In re Grimm, 91-12262-AB
| Decision Date | 02 August 1993 |
| Docket Number | Civ. No. 93-611-A.,No. 91-12262-AB,91-12262-AB |
| Citation | 156 BR 958 |
| Parties | In re Gary P. GRIMM, Ann E. Grimm, Debtors-in Possession. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for the National Bank of Washington, Appellant, v. Gary P. GRIMM and Ann E. Grimm, Appellees. |
| Court | U.S. District Court — Eastern District of Virginia |
Dwight D. Meier, David B. Tatge, Christopher D. Thompson, Ginsburg, Feldman and Bress, Chartered, Washington, DC.
Michael L. Shor, David R. Kiney, David & Hagner, P.C., Washington, DC, for debtors-in possession.
This bankruptcy appeal presents the question, not yet settled in this circuit, whether an award of counsel fees and expenses pursuant to 11 U.S.C. § 330(a) requires a predicate judicial finding that the claimed fees and expenses are incurred for services that benefitted the debtor's estate. For the reasons elucidated here, the Court concludes that § 330(a) requires such a predicate finding. Because it is unclear whether the Bankruptcy Court followed this governing principle, and because it is also unclear whether the record supports such a finding, the matter is remanded to the Bankruptcy Court for further proceedings consistent with this opinion.
The pertinent facts are undisputed and easily summarized. In 1987, debtors Gary and Ann Grimm entered into a loan relationship with National Bank of Washington ("NBW"), whereby NBW provided debtors five million dollars for the purpose of acquiring a Demopolis, Alabama chemical plant. Within a year, NBW provided an additional three million dollars for expansion of the plant. Thereafter, in August 1990, NBW was declared insolvent and FDIC was appointed as receiver. Some ten months later, debtors filed a voluntary Chapter 11 petition in this Division. Following this filing, debtor's counsel, David & Hagner, sought and received approval from the Bankruptcy Court to serve as debtor's counsel.
During the pendency of debtor's bankruptcy proceeding, FDIC initiated an adversary proceeding seeking to except from discharge the debtors' outstanding NBW loan obligation, which then amounted to approximately $8,319,630 in principal and interest. As debtor's counsel, David & Hagner performed services and incurred expenses in connection with both the Chapter 11 proceedings and the related adversary proceeding challenging dischargeability of debtors' NBW loan obligation. The discharge proceeding was ultimately settled, and the Bankruptcy Court approved the settlement after proper notice to creditors.
David & Hagner, during the 1991-93 period, as debtors' counsel, submitted to the Bankruptcy Court four requests for approval of fees and expenses incurred in connection with both the Chapter 11 proceeding and the discharge proceeding. There were, more specifically, three interim requests and a fourth, final request. The exact amounts sought and approved are not material to disposition of this appeal, but it is important to note that on each occasion, FDIC objected, inter alia, on the ground that no fees and expenses attributable to the discharge proceeding could be approved as, unlike fees attributable to estate administration,1 these fees were for services that did not benefit the bankruptcy estate. And it is also important to note that on each occasion the Bankruptcy Court approved fees and expenses, which, while usually less than the sums collected, included fees and expenses attributable to the discharge proceeding, as well as to other matters. Ultimately, the Bankruptcy Court approved $100,000 in fees attributable to the discharge proceeding. David & Hagner's fees for the discharge proceeding exceeded this sum, but the reorganization plan ultimately adopted and approved included a provision in which David & Hagner agreed to limit its discharge proceeding fee claim to $100,000, "subject to court approval."
While the "benefit to the estate" objection was raised and argued with respect to each fee application, it does not appear that the Bankruptcy Court either squarely resolved this issue or made findings concerning the presence or absence of benefit to the estate. Instead, it appears that the Bankruptcy Judge was chiefly moved by the notion that refusal to award fees from the estate to pay for counsel fees in discharge proceedings would effectively deny debtor representation for that proceeding.2
Finally, it is worth noting that the reorganization plan ultimately adopted provided for bifurcation of FDIC's claim into secured and unsecured portions and provided for liquidation of debtors' non-exempt pre-petition assets. This plan, significantly, was approved before the discharge proceeding was settled and, of course, before the filing and disposition of David & Hagner's fourth and final fee application. Given this, it is difficult to see how any legal efforts on debtors' behalf in the discharge proceeding could have affected the plan.
Analysis appropriately begins with the terms of 11 U.S.C. § 330(a), which governs the power of courts to award fees in this context. That statute provides, in pertinent part, as follows:
11 U.S.C. § 330(a).
Ambiguities in the statute render the plain language indeterminate in this context. The statute does not specify what the services must be "necessary" for, nor to whom the services must have "value." Absent such specificity, the statute's plain language does not itself answer the question whether benefit to the estate is a requirement for approval of fees and expenses. In these circumstances, courts construing § 330(a) must resort to other statutory interpretation aids, including the purpose of the provision in the overall scheme of the Bankruptcy Code and legislative history.
Court that have engaged in this effort have, in the main, concluded that benefit to the bankruptcy estate is a prerequisite for an award of fees and expenses under § 330(a). Leading this majority line of decisions is the Eighth Circuit's per curiam decision in In re Reed, 890 F.2d 104 (8th Cir.1989). There the Eighth Circuit panel noted the split in authority, but concluded that "in our judgment, the overwhelming weight of authority propounds the better rule requiring benefit to the estate...." Id. at 105.4 Decisions propounding this "better rule" note in support that contrary authority under the current (1978) Bankruptcy Code is scant, questionable and unpersuasive.5 Also noted in support by some courts following this "better rule" is that this construction of § 330(a) sensibly "carries over the near unanimous view of prior Bankruptcy Act of 1978 cases that, as a matter of law, attorneys may recover fees from the estate only if their labors actually benefitted the estate." In re Ryan, 82 B.R. 929, 931 (N.D.Ill.1987) (quoted in In re Holden, 101 B.R. 573, 574 (Bankr.N.D.Iowa 1989).
The rationale for requiring benefit to the estate before permitting fees and expenses to be paid from estate assets is both sensible and consistent with the overall purposes of the Bankruptcy Code. Providing debtors in certain circumstances with an opportunity for a fresh start is certainly a goal of the Code, which is financed, albeit, less than willingly, by creditors who, generally must accept less than 100 cents on every debt dollar. But fairness, too, is a Code value. And, requiring a showing of some benefit to the estate as a predicate to a § 330(a) fee award strikes the right balance between the goal of providing a fresh start and fairness. The court in In re Epstein, 39 B.R. 938, 941 (Bankr.D.N.M. 1984) put this point compellingly:
Paying from the estate the attorneys fees of a dishonest debtor, or one whose honesty is legitimately open to question unnecessarily favors the fresh start over the distribution to creditors. Every dollar paid administratively is a dollar less paid to the general creditors. The creditors are already financing the debtor\'s fresh start through their loss; it hardly seems equitable for them to finance the debtor\'s attempt to prove he is worthy of discharge.
In the context of this case, "it hardly seems equitable" to require FDIC and other creditors to bear the cost of the debtors' efforts to defendant against allegations of misconduct in the discharge proceeding if those efforts do not enure to the benefit of the estate from which the creditors will be paid.
Although § 330(a) is properly and sensibly construed as requiring some showing of benefit to the estate, there is no warrant in the statute or policy for concluding that fees and expenses incurred in discharge proceedings may never be awarded. To the extent that any decisions seem to support such a per se rule,6 they are not followed here. Whether a § 330(a) fees and expenses award is appropriate depends on the specific facts presented. Courts must examine the facts of each case to determine whether § 330(a)'s requirements are met, including the requirement of benefit to the estate. In certain circumstances, counsel's services on behalf of a debtor in a discharge proceeding may involve a benefit to the estate.7 Whether this is such a case is left for the Bankruptcy Court to decide on remand after making appropriate findings of fact.8
The scope of the remand properly includes all interim awards, for, as the order awarding David & Hagner's third interim request noted, the interim fee awards were subject to further court review on the occasion of the request for approval of the final fee application. See In re Taxman Clothing Co.,...
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