Vogel v. Triangle Equipment Co. (In re Triangle Equipment Co.)

19 B.R. 381, 1982 Bankr. LEXIS 4365
CourtDistrict Court, E.D. Virginia
DecidedApril 9, 1982
DocketBankruptcy No. 7-80-01040; Adv. Nos. 7-81-0126, 7-80-0224
StatusPublished
Cited by1 cases

This text of 19 B.R. 381 (Vogel v. Triangle Equipment Co. (In re Triangle Equipment Co.)) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vogel v. Triangle Equipment Co. (In re Triangle Equipment Co.), 19 B.R. 381, 1982 Bankr. LEXIS 4365 (E.D. Va. 1982).

Opinion

OPINION AND ORDER

H. CLYDE PEARSON, Bankruptcy Judge.

The issue before the Court is the extent to which requested attorneys’ fees are allowable under § 506(b) of the Bankruptcy Reform Act of 1978 (the Code), 11 U.S.C. § 506(b).1

The applicant, the law firm of Craft & McGhee (the firm), represented the Bank of Christiansburg (Bank) in an adversary proceeding before this Court. The Bank’s proceeding for relief from the stay was consolidated with a suit by the bankruptcy trustee to sell property free and clear of liens. As a result of those consolidated proceedings, the Court determined the validity of the Bank’s first and third lien deeds of trust covering certain real property held by the debtor, Triangle Equipment Company (Triangle). The Court also confirmed the validity of a second lien deed of trust of the same property to the First National Exchange Bank of Montgomery County (FNEB). The Internal Revenue Service holds perfected federal tax liens junior to the three consensual liens that attach to the subject property.

The indenture trustee under the first lien deed of trust, Mr. Craft, is a member of the applicant firm. The same firm, acting as counsel for the Bank, sought relief from the stay to foreclose on the property. There was never a question of the validity or amount of the first deed of trust or note. The only issue litigated in these proceedings was whether the secured creditor could foreclose on the property. At the conclusion of the hearing in these adversary proceedings, the Court granted the Bank and its trustee relief from the § 362 automatic stay to foreclose on the indentured property, with any surplus proceeds to be remitted to Triangle’s bankruptcy trustee. The indenture trustee proceeded with the foreclosure sale of the pledged property. Despite evidence that the value of the property exceeded the total of all obligations secured thereby, the proceeds of the sale exceeded the amount of the first lien, but were insufficient to satisfy the second and third liens.

The law firm, through Mr. McGhee, has not applied to the Court, pursuant to Rule 219, Fed.R.Bankr.P.,2 for approval of the [383]*383indenture trustee’s commission for executing the deed of trust. The law firm has also requested allowance of the Bank’s attorneys’ fees pursuant to § 506(b) of the Code.

Under § 506(b) of the Code, to the extent an allowed secured claim is secured by property the value of which exceeds the amount of the claim, the secured claim holder is entitled to interest on the claim as well as reasonable fees, costs, and charges provided under the agreement giving rise to the claim. In Virginia, if the terms of an indenture trustee’s compensation are not specified in the trust document, that compensation is controlled by statute. See Va. Code § 55-59 (1981 repl. vol.)3; Dillard v. Serpell, 138 Va. 694, 123 S.E. 343, 345 (1924). In this case, the law firm has applied for trustee’s compensation in the amount of five percent of the proceeds of sale.

The promissory note underlying the first lien deed of trust provides that if the note be “collected by suit or attorney,” the debt- or agrees to pay attorneys’ collection fees in the amount of 25% of the amount of the note. Under prior bankruptcy law, it was established that the validity of such a provision in a secured note was a question of state law. Manufacturer’s Finance Co. v. McKey, 294 U.S. 442, 450, 55 S.Ct. 444, 447, 79 L.Ed. 982 (1935); Security Mortgage Co. v. Powers, 278 U.S. 149, 153, 49 S.Ct. 84, 85, 73 L.Ed. 236, 13 Am.B.R. (N.S.) 556 (1928). Some state laws provided that the exacting of a fee for collection of debts was a prohib-itable penalty. In some instances, a fee was held to be additional interest and hence usurious. See Citizens Nat’l Bank of Orange, Va. v. Waugh, 78 F.2d 325, 326 (4th Cir. 1935); Chestertown Bank of Md. v. Walker, 163 F. 510 (4th Cir. 1908).

The validity of attorneys’ fees under the Code, however, is a matter of federal bankruptcy law. The Code clearly says that an oversecured creditor’s right to those fees should be based on the underlying agreement. 11 U.S.C. § 506(b). Thus, if the underlying agreement provides for fees, those fees may be appropriately paid from the proceeds of sale of the collateral. Section 506(b) qualifies payment of those costs and fees, however, allowing “reasonable fees, costs, or charges” (emphasis added).

Other courts do not agree on whether the determination of reasonableness of fees is a question of state or federal law under the Code. Compare Mellon Bank v. Sholos, 11 B.R. 782, 784-85, 8 B.C.D. 109, Bankr.L.Rep. ¶ 68,223 (CCH) (Bkrtcy.W.D.Pa.1981) (reasonableness is for bankruptcy judge to determine) with United Va. Bank v. Virginia Foundry, 9 B.R. 493, 497 (D.C.W.D.Va.1981) (reasonableness is to be determined by state law). In its reasoning, the Sholos court concluded that contractual validity of attorneys’ fees would not bind a bankruptcy judge, even though those fees might be clothed with a rebuttable presumption of [384]*384reasonableness under state law. 11 B.R. at 785. The Sholos court acknowledged that the bankruptcy judge is eminently qualified to determine reasonableness in each case. The bankruptcy judge has experience in determining reasonableness of fees in his Court. Furthermore, the bankruptcy judge has first hand knowledge of the proceedings in which the attorneys have been involved, and of the services those attorneys have rendered. Id. at 786.

The Fourth Circuit has ruled that courts in this circuit faced with the task of determining reasonableness of attorneys’ fees should follow the standards established by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The factors to be considered include:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.

In this case, the same firm acted both as indenture trustee and as attorney for the creditor. There is no question that the firm as indenture trustee is entitled to compensation.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
19 B.R. 381, 1982 Bankr. LEXIS 4365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-triangle-equipment-co-in-re-triangle-equipment-co-vaed-1982.