In re Kieffer, No. 00-62317.
| Decision Date | 23 January 2004 |
| Docket Number | No. 01-61178.,No. 00-62317. |
| Citation | 306 B.R. 197 |
| Parties | In re Ted A. KIEFFER and Annbritt P. Kieffer, Debtors. In re Thadis Carl Tanksley, Debtor. |
| Court | U.S. Bankruptcy Court — Northern District of Ohio |
Anne Piero Silagy, Esq, Canton, OH, Chapter 7 Trustee.
Shawn C. Groff, Macala, Baasten, McKinley and Gore LLC, Canton, OH, for debtors.
Francis J. DiCesare, Cincinnati, OH, Eric J. Slifer, Malvern, PA, Lance J. VanderLinden, Dallas, TX, for creditor.
Before the court are final reports of Chapter 7 Trustee Anne Piero Silagy (hereafter "Trustee") and applications for compensation of Trustee and Roetzel and Andress (hereafter "Counsel") filed in two cases.1 In the interest of judicial economy, these matters have been consolidated for decision.
The court has jurisdiction over these matters pursuant to 28 U.S.C. § 1334(a), the general order of reference entered in this district on July 16, 1984 and 28 U.S.C. § 157(b)(1).
On July 18, 2000, Ted A. Kieffer and Annbritt P. Kieffer (hereafter collectively "Kieffers") filed a Chapter 7 bankruptcy case. Trustee was appointed on July 19, 2000. The first meeting of creditors was continued to September 12, 2000 by virtue of a notice of adjournment filed by the Kieffers' counsel on August 30, 2000. The September 12, 2000 meeting of creditors was held and continued to September 19, 2000 in order for the Kieffers to submit documentation to Trustee.2 In the meantime, on September 13, 2000, Trustee filed a request for notice to creditors to file proofs of claim because assets would be available for distribution. On October 12, 2000, Trustee filed an application to employ Counsel, which was granted on November 1, 2000.
Trustee objected to a motion for relief from stay and abandonment of First Union National Bank of Delaware fka First Union Home Equity Bank, N.A. (hereafter "First Union") on the ground that the Kieffers' statements at the meeting of creditors led Trustee to believe that First Union held an avoidable mortgage on the Kieffers' real property.3 First Union withdrew its motion on December 26, 2000.
Counsel filed a notice of proposed sale of personal property and motion to sell free and clear of liens, claims and encumbrances. This sale related to the Kieffers' fifty percent stock interest in APK, Inc.,4 which Trustee proposed to sell to Ernest Constante (hereafter "Constante"), the other fifty percent shareholder of APK, Inc., for $10,000.00.5 This sale was approved on January 19, 2001.
On March 30, 2001, Trustee filed her first interim report listing three assets of potential value. They were the stock that had previously been sold, the real property with the allegedly defective mortgage and a liquor license in the name of APK, Inc. Trustee valued the stock and real property interest at a combined $10,000.00 in the report. There was no valuation listed for the liquor license. Subsequently, Trustee filed additional interim reports on October 11, 2001, April 2, 2002 and October 15, 2002. The April 2, 2002 interim report indicated that the estate's interest in the real property would be abandoned. No mention was made of the interest in the liquor license. The October 15, 2002 interim report indicated that the only activity preventing the closing of the case was the filing of a fee application.
On July 2, 2001, Counsel filed its first and final application for compensation and reimbursement of expenses for services rendered and expenses incurred from October 25, 2000 through April 30, 2001. Counsel requests $1,058.00 in fees, for 5.20 hours of work at a blended hourly rate of $205.00,6 and $42.60 in expenses. Counsel's fees relate to the following work performed as detailed in Exhibit A of its application for compensation:
The final report and account, filed January 31, 2003, indicates that Trustee recovered $10,258.70 for creditors, minus a $16.67 disbursement made for a bond premium. Trustee's accompanying application for compensation and reimbursement of expenses requests $1,769.94 in compensation, pursuant to 11 U.S.C. § 326, and $32.26 for expenses.
Trustee explained that the case involved a dispute between the co-owners of a corporation that owned the liquor license for a local bar. The Kieffers, although fifty percent owners, were locked out. Given this history, Trustee immediately hired Counsel and did not take any action to contact the co-owner. The facts reveal that, following the usual uncertainty encountered with an unsophisticated co-owner in these types of cases, Constante hired a lawyer who promptly negotiated with Counsel to purchase the estate's interest.
On March 28, 2001, Thadis Carl Tanksley (hereafter "Tanksley") filed a Chapter 7 bankruptcy case. Trustee was appointed on March 29, 2001. The first meeting of creditors was held May 22, 2001 and then continued to June 12, 2001, June 26, 2001 and July 10, 2001 in order for Tanksley to submit documentation to Trustee.7 On July 12, 2001, Trustee filed a request for notice to creditors to file proofs of claim because assets would be available for distribution. On February 22, 2002, Trustee filed an application to employ Counsel, which was approved on March 25, 2002.
On October 11, 2001, Trustee filed her first interim report. This report did not list any property with nonexempt equity. The subsequent interim report, filed April 2, 2002, reported that Counsel had been retained to file a complaint. The interim report filed October 15, 2002 reported the same information.
On April 24, 2002, Counsel filed a notice and motion for authority to compromise. The notice and motion related to nonexempt equity in money on deposit in a bank account on the date of the bankruptcy filing, avoidance of an allegedly fraudulent transfer of a down payment for the sale of real property, avoidance of an allegedly fraudulent transfer of sale proceeds from the sale of real property and nonexempt equity in real property owned by Tanksley. The motion to compromise the claims against Tanksley for $7,500.00 was granted on June 14, 2002.
On October 24, 2002, Counsel filed its first and final application for compensation and reimbursement of expenses for services rendered and expenses incurred from February 13, 2002 through July 31, 2002. Counsel requests $1,147.50 in fees, for 5.10 hours of work at an hourly rate of $225.00, and $35.40 in expenses. Counsel's fees relate to the following work performed as detailed in Exhibit A of its application for compensation:
Date Initials Hours Description
02/13/02 BRS 0.50 Review with Trustee facts of case, claims and prior demands of
trustee
03/05/02 BRS 0.70 Review closing statement regarding sale of property, property
interests of debtor and amounts due estate (.50) Review with
Trustee facts (.20)(.70)
03/06/02 BRS 0.80 Further review of file; Letter to debtor's counsel requesting
turnover of assets and review of trustee's claims (.80)
03/18/02 BRS 0.20 Telephone call from B. Cypensky [sic] regarding debtor's turnover
of property and claims of fraudulent transfer (.20)
03/26/02 BRS 0.10 Telephone call from counsel for Lemmon & Lemmon regarding
turnover of funds
04/04/02 BRS 0.20 Letter to Trustee regarding Lemmon & Lemmon receivable
(.10) Letter to Debtor's counsel regarding follow-up on turnover
and information previously requested by Trustee (.10)(.20)
04/18/02 BRS 1.20 Prepare for meeting with Debtor's...To continue reading
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