943 F.2d 1265 (10th Cir. 1991), 90-1239, In re Land

Docket Nº:90-1239.
Citation:943 F.2d 1265
Party Name:In re James W. LAND & Lois L. Land, Debtors. James W. LAND, Lois L. Land & Thomas J. Kerwin, Appellants, v. FIRST NATIONAL BANK OF ALAMOSA, Appellee.
Case Date:September 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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943 F.2d 1265 (10th Cir. 1991)

In re James W. LAND & Lois L. Land, Debtors.

James W. LAND, Lois L. Land & Thomas J. Kerwin, Appellants,



No. 90-1239.

United States Court of Appeals, Tenth Circuit

September 10, 1991

Thomas J. Kerwin, Kerwin and Associates, Denver, Colo., for appellants.

David J. Richman, John P. Baker, Coghill & Goodspeed, P.C., Denver, Colo., for appellee.

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Appellants, debtors Mr. and Mrs. Land and their attorney, appeal from a district court order affirming a bankruptcy court decision denying appellants' motion for nunc pro tunc approval of debtors' application

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to employ their attorney, made pursuant to 11 U.S.C. § 327, and the bankruptcy court's order requiring debtors' attorney to return the fees paid to him on debtors' behalf by third parties. 1 This court will review the district court's legal determinations de novo, but will accept the bankruptcy court's factual findings unless clearly erroneous. Heape v. Citadel Bank (In re Heape), 886 F.2d 280, 282 (10th Cir.1989). The bankruptcy court's denial of a motion for nunc pro tunc approval of an application for the employment of a professional will not be disturbed absent an abuse of the bankruptcy court's discretion. See Carlson v. Burns Nat'l Bank (In re Ewing), 54 B.R. 952, 954-55 (D.Colo.1985). We affirm.

Debtors, acting pro se, commenced bankruptcy proceedings October 22, 1985, by filing a voluntary Chapter 11 petition. During these bankruptcy proceedings, debtors' attorney advised debtors and appeared before the bankruptcy court on their behalf.

In April 1986, while the bankruptcy proceedings were still pending, the attorney, again on debtors' behalf, commenced state court litigation against one of debtors' primary creditors, First National Bank of Alamosa (Bank). The attorney received compensation for pursuing the state court litigation from several of debtors' family members. This state court litigation was the sole asset of the bankruptcy estate. See Land v. First Nat'l Bank (In re Land), 116 B.R. 798, 804 (D.Colo.1990). The bankruptcy court found, and appellants have not disputed, that the primary contributor of attorney's fees, Mr. Land's brother, expected to be repaid from any judgment in debtors' favor entered in the state court litigation. See id. at 805-06.

The bankruptcy court, with the state action still pending, dismissed debtors' bankruptcy action March 21, 1988. Prior to dismissing the bankruptcy proceedings, however, the bankruptcy court ordered debtors' attorney to "comply, forthwith, with all applicable requirements imposed...

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