ORDER GRANTING IN PART AND DENYING IN PART APPLICATION FOR COMPENSATION AND REIMBURSEMENT OF EXPENSES

GARY SPRAKER, Bankruptcy Judge.

On March 28, 2019, the court heard Haines & Krieger's (H&K) Application for Compensation and Reimbursement of Expenses No. 1 (Application) (ECF No. 113) as part of the chapter 13 duty calendar. At oral argument, the court requested additional information regarding the basis for the $20,140.50 in fees for which H&K sought court approval. H&K has filed the Declaration of George Haines (ECF No. 138) (Haines Declaration) in support of its Application, together with a revised spreadsheet identified as Exhibit A (ECF No. 139). The spreadsheet attached to the Haines Declaration details total fees in the amount of $19,975.50.

The court has reviewed the Application and the Haines Declaration, but begins its analysis with the standards applicable to the Application. Section 329(a) governs compensation concerning debtors' counsel and provides:

11 U.S.C. § 329(a).

Section 330(a)(4)(B) further requires that "[c]ompensation paid to the attorney for a chapter 13 debtor must be reasonable considering the benefit to the debtor and the necessity of the services." In re Pedersen, 229 B.R. 445, 448 (Bankr. E.D. Cal. 1999). Section 330(a)(4)(B) also requires court approval for any compensation to be paid to counsel representing a chapter 13 debtor. Rule 2016 further provides that:

Fed. R. Bankr. P. 2016.

Consideration of H&K's right to compensation begins with its Disclosure of Compensation of Attorney for Debtor(s) filed at ECF No. 25 (Disclosure). In the Disclosure, H&K certified under 11 U.S.C. § 329(a) and Fed. R. Bankr. P. 2016(b) "that compensation paid to me within one year before the filing of the petition in bankruptcy, or agreed to be paid to me, for services rendered or to be rendered on behalf of the debtor(s) in contemplation of or in connection with the bankruptcy case is as follows:

The Disclosure contained no exclusion or limitation of legal services to be rendered in the bankruptcy case.

Almost two years after the bankruptcy filing, H&K filed an amended Disclosure of Compensation of Attorney for Debtor(s) (ECF No. 111) (Amended Disclosure). H&K filed the Amended Disclosure concurrently with its Application and the debtor's sixth amended plan. The Amended Disclosure excludes 18 forms of legal services from H&K's stated fee, including motions to continue imposition of stay, motions to sell, and adversary actions. It does not, however, reflect any change in the total amount of fees H&K agreed to accept for "legal services," which this court will refer to henceforth as "basic services."

In its Application, H&K seeks court approval of compensation for the following services: basic services; motion to sell; modification of plan; adversary proceeding; preparation of fee application; and other. H&K did not originally break out the time by each category, but based upon Exhibit A to the Haines Declaration, the court calculates the following matters and fees sought by H&K:

H&K has also voluntarily agreed to reduce its fee application by $5,878.00, thereby reducing the total fees sought to $14,097.50 (H&K calculates total fees, less the $5,878.00 reduction to be $13,763.50). There is no allocation of the voluntary reduction amongst the fees sought. Rather, H&K has simply reduced the total fees sought.

The Haines Declaration provides a narrative for why the fees in this instance have greatly exceeded the original fee H&K agreed to accept for the chapter 13 bankruptcy. It does not, however, attach the retainer agreement. Nor does it detail why an Amended Disclosure was filed two years later after substantial fees were already incurred that appeared to be covered within the initial Disclosure.

The court construes the Disclosure as originally committing H&K to provide all bankruptcy services within the chapter 13 for a flat fee of $6,796.00. Again, the Disclosure did not exclude any services.

The Haines Declaration does makes it clear that this case required extra attention and time on additional matters that support the Amended Disclosure. However, the Amended Disclosure did not change the fees H&K accepted for legal services. It follows then that those fees for services covered by Amended Disclosure, and those necessary for representation of the debtor, remained covered by the flat fee. This is commonly referred to as "basic services." While the scope of basic services is ill-defined, it clearly captures the services necessary for the formulation and confirmation of a plan. See ECF No. 111 at p. 1, paras. 5.b. and 5.c. ("In return for the above-disclosed fee, I have agreed to render legal service for all aspects of the bankruptcy case, including... b. Preparation and filing of any...plan which may be required; [and] c. Representation of the debtor at the...confirmation hearing, and any adjourned hearings thereof...."). In this regard, all of the fees H&K have billed under "Chapter 13 Services" appear to be basic services covered by the flat fee as stated in the Disclosure and Amended Disclosure. Therefore, the court shall disallow the billings set forth in the Chapter 13 Services category in excess of the disclosed fee of $6,796.00. See In re Snyder, 445 B.R. 431, 441 (Bankr. E.D. Pa. 2010) ("Counsel is seeking an award of fees that is nearly three times the flat fee amount identified in his 2016(b) Statement. In a case like this, where all of the services which counsel rendered to the debtor were included in his flat fee based on his 2016(b) Statement, such a fee request is neither reasonable nor acceptable.") [emphasis omitted]; see also In re McNeilly, 2017 WL 3737536, at *8-9 (Bankr. D. Conn. Aug. 28, 2017) (limiting attorney compensation to the amount disclosed in the Disclosure of Attorney Compensation, where the disclosure filed with the court did not exclude the services for which compensation was sought at the time those services were rendered: "Approving compensation in amounts or for terms not disclosed would degrade the importance of Rule 2016."); In re Simpson, 2014 WL 2536079, at *1 (Bankr. D.D.C. June 5, 2014) ("The following time entries (for work allegedly not covered by the flat fee) are disallowable because they fall within the scope of that task covered by the flat fee....")

In this case, the court is also unclear why the motion to continue the stay, and the concomitant motion for shortened time under 11 U.S.C. § 362(c)(3)(B) to consider the continuation of the stay, were not included within the basic chapter 13 services. Experienced chapter 13 counsel such as H&K should be well aware of the need to continue the automatic stay in a second bankruptcy filed within a year of a prior bankruptcy. A review of the docket shows that H&K were the debtor's counsel in the prior chapter 13, dismissal of which necessitated the motion to continue the stay in this bankruptcy.

H&K did include continuation of the stay as an excluded service within its Amended Disclosure. However, the Amended Disclosure was filed more than a year and a half after those services were performed. Accordingly, the court finds that such services were not excluded from the disclosed basic services when rendered. For these reasons, the court will not approve the fees for services related to the continuation of the automatic stay or the related motion to shorten time to hear that matter.

The court has similar concerns for the time billed for "Communications" and "Fee Applications." This time is fairly minimal. Nonetheless, both communications and preparation of an application for approval of fees are within the contemplation of a chapter 13 counsel's basic services. Because Nevada does not have a no look fee, and fees are not approved through the plan process, a fee application is necessary even if limited to basic services as set out in the Disclosure. The court also notes that neither category of service was excluded in either the original or Amended Disclosure (though the court is hard pressed to understand how such exclusion would be reasonable absent unusual circumstances). Accordingly, the time related to these services shall also be deemed encompassed within the $6,796.00 "basic fee" set forth in the Amended Disclosure.

Based upon its calculation, the court shall approve attorney fees in the total amount of $12,474.50 calculated as follows:

The court approves all costs sought in the total amount of $505.30. Reducing this balance by the $499.00 previously paid by the debtor, the total approved in outstanding fees and costs is $12,480.80, calculated as follows:

For these reasons,

IT IS HEREBY ORDERED that the Application for Compensation and Reimbursement of Expenses No. 1 (ECF No. 113), as modified by the Declaration of George Haines, Esq. in Support of Application for Compensation Filed on February 18, 2019 and its accompanying exhibit A (ECF Nos. 138, 139) is GRANTED in part and DENIED in part as set forth above. The court will allow fees in the amount of $12,474.50 and expenses in the amount of $505.30.

IT IS FURTHER ORDERED that the debtor's counsel may retain fees in the amount of $499.00, which were paid directly by the debtor to counsel pre-petition. Deducting this amount from the total approved fees and expenses, the balance of $12,480.80 is approved for distribution to the debtor's counsel through the Chapter 13 Trustee.

IT IS FURTHER ORDERED that fees awarded through the Application shall be paid as an administrative priority claim. The Chapter 13 Trustee shall commence disbursements of the awarded fees upon confirmation or dismissal awarding fees to the debtor's counsel, and shall continue disbursements until such award of fees is paid in full.

IT IS SO ORDERED.