Filed: Apr. 19, 2018
Latest Update: Apr. 19, 2018
Summary: Not for publication MEMORANDUM DECISION RE MOTION FOR ATTORNEY FEES S. MARTIN TEEL, JR. , Bankruptcy Judge . The plaintiff has filed a Motion for Attorney Fees (Dkt. No. 98). I will deny the motion without prejudice to pursuit of the request to recover attorney's fees in a court of competent jurisdiction. I The plaintiff was a prevailing party on the adversary proceeding claim to deny the debtor a discharge, but no statute provides for a party prevailing on such a claim to recover atto
Summary: Not for publication MEMORANDUM DECISION RE MOTION FOR ATTORNEY FEES S. MARTIN TEEL, JR. , Bankruptcy Judge . The plaintiff has filed a Motion for Attorney Fees (Dkt. No. 98). I will deny the motion without prejudice to pursuit of the request to recover attorney's fees in a court of competent jurisdiction. I The plaintiff was a prevailing party on the adversary proceeding claim to deny the debtor a discharge, but no statute provides for a party prevailing on such a claim to recover attor..
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Not for publication
MEMORANDUM DECISION RE MOTION FOR ATTORNEY FEES
S. MARTIN TEEL, JR., Bankruptcy Judge.
The plaintiff has filed a Motion for Attorney Fees (Dkt. No. 98). I will deny the motion without prejudice to pursuit of the request to recover attorney's fees in a court of competent jurisdiction.
I
The plaintiff was a prevailing party on the adversary proceeding claim to deny the debtor a discharge, but no statute provides for a party prevailing on such a claim to recover attorney's fees. The Motion for Attorney Fees will be treated as timely filed, but the plaintiff is not entitled to recover a judgment for attorney's fees in this court.1
II
The Judgment in this adversary proceeding (Dkt. No. 76) decreed that the plaintiff would recover his taxable costs of the adversary proceeding by a bill of costs filed within 21 days of entry of the judgment pursuant to LBR 7054-1. Attorney's fees, however, are not taxable costs recoverable via a bill of costs.
III
The promissory note in favor of the plaintiff provided:
If this Note is given to an attorney for collection or enforcement, or if suit is brought for collection or enforcement, or if it is collected or enforced through probate, bankruptcy, or other judicial proceeding, then Borrower shall pay all costs of collection and enforcement, including reasonable attorney's fees and all costs in addition to other amounts due under this Note.
See Dkt. No. 1, Ex. A. However, after denying the defendant a discharge in his bankruptcy case, the court decreed in its Judgment resolving this adversary proceeding that it is:
ORDERED that the court abstains from adjudicating the plaintiff's claim seeking entry of a monetary judgment on the debt owed him, and the plaintiff, Douglass Sloan, is free to pursue that claim in a court of competent jurisdiction.
Dkt. No. 76, at 2. Thus, pursuant to the Judgment, this court abstained from adjudicating the plaintiff's claim seeking entry of a monetary judgment on the debt owed him. That debt includes any attorney's fees the plaintiff is entitled to recover.
The Judgment decreed that the plaintiff is free to pursue his claim for a monetary judgment on the debt in a court of competent jurisdiction. The plaintiff pursued no appeal of the Judgment, and is thus bound by the decree in the Judgment regarding abstention. The plaintiff is therefore barred from pursuing in this court recovery of a monetary judgment on the debt, including any attorney's fees recoverable as part of the debt. The plaintiff may instead seek such recovery in a court of competent jurisdiction.
IV
In light of the foregoing, an order follows decreeing that the plaintiff's Motion for Attorney Fees (Dkt. No. 98) is denied without prejudice to pursuit of the claim for attorney's fees in a court of competent jurisdiction.
