Filed: Aug. 13, 2019
Latest Update: Aug. 13, 2019
Summary: MEMORANDUM OF DECISION TERRY L. MYERS , Bankruptcy Judge . BACKGROUND Randal French ("French") was the attorney for debtors Joseph and Heather Soelberg in this bankruptcy case. 1 On August 7, 2019, French filed a "Motion for Writ of Execution and for Continuing Garnishment," Doc. No. 317 ("Motion"). 2 The Motion requests that the Court enter an "order directing the Clerk of the Court to execute and issue the attached Writs of Execution and for Continuing Garnishment" directed at the Soel
Summary: MEMORANDUM OF DECISION TERRY L. MYERS , Bankruptcy Judge . BACKGROUND Randal French ("French") was the attorney for debtors Joseph and Heather Soelberg in this bankruptcy case. 1 On August 7, 2019, French filed a "Motion for Writ of Execution and for Continuing Garnishment," Doc. No. 317 ("Motion"). 2 The Motion requests that the Court enter an "order directing the Clerk of the Court to execute and issue the attached Writs of Execution and for Continuing Garnishment" directed at the Soelb..
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MEMORANDUM OF DECISION
TERRY L. MYERS, Bankruptcy Judge.
BACKGROUND
Randal French ("French") was the attorney for debtors Joseph and Heather Soelberg in this bankruptcy case.1 On August 7, 2019, French filed a "Motion for Writ of Execution and for Continuing Garnishment," Doc. No. 317 ("Motion").2 The Motion requests that the Court enter an "order directing the Clerk of the Court to execute and issue the attached Writs of Execution and for Continuing Garnishment" directed at the Soelbergs. Id.
The proposed writs of execution, Doc. Nos. 317-2 and 317-3, assert that the United States of America would require the Valley County (Idaho) Sheriff to execute upon the Soelbergs' real and personal property, and garnish any amounts due the Soelbergs from their employer(s), in order to satisfy a "judgment." The asserted "judgment" is an "Order Granting Application for Approval of Compensation" obtained by French on September 19, 2016. See Doc. No. 317-1.3
DISCUSSION
The Court finds the Motion is not well taken and it therefore will decline to enter French's proposed order or to instruct the Clerk to issue the proposed writs.4
An application under, and an allowance of compensation made pursuant to, § 330(a)(4)(B) establishes the amount of such fees and costs entitled to treatment as an administrative expense. Given the context and chronology of this case, and absent reversal of the order of conversion, such compensation would necessarily be addressed in the chapter 7 trustee's final report and account. That report indicates the chapter 7 administrative expenses and a priority domestic support obligation consumed all available funds of the estate. Doc. No. 312 at 4-5. French's allowed claim for compensation and reimbursement of expenses in the chapter 13 case received nothing. Id. at 5. The trustee's final account and distribution report was approved. Doc. No. 313.
French treats the order allowing compensation as a "judgment," and that term is used in the proposed writs, Doc. Nos. 317-2 and 317-3, and in French's supporting declaration, Doc. No. 317-1, which identifies the September 2016 order, Doc. No. 122, and then refers to it as a "judgment" and also asserts that its amount is entitled to accrue interest "[u]nder the Federal Judgment Rate."
Administrative expense claims are not, and are not entitled to be treated as, money judgments. In the case of In re 3109, LLC, 2014 WL 1655415 (Bankr. D.C. Apr. 25, 2014), the court noted in an analogous situation that an order allowing § 330(a)(1) compensation as an administrative expense was not a monetary judgment. It held:
An order allowing a claim in a bankruptcy case, regardless of whether the claim is an administrative claim or instead a prepetition claim of a creditor, adjudicates the amount owed to the holder of the claim, but does not amount to a monetary judgment unless the court so directs. The distinction between an order allowing a claim and a monetary judgment was aptly described in Ziino v. Baker, 613 F.3d 1326 (11th Cir. 2010). . . . The Eleventh Circuit determined that the court order allowing Ziino's claim in Wellman's prior bankruptcy proceeding was not a final, executable money judgment. Id. at 1327. As explained by the court:
An allowed claim in bankruptcy serves a different objective from that of a money judgment—it permits the claimant to participate in the distribution of the bankruptcy estate. See 11 U.S.C. § 507 (2006); 4 Collier on Bankruptcy ¶ 501.01[2][b] (Alan N. Resnick & Henry J. Sommer. eds., 16th ed. 2010). "[T]he assertion of a claim in bankruptcy is, of course, not an attempt to recover a judgment against the debtor but to obtain a distributive share in the immediate assets of the proceeding." Matter of Mobile Steel Co., 563 F.2d 692, 700 (5th Cir. 1977) (quoting In re Kansas City Journal-Post Co., 144 F.2d 791, 803-04 (8th Cir. 1944); see also 10 Collier on Bankruptcy ¶ 7069.01 (Alan N. Resnick & Henry J. Sommer, eds., 15th ed. rev. 2009) ("By its terms, Civil Rule 69 is applicable to enforcement of only judgments for the payment of money. . . . If the underlying cause of action against the estate arose prepetition, it normally will be dealt with as a claim to be satisfied by a distribution upon liquidation or under a reorganization plan. . . .").
Id. at 1328-29. Here, similarly, the court's award in favor of Johnson for postpetition services was the section 330 predicate for his being allowed to obtain a distribution under the terms of the confirmed plan. The court did not indicate that the award in favor of Johnson was to go beyond that and be treated as a money judgment.
Id. at *2; see also In re Trigee Found., Inc., 2017 WL 3190737 at *1-3 (Bankr. D.C. July 26, 2017) (determining that the allowance of a claim as an administrative expense or as a claim against the estate does not constitute entry of a money judgment but merely determines that the claimant is entitled to a distribution from the bankruptcy estate being administered, and that fee orders were not intended to be money judgments collectible by writs of execution after the dismissal of the case; holding that fee orders are not civil judgments, and 28 U.S.C. § 1961 providing for post-judgment interest does not apply; and finding Fed. R. Civ. P. 69(a) is inapplicable as it only permits the enforcement of money judgments).5
This Court did not enter a money judgment in favor of French. Instead, the Court entered an order approving under § 330(a)(4)(B) French's fees and costs in the amount of $16,688.75, and determining French's claim had administrative expense priority. Despite the Motion's contentions and citations to Bankruptcy Rule 7069 and Fed. R. Civ. P. 69, the authorities do not support the assertion that the order was a money judgment, and French is not entitled to entry of the requested order of this Court or to the writs sought from this Court's Clerk.6
Therefore, the Court will enter an Order denying the Motion, Doc. No. 317.
