JERROLD N. POSLUSNY, JR., Bankruptcy Judge.
Kasen & Kasen, P.C. (the "Law Firm") filed an interim fee application in each of the above cases (the "Fee Applications"). The Court expressed several concerns about the Fee Applications, including whether: (1) the Rule 2016(b) statements or the retainer agreements control the terms for the Law Firm's compensation; and (2) the fees requested are reasonable. The Law Firm argues that the retainer agreements control and the requested fees are reasonable. For the reasons discussed herein, the Fee Applications will be GRANTED, in part, and DENIED, in part.
The Law Firm is counsel to each of the debtors. In each case, the Law Firm filed a Disclosure of Compensation of Attorney for Debtor(s) ("2016(b) Statement"), stating the Law Firm accepted a flat-fee of $3,500 for all aspects of representation in the bankruptcy. Dkt. No. 1 in each case. Paragraph 1 of each 2016(b) Statement states: "For legal services, I have agreed to accept $3,500. Prior to the filing of this statement I have received $3,500. Balance Due $0." Paragraph 6 of each 2016(b) Statement states:
(Brackets original.) Paragraph 7 of each 2016(b) Statement states: "the above-disclosed fee does not include the following service[s.]" The Law Firm left this response blank.
The overwhelming majority of 2016(b) statements the Court reviews in Chapter 13 cases include responses substantially similar to paragraph 1 (although attorneys are often paid less than the full amount to which they have agreed before the petition date). The responses to paragraph 6 are almost always limited to the specific tasks listed in Local Rule 2016-5(a)(1).
The Fee Applications, in contrast to the 2016(b) Statements, allege the $3,500 in each case was a retainer, and the Law Firm seeks a fee award over $3,500. In
The Court expressed concern about the Fee Applications and corresponded with the Law Firm on April 2, 2018, asking the Law Firm to address the following issues:
Letter from Court to J. Kasen (Apr. 2, 2018), Dkt. Nos. 36 (
The Law Firm filed responses on April 26 asserting: (1) in
At a hearing on May 17 the Court focused on the first issue — whether the 2016(b) Statements or the retainer agreements control. The Court asked Ms. Kasen, an attorney with the Law Firm, to address or distinguish
The Court allowed the Law Firm to review
The Law Firm filed a letter-brief in each case on June 14. In
Letter-Brief from J. Kasen to Court (June 14, 2018), Dkt. No. 82. The Law Firm advanced similar arguments in
At a hearing on July 5, Ms. Kasen acknowledged the Law Firm's filing of the 2016(b) Statement in
She also stated the funds received from each Debtor pre-petition, as well as additional funds received post-petition, have been applied to each Debtor's account, even though the Court had not approved the Fee Applications. Ms. Kasen urged the court not to review the fees requested since no party in interest objected, and she asked the Court to exercise its equitable powers to award the fees requested. July 5 Hearing at 2:15.
Local Rule 2016-5 provides that "[a] chapter 13 debtor's attorney who charges a fee of $3,500 or less is not required to file and application for allowance of compensation." D.N.J. LBR 2016-5(a). This "No-Look Fee" requires the debtor's attorney to provide certain services to the debtor in return for the fee.
Local Rule 2016-5 also allows attorneys to seek supplemental fees for services provided that were not included as part of the No-Look Fee. Those fees are usually sought by filing a local form,
The Court "has a
11 U.S.C. § 329(a). Rule 2016(b) implements section 329, and mandates an attorney, "whether or not the attorney applies for compensation" to file a 2016(b) statement within fourteen days after a petition is filed, or as the court directs. Fed. R. Bankr. P. 2016(b). Fee application review under section 329 and Rule 2016(b) is designed to preserve "the integrity of the bankruptcy process,"
In response to the Court's inquiry on whether the 2016(b) Statement or the retention agreement controlled the Law Firm's compensation, the Law Firm argues the retainer agreements control. Ms. Kasen argued section 329(a) does not apply in
The Law Firm either forgot the terms of its employment when it filed the 2016(b) Statements or did not review the 2016(b) Statements before filing to make sure they were accurate. While the Law Firm may have initially agreed with each Debtor to be retained on an hourly basis, it filed the 2016(b) Statements, and applied pre-petition retainers (discussed below) as though it had been retained pursuant to the No-Look Fee. Only later, likely at the time the Law Firm was preparing the Fee Applications, did it realize its mistake.
As such, the Court finds that the 2016(b) Statements control the Law Firm's compensation. Each 2016(b) Statement states the Law Firm had accepted $3,500 to provide all services to the respective Debtor(s) — in fact, the 2016(b) Statements did not list any services that were excluded from the $3,500 fee. The 2016(b) Statements did not state that the $3,500 was a retainer, or that the Law Firm intended to bill on an hourly basis and seek court approval of those fees. The Law Firm failed to provide a complete picture of the fee agreements it asserts it reached with its clients. There is nothing to lead the Court (or a third party) to conclude that the Law Firm sought anything more than $3,500 for all services to be provided. Instead, the 2016(b) Statements lead the Court (and third parties) to conclude that the Law Firm agreed to accept $3,500 in each case, for all representation in that case. Moreover, the Law Firm did not attach a retention agreement to any of the 2016(b) Statements.
This case is analogous to
As in
But additional facts suggest that the Law Firm intended to accept the No-Look Fee. At the July 5 hearing, Ms. Kasen directed the Court's attention to
Applying funds from a retainer prior to court approval is not permitted under the Bankruptcy Code.
Ms. Kasen argued that each Debtor's schedules as well as each plan showed the Law Firm sought to be paid on an hourly basis. In essence, Ms. Kasen argued the Court and other parties had the duty to "ferret out pertinent information" about the Law Firm's intended method of compensation,
To determine that the Law Firm intended all along to proceed on an hourly basis would lead the Court to conclude that the Law Firm took actions that may have violated the Rules of Professional Conduct by accepting payment from the retainer prior to Court approval of the fees. Considering these two options, the Court can only conclude that the Law Firm would not intentionally violate the Rules of Professional Conduct. This conclusion also corresponds with Ms. Kasen's statements at the July 5 Hearing, where she stated the representations in the 2016(b) Statements were "inadvertent."
Therefore, the Court could cap fees at $3,500 stated in each 2016(b) Statements or require the Law Firm to disgorge fees since failed to meet its obligations under section 329 and Rule 2016(b).
The Law Firm seeks allowance of fees of $4,697.50 and expenses of $1,180.81, for a total of $5,878.31. This case was a typical Chapter 13 case. The Law Firm assisted Busillo in confirming a plan (and a modified plan), that allowed Busillo to discharge unsecured debt. After reviewing the docket, claims register, and pleadings relevant to considering of the Fee Application, the Court will award the No-Look Fee. And since there were no objections to the Fee Application, the Court will exercise its discretion to award supplemental fees in accordance with the fee schedule in the Supplemental Fee Form of $400.
Supplemental fees will be awarded for preparing and filing: (a) the modified plan ($300) and (b) the amended schedules ($100). The Court will not award fees on an hourly basis because the Law Firm did not show why the work provided was more difficult or required more time than what is provided in the Supplemental Fee Form. The Court will not award additional fees for the preparation of a motion to modify the plan as such motions are superfluous and are not filed in this District. In fact, the only motions to approve a modified Chapter 13 plan, which this Court can recall, were filed by the Law Firm in
The Law Firm asserts that the requirement to file a 2016(b) Statement did not apply in
Turning to the Fee Application, most of the issues in the Cranes' case related to the mortgage held by MTGLQ, LP.
Shortly after the motion for stay relief was filed, the Cranes filed a motion objecting to MTGLQ's claim seeking to cram down MTGLQ's secured claim under section 1322(b)(2) arguing this was allowed because the mortgage is against two adjoining lots, but the Cranes' home is situated on only one of those lots.
On January 24, 2017, the Court held a hearing on the motion for stay relief and the objection to MTGLQ's claim, at which time the Court requested additional briefing and scheduled an evidentiary hearing. After the January 24 hearing, the Cranes and MTGLQ began settlement discussions. The Law Firm assisted the Cranes in negotiating a settlement with MTGLQ which settlement was memorialized by an exchange of electronic mails between Ms. Kasen and MTGLQ's attorney.
After a settlement was reached, the Cranes filed a modified Chapter 13 plan, which MTGLQ argued did not meet the terms of the settlement. The parties briefed and argued the issue. The Court determined that the proposed plan did not comport with the terms of the settlement and that the Cranes would have to further modify their plan. The Cranes modified their plan again, and MTGLQ objected again, raising a new argument related to the payments necessary under the Plan. The parties once again briefed and argued the issue. The Court overruled MTGLQ's objection and confirmed the plan on February 9, 2018 (which order was amended on April 5 for reasons not relevant here).
The Law Firm seeks $22,880 in fees and $960.95 of expenses for its representation of the Cranes. As discussed above, the Law Firm's compensation could be limited to the No-Look Fee. But, as in
The Summary of Services attached to the Fee Application lists six areas in which the Law Firm provided services. The Court reviews each area and the related fees in turn. First, the Law Firm requests $5,467.50 for "Case Administration," which includes discussions with the Cranes related to, and preparation of, the petition, schedules, and Statement of Financial Affairs, and preparing and providing documents to the Chapter 13 Trustee. All these services are included in the services provided as part of the No-Look Fee under Local Rule 2016-5(a), and the Court will consider them as such for purposes of the Fee Application and award no additional fees for these services.
The Law Firm also provided services in this category related to participation in the Court's Loss Mitigation program and litigating an alleged violation of the automatic stay. The Court typically awards supplemental fees for loss mitigation and alleged stay violations on an hourly basis. The Law Firm seeks an award of $3,545 on account of these services, which is at the high end of reasonable but will be allowed.
Next, the Law Firm seeks reimbursement of $6,212.50 for "Claims Administration and Objections." Most of these fees relate to the Cranes' motion objecting to MTGLQ's claim and to cram down MTGLQ's mortgage. The Court will award the full amount requested by the Law Firm because most of the issues presented in this motion were atypical and, therefore, may be compensated outside of amount listed in the Court's Supplemental Fee Form.
The Law Firm requests $400 for preparing for and attending the Meeting of Creditors. These services are included in the No-Look Fee.
The Law Firm seeks $8,095 related to the Cranes' Chapter 13 plans. The litigation related to confirmation included some issues that were typical while others were not. After reviewing the Fee Application, the Court concludes that approximately one-third of the requested amount in this category were services that should have been included in the No-Look Fee, including, but not limited to, preparing and filing of the original plan, reviewing objections to the original plan and attending confirmation hearings on account of the original plan, totaling $2,337.50. This amount will not be allowed as the services provided are properly included in the No-Look Fee. The remaining amount requested ($5,757.50) relates to more complex, atypical issues, including interpretation of the settlement with MTGLQ and the Debtors and MTGLQ seeking to enforce different portions of the agreement at different times. The Law Firm also filed three modified plans, each of which is entitled to $300 standard Supplemental Fee, for a total of $900. The Court will, therefore, allow $6,657.50 as a supplemental fee for issues related to the Cranes' plan.
The Law Firm requests $1,277.50 for defending "Relief From Stay Proceedings." MTGLQ's stay relief motion and the Cranes' response was quite typical in comparison to the numerous stay relief motions before the Court on a weekly basis, and no justification was provided why fees in excess of the standard amount should be granted. Therefore, the Court will allow $400 for responding to the motion for stay relief, and disallow the remaining amount requested.
Finally, the Law Firm seeks $1,427.50 on account of Travel Time. Much of the Law Firm's travel time was on account of portions of the representation included in the No-Look Fee or fees which the Court is awarding as part of the standard supplemental fee (and therefore, not entitled to separate payment for travel) — such as attending the meeting of creditors, confirmation hearings, and the hearing related to MTGLQ's motion for stay relief. However, $245 of the travel time sought by the Law Firm relates to other issues in the case. Therefore, the Court will allow $245 of travel time.
In conclusion, the Court awards the following fees for the Law Firm's representation of the Cranes: (a) No-Look Fee of $3,500; (b) $3,545 on account of Loss Mitigation and stay violation issues; (c) $6,657.50 for Chapter 13 plan issues and modified Chapter 13 plans; (d) $400 for opposing MTGLQ's stay relief motion; and (e) $245 for travel time. The total amount of fees allowed in
The Law Firm seeks allowance of fees of $7,767.50 and expenses of $1,239.29, for a total of $9,006.79. The Law Firm assisted Reed in filing her plan and ultimately confirming a modified plan, as well as negotiating a loan modification with U.S. Bank. The Law Firm also filed motions to disallow claims. After reviewing the case docket, claims register and relevant pleadings as well as the Fee Application, the Court concludes that this case was a typical Chapter 13 case; it was not, complicated. Accordingly, the Court will award the No-Look Fee of $3,500 and supplemental fees as follows.
Under the supplemental fee schedule, the Law Firm would be entitled to additional fees for: filing amended plans; attending additional confirmation hearings; filing the motions to expunge claims; and amending Reed's schedules. Under the fee schedule, this would result in supplemental fees to the Law Firm of $2,500. In addition, the Court typically allows fees on an hourly basis for negotiating loan modifications. The Law Firm seeks $805 for negotiating the loan modification, which is reasonable and will be allowed. Therefore, the Court will allow fees $6,805 (comprised of the $3,500 No-Look Fee plus supplemental fees of $3,305), plus costs of $1,239.29.
For the reasons set forth above, the Court grants, in part, and denies, in part, the Fee Applications. Fees will be awarded as follows: