The Supreme Court recently denied cert petitions in three bankruptcy-related cases: Hull v. Rockwell, No. 20-499 (pet’n denied Feb. 22, 2021); GE Capital Retail Bank v. Belton, 20-481 (pet’n denied March 8, 2021); and Marino v. Ocwen Loan Servicing, No. 20-409 (pet’n denied March 22, 2021). [Read more…] about Scotus: Three Denials and a Pending
Debtors Entitled to Fees for Creditor’s Collateral Attack on Contempt Motion
Where the creditor raised all its defenses to the debtors’ contempt motion in a collateral adversary complaint, the debtors were entitled to at least a portion of their attorney fees incurred in litigating the adversary proceeding under section 362(k)(1). Moon v. Rushmore Loan Management Services, LLC., No. 20-1199 (B.A.P. 9th Cir. Feb. 4, 2021) (unpublished). [Read more…] about Debtors Entitled to Fees for Creditor’s Collateral Attack on Contempt Motion
Court Has Discretion to Reimburse Expenses Not Included in No-Look Fee Order
Under the bankruptcy court’s no-look fee standing order, debtor’s counsel could not obtain reimbursement for advancing pre-petition costs including filing fees and credit counseling, but the court had discretion to allow those expenses as part of counsel’s compensation. McBride v. Riley (In re Riley), No. 18-30535 (5th Cir. May 13, 2019).
Under its “no money down” fee agreement, the McBride Law Firm advanced the chapter 13 debtor’s filing fees, credit counseling, and the cost of obtaining credit reports. McBride later sought to recover the advance along with its regular fees under the bankruptcy court’s no-look fee standing order. The bankruptcy court found that the attorney fees were limited to those fees specified in the standing order, and it further held that it had no authority to award additional fees or reimbursements. At the same time, the bankruptcy court denied reimbursement of pre-petition expenses in eighteen other cases in the district. McBride and the attorneys from two of the other cases appealed to the district court. That court affirmed.
On appeal to the Fifth Circuit, the bankruptcy court’s position was represented by two chapter 13 trustees who reiterated the reasoning of the bankruptcy court. At the request of the circuit court, the UST also weighed in and supported the bankruptcy court.
On appeal, McBride argued that the expenses were reimbursable under section 503. Specifically, section 503(b)(1), which permits payment of expenses necessary to preserve the estate, or section 503(b)(2), which, in conjunction with section 330(a)(4)(B), permits an award of “reasonable compensation” for attorneys based on services rendered. In finding that McBride was not entitled to reimbursement, the bankruptcy court relied on its February, 2017, standing order permitting the bankruptcy court to award attorney’s fees up to a specified amount without the necessity of the attorney filing an itemized fee application. Prior to February, 2017, the court’s standing order provided that pre-petition expenses were not reimbursable separately from the no-look fee amount. The February, 2017, order removed the language relating to reimbursement of expenses with one exception: the order specifically allowed the cost of postage for service of a motion to modify to be added to the no-look fee.
The Fifth Circuit began with McBride’s argument that, by its silence on the subject, the new no-look fee standing order permits reimbursement of pre-petition expenses. The court disagreed. It held that where the purpose of the standing order was to simplify payment of attorney’s fees, it was reasonable to conclude that silence on a given expense meant that expense was not covered by the order. This conclusion was further supported by language in the standing order that counsel seeking fees or expenses beyond those allowed in the no-look fee order must file an itemized fee application.
The court next rejected McBride’s argument that the expenses were reimbursable under sections 503(a) and (b)(1)(A) as necessary to the preservation of the estate, finding that neither of the two prerequisites were met. First, the expenses were not post-petition transactions with the bankruptcy estate, but were personal debts incurred by the debtor pre-petition. Second, the expenses were incurred as an administrative requirement belonging to the debtor. Payment of the pre-petition fees did not benefit or add value to the estate.
The court turned to the bankruptcy court’s finding that, under sections 503(b) and 330(a)(4)(B), debtor’s counsel may be compensated only for services, and that “all bankruptcy courts lack the discretion to ever award debtor’s counsel compensation that includes reimbursement for advancing the costs of those three fees.” The circuit court rejected the notion that the definition of “compensation” could never encompass “reimbursement.” It found the permissive language in section 330(a)(4)(B), that the court may award compensation for reasonable and necessary expenses, is broad enough to encompass reimbursement. The court was unpersuaded by the bankruptcy court’s reasoning that permitting reimbursement of expenses owed by the debtor as the price of entering the world of bankruptcy, would necessarily diminish the funds available to pay other creditors. While that reasoning may have been relevant to the determination that the expenses were not administrative costs necessary to the preservation of the estate under section 503(b), it was not relevant to consideration of whether counsel’s advance of those fees was in the best interest of the debtor and reimbursable as part of counsel’s compensation under section 330(a)(4)(B). Emphasizing the discretionary nature of section 330(a)(4)(B), the court noted that permitting a court to award reimbursement of pre-petition expenses would not eviscerate Rule 1006’s provision for payment of filing fees through an installment plan.
In sum, the Fifth Circuit affirmed the bankruptcy court’s holding that the no-look fee standing order does not permit additional fees for reimbursement of pre-petition expenses, and that advancing those fees does not fall under administrative expenses necessary to preservation of the bankruptcy estate under section 503(a). However, the court vacated the bankruptcy court’s holding that bankruptcy courts lack all discretion to award reimbursement of those expenses as part of counsel’s compensation under section 330(a)(4)(B).
SCOTUS Hears Arguments on Discharge Violation Sanctions
Addressing the reach of a bankruptcy court’s contempt powers in the context of a violation of the discharge injunction, the Supreme Court heard arguments on April 24, in the case of Taggart v. Lorenzen, No. 18-489.
Daniel Geyser appeared for the debtor, Bradley Taggart. Nicole Saharsky represented the creditor, Shelley Lorenzen, executor. Sopan Joshi, from the office of the Solicitor General, argued as amicus not in support of either party. NACBA submitted an amicus brief in support of reversal.
The controversy hinged on a state court finding that Mr. Taggart’s creditor could seek contractual attorney fees in the litigation before it, even though those fees would have been subject to the discharge order injunction had Mr. Taggart not “returned to the fray.” The bankruptcy court found that the “returned to the fray” doctrine did not apply and that the litigation violated the discharge injunction. It awarded sanctions, at least in part representing the debtor’s attorney’s fees. The Ninth Circuit ultimately reversed the sanctions stating broadly that a creditor acting in good faith cannot be held liable for discharge injunction violation even if that belief is unreasonable. Lorenzen v. Taggart (In re Taggart), 888 F.3d 438 (9th Cir. 2018).
At the outset, all the parties agreed that the Ninth Circuit rule was incorrect. The parties agreed that in the case of a discharge violation, even one made in good faith, the bankruptcy court may order the creditor to cease the violation and restore any property taken.
Where there was disagreement between parties was in the application of the bankruptcy court’s contempt powers. Calling contempt a severe remedy, several of the Justices appeared concerned at its application in the context of discharge injunction where the creditor’s conduct was based on a “fair ground of doubt.”
The debtor advocated for the bankruptcy court’s discretion under section 105(a) to make the determination as to the nature of the creditor’s conduct and whether it merits sanctions, including attorney’s fees. The creditor has a “safe harbor” in Rule 4007 which allows it to seek guidance on the question of dischargeability from the bankruptcy court.
The government advocated for a purely objective test as to the reasonableness of the creditor’s belief that the discharge injunction did not apply. In Justice Gorsuch’s questioning, it appeared that an objective reasonableness would prevail even in the absence of the creditor’s subjective reasonableness (i.e. where there existed good reason to believe the conduct non-violative but the creditor was unaware of that good reason and went forward nonetheless.)
The creditor advocated a similar “reasonable good faith belief,” test as the government (though with the subjective element intact) emphasizing the “chilling effect” of requiring a creditor to jump through the Rule 4007 hoop to have dischargeability determined in an action before the bankruptcy court.
One concern expressed by several Justices was the establishment of a strict liability standard which put the creditor in a position of being permitted to seek a ruling on dischargeability from the state court but not be able to rely on that ruling as a defense to discharge injunction violation if the state court was in error.
The question of who should bear the burden of harm echoed throughout the questioning. Justice Kavanaugh noted to Mr. Geyser that under tradition rules of injunction good faith is a defense. Mr. Geyser disagreed stating that traditionally, the burden of uncertainty falls on the person subject to the decree. In a similar vein, Justice Kagan asked Ms. Saharsky: “As between the victim of the violation and the person who, with all the good faith in the world, perpetrated the violation, why shouldn’t we look to the person who perpetrated the violation?”
Justice Roberts, while noting the long history of the American Rule against fee-shifting, posited the possibility that a bankruptcy court could award sanctions for contempt using the debtor’s attorney’s fees as a reasonable number for that award.
See the SCOTUS blog for further discussion of the argument here.
Bifurcated Attorney Fee Agreement Gets Thumbs Up
A Utah bankruptcy court upheld a chapter 7 debtor’s attorney’s bifurcated fee agreement in the face of a motion for sanctions by the U.S. Trustee. In re Hazlett, No. 16-30360 (Bankr. D. Utah Apr. 10, 2019).
Attorney Russell B. Weekes, of Capstone Law, entered into a fee agreement with the chapter 7 debtor, Brett Hazlett, under which Mr. Hazlett would pay no retainer fee, but would pay post-petition costs and expenses in the amount of $2,400 in ten monthly installments. Capstone had an arrangement with BK Billing, under which BK Billing would buy the account from Capstone for $1,800 and collect the fee payments from Mr. Hazlett. Mr. Weekes explained that arrangement to Mr. Hazlett. Mr. Weekes filed all the necessary bankruptcy papers and Mr. Hazlett received his chapter 7 discharge without complications in March of 2017.
In September, 2017, the U.S. Trustee reopened the case and moved for sanctions based on the fee agreement. Specifically, the UST challenged: “(1) the marketing of Zero-Down Chapter 7 bankruptcy services; (2) the bifurcation of bankruptcy services into pre-petition and post-petition fee agreements; (3) filing the petition and the Initial Bankruptcy Papers for purportedly no charge; (4) the reasonableness of the $2,400 post-petition fee; (5) the use of BK Billing to factor and collect the fee; and (6) the propriety of utilizing electronic signatures in bankruptcy.”
In its preliminary discussion, the court noted several factors contributing to the problem of fees for chapter 7 representation, not least of which is the fact that chapter 7 debtors tend not to have the funds to pay a retainer. Adding to the difficulty, the Supreme Court held in Lamie v. United States Trustee, 540 U.S. 526 (2004), that a chapter 7 debtor’s attorney cannot be paid out of estate funds and that any fee still owed at the time of the petition is dischargeable along with other debts. The court reviewed the various, less-than-optimal, choices chapter 7 debtors have, beginning with the pro se route (or use of petition-preparers who often overcharge and underperform), which typically results in needlessly complicated chapter 7 cases and a low discharge rate of 70%.
In the absence of established law in the district on the topic of bifurcated fee agreements, the court found guidance in an ethics opinion issued by the Utah State Bar which emphasized that any such agreement must be for post-petition service, must be entered into after full disclosure and evidence of an understanding on the part of the debtor, and must be permissible under bankruptcy law.
The court found that Capstone’s fee agreement procedures—which included verbal explanation of the ramifications of all the payment options; extensive documents to be signed by the client laying out the disclosures, warnings and explanations; a general information document requiring the client’s initials on each paragraph; and more—satisfied the requirements of full disclosure and informed consent.
The court turned next to whether such agreements are permissible in bankruptcy. Section 329 requires that fees be reasonable, and Rule 2016(b) imposes disclosure requirements on attorneys. Evidence of compliance with both requirements must be presented to the court in the Form B2030 Disclosure of Compensation. The court found that bifurcated fee agreements are not per se prohibited and set forth the following “prime directives” for their use:
- The agreement must be in the debtor’s best interest.
- All fees must be reasonable and necessary. Where the attorney charges more for the post-petition agreement, he or she must justify the increased fee other than by work performed pre-petition.
- The fee arrangement must be revealed in Form B2030 within fourteen days of the petition.
- If the debtor opts to proceed pro se or with different counsel, the attorney must comply with the Local Rule pertaining to withdrawal or substitution of counsel.
The court acknowledged that Local Rule 2091-1 essentially requires a lawyer to complete all aspects of a bankruptcy case, but noted that in this case, the attorney fee agreement contemplated just that; Mr. Weekes was obligated under the agreement to complete the bankruptcy case unless the debtor opted to proceed pro se or hire new counsel.
Finding that Mr. Weekes’s fees were reasonable and necessary, the court went on to examine Capstone’s use of BK Billing for collection of payments. The court expressed concern about the use of such services due to systemic issues of overcharging debtors and creating a conflict of interest for the debtor’s attorney between the debtor and the collector. It noted, however, that the Utah Ethics Opinion found that such arrangements were permissible so long as all the requirements of full disclosure, informed consent, and reasonable fees were met. The court found that to be the case here.
The same was true for Capstone’s use of electronic signatures for some of the documents Mr. Hazlett signed. Though Local Rule 5005-2(e), which pertains to documents an attorney must retain, refers to “original signatures,” various rules and statutes in Utah sanction the use of electronic signatures, and it was therefore not unreasonable for Capstone to use e-signatures. Moreover, from a practical standpoint, the court noted that it is not always feasible to obtain wet signatures when financial pressures require immediate action.
The court concluded that Mr. Weekes provided valuable and ultimately successful services to Mr. Hazlett, that the terms of the fee agreement were fully disclosed, that the fee itself was reasonable and necessary and that, for all these reasons, sanctions were not warranted.
Attorney Fee Award Upheld Against Student Loan Servicer
The district court found that the bankruptcy court did not abuse its discretion in holding the student loan servicer in contempt for failing to apply the student debtor’s payments outside the plan in accordance with pre-petition payments as required by the debtor’s confirmed chapter 13 plan. Penn. Higher Educ. Assistance Agency v. Berry, No. 18-444 (D. S.C. March 5, 2019).
Berry had student loans issued by the Department of Education (DOE) and administered by the Pennsylvania Higher Education Assistance Agency (PHEAA). She was paying off her loans under an Income-Driven Repayment plan (IDR) and a Public Service Loan Forgiveness (PSLF) program. In her chapter 13 bankruptcy, her confirmed amended plan provided for continued payments on her student loan debts outside the plan with those payments being applied exactly as before thereby allowing her to continue to benefit from the IDR and PSLF. The PHEAA, however, put the loans into administrative forbearance under which it applied the payments to principal and interest. Ms. Berry filed a Motion to Enforce seeking sanctions in the amount of $22,317.30, representing the attorney fees she incurred pursuing proper application of the payments. The DOE eventually settled its portion of the action for $6,000 and Ms. Berry sought the remaining amount from PHEAA. The bankruptcy court granted Ms. Berry’s entire attorney fee request consisting of $22,317.30 of which, after the DOE’s $6,000 settlement, the PHEAA owed $16,317.30.
On appeal, the district court began with PHEAA’s defense that it was limited in its authority by its servicing contract with the DOE. The court found that the bankruptcy court did not commit clear error in its application of law or in its findings of fact when it concluded that PHEAA had a contractual obligation to deal with borrower’s complaints and to bring unresolved problems to the attention of the DOE. In this case, it did neither.
The district court turned to the bankruptcy court’s conclusion that bad faith was not necessary to imposition of sanctions under section 105(a), reciting the necessary elements of contempt as: “(1) The existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) . . . that the decree was in the movant’s ‘favor’; (3) . . . that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and (4) . . . that [the] movant suffered harm as a result.” Here, even if PHEAA lacked authority to treat Ms. Berry’s payments as provided for in her plan, the bankruptcy court did not err in finding that it could not simply ignore the confirmed plan. At the very least, it should have sought guidance from the DOE, or objected to the plan.
Along the same lines, PHEAA argued that the bankruptcy court abused its discretion by holding it in contempt where its conduct was governed by its contract with the DOE and was therefore not willful. The court found that the bankruptcy court’s authority to impose sanctions under section 105(a) did not require a finding of willfulness.
The court found that the bankruptcy court correctly based its decision on its broad authority to craft a remedy based on the particular circumstances of a given case and that, here, the bankruptcy court was persuaded by PHEAA’s failure to make any attempt to either comply with the debtor’s plan or seek guidance from the DOE. This finding was not an abuse of discretion.
Finally, the district court affirmed the bankruptcy court’s allocation of sanctions as having been based on the debtor’s efforts to obtain compliance from PHEAA.
District Court Addresses Due Process in Fee Hearing
The district court found that the Chapter 7 trustee’s legal representative was deprived of due process when the bankruptcy court reduced a portion of its fees without providing notice and an opportunity to be heard. Arnall, Golden, Gregory, LLP, v. Stroud, No. 18-3755 (N.D. Ga. Jan. 28, 2019).
Appellant, Arnall, Golden, Gregory, LLP, sought $13,607.09 in attorney fees for services performed for the Chapter 7 trustee in connection with the debtor/appellee’s motion to reconvert her case to Chapter 13. After a fee hearing, the court found that $3,575.50 of the appellant’s fees were for services constituting trustee duties and that $3,000 of the $6,000 in fees claimed for work on litigation of the conversion motion, were not reasonable and necessary. The court thus reduced the fees to $7,000.00. [Read more…] about District Court Addresses Due Process in Fee Hearing
Bankruptcy Court Says Call First Before Seeking Attorney’s Fees
The Bankruptcy Court for the Eastern District of Michigan recently ruled whether a creditor must pay attorney’s fees to the objecting party when the creditor filed a claim with deficient information. In re Ball, No. 17-22574 (Bankr. E.D.MI. Jan. 22, 2019).
The issue was brought before the court by the chapter 13 trustee. A creditor, Financial Edge Credit Union (FECU), was owed a debt for overdraft charges which was an open-end consumer debt. FECU filed a deficient proof of claim that only attached a copy of the deposit account contract and did not include the last payment date or the date of the debtor’s last transaction.
[Read more…] about Bankruptcy Court Says Call First Before Seeking Attorney’s Fees
9th Circuit Clarifies Appellate Attorney’s Fees in Sanctions Case
The Ninth Circuit recently ruled that Section 362(k) of the Bankruptcy Code allows an award of attorney’s fees when the debtor successfully defends or challenges a judgment for violation of the automatic stay. In Easley v. Collection Serv. of Nev., No. 17-16506, 2018 U.S. App. LEXIS 35857, at *3 (9th Cir. Dec. 20, 2018), the Ninth Circuit Court of Appeals reversed the judgment of the District Court.
[Read more…] about 9th Circuit Clarifies Appellate Attorney’s Fees in Sanctions Case
Special Counsel Violates Code and Rules by Failure to Disclose Fee Agreements
Special counsel representing a bankruptcy debtor in a separate tort action must comply with bankruptcy statutes and rules relating to disclosure of their employment arrangements, including any fee-sharing agreements. Wright v. Csabi (In re Wright), No. 13-10472, Adv. Proc. No. 16-1004 (Bankr. S.D. Tex. Dec. 2017).
During her bankruptcy, chapter 13 debtor, Vicky Wright, presented to the court an agreement she had entered into with James Grissom to represent her in a contingency-fee tort claim. The court approved the agreement. Unbeknownst to the court, Mr. Grissom had separately entered into fee-sharing agreements with Francisco Rodriguez and William Csabi. After the tort case settled for $650,000, the court ordered that Mr. Grissom be paid $90,000 pursuant to the prior-approved agreement, and that the rest of the settlement proceeds go to the chapter 13 estate for distribution to creditors. Notwithstanding this order, Mr. Grissom distributed $73,330 each to Mr. Rodriguez and Mr. Csabi pursuant to the fee-sharing agreements. Ms. Wright’s bankruptcy counsel, Abe Limon, sent demand letters to Messrs. Rodriguez and Csabi notifying them that the transferred funds were property of the bankruptcy estate and demanding turnover. Mr. Csabi turned the funds over several months later and Mr. Rodriquez did not turn over the funds. Ms. Wright filed an adversary complaint seeking disgorgement and turnover.
The court proceeded to address the allegations in the adversary complaint with the following conclusions having been established in previous orders: 1) Ms. Wright’s portion of the settlement proceeds were part of the bankruptcy estate, and 2) Mr. Grissom never disclosed his fee agreements with either Mr. Rodriguez or Mr. Csabi to the court.
The court began with the admonition that special counsel seeking employment in a tort case related to a chapter 13 bankruptcy must comply with Rule 2014, local rule BLR 2014-1, and section 327(e), including filing an application with the bankruptcy court disclosing the terms of employment and fee-sharing agreements, and that, under Fifth Circuit precedent, this obligation is ongoing. As these violations were not specifically pled in the adversary complaint, the court relied on its power under section 105(a) to “attend to” them.
The court went on to address the statutory violations alleged in the complaint.
Section 329 and Rule 2016 mandate that any lawyer representing a debtor in connection with a bankruptcy case, including in a capacity that will impact the debtor’s case, must disclose to the court the financial arrangement under which he is employed. Section 504 prohibits fee sharing including fee-sharing agreements that might be permitted under non-bankruptcy state bar rules.
The court further found that because the settlement proceeds, except that portion carved out to pay the court-approved fees to Mr. Grissom, were property of the bankruptcy estate, Mr. Grissom’s unauthorized use of those funds to comply with his fee-sharing agreements violated the automatic stay. Both Mr. Rodriguez and Mr. Csabi also violated the automatic stay by accepting and retaining the funds after being made aware of the bankruptcy at the latest, when Ms. Wright’s chapter 13 attorney notified them in a letter seeking turnover of the funds.
As this order dealt only with liability, the court did not address the allegations in the complaint relating to damages. Nor did the court address alleged violation of the Texas Disciplinary Rules of Professional Conduct, citing interests of comity.