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ATTORNEY FEES

 

Holliday v. Kline (In Re Kline), 65 F.3d 749 (8th Cir. 1995)(Chapter 7) (Circuit Judge Bowman) (before Bowman, Heaney, Morris Arnold)

The Court of Appeals held that judgment against chapter 7 debtor for former wife’s attorney fees in divorce action was nondischargeable maintenance, even though payable directly to attorney.

 

Agate Holdings, Inc. v. Ceresota Mill Ltd, 211 B.R. 315 (B.A.P. 8th Cir. 1997) (Chapter 11)

http://ls.wustl.edu/8th.cir/Opinions/BAP/970815/976012.P8

Bankruptcy Court did not abuse its discretion in refusing to consider untimely objections to a request for attorney fees.

 

Bachman v. Laughlin (In Re McKeeman), No. 99-6029NE (B.A.P. 8th Cir. August 3, 1999) (Schermer) (before Hill, Schermer, Dreher)

Appellate Court deferred to the Bankruptcy Court for judgments pertaining to the competitiveness and development of its local legal community and found no abuse of discretion in Bankruptcy Court's reducing chapter 13 debtor's attorney fee request. Decisions regarding an award of attorney fees are subject to the abuse of discretion standard. An abuse of discretion occurs in this context "if the bankruptcy judge fails to apply the proper legal standard, fails to follow proper procedures in making the determination, or bases an award upon finds of fact that are clearly erroneous. To be clearly erroneous, after reviewing the record, the Appellate Court must be left with the definite and firm impression that a mistake has been committed. Finally, the appellate review is limited in deference to the bankruptcy judge's familiarity with the work performed by the professional. The lodestar method is the appropriate approach for determining reasonable compensation under 11 U.S.C. § 330. Here the Bankruptcy Court conducted a lodestar analysis and specifically referred to and applied the Johnson criteria in determining the reasonable number of hours for the services provided and the reasonable hourly rate for such services. The Appellate Court held that the lower court may consider customary fee charges, and found that it was not unreasonable to reject full hourly rate for travel time.

 

Pruss v. Pelofsky, Stock, and Butler (In Re Sauer), 97-6102/6103/6104/6105NE (Bankr. D. Neb. 1998) (Kressel) (before Kressel, Hill, and Federman)

http://ls.wustl.edu/8th.cir/Opinions/BAP/980805/976102.P8

The Appellate Court affirmed that portion of the Bankruptcy Court's order disallowing attorney fees for the reason that Pruss and the partnership law firm were no longer disinterested persons and held an adverse interest after the debtor's attorney purchased the debtor's residence. However, "notwithstanding the severity of Pruss' professional conduct," …the Court held …."that the bankruptcy court abused its discretion in ordering the disgorgement of all fees."[an amount exceeding $81,000] Mitigating factors weighed against disgorgement of the entire amount. The Court reduced the disgorgement amount to $43,354.21.

 

Chamberlain v. Kula, 213 B.R. 729 (B.A.P. 8th Cir. 1997)

(Judge Koger) (before Koger, Hill, and Dreher)

http://ls.wustl.edu/8th.cir/Opinions/BAP/971031/976014.P8

Appellate Court concluded that in making professional fee awards, bankruptcy courts must either make an express lodestar calculation or make a finding that the lodestar method is inappropriate under the circumstances. Although there is no question that Chamberlin was entitled to an evidentiary hearing on his fee application, the type of hearing required lies within the sound discretion of the bankruptcy judge and would not necessarily require the presentation of oral testimony. The case was reversed and remanded to the bankruptcy court for a lodestar calculation in accordance with the opinion.

 

Nelson v. Mickleson (In Re Pfleghaar), 215 B.R. 394 (B.A.P. 8th Cir. 1997) (Chief Judge Koger) (before Koger, Hill, and Scott)

(Chapter 13)

Appellate Court reversed and remanded to the Bankruptcy Court. If the Bankruptcy Court must conduct a hearing, though not necessarily a full evidentiary hearing, before denying an attorney fee application.

 

In Re McDaniel, Bk. No. 97-80661 (Bankr. D. Neb. October 10, 1997) (Judge Timothy J. Mahoney)

Chapter 13 debtor’s marriage was dissolved in Sarpy County District, and custody of the children was awarded to the ex-wife who later relocated to Texas. During the children’s summer visitation with the debtor, Steven McDaniel filed a Motion for Temporary Custody in Sarpy County District Court. Ex-wife had to travel to Nebraska to litigate the matter, and the state district court found that under the UCCJA (Uniform Child Custody Jurisdiction Act) that Texas was a more appropriate forum to litigate the custody and visitation matters. The state district court also ordered the debtor to pay $1500 toward the ex-wife’s attorney fees, but did not specifically state that such award was for support and did not, in the order, compare the financial status of the parties. Debtor and his current wife filed chapter 13 bankruptcy and sought to treat the $1500 attorney fee award as a general unsecured claim which would be discharged with little or no payment under the plan. The Bankruptcy Court ruled in favor of the ex wife and held that the award of attorney fees was in the nature of support and was excepted from discharge by 11 U.S.C. § § 523(a)(5) and 1328(a)(2).

 

In Re James Shurts, Bk. No. 96-81449 (Bankr. D. Neb. October 28, 1997) (Chapter 13) (Judge Timothy J. Mahoney)

Creditor’s attorney receives administrative expense for fees for assisting in the case.

 

In Re Eva Mae Walker, Bk. No. 94-81092 (Bankr. D. Neb. March 22, 19950 (Chapter 13) (Judge Timothy J. Mahoney)

The Court ruled that "an attorney for a Chapter 13 debtor should be aware that post-petition fees cannot be paid or received without court approval and that such fees should be paid through the trustee."

 

In Re Malewicki, 142 B.R. 353 (Bankr. D. Neb. 1992), Neb. Bkr. 92:196, aff.d Neb. Bkr. 92:555 (D. Neb. November 30, 1992) (District Judge Warren K. Urbom)(Chapter 13)

(Judge Minahan)

Court explained that in general the reasonableness of an attorney fee application is determined by calculating a general lodestarr amount using a reasonable hourly rate multiplied by actual time expended. Court applied the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) in detail to the attorney fee application.

 

 

 

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