In re Eliapo

• Decision Date: 13 November 2006
• Docket Number: No. 03-16814.,03-16814.
• Citation: 468 F.3d 592
• Parties: In re Filiae ELIAPO; In re Judy Eliapo, Debtors, Law Offices of David A. Boone, Appellant, v. Devin Derham-Burk; U.S. Trustee, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

468 F.3d 592

In re Filiae ELIAPO; In re Judy Eliapo, Debtors,

Law Offices of David A. Boone, Appellant, v. Devin Derham-Burk; U.S. Trustee, Appellees.

No. 03-16814.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2006.

Filed November 13, 2006.

COPYRIGHT MATERIAL OMITTED

David A. Boone, Law Offices of David A. Boone, San Jose, CA, for the appellant.

Devin Derham-Burk, United States Trustee, Office of the U.S. Trustee, San Jose, CA, for the appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Brandt, Ryan, and Marlar, Bankruptcy Judges, Presiding. NC 02 01450.

Before: RYMER, W. FLETCHER, and CLIFTON, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

This appeal concerns the appropriate standards and procedures for awarding attorney's fees in connection with Chapter 13 bankruptcy petitions. The Bankruptcy Court for the Northern District of California has established three means by which a debtor's attorney may obtain a fee award in a Chapter 13 case. The attorney may (1) submit a fee application under "no-look" guidelines that establish presumptive fees for a "basic case" and specified variations thereon, (2) submit a detailed fee application based on the hours actually spent on the case, or (3) first submit a no-look application and later submit a detailed application seeking additional fees based on the hours actually spent.

In this case, Appellant Law Offices of David A. Boone ("Boone") initially submitted a fee application under the no-look guidelines. Boone later submitted a second fee application in which he sought additional fees based on the hours actually spent. In ruling on the second application, the bankruptcy court allowed a fee for a "basic case" based on the no-look guidelines and some additional fees according to the hours actually spent, but it refused to allow the full amount of fees requested. The BAP affirmed. We affirm in part, reverse in part, and remand.

I. Factual Background

On January 18, 2001, Filiae and Judy Eliapo ("the Eliapos") hired Boone to assist them in filing for bankruptcy. On January 22, Boone filed a Chapter 13 petition on their behalf. A plan was first filed on February 2. The plan was amended and re-filed on April 10. The plan was amended a second time and re-filed on April 18.

On May 30, Boone signed a one-page application for attorney's fees under the bankruptcy court's no-look guidelines, reproduced infra, in the amount of $2,350. This figure included $1,400 for the "basic case," $750 because the case "involve[d] real property claims," and $200 because the case "involve[d] vehicle loans or leases." The bankruptcy court approved the Eliapos' second amended plan on June 21 and approved Boone's $2,350 no-look fee application on the same day.

On February 27, 2002, Boone filed a second fee application requesting an additional $1,248. This application included time sheets describing the tasks performed and hours spent by Boone. Boone had already been provided compensation, pursuant to his no-look application, for some of the work described in the time sheets. Boone did not place under separate headings the work he had performed on the "basic case," or the work involving "vehicle loans or leases" or "real property claims." Most, perhaps all, of the work for which Boone sought additional compensation was performed after the date on which the no-look fees were awarded. The bankruptcy court initially scheduled a hearing on the second application, but took the matter under submission when no objection to the application was filed.

The bankruptcy court ruled on Boone's second fee application on August 2, 2002, without a hearing. The court divided the tasks performed by Boone into two categories. The first category was compensation for work involving "normal preparation of the petition, schedules and statement of affairs and the moving of the case to confirmation." In re Eliapo (Eliapo I), No. 01 50227-[J]RG, 2002 WL 31185824, at *1 (Bankr.N.D.Cal., August 2, 2002). The court concluded that Boone was seeking $2,254 for this work, based on 9.6 hours of work.

The court wrote that, absent "extraordinary circumstances," compensation for this work should not exceed the $1,400 Boone had already been paid for the "basic case" under the no-look guidelines. The court held that there were no extraordinary circumstances, and it refused to award additional fees beyond the $1,400 already awarded.

Pursuant to his no-look application, Boone had been awarded $200 for work involving "vehicle loans or leases." Even though Boone did not list work under that heading in his second application, it is apparent from the confirmed plan and the second fee application that Boone had indeed done such work. The confirmed plan lists a secured claim by "Americredit" with "value of collateral" of $20,618, for which a minimum of $50 per month is to be paid. Schedule B of the plan lists a 2000 Dodge Durango with a "current market value" of $20,618, and Schedule D lists Americredit as a secured creditor with a claim of $30,179.74. Boone's second fee application lists various tasks pertaining directly to this secured claim: "Prepare letter to Americredit" for .1 of an hour on 2/7/2001; "Receive and Review correspondence from Americredit regarding value of collateral (.1); Telephone Call to Dawn at Americredit regarding same (.2)" on 3/14/2001; and "Telephone call to Dawn . . . regarding value of Dodge Durango; left message" on 3/19/2001 for .1 of an hour, "No Charge." The application lists other tasks, such as "Prepare schedules and Statement of Financial Affairs" for 1.4 hours, that obviously include work relating to the secured loan on the vehicle. However, in ruling on the second application, the bankruptcy court wrote, "The vehicle loan is $30,179 and encumbers a 2000 Dodge Durango. There is no suggestion of a problem in this area." Eliapo I, at *1. The court added nothing to the $1,400 "basic case" guideline fee to take into account Boone's work involving this vehicle loan.

The second category of tasks Boone performed involved motions for relief from the automatic stay brought by the first and second mortgage holders. Pursuant to his no-look application, Boone had been awarded an additional $750 for work involving "real property claims." The court concluded that Boone was seeking $1,219 for this work, based on 5.2 hours of work related to these motions. The court wrote that this work "appears suspect." However, "given the debtors['] problems with their mortgage payments," the court declined to "second guess" the time spent on these motions. Id. It therefore awarded the full $1,219 for the work related to motions for relief from the automatic stay.

The court awarded a total attorney's fee of $2,744 based on the second application — $1,400 for the basic case, an additional $1,219 for work on the stay motions, and an additional $125 for preparation of the second application. The court did not award the $200 guideline amount for work involving "vehicle loans or leases." Because Boone had already been awarded $2,350 based on his no-look application, the net award based on his second application was $394. This amount was $854 less than the net amount Boone had requested in the second application. The Bankruptcy Appellate Panel ("BAP") affirmed the decision of the bankruptcy court. Law Offices of David A. Boone v. Derham-Burk (In re Eliapo) (Eliapo II), 298 B.R. 392 (9th Cir.BAP2003). Boone now appeals to this court, listing numerous questions in his brief. The questions overlap to a considerable extent and may be reduced to four: First, do the no-look presumptive fee guidelines violate 11 U.S.C. § 330? Second, did the bankruptcy court's criterion for awarding additional fees beyond the no-look presumptive fees violate § 330? Third, did the bankruptcy court abuse its discretion in ruling on Boone's second application without a hearing? Fourth, did the bankruptcy court abuse its discretion in refusing to give Boone $200 credit for having performed work involving "vehicle loans or leases"? All but the fourth question were raised in Boone's appeal to the BAP.¹

II. Standard of Review

We independently review the bankruptcy court's rulings on appeal from the BAP. See Salazar v. McDonald (In re Salazar), 430 F.3d 992, 994 (9th Cir.2005); Miller v. Cardinale (In re DeVille), 361 F.3d 539, 547 (9th Cir.2004). "Because we are in as good a position as the BAP to review bankruptcy court rulings, we independently examine the bankruptcy court's decision, reviewing the bankruptcy court's interpretation of the Bankruptcy Code de novo and its factual findings for clear error." United States v. Hatton (In re Hatton), 220 F.3d 1057, 1059 (9th Cir.2000); see also Am. Law Ctr. PC v. Stanley (In re Jastrem), 253 F.3d 438, 441 (9th Cir.2001). We will not disturb a bankruptcy court's award of attorney's fees "absent an abuse of discretion or an erroneous application of the law." In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985); see also Dawson v. Wash. Mutual Bank (In re Dawson), 390 F.3d 1139, 1145 (9th Cir.2004). That is, we will not reverse an award of fees unless we have a definite and firm conviction that the bankruptcy court committed clear error in the conclusion it reached after weighing all of the relevant factors.

III. Discussion

A bankruptcy court in a Chapter 13 case "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). The "other factors" are listed in § 330(a)(3). At the date of Boone's fee application, that section provided:

In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all...