Opinion
No. 13-03-11707 MA.
November 30, 2005
Jeffrey A. Goldberg, Albuquerque, NM, Counsel for the Debtor.
Roger Moore, Albuquerque, NM.
Kelley L. Skehen, Albuquerque, NM, Chapter 13 Truste.
THIS MATTER is before the Court on the Second Application of Jeffrey A. Goldberg, Ltd., Attorney for the Chapter 13 Debtor(s) for Allowance and Payment of Compensation and Reimbursement of Expenses and Costs ("Fee Application") filed by Jeffrey A. Goldberg, Ltd. d/b/a Goldberg Law Firm, attorney for the Debtor, Brian Tipton. The Fee Application seeks approval of attorneys' fees in the total amount of $1,955.00 and costs in the amount of $59.26, plus applicable gross receipts taxes in the amount of $131.96, for a total requested amount of $2,146.22 as an administrative expense of the estate for the period from July 8, 2003 through May 12, 2005. Counsel has not received any payments towards the Fee Application either from the Debtor or from the Chapter 13 Trustee. Creditor Roger Moore, Esq. objected to the Fee Application. 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. The Court finds that the hourly rates requested in the Fee Application of $150.00 for work performed by the attorney, time and $50.00 for work performed by paralegals is reasonable. 7. 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. Specifically, the following entries are disallowed for the reasons stated:
Date Entry Time Amount Reason for Disallowance 08/04/03 call to chambers to get .10 $5.00 Clerical hearing date on fee application JG 08/06/03 call from Commercial Fed .10 $5.00 Clerical asking for copy of our objection to claim and fax it over AS 08/22/03 Forward letter from EMC to .10 $5.00 Clerical client re: missed payment AS 08/25/03 PH on Application for .50 $75.00 Allow 1/2 of this charge — Compensation before Judge $37.50; time billed for this task McFeeley. Annette Debois is excessive appeared for the trustee. Roger Moore appeared, pro se. FH set for 9-30-03 at 11:15am JG 08/27/03 Prepare notice of final hearing .10 $15.00 Unnecessary — final hearings set on fee application JG directly from preliminary hearings, and no additional notice is required. 09/23/03 Call from client re whether he .10 $5.00 Clerical needs to be at fee hearing AS 10/15/03 Call from client; he wants to .10 $5.00 Clerical mail information re CommFed's Claim AS 10/17/03 conference with Mr. Wilson .10 $15.00 Clerical to obtain presentment hearing on fee order JG 10/20/03 call to Joe Jameson to request .10 $5.00 Clerical transcript of fee order hearing AS 10/30/03 prepare notice of FH — .10 $15.00 Unnecessary Comm Fed claim — JG 1/7/04 call from Tiffany re Kelley .10 $5.00 Clerical approves moratorium order AS 1/12/04 call to client re do not ignore .10 $5.00 Clerical/excessive letter AS 1/21/04 Fax over proof of payment to .10 $5.00 Clerical Daniels office re MRS. AS 2/9/04 call from client re what to .10 $5.00 Clerical bring to MRS hearing AS 2/11/04 call to Daniels' office re proof .10 $5.00 Clerical/excessive of payment and client needs to know if he has to skip work to attend hearing; Comm Fed wants a hearing even though it was paid AS 2/11/04 call to client re hearing was .10 $5.00 Clerical taken off AS 3/15/04 Forward to client .10 $5.00 Clerical subordination info received from EMC AS 4/27/04 fax over proof of payment re .10 $5.00 Clerical MRS AS 5/17/04 call to Daniels' office re stip .10 $5.00 Clerical order AS 6/10/04 Call to Kitty at Trustee's .20 $10.00 Excessive office and call to client re what client must pay to bring plan current AS 7/27/04 call client re hearing is off call .10 $5.00 Clerical AS The total disallowed amount is $172.50.Costs for copies and postage associated with sending notice of final hearing in the total amount of $5.82 (entries on 8/27/03 and 10/30/03) is disallowed as unnecessary. Because final hearings are set directly from preliminary hearings, there is no need for written notice of final hearings.
WHEREFORE, IT IS HEREBY ORDERED, that the Fee Application is approved, in part, and denied, in part. Total fees in the amount of $1,782.50, plus costs in the amount of $53.44, plus applicable New Mexico gross receipts taxes in the amount of $120.32 (at the rate of .0675 as reported on the Fee Application) are allowed. The Chapter 13 Trustee is authorized to pay to Debtor's counsel a total of $1,956.26 as an allowed priority administrative expense from funds of the Debtor's bankruptcy estate. The remainder of fees and costs requested in the Fee Application are disallowed.