Wepsic v. Josephson (In re Wepsic)

237 B.R. 481
CourtUnited States Bankruptcy Court, S.D. California
DecidedMay 4, 1999
DocketBankruptcy No. 97-15509-H13; Adversary No. 98-90181-H13
StatusPublished

This text of 237 B.R. 481 (Wepsic v. Josephson (In re Wepsic)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wepsic v. Josephson (In re Wepsic), 237 B.R. 481 (Cal. 1999).

Opinion

MEMORANDUM DECISION

JOHN J. HARGROVE, Bankruptcy Judge.

At issue is debtor Diane Mannion Wep-sic’s (“Wepsic”) request for her costs and [484]*484attorney fees pursuant to 15 U.S.C. § 1640(a).

This Court has jurisdiction to determine this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1) and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K).

FACTS

The facts set forth in this Court’s September 1, 1998, Memorandum Decision are incorporated herein. This Court granted partial summary judgment in favor of Wepsic and found that creditor Jackie Josephson (“Josephson”) violated the Truth in Lending Act (“TILA”). As the prevailing party, Wepsic is entitled to her costs and reasonable attorney fees as determined by this Court. Wepsic seeks costs in the amount of $217.27 and attorney fees in the amount of $51,473.02.

On March 23, 1999, this Court held a hearing and took the matter under submission.

DISCUSSION

15 U.S.C. § 1640(a)(3) provides that in a case of a successful action to enforce a right of rescission, “the costs of the action, together with a reasonable attorney’s fee as determined by the court.” This Court must base its calculation of a reasonable attorney’s fee in a TILA case on factors established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Semar v. Platte Valley Fed. Sav. & Loan Assoc., 791 F.2d 699 706 (9th Cir.1986) (citation omitted); Martinez v. Idaho First Nat'l Bank, 755 F.2d 1376, 1378 (9th Cir.1985) (“The failure to follow these guidelines constitutes an abuse of discretion”).

The factors set forth in Johnson are the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the preclusion of other employment by the attorney due to acceptance of the case, the customary fee, whether the fee is fixed or contingent, time limitations imposed by the client or the circumstances, the amount involved and the results obtained, the experience, reputation, and ability of the attorneys, the “undesirability” of the case, the nature and length of the professional relationship with the client, and awards in similar cases.

Wepsic’s attorneys billed a combined 263.10 hours on this case. Deborah Raymond (“Raymond”) billed 87 hours at $195.00 per hour for a total of $16,916.25. Louis G. Bruno (“Bruno”) billed a total of 176.10 hours at $195.00 per hour for a total of $34,339.50.

“The starting point for an award of attorneys’ fees is to multiply the number of hours reasonably spent on the case by a reasonable hourly rate.” In re Auto Parts Club, Inc., 224 B.R. 445 (Bankr.S.D.Cal.1998) (citations omitted). The Court finds that the $195.00 rate charged by Wepsic’s attorneys is indicative of the prevailing market rate in the community and is therefore reasonable. The Court finds, however, that the number of hours billed were duplicative, excessive and unnecessary.

A review of the record in this case, the attorney túne sheets and the supporting pleadings, leads the Court to conclude that this was a relatively straightforward TILA case including issues on the finance charge, the APR, the number of payments, and the faulty notice of rescission. With the exception of the later, the other issues revolve around simple calculations, some of which are routinely performed by a computer program. Thus, it does not appear to the Court that two attorneys were needed to litigate this case. To the extent the fees of Wepsic’s attorneys were duplicative, the Court will award only one fee. The Court also declines to award attorney’s fees for the time Wepsic’s attorneys spent conferring with each other, or re[485]*485viewing each other’s work. See Daggett v. Kimmelman, 811 F.2d 793 (3rd Cir.1987).

Mr. Bruno was associated into this case because of his “expertise” in the TILA area. However, the Court concludes that an excessive amount of time was spent researching and drafting the pleadings in this matter. Compensation for significant amounts of time which are billed for general education is generally not reasonable. In re Maruko, 160 B.R. 633 (Bankr.S.D.Cal.1993).

In addition, both attorneys billed for matters unrelated to the TILA violations. Both attorneys also charged their regular hourly rates for the attending relief from stay matters, the continued confirmation hearing, and the refinancing of Wepsic’s property. These fees are contrary to the United State Trustee Guidelines in Chapter 13 cases which allow a flat rate of $325.00 for opposition to relief from stay, $250.00 for stipulated orders re refinancing of real property, and $75.00 for appearances at post-confirmation hearings.

The Court finds the fees excessive given that this case ended with the summary judgment motion. There were a total of seven hearings in this case, with only two being substantive (ie., argument for the motion on summary judgment and argument for attorney fees). The Court also finds the amount of time involved is disproportionate to the results obtained. The Court’s reasoning for disallowing some of the fees is set forth below:

A. Duplicative Time Entries: The Court finds the following entries duplicative and not requiring the work of two attorneys.

1. Court Appearances: Both Raymond and Bruno appeared at the 6/12/98; 7/22/98; and 10/28/98 court hearings. Raymond billed 3.3 hours; 1.5 hours and I.0 hours respectively for a total of 5.8 hours at $195.00 per hour ($1,131.00). In addition to billing for her appearances, Raymond billed 1.4 hours on 7/21/98 preparing for oral argument (presumably for the hearing on July 22, 1998). All Raymond’s time is disallowed. Bruno also billed 2.75 hours on 6/12/98 for his appearance and meeting with counsel after the appearance. Because the entry is lumped,1 the Court deducts one hour from Bruno’s time. The amount of $1,599.00 (8.2 hours x $195.00) is disallowed.

2. Counsel Conferences: Bruno billed 3.75 hours on 6/3/98; 3.5 hours on 6/18/98; and 3.92 hours on 8/13/98 for a total of II.17 hours at $195.00 per hour ($2,178.15). These conferences with co-counsel Raymond are duplicative and the amount of $2,178.15 is disallowed.

3. Research and Drafting: Raymond billed 1.2 hours on 6/18/98; 1.1 hours on 6/22/982; .3 hours on 6/26; 3.3 hours on 7/1/98; 2.5 hours on 7/2/98; 2.8 hours on 7/17/98; 2.5 hours on 7/19/98; 2.3 hours on 7/20/98; and 2.0 hours on 8/13/98 for a total of 18.0 hours at $195.00 per hour ($3,510.00).

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Related

Susan J. Carroll v. Wolpoff & Abramson
53 F.3d 626 (Fourth Circuit, 1995)
In Re Auto Parts Club, Inc.
224 B.R. 445 (S.D. California, 1998)
In Re Maruko Inc.
160 B.R. 633 (S.D. California, 1993)
Johnson v. Georgia Highway Express, Inc.
488 F.2d 714 (Fifth Circuit, 1974)
Daggett v. Kimmelman
811 F.2d 793 (Third Circuit, 1987)

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Bluebook (online)
237 B.R. 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wepsic-v-josephson-in-re-wepsic-casb-1999.