Opinion
No. 13-04-19251 MA.
December 13, 2005
Dennis Feld, Attorney for Debtors, Rio Rancho, NM.
Kelley L. Skehen, Chapter 13 Trustee, Albuquerque, NM.
ORDER GRANTING, IN PART, and DENYING, IN PART, APPLICATION FOR ALLOWANCE AND PAYMENT OF COMPENSATION AND REIMBURSEMENT OF EXPENSES AND COSTS
THIS MATTER is before the Court on the Application for Allowance and Payment of Compensation and Reimbursement of Expenses and Costs ("Fee Application") filed by Dennis M. Feld, attorney for the Debtors, Paul Hickey and Elizabeth Hickey. The Fee Application seeks approval of attorneys' fees for the period beginning October 14, 2005 and ending June 14, 2005 in the total amount of $6,965.00, and costs in the amount of $194.00, plus applicable gross receipts taxes in the amount of $465.78, for a total requested amount of $7,624.78 as an administrative expense of the estate. Counsel has received a total of $1,786.81 from or on behalf of the Debtors which has been applied to the total requested amount, leaving an outstanding balance of $5,837.97. Counsel has not received any payments from the Chapter 13 Trustee. The Chapter 13 Trustee filed an objection to the Fee Application on grounds that many tasks performed took excessive amounts of time to complete. The Court held a final hearing on the Fee Application and took the matter under advisement. After considering the Fee Application, and being otherwise sufficiently informed, the Court finds that some of the requested fees and costs must be disallowed. In reaching this determination the Court FINDS:
1. Pursuant to 11 U.S.C. § 330(a)(4)(B),
In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor's attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.11 U.S.C. § 330(a)(4)(B).
2. Reasonableness is determined based upon such factors as the amount of time spent on the service, the rate charged, and whether the services were necessary to the administration of the bankruptcy estate. 11 U.S.C. § 330(a)(3). Compensation will not be allowed for "unnecessary duplication of services", for services that "were not reasonably likely to benefit the estate" nor for services that are not "necessary to the administration of the case." 11 U.S.C. § 330(a)(4)(A). Similarly, when excessive time is billed for uncomplicated matters, the attorney is not entitled to compensation for the total requested amount despite the fact that the work was actually done. See In re Colorado-Ute Elec. Ass'n, Inc., 132 B.R. 174, 177 (Bankr.D.Colo. 1991) ("In applying for fees, attorneys `should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.'" (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-1940, 76 L.Ed.2d 40 (1983)). In re Reconversion Technologies, Inc., 216 B.R. 46, 56 (Bankr.N.D.Okla. 1997) (In determining the amount of reasonable compensation, the court "should disallow hours that were `duplicative, unproductive, excessive, or otherwise unnecessary.'" (quoting In re Shades of Beauty, Inc., 56 B.R. 946, 951 (Bankr.E.D.N.Y. 1986) (citations omitted).
3. The fee applicant bears the burden of showing entitlement to the requested compensation. See In re Recycling Industries, Inc., 243 B.R. 396, 402 (Bankr.D.Colo. 2000) ("It is well settled that the burden of proof as to the reasonableness of compensation is on the fee applicant."); In re Amdura Corp., 139 B.R. 963, 968 (Bankr.D.Colo. 1992).
4. Time keeping records submitted in support of a fee application must sufficiently describe the work performed to enable the Court to determine whether the fees requested are reasonable and necessary. Amdura, 139 B.R. at 972. Descriptions for completed tasks that are too vague prevents the Court from determining reasonableness, and may result in the denial of fees for those tasks. Id.
5. Time spent on matters that are clerical in nature is not compensable. See In re Copeland, 154 B.R. 693, 699 (Bankr.W.D.Mich. 1993) (examining fees requested by attorney for chapter 13 debtor, and noting that "The work for which lawyers receive compensation must be legal, not ministerial or clerical."). Rather, clerical work is part of office overhead. See Amdura, 139 B.R. at 985. For example, time spent leaving telephone messages is not compensable as legal work. Copeland, 154 B.R. at 702.
6. Unproductive travel time is not compensable from the bankruptcy estate. See In re Mull, 122 B.R. 763, 767 (Bankr.W.D.Okla. 1991) (citing In re Seneca Oil Co., 65 B.R. 902, 909-910 (Bankr.W.D.Okla. 1986)). Compare Amdura Corp., 139 B.R. at 982-983 (finding that travel time for out of state counsel to appear was reasonable and necessary, and, therefore compensable).
7. The Court finds that the hourly rates requested in the Fee Application of $175.00 for work performed by the attorney is reasonable.
8. After review of the itemized billing records attached to the Fee Application, the Court finds that some entries must be disallowed because they are not reasonable or necessary. Although many of the entries indicate that no fee was charged, several of the entries list time spent that is excessive for the task performed or otherwise seem to duplicate tasks already performed in that they describe the same work as prior entries. Specifically, the following entries are disallowed for the reasons stated:
Date Entry Time Amount Reason for Disallowance 12/20/04 Review changes and .30 $52.50 excessive recalculate plan 12/20/04 DF changes to I, J Plan .30 $52.50 excessive 1/4/05 Memo to GR; have we done .10 $17.50 Excessive prod of docs yet? (Answer — all we need is proof of insurance on auto's already requested from client when sent copy of Trustee's Letter re production of documents) 1/26/05 341 meeting. met with clients .50 $87.50 Excessive; unproductive travel at 8:45. Annette was late due .50 $87.50 time to a fee app hearing. She got started around 9:30 our meeting started at 10:20. Post 341 meeting with clients went over needs for meeting on 2/2. Travel Time. 1/28/05 Review Objections .10 $17.50 Excessive instructions to GR. Gave copy to clients at appointment 1/29/05 Instructions to GR re Notice .10 $17.50 Clerical of Hearing 3/23. Check website to see if anyone filed objections (I did before) and also requests for notices 2/8/05 Review letter from Trendwest .20 $35.00 Excessive; clerical; appears to instructions to GR re duplicate entry #116 response. Need FMV, contract, etc., Review letter written 2/11/05 Review amended plan and .10 $17.50 Excessive instructions to GR to have clients in next week 2/18/05 Researched used car interest .20 $35.00 Excessive — allow .10 for rate in Business Outlook at $17.50 for this task Albuquerque Journal Office 2/18/05 Notes to GR re: addresses .20 $35.00 Excessive for service of Amended Plan to Wells Fargo GMAC, Ditech, and Ditech registered agent; comply with rule 9014 2/21/05 Received and reviewed .10 $17.50 Excessive revised claim and instructions to GR letter to client with claim of GMAC 2/21/05 Instructions to GR — call client .10 $17.50 Excessive; clerical to see if they would like us to mail to them the new plan for signature and return or come in to sign (Due to GMAC filing the claim) 2/22/05 Received reviewed letter .10 $17.50 Excessive; clerical from Wells Fargo 2/15. Instructions to GR send them a note that they are in the plan. Send copy of the plan with note; copy clients 3/23/05 travel time .50 $87.50 Excessive; non-productive travel time 3/23/05 received and reviewed .10 $17.50 Excessive trustee's objection to confirmation of debtors' amended plan 3/28/05 instructions to GR to fax .10 $17.50 Clerical appraisal of Dottie McFarland to Tamara. Instructions on where Appraisal should be placed in file and to please create a GMAC file. GR advised GMAC file already created see pocket folder 4/7/05 Review file and prepare 1.30 $227.50 Excessive response and motion to strike re GMAC objection to plan. Memo to GR re follow up on exemption amendment and request do notices of the 5/17 hearing to confirm to Rick 4/16/05 Received and reviewed .10 $17.50 Excessive withdrawal of objection to confirmation of amended plan by Leverick for GMAC 4/21/05 review draft of order (3 .40 $70.00 Excessive revisions) see yellow highlights 5/4/05 DF called. Instructions Will .10 $17.50 Excessive need to withdraw exemption on time share 5/16/05 DF returned call .10 $17.50 Excessive 5/17/05 Court hearing; travel time 1.00 $175.00 Excessive; unproductive travel time 6/1/05 Finish x-sheet fee app .60 $105.00 Excessive review The total disallowed amount is $1,242.50.WHEREFORE, IT IS HEREBY ORDERED, that the Fee Application is approved, in part, and denied, in part. Total fees in the amount of $5,722.50, plus costs in the amount of $194.00, plus applicable New Mexico gross receipts taxes in the amount of $382.69 (at the rate of 6.6875% as reported on the Fee Application) are allowed. Because counsel has already received $1,786.81 which has been applied toward the outstanding balance of attorneys' fees, the Chapter 13 Trustee is authorized to pay to Debtor's counsel a total of $4,512.38 as an allowed priority administrative expense from funds of the Debtor's bankruptcy estate. The remainder of fees requested in the Fee Application are disallowed.