ROBERT H. JACOBVITZ, Bankruptcy Judge.
THIS MATTER is before the Court on the First and Final Application by Attorneys for Debtors-in-Possession For Allowance and Payment of Compensation as a Chapter 11 Administrative Expense for the Period of June 30, 2011 Through June 6, 2012 ("Fee Application") filed by William F. Davis & Associates, P.C. ("Attorneys") as counsel for Thomas Frances Young and Consuelo Angelina Young ("Debtors" or "Mr. and Mrs. Young").
Attorneys seek allowance as an administrative expense the sum of $53,930.28, consisting of post-petition professional services in the amount of $49,573.00, costs and expenses in the amount of $887.01, and applicable gross receipts taxes in the amount of $3,470.27. See Exhibit 1 to Fee Application, p. 2. Bank'34 asks the Court to deny the Fee Application in its entirety on the grounds that: (1) Attorneys failed to file a fee application at least every 180 days as required by the Order on Debtors' Motion to Employ Attorneys William F. Davis & Assoc., P.C. ("Employment Order") (Docket No. 83); and (2) Attorneys failed to adequately disclose the source of compensation as required by Fed.R.Bankr.P. 2016(a). Alternatively, Bank '34 challenges the reasonableness of the requested fees on the grounds that the fees were not reasonably likely to benefit the Debtors' estate.
After considering the Fee Application, the evidence, and arguments of counsel, and being otherwise sufficiently informed, the Court finds that Attorneys' failure to file a fee application within 180 days and disclose the source of compensation does not bar them from receiving compensation. However, the Court finds, for the reasons set forth below, that a portion of the fees and costs charged must be disallowed.
The Debtors filed a voluntary petition, pro se, under Chapter 11 of the Bankruptcy Code on May 31, 2011. See Docket No. 1. Although the Debtors were not represented by counsel at that time, their son, Kurt Young ("Kurt"), assisted the Debtors with the compilation of their financial information and filing of the petition. On July 5, 2011, the Debtors filed an application seeking to employ Attorneys as their counsel. See Docket No. 40. The Court entered an order authorizing the employment of Attorneys on August 3, 2011. See Employment Order (Docket No. 83). Paragraph E of the Employment Order provides: "[a]ttorneys will file fee applications at least every 180 days." Id. Pursuant to the Employment Order, Attorneys were required to file a first fee application no later than January 1, 2012. Attorneys filed the Fee Application on July 27, 2012, nearly six months after the deadline contained in the Employment Order.
Between July 5, 2011 and September 10, 2012, Attorneys billed 296.20 hours in connection with their work on the Debtors' bankruptcy case. See Exhibit A to the Fee Application, p. 3 (Docket No. 179-1). Attorneys' billing statements reflect total fees and costs incurred in the amount of $53,930.28, $22,431.30 of which remains unpaid. Id. at p.2. Andrea Steiling, at an hourly rate of $175.00, handled most of the attorney work for the Debtors in connection with this case. She billed 207.80 of the total hours of attorney time. Id. at p. 3. Ms. Steiling started working at the Davis Firm in May of 2009. She began by doing initial client consultations, progressed to handling Chapter 7 cases, then Chapter 13 cases, and now she has been assisting with work on some Chapter 11 cases. Since 2009, she performed services in a total of five Chapter 11 cases. She has also filed approximately thirty Chapter 13 cases for which she testified she is responsible for the majority of the work.
The Schedules filed of record in the Debtors' bankruptcy case reflect assets valued at $5,824,750.00, secured claims of about $4,529.055.04, and non-priority unsecured claims totaling $142,954.96. Schedule A lists several properties including the Debtors' residence, a fitness center, two rental homes, a condo, a piece a vacant land, and four business buildings. Schedule B lists personal property valued at $44,750.00. Schedule D lists ten (10) secured creditors consisting of creditors holding first and/or second mortgages against the Debtors' residence and various real estate holdings. Schedule F lists nine non-priority unsecured claims totaling $142,954.96. Schedule G lists one executory rental agreement, one vehicle lease, and one cell phone contract. Schedule H does not list any co-debtors. Schedules I and J reflect monthly income after payroll deductions of $5,765.00 and monthly expenses of $8,933.00.
Debtors also own 100% of a New Mexico Limited Liability Company, Laguna, L.L.C. (New Mexico Public Regulation Commission Filing No. 2914505). Laguna, L.L.C. operates a fitness center. The Debtors lease land and buildings to Laguna, L.L.C. Bank'34 has a lien against rents. Laguna, L.L.C. paid no rent to the Debtors during the pendency of the Chapter 11 case. Laguna, L.L.C. paid $15,283.19 of the Debtors' legal fees to Attorneys. Attorneys did not disclose that a third party had paid a portion of their legal fees, as required by Fed.R.Bankr.P. 2016(a). Ms. Steiling testified that she was unaware that Laguna, L.L.C. was paying a portion of the Debtors' legal fees. The checks were received and processed by Attorneys' accounting manager. Attorneys do not have a procedure in place to review incoming checks individually and make a record of payments made by someone other than the Debtor for use in connection with fee applications.
Ms. Steiling testified that several complications arose during the course of representing Mr. and Mrs. Young in connection with their bankruptcy case. First, Attorneys were required to file extensive amendments to the Debtors' schedules and financial statements because Debtors initially filed their bankruptcy petition pro se. Next, the Debtors, through counsel, made an unsuccessful attempt to remove a civil action styled Thomas Young v. Water Mill Properties, Inc. and Cohiba Club, LLC, Case No. D-101-CV-2009-03622 (the "Water Mill Litigation"), filed in the First Judicial District Court for the State of New Mexico, County of Santa Fe (the "State Court"). The Debtors withdrew their notice of removal roughly two months after filing it. Ms. Steiling testified that after reviewing the pleadings filed in State Court, Attorneys realized that the costs associated with removal outweighed the benefits.
Another hurdle to achieving a successful reorganization was the Debtors' complicated relationship with their son Kurt. Kurt helped the Debtors manage their assets and finances. He gave the Debtors advice about how to handle certain properties in the context of the bankruptcy, which often conflicted with Attorneys' advice. On more than one occasion, Ms. Steiling conferred with Kurt so that all the parties were in accord as to how to proceed with the bankruptcy case. Kurt has an investment interest in several of the Debtors' properties, and Kurt encouraged his parents to reject any proposed plan that would dispose of those properties.
Attorneys began drafting a plan and disclosure statement in April of 2012; however, the Debtors ultimately elected to convert from a Chapter 11 case to a Chapter 7 case on June 6, 2012 rather than to seek confirmation of a plan. See Order Granting the Debtors' Motion Pursuant to 11 U.S.C. § 1112(a) to Convert This Case From A Chapter 11 Case to a Chapter 7 Case (Docket No. 169). On September 10, 2012, Attorneys withdrew as counsel for Mr. and Mrs. Young. See Order Granting William F. Davis & Assoc., P.C.'s Motion to Withdraw as Counsel For Debtors (Docket No. 198).
The Employment Order requires Attorneys to file a fee application at least every 180 days (hereinafter the "180-Day Provision"). See Employment Order, ¶ E. Because the Employment Order became effective as of July 5, 2011, Attorneys should have filed a fee application on or before January 1, 2012. Bank'34 asserts that: (1) the 180-Day Provision established a bar date precluding an award of compensation on fee applications filed after the deadline; and (2) to extend the 180-day period for filing fee applications, Attorneys must establish excusable neglect pursuant to Fed.R.Bankr.P. 9006(b). The Court disagrees.
Rule 9006(b)(1), Fed.R.Bankr.P., allows the Court, in its discretion and for cause shown, to enlarge the time for taking certain actions "on motion made after the expiration of the specified period ... where the failure to act was the result of excusable neglect." Fed. R. Bankr.P. 9006(b)(1).
The Court is not required to deny the Fee Application in the present case. The Employment Order does not contain a bar date for filing a fee application. For a particular deadline to constitute a bar date, all interested parties must be given fair notice that no claims will be allowed if filed after the specified date. The Employment Order did not explain the consequences of failing to file a fee application within 180 days, nor did it characterize the 180-Day Provision as a bar date. Further, the Court is aware of the long standing practice in this jurisdiction that the bankruptcy judges have not enforced the 180-Day Provisions in employment orders as a bar date. For these reasons, the Court finds that Attorneys did not have fair notice that the 180-Day Provision was a bar date. Accordingly, the Court will not treat it as such.
Although the 180-Day Provision is not a bar date, the Court nonetheless finds that Attorneys failed to comply with the deadline imposed by the Employment Order. The Court has the inherent authority to enforce its orders and impose appropriate sanctions. U.S. v. Ballard, 2011 WL 989851, *3 (10
Based on the Court's inherent authority to enforce its own orders, the Court can permit Attorneys to proceed to seek compensation without extending the time for filing the Fee Application as required under the terms of the Employment Order. Consequently, the Court declines to apply the excusable neglect standards set forth in Pioneer to Attorneys' request for an extension of time. Instead, the Court will grant the Attorneys relief from the requirement to file a fee application at least every 180 days as set forth in the Employment Order, but will impose a sanction on Attorneys for violating one of its terms. Having considered all the facts and circumstances known to the Court, the Court finds it appropriate to reduce the amount of allowed compensation by $1,500 as a sanction for Attorneys' failure to comply with this provision of the Employment Order.
Bank'34 also contends that the Fee Application should be denied under Fed.R.Bankr.P. 2016(a) because Attorneys failed to adequately disclose the source of compensation paid to them. The Fee Application lists Mr. and Mrs. Young as the source of compensation when, in fact, Laguna, LLC paid roughly $15,283.19 of the total amount paid. This is approximately 49% of the amount Attorneys have been paid for representing the Debtors in this bankruptcy case. Approximately 42% of the total amount billed remains unpaid.
Rule 2016(a). Fed.R.Bankr.P., provides that, in applying for compensation for services or reimbursement for expenses under 11 U.S.C. § 330, a professional shall "file an application setting forth a detailed statement of: (1) the services rendered, time expended and expenses incurred; and (2) the amounts requested." Fed.R.Bankr.P.2016(a). The application must include: (a) a statement of what payments have been made or promised to the applicant for services rendered or to be rendered; (b) the source of the compensation; and (c) the details of any arrangement to share the compensation. Id. A court confronted with an attorney's violation of the Bankruptcy Code and/or Rules is afforded a "great deal of latitude in fashioning an appropriate sanction." Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472, 478 (6th Cir.1996)); In re Parklex Associates, Inc., 435 B.R. 195, 207 (Bkrtcy.S.D.N.Y. 2010) (same). The Tenth Circuit Bankruptcy Appellate Panel has held that that the failure of a Chapter 11 debtor's attorney to disclose a prepetition retainer pursuant to Rule 2016(b) was an adequate basis to deny all compensation. In re Smitty's Truck Stop, Inc., 210 B.R. 844, 849 (10th Cir. BAP 1997).
Here, Ms. Steiling testified that Attorneys did not properly disclose the source of compensation because Attorneys did not have a procedure in place to track sources of payment of compensation.
Next, Bank'34 contends that some of the fees were not reasonably likely to benefit the bankruptcy estate. Attorney compensation is governed by 11 U.S.C. § 330, which provides that counsel for the debtor may be awarded "reasonable compensation for actual, necessary services" and "reimbursement for actual, necessary expenses." 11 U.S.C. § 330(a)(1)(A) and (B). The Court, if appropriate, may award compensation less than the amount requested. See 11 U.S.C. § 330(a)(2). The party seeking an award of compensation bears the burden of demonstrating that the services provided were actual, necessary, and beneficial to the estate.
The Tenth Circuit has determined that in a Chapter 11 case, a court's assessment of fees under 11 U.S.C. § 330 requires a two-step process: 1) the Court must first determine whether the post-petition services are necessary, (i.e, whether the services were reasonably likely to benefit the estate); and 2) if so, the Court must determine whether the services were reasonable. See In re Lederman Enterprises, Inc., 997 F.2d 1321, 1323 (10th Cir. 1993) (stating that "the beneficial nature of legal services must be determined before a reasonableness inquiry may be conducted . .."). "Benefit" to the estate is measured in part by considering "whether the services were necessary to the administration of, or beneficial at the time which the service was rendered, toward the completion of, a case under this title." 11 U.S.C. § 330(a)(3)(C) (setting forth factors for determining the reasonableness of compensation). Benefit to the estate should be measured as of the time the services are provided, not at the time the Court ultimately reviews the fee application.
Benefit to the estate for services provided by counsel for a Chapter 11 debtor in possession is not restricted to success measured by confirmation of a plan or the prospect of confirming a plan. In Re Kitts Development, LLC, 474 B.R. 712, 720 (Bankr.D.N.M. 2012, J. Jacobvitz). The Court may allow compensation where counsel's services promoted the bankruptcy process and contributed to the administration of the estate even though the case ultimately converted from Chapter 11 to Chapter 7.
Bank'34 asserts that the conversations between Attorneys and the Debtors' son, Kurt Young, are not compensable because they did not further the interests of the bankruptcy estate. The Court disagrees. Attorneys spent a total of 2.8 hours conferring with Kurt. Although Kurt is not a party to the bankruptcy case, he owns several pieces of property with the Debtors and advises them about their financial affairs. Ms. Steiling testified that on several occasions, Kurt provided advice to the Debtors that either conflicted with or supplemented her advice to Debtors regarding strategy in the bankruptcy case. Kurt's involvement complicated the bankruptcy case. It was reasonable and appropriate for Attorneys to confer with Kurt to facilitate Attorneys' effective representation of the Debtors. The Court finds that the fees Attorneys charged for communicating with Kurt were reasonable and necessary and will not disallow any these charges,
Next, Bank'34 contends that Attorneys spent excessive time attempting to remove the Water Mill Litigation from state court to bankruptcy court. The Court agrees that the time reflected in the Fee Application for researching and discussing issues relating to removal appears to be excessive. When a less-experienced attorney researches areas of law in which a more experienced attorney would already be well-versed, and when supervision is required as part of the training process, billing judgment generally requires a reduction in time charged, if appropriate.
Bank'34 objects to 25.7 hours Attorneys spent investigating whether the Water Mill Litigation could be removed to federal court. The legal standards relating to removal are well settled. The Court finds that such charges are excessive and will therefore disallow one-third of the amount charged for such services, or $1,438.00.
Bank'34 also asserts that Attorneys failed to adequately investigate whether a Chapter 11 plan would be feasible. Attorneys spent 6.70 hours in connection with drafting a plan and disclosure statement before the Debtors' case converted from Chapter 11 to Chapter 7. Attorneys represented the Debtors in their Chapter 11 bankruptcy case from July 2011 to June 2012, a period of approximately eleven months. During that time, no plan or disclosure statement was filed. However, the billing statements reflect that certain steps were taken toward formulating a plan. Ultimately, none of these efforts were fruitful because Debtors would not agree to dispose of their property under the plan. "Buying time," in and of itself, is not a sufficient benefit to the estate. See In re Greene, 138 B.R. 403, 409 (Bankr.S.D.N.Y.1992) (finding that the counsel was not entitled to compensation where continuation of the Chapter 11 case "was simply a delaying action intended to stall [the debtors' largest creditor] from foreclosing on [the debtors'] home"); In re Crown Oil, 257 B.R. 531, 543 (Bankr.D.Mont.2000) (debtor's counsel "should not be rewarded for stringing a bad case out for a lengthy period of time.") (internal citations omitted). Nevertheless, the Court finds that the Attorneys' services in connection with drafting a plan and disclosure statement were reasonable and necessary. Attorneys were aware that the Chapter 11 case had been pending for an extended period and that it was necessary to push toward confirmation to avoid dismissal or conversion of the case. Attorneys also understood the potential importance to the Debtors of their obtaining a Chapter 11 discharge. Attorneys spent some time preparing a plan and disclosure statement to maximize the prospect of a successful reorganization provided they could convince their clients to make the sacrifices necessary to reorganize. Ultimately, that effort failed. At the time such services were rendered, however, those efforts were necessary to create a reasonable possibility of achieving success in the Chapter 11 case. The Court will allow the requested compensation for those services.
Bank'34 also asserts that Attorneys: (1) failed to adequately investigate whether Debtors' monthly operating reports were accurate; and (2) resisted Bank'34's attempts to obtain information pursuant to Fed.R.Bankr.P. 2004. There is no evidence before the Court that the fees relating to the monthly operating reports or the Rule 2004 exam were excessive. Bank'34 has zealously sought to protect its interests in the bankruptcy case. Attorneys appropriately spent significant time responding to those efforts. The Court will allow the requested compensation for services rendered in connection with the monthly operating reports and the Rule 2004 examination.
Based on the foregoing, Attorneys' Fee Application will be granted, in part, and denied, in part. The Court will enter a separate judgment and order consistent with this Memorandum Opinion.