In re Amherst Mister Anthony's Ltd.
| Decision Date | 28 June 1986 |
| Docket Number | No. Civ. 85-600E.,Civ. 85-600E. |
| Citation | 63 BR 292 |
| Parties | In re AMHERST MISTER ANTHONY'S LTD. |
| Court | U.S. District Court — Western District of New York |
Gerald Cohen, Buffalo, N.Y., pro se.
Peter Muth, Buffalo, N.Y., trustee.
Appellant Gerald H. Cohen brings this appeal seeking a reversal of an order of United States Bankruptcy Judge Beryl McGuire, denying his application for appointment nunc pro tunc as attorney for the debtor-in-possession and for ratification of $1,400 in attorney's fees.
On June 19, 1981 Cohen filed a Chapter 11 petition in bankruptcy on behalf of the abovenamed debtor. Although he had performed various duties for the debtor-in-possession subsequent to the filing of the petition, it was not until June 29, 1983 that Cohen filed an application seeking nunc pro tunc appointment. On July 1, 1983 Judge McGuire approved appellant's appointment prospectively, with leave to apply for nunc pro tunc appointment after the examiner had made his report. October 4, 1984 Cohen reapplied for nunc pro tunc appointment, also seeking ratification of $1,400 in fees paid to him prior to the 1983 appointment. At proceedings November 5, 1984, Judge McGuire found that Cohen had failed to obtain timely appointment as attorney for debtor-in-possession and that he had accepted fees without notice to or approval by the Bankruptcy Court. Accordingly, Judge McGuire disapproved nunc pro tunc appointment and denied fee ratification in an Order dated April 4, 1985. Cohen seeks reversal of Judge McGuire's Order on the grounds that it was arbitrary, prejudicial and an abuse of his discretion.
A review of the facts and applicable law convinces this Court that Judge McGuire properly exercised his discretion denying Cohen's nunc pro tunc application for appointment and ratification of fees. By failing to obtain court appointment prior to acting on behalf of the debtor-in-possession, Cohen violated Interim Bankruptcy Rule 2006.1 It has been the long-standing practice of this circuit to deny compensation to attorneys who fail to comply with that rule. Matter of Futuronics Corp., 655 F.2d 463, 469 (2d Cir.1981), cert. denied sub nom. Israel & Raley v. Futuronics Corp. et al., 455 U.S. 941, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). Deviation from such practice would be appropriate only where there existed unavoidable hardship or excusable neglect in failing to obtain timely appointment, something which Cohen has failed to demonstrate. In Re Rogers-Pyatt Shellac Co., 51 F.2d 988, 992 (2d Cir.1931); see also In Re Brown, 40 B.R. 728, 731 (Bkrtcy.1984). Inasmuch as the sole cause for the delay in this case was attorney error, Judge McGuire would have been justified in denying relief on this ground alone.
Cohen aggravated the situation further by accepting $1,400 in fees during the pre-appointment period without notice to the Court. Bankruptcy Rule 219(a) requires a person seeking compensation from the bankrupt estate to make a detailed application setting forth, inter alia, the services rendered...
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