ERIC L. FRANK, Bankruptcy Judge.
1. Addison Wolfe Real Estate is a Pennsylvania Licensed Real Estate Brokerage firm with its principal office at 550 Union Square Drive, New Hope, PA 18938.
2. On March 9, 2011, Addison Wolfe entered into a Listing Contract with the Debtor and his spouse, Leigh Ann Ginaldi (collectively, "the Ginaldis"), for the marketing of the residence at 9 Great Hills Road, Upper Makefield, Bucks County, Pennsylvania ("the Property") with a term ending September 8, 2011.
3. Paragraph 7 of the Listing Agreement, (Listing Agreement ¶ 7) (Doc. #45)., provides that Addison Wolfe is entitled to a broker's fee upon the occurrence of certain conditions quoted below:
4. Addison Wolfe found an interested buyer for the Property after which the Ginaldis entered into an agreement of sale ("the Agreement of Sale") with James and Kathy Russell (collectively, "the Russells"), on May 29, 2011.
5. The scheduled Settlement Date for closing on the sale of the Property was July 18, 2011.
6. The Debtor filed a chapter 11 bankruptcy petition on July 12, 2011.
7. Settlement did not occur on July 18, 2011 due to the inability of the Ginaldis to convey clear title caused by their inability to satisfy all liens on the property from the sales proceeds or otherwise.
8. No agreement, written or otherwise, to extend the Settlement Date was made on or before July 18, 2011.
9. Addison Wolfe continued its efforts to market the property after July 18, 2011.
10. On August 12, 2011, the Debtor filed the Application to Employ Addison Wolfe Real Estate as real estate broker on behalf of the bankruptcy estate.
11. On August 15, 2011, the Ginaldis and the Russells executed a written agreement renewing the Agreement of Sale dated May 29, 2011.
12. Neither Addison Wolfe, nor any person associated with Addison Wolfe, has an association or affiliation with either the Ginaldis or the Russells, other than in connection with the real estate transaction described above.
13. Neither Addison Wolfe nor any person associated with Addison Wolfe has any claim against the Debtor other than any claim that may have existed under the Listing Contract or as a result of the Agreement of Sale.
It is therefore
11 U.S.C. § 327(a).
TD Bank also asserts that Addison Wolfe withheld from the court certain material facts relevant to its retention. TD Bank contends that the Debtor failed to disclose that Addison Wolfe found a buyer who entered into an Agreement of Sale and argues that these facts should have been disclosed to the court in the Application as it is material to the analysis of whether Addison Wolfe meets the requirements for retention under § 327(a). I do not decide, at this time, whether the non-disclosure mandates denial of Addison Wolfe's retention.
When the Debtor filed his bankruptcy petition, a closing was scheduled. At that point, if Addison Wolfe did not have a present right to payment, its right to payment of the commission was at least dependent upon a future event (i.e., the closing). See Ford, 125 B.R. at 736 ("contingent claims are claims which depend either as to their existence or their amount on some future event which may not occur at all or may not occur until some uncertain time"). Further, even though the July 18th closing did not occur, Addison Wolfe's contingent right to payment under Paragraph 7(C) of the Listing Agreement continued to exist. For example, if, at any time in the future, the Debtor were to close the transaction with the buyer found by Addison Wolfe, the commission rights could be triggered. See generally In re Griffin, 313 B.R. 757, 763 n. 4 (Bankr.N.D.Ill.2004) (dependency of post-petition event does not prevent a debt from arising pre-petition). In these circumstances, I conclude that Addison Wolfe's holds a contingent claim and is not disinterested.
First, the Debtor should consider whether there is any benefit to the estate in retaining Addison Wolfe where it appears that all of the material services provided by Addison Wolfe were performed pre-petition. If the Debtor does not retain Addison Wolfe and closes the transaction with the existing buyer, Addison Wolfe will have a pre-petition claim against the estate based on its commission rights under the Listing Agreement, i.e., a general unsecured claim, rather than a priority administrative expense. Depending upon whether a plan is confirmed and the amount of the distribution made to general unsecured creditors, I realize that this may result in little or no payment to Addison Wolfe and therefore, may be perceived as a harsh result from its perspective. However, any professional compensation arrangement based on a right to a commission carries an inherent risk of nonpayment if the professional's client files a bankruptcy case after the professional has provided all of the material services in the engagement, but before payment of the commission. Such a professional is in no different position than any other unpaid vendor and the Bankruptcy Code contains no provision granting priority status to such a professional. To the extent this may be unfair, it is an issue that only Congress can address.
Second, the Debtor should consider whether the disclosure in the Application by the Debtor and Addison Wolfe acts as an independent bar to employment. See nn. 8-9 supra.
