be found, such a plan was not immediately formulated. The proposed sale was, however, under consideration by the interested parties and was recommended by appellant in preference to the trustee’s original plan and a third plan proposed by Koplar, a large bondholder, the terms of which do not require statement. And while these discussions were under way among the interested parties, appellant informed one Seltzer of the plans being considered and of the desire of all parties for a cash offer for the apartment at the appraised value of $400,000.

Seltzer was a client of another attorney who shared offices with appellant. Appellant told Seltzer of the' conditions upon which the trustee would be willing to propose a plan providing for the sale of the debtor’s property at a public sale at an upset price. Seltzer was advised that it would be necessary for any purchaser to give the trustee a guarantee to bid the appraised value of the property in order to procure the submission by the trustee of a plan proposing a sale.

Seltzer was interested, and after further discussion with appellant and consultation with his counsel, who subsequently represented him in the proceeding, entered into an agreement with the trustee, approved by the court, whereby Seltzer agreed to bid the appraised value of the property at a public sale and secured the performance of his agreement by deposit of $20,000 with the trustee. His contract was later amended to call for a bid of $420,000. The negotiations which culminated in Seltzer’s contract to bid were conducted by the trustee with Seltzer and his counsel. On the execution of the contract the trustee submitted and the court approved a substituted plan of reorganization calling for a public sale of the debtor’s property. Seltzer opened the bidding with the offer he had agreed to make. There 'were 53 bidders, and on November 7, 1945, the property was sold to Koplar, the highest bidder, for $475,000.

The trustee’s report following the sale showed assets as of December 31, 1945, of $518,145.42; and liabilities of $507,341.-21, including debtor’s bonds, principal and accrued interest to December 31, 1945, allowances for compensation to the trustee and others participating in the reorganization, and a reserve for income taxes.

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157 F.2d 740, 1946 U.S. App. LEXIS 3091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stein-v-hemker-ca8-1946.