In re Morris
In re Morris
Opinion of the Court
I. Introduction
Quicken Loans Inc. ("Quicken") is the holder of a first mortgage on the Chapter 13 Debtor's residence. Debtor challenges the reasonableness of Quicken's claim of $ 900 for post-petition attorney's fees. Before the Court for consideration are: (1) Debtor's Amended Motion for Determination of Fees, Expenses, or Charges Pursuant to Rule 3002.1(E) [Doc. 37]; and (2) Response to Amended Motion to Determine Mortgage Fees and Expenses filed by Quicken Loans Inc. [Doc 41].
On April 12, 2019, the matter came on for evidentiary hearing.
II. Jurisdiction
This Court has subject-matter jurisdiction pursuant to
III. Findings of Fact
1. On September 6, 2018, Debtor filed a voluntary petition for relief pursuant to Chapter 13 of Title 11 of the United States Bankruptcy Code. [Doc. 1].
2. In her Schedule D, Creditors Who Have Claims Secured by Property, the Debtor valued the claim of Quicken which was secured by the Debtor's principal residence at $ 109,898 and valued the residence at $ 140,000. [Doc. 1, pg.18].
3. On October 1, 2018, pursuant to Rule 3001, Quicken timely filed a Proof of Claim (POC) (Official Form 410) asserting a secured claim as of the date of the filing of the petition in the amount of $ 109,658.66. [POC 8-1].
4. On November 1, 2018, Quicken supplemented POC 8-1 by filing Official Form 410S2 -"Notice of Post-petition Mortgage Fees, Expenses, and Charges"- which included a claim of $ 150 for "attorney's fees", $ 500 for "Bankruptcy/Proof of claim" and $ 250 for "Other - 410A" fees and expenses, for a total of $ 900. [POC 8-1, doc., 11/1/2018]. No further detail or documentation regarding the fees was provided in the Form 410S2.
5. Quicken is entitled to the recovery of post-petition attorney fees under the terms of the Note and Mortgage with the Debtor.
6. Matthew Hudspeth, an attorney in practice for 27 years including 16 years with Baer & Timberlake responsible for handling bankruptcy matters for Quicken, including the Debtor's case, testified, consistent with his Affidavit [Doc. 31-1, Quicken Ex.1] and time records of Baer & Timberlake [Doc's. 31-2 & 31-3: Quicken Ex. 2 & 3] as to post-petition attorney fees expended in the Debtor's bankruptcy. Hudspeth testified that he either created or supervised the preparation of the time records. Hudspeth testified that while experienced attorneys at Baer & Timberlake customarily charged clients $ 350 per hour and staff at $ 125 per hour, the hourly fee normally charged Quicken was at the preferential, "blended" hourly rate of $ 275. The time records testified by Hudspeth regarding this Debtor indicated the time expended for "plan review" was 1.3 hours [Doc. 31-2; Quicken Ex. 2] and for "Proof of Claim" was 5.2 hours. [Doc. 31-3, Quicken Ex. 3]. Hudspeth testified that he either made the entries on the time records or supervised their preparation. Hudspeth testified that the time entries on the records were not made contemporaneously with the description of the work contained therein but were "reconstructed" by examining the firm's computer system, case management system, emails, the court's docket sheet and other sources which contained the date, nature of the service provided and the name of the person performing the same. Hudspeth concluded that based upon his experience and knowledge of the Debtor's file that the time records were an accurate representation of the *131time and services charged by Baer & Timberlake and were fair and reasonable.
7. Hudspeth testified, consistent with his Affidavit [Doc. 31-1; Quicken Ex.1], that had the law firm billed Quicken for the 1.3 hours for "plan review" at its preferential hourly rate of $ 275, the charges would have been $ 357.50. If the time had been billed at the firm's hourly rate of $ 350 for attorneys and $ 125 for staff, the charge would be $ 286.25. Baer & Timberlake, however, under its contractual agreement with Quicken for such bankruptcy "plan review" services charged a "flat fee" of $ 150. This is less than would have been charged for work under either Baer & Timberlake's normal hourly rate or its preferential blended rate to Quicken and is the amount for which it is seeking Court approval.
8. Hudspeth testified, as supported by the time records, that 5.2 hours
9. Michael McCormick, a senior partner in the bankruptcy department of McCalla Raymer, LLC, a national law firm with offices in 10 states, was called as an expert witness by Quicken. McCormick is licensed to practice in 11 states and the concurrent federal court districts. He has written many articles and has been an instructor in numerous continuing legal education seminars/webinars on federal regulations governing escrow accounts and the Bankruptcy Rule amendments in 2011 and 2016 pertaining to Rule 3002.1. He has been active with the National Association of Chapter 13 Trustees Mortgage Committee by helping to draft "Best Practices for Trustees and Mortgage Servicers in Chapter 13".
IV. Burden of Proof.
Under Rule 3002.1(d), the prima facie evidentiary benefits of filing a proof of claim under Rule 3001(f) do not apply to a creditor's notice of post-petition fees. In re Susanek ,
"suggests that the drafters did not intend to afford creditors any special advantage with respect to supplemental fees and charges. Moreover, the creditor is the party seeking to change the status quo by asking for amounts beyond the amount set forth in the original proof of claim-a typical basis for assigning the burden of proof, and the Debtor's request for a "determination" or declaratory relief under Rule 3002.1(e) does not change this fact. Similarly, in general the creditor is the entity with the greater knowledge of the circumstances giving rise to the supplemental charges ... Therefore, the court finds that the risk of non-persuasion under Rule 3002.1(e) falls on the Lender."
In re Brumley,
V. Analysis
Oklahoma follows the "American Rule" with regard to the recovery of attorney's fees, i.e. each litigant bears the cost of his legal representation and courts are without authority to assess and award attorney's fees in the absence of a specific statute or specific contractual provision between the parties. Kay v. Venezuelan Sun Oil Co. ,
As an initial matter, although Baer & Timberlake is only seeking to recover their "flat fee" charges to Quicken, the Court is not bound by any fee agreement between the attorney and the client; rather, the Court's responsibility is to determine whether the fee requested is reasonable on a time expended basis. In re Covemaker ,
In making this assessment, the Court employs the factors in State of Oklahoma, ex rel. Burk v. City of Oklahoma City,
With these factors in mind, we turn to the Debtor's primary challenge to the post-petition attorney's fees which appears to be that certain of the services rendered by Baer & Timberlake as set forth on the time records were "ministerial" or "clerical" which should be non-compensable or, at the very least, not billable at a blended rate of $ 275. Were Baer & Timberlake seeking such a fee, the Debtor might have a valid argument. The problem for Debtor, however, is that Baer & Timberlake is not seeking a fee on the total time expended; rather, it is seeking a flat fee of $ 900 under its arrangement with Quicken, which on a time basis equates to a "blended" rate of $ 138 per hour, and which the court finds reasonable. Further, based on the expert testimony of McCormick considering the Burk factors, Baer & Timberlake has the specialized knowledge and skill necessary to perform the legal services in question, has had a 10 year business relationship with Quicken and the complexity of the work involved presents significant risks that makes this service more than simple clerical or ministerial tasks.
Significantly, the Debtor did not come forward with any expert testimony which supported its argument that Baer & Timberlake's post-petition attorney fees of $ 900 was unreasonable. Debtor did call Quicken's expert, Bret Davis, as her own expert, but Davis did not opine that the $ 900 requested fee was unreasonable. In fact, he testified that Quicken's attorneys were being underpaid for their services. Debtor neither presented evidence nor argued as to what she thought was a reasonable amount of attorney fees.
A. Determination of Mortgagee's Post-Petition Fees, Expenses, and Charges
As succinctly stated by another bankruptcy court, Bankruptcy Rule 3002.1 "was adopted in December 2011 to address a *134significant problem caused when mortgage companies applied fees and costs to a debtor's mortgage while the debtor was in bankruptcy without giving notice to the debtor and then, based on these post-petition defaults, sought to foreclose upon the debtor's property after the debtor completed the plan." In re Howard ,
(c) Notice of Fees, Expenses, and Charges. The holder of the claim shall file and serve on the debtor, debtor's counsel, and the trustee a notice itemizing all fees, expenses, or charges (1) that were incurred in connection with the claim after the bankruptcy case was filed, and (2) that the holder asserts are recoverable against the debtor or against the debtor's principal residence. The notice shall be served within 180 days after the date on which the fees, expenses, or charges are incurred.
* * * *
(e) Determination of Fees, Expenses, or Charges. On motion of a party in interest filed within one year after service of a notice under subdivision (c) of this rule, the court shall, after notice and hearing, determine whether the payment of any claimed fee, expense, or charge is required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in accordance with § 1322(b)(5) of the Code. (Emphasis added.).
As indicated above, as required by Rule 3002.1(c), Quicken correctly filed the Notice of Fees using Official Form 410S2. The Official Form does not require the holder of the claim to attach supporting documents, nor are there any Form Instructions with reference to such documentation requirements. Accordingly, as an initial matter, the lack of documentation in the Notice of Fees is not fatal to the evidentiary burden imposed upon Quicken. But Form 410S2 does put the creditor on notice that: "The debtor or trustee may challenge whether the fees, expenses, charges you listed or required to be paid". See
B. Whether a Chapter 13 Plan Review or Filing of a Proof of Claim are Ministerial or Clerical, Non-Compensable Functions .
Debtor argued that some, if not all, of Baer & Timberlake's post-petition attorney fees were, like the pre-petition fees in the companion cases tried the same day, "ministerial" or "clerical" and not compensable.
*135Quicken's expert, McCormick, testified that because the filing of a proof of claim (both Official Form 410 and 410A) and Rule 3002.1 supplements carry serious implications, the same may not be done in a perfunctory, ministerial or automatic matter, and may require the assistance of counsel and/or experience, skilled non-attorneys. At the hearing, McCormick testified that in his opinion none of the work performed post-petition by Baer & Timberlake for which it seeks compensation were "ministerial" or "clerical".
In her pleadings and at hearing, Debtor cited two Alabama Bankruptcy Court decisions in support of the proposition that under Rule 3002.1 attorney fees for preparation of a proof of claim and plan review are not compensable. The first case is In re England ,
The second Alabama case cited by Debtor is In re Ochab ,
Based on the testimony from the fact and expert witnesses in the present case, the Court agrees with the findings of another Alabama bankruptcy case decided subsequent to England and Ochab which rejected the argument that plan review and the preparation and filing of a proof of claim did not justify an award of attorney's fees. In In re Mandeville ,
The risks and penalties associated with a flawed proof of claim are not insignificant, particularly for a residential mortgage creditor. Preparing, signing, and filing a proof of claim may not be complicated - the Official Form is readily available online and Rule 3001 states what is required, including attachments and escrow account statement - but the consequences of an incomplete or inaccurate claim travel with the creditor throughout the case and potentially have significant legal and evidentiary repercussions.
The Court acknowledges, as argued by Debtor, that there is case authority holding that filing a proof of claim is purely ministerial and that reviewing loan documents and the plan are unnecessary. In re Madison ,
C. Contemporaneous Time Records .
Debtor correctly argues, and Baer & Timberlake does not dispute, that production of detailed time records is required when a creditor seeks recovery of its post-petition fees and expenses under Rule 3002.1. The undisputed evidence was that while increments of time were not entered contemporaneously, the services rendered, the date they were rendered and the individual performing the services were maintained contemporaneously in the firm's case management system.
Debtor further argues that the failure to keep such contemporaneous time records bars Quicken's recovery of attorney fees. Under applicable Oklahoma law contemporaneous attorney time records are not required. Even the seminal Burk case allowed attorney's fees which were reconstructed. State of Oklahoma, ex rel. Burk v. City of Oklahoma City,
Even under the federal courts' stricter standards, the Tenth Circuit does "not forbid ... the use of reconstructed time records and does not demand that the reconstructed hours be arbitrarily reduced." Ramos v. Lamm ,
D. Block-Billing
At the hearing, Debtor argued that Baer & Timberlake had engaged in "block billing" precluding recovery for services rendered. The term "block billing" refers to "the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks". Robinson v. City of Edmond ,
The Court does not regard Baer & Timberlake's time records as constituting block-billing. The records contain discrete tasks performed by each employee within a given time period. With a couple of exceptions, the records have not lumped together unrelated tasks under one entry, nor did Baer & Timberlake use generic or inadequate descriptions, such as "research", "work on motion", "telephone calls with creditor" or "conferences". In the few instances where several discrete tasks were performed without individualized time entries, those entries appear to be for tasks which were part and parcel of one general task, i.e. setting up the file preparatory to filing foreclosure, preparation of the foreclosure petition and related documents, review and verification of information necessary for filing the petition.
Nevertheless, assuming arguendo that block-billing was present the same would not result in the fees being denied in their entirety. The Tenth Circuit has not adopted a per se rule prohibiting fees due to block billing. As stated in Flying J Inc. v. Comdata Network, Inc. ,
*138VI. Conclusion
The Court finds, after reviewing all of the pertinent pleadings including the law firm's affidavits and time records, reviewing the applicable law, hearing the testimony of Baer & Timberlake attorney Matt Hudspeth and the expert witnesses, which the court finds convincing, and drawing on the Court's own experience in presiding over hundreds, if not thousands, of Chapter 13 cases, that the expenditure of 1.3 hours for reviewing the Debtor's Chapter 13 Plan is fair and reasonable. It certainly follows that the $ 150 flat fee sought to be recovered for "plan review" is more than reasonable. Further, the expenditure of 5.2 hours in preparing Quicken's POC and related work to which a flat rate of $ 750 is requested, is also fair and reasonable.
The Court's decision today should not be read as holding that in this Court an attorney's flat fee arrangement with its mortgagee client is prima facie evidence of the reasonableness of a requested fee. The amount of a reasonable fee is based on a case-by-case factual basis; there is no precise rule or formula applied. Rather, the essential inquiry is one of reasonableness; and the court exercises discretion to reach an equitable award in accordance with applicable law.
IT IS HEREBY ORDERED that with respect to Debtor's Amended Motion for Determination of Fees, Expenses or Charges Pursuant to Rule 3002.1(E) [Doc. 37], the Court determines that the $ 900 in attorney's fees included in Quicken Loans Inc's "Notice of Postpetition Mortgage Fees, Expenses, and Charges" [POC 8-1, doc., 11/01/18] is Allowed as reasonable post-petition expenses.
The hearing on the present case was conducted concurrently with two other Chapter 13 cases in which the Debtors were represented by the same counsel, and the issues presented were similar. In re Judith Darlene Snow, Case No. 18-14846-JDL; In re Joseph and Sarah Fanning, Case No. 18-11163-JDL.
At the commencement of the hearing the Court announced, and the parties agreed, that the court would take judicial notice of all matters filed in the case as set forth on the Court Docket Sheet, including those pleadings which may have antedated and been supplemented or amended by the specific pleadings listed in the Introduction to this Order. Further, there was no objection by any of the parties to the Witness and Exhibit Lists filed by the Debtor [Doc. 40] and Quicken [Doc. 42].
All future references to "Rule" or "Rules" are to the Federal Rules of Bankruptcy Procedure or to the Federal Rules of Civil Procedure made applicable to bankruptcy proceedings, unless otherwise indicated.
"Debtor concedes Claimant (Quicken) is entitled to reasonable attorney fees under the terms of the Note and Mortgage." [Doc. 37, ¶ 14]; See also Mortgage, ¶ 9 (Borrower agrees to reimburse Lender for its expenses incurred to protect its interest in the property including "reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding.") [POC 8-1 Part 2, pg.11]; Mortgage, ¶ 27 ("attorneys' fees shall include those awarded by an appellate court and any attorneys' fees incurred in a bankruptcy proceeding") [POC 8-1 Part 2, pg. 18]; Note, ¶ 6(E), costs and expenses to which the Note Holder is entitled include reasonable attorneys' fees for enforcing this Note to the extent not prohibited by applicable law) [POC 8-1 Part 2, pg. 2].
Hudspeth's Affidavit states that 5.45 hours were expended in preparing Quicken's POC. The time records and Hudspeth's testimony was that the time expended was that as reflected in the time records of 5.2 hours.
See for example, McCormick, Understanding Official Form 410A , NACTT Quarterly, Vol. 28, No. 4 (2016). [Quicken Ex. C-1].
State of Oklahoma, ex rel. Burk v. City of Oklahoma City,
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- IN RE: Wilma Jeanne MORRIS, Debtor.
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