268 Ltd., In re, 88-2612
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before NORRIS, BEEZER, and BRUNETTI; WILLIAM A. NORRIS |
| Citation | 877 F.2d 804 |
| Parties | In re 268 LIMITED, a Nevada limited partnership, Debtor. JOSEPH F. SANSON INVESTMENT COMPANY, Appellant, v. 268 LIMITED; Trustee in Bankruptcy, Appellees. |
| Docket Number | No. 88-2612,88-2612 |
| Decision Date | 14 June 1989 |
Page 804
JOSEPH F. SANSON INVESTMENT COMPANY, Appellant,
v.
268 LIMITED; Trustee in Bankruptcy, Appellees.
Ninth Circuit.
Decided June 14, 1989.
Gerald M. Gordon, and Candace C. Carlyon, Waldman, Gordon & Silver, Ltd., Las Vegas, Nev., for the appellant.
Joshua M. Landish, Las Vegas, Nev., for appellees.
Leonard A. Wilson, Las Vegas, Nev., for trustee.
ORDER CERTIFYING QUESTION OF LAW TO NEVADA SUPREME COURT
Before NORRIS, BEEZER, and BRUNETTI, Circuit Judges.
WILLIAM A. NORRIS, Circuit Judge.
QUESTION CERTIFIED TO NEVADA SUPREME COURT
Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure we certify the following question of law to the Nevada Supreme Court:
Does Nevada Revised Statute Sec. 107.030(7) permit parties to a deed of trust to recover stipulated attorney's fees without regard to the reasonableness of the fee?
Joseph Sanson Investment Co. ("Sanson") sold a Las Vegas apartment complex to 268 Limited, a Nevada limited partnership, and retained a security interest in the
Page 805
property, evidenced by a promissory note and first lien deed of trust. The Sanson deed of trust incorporated by reference section 107.030(7) of the Nevada Revised Statutes (NRS) regarding attorney's fees in the event of default, and designated five percent of the secured amount as the attorney's fee.286 Limited's general partner filed a Chapter 11 petition in bankruptcy, and 286 Limited subsequently defaulted on the obligation to Sanson. The complex was sold, netting a sum substantially in excess of the $3,957,000 that was owed on the note. Sanson was billed $13,732 by its counsel for services related to 268 Limited. Matter of 268 Ltd., 789 F.2d 674, 677 (9th Cir.1986). Sanson then applied to the bankruptcy court for attorney's fees in the amount of $197,500 pursuant to the clause in the deed of trust.
The bankruptcy court found the requested amount to be unreasonable and awarded Sanson $20,000 pursuant to section 506(b) of the Bankruptcy Code, 11 U.S.C. This court affirmed, holding that section 506(b) preempts state law governing the availability of attorney's fees as a secured claim. Id. at 675-77 (characterizing the award as "generous, particularly in light of the quality of legal work performed"). We remanded the case to allow Sanson to attempt to recover the balance of the $197,500 as an unsecured creditor, expressing "no opinion on the enforceability under the governing state law of the deed of trust's attorney's fees provision." Id. at 678.
On remand the bankruptcy court again denied Sanson's $177,500 claim, holding that NRS 107.030(7) limits attorney's fees in a deed of trust to a reasonable amount and that Sanson had already been awarded a reasonable attorney's fee ($20,000). 75 B.R. 37. The Bankruptcy Appellate Panel affirmed, 85 B.R. 101, holding that NRS 107.030(7) limits recovery to...
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Brooks v. Hilton Casinos Inc., s. 90-15424
...the preferable alternative in this case is to certify the issue to the Nevada Supreme Court for its resolution. See, e.g., In re 268 Ltd., 877 F.2d 804, 806 (9th Cir.1989) (certifying to Nevada Supreme Court an unresolved issue regarding state statutory interpretation), certified quest. ans......
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Schwartz, In re, 90-35830
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Joseph F. Sanson Inv. Co. v. 268 Ltd., 20118
...order. Pursuant to the procedure set forth in NRAP 5, 2 the United States Court of Appeals for the Ninth Circuit in In re Limited 268, 877 F.2d 804, 806 (9th Cir.1989), certified the question of whether NRS 107.030(7) permits parties to a deed of trust to recover stipulated attorney's fees ......
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In re Kudlacek, Bankruptcy No. BK-S-89-0602-LBR.
...789 F.2d 674 (9th Cir.1986), on remand to, 75 B.R. 37 (Bankr.Nev.1987), aff'd, 85 B.R. 101 (9th Cir. BAP 1988), question certified, 877 F.2d 804 (9th Cir.1989), seems to indicate fees are payable on default. See 268 Limited, 85 B.R. at 105 (J. Meyers, dissenting). However, the issue of the ......