FILED
JAN 06 2014
1
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-12-1516-DKiTa
)
6 SEYED SHAHRAM HOSSEINI, ) Bk. No. SV 10-66228-WA
)
7 Debtor. ) Adv. No. SV 10-01385-WA
______________________________)
8 )
SEYED SHAHRAM HOSSEINI, )
9 )
Appellant, )
10 )
v. ) O P I N I O N
11 )
KEY BANK, N.A., )
12 )
Appellee. )
13 ______________________________)
14
15 Argued and Submitted
at Pasadena, California on November 21, 2013
16
Filed - December 19, 2013
17 Ordered Published - January 6, 2014
18 Appeal from the United States Bankruptcy Court
for the Central District of California
19
Hon. William V. Altenberger, Bankruptcy Judge, Presiding.
20
21 Appearances: Denise M. Fitzpatrick, Esq. for Appellant, Seyed
Shahram Hosseini; and Holly J. Nolan, Esq. for Appellee, Key
22 Bank, N.A.
23
24
25 Before: DUNN, KIRSCHER, and TAYLOR, Bankruptcy Judges.
26
27
28
1 DUNN, Bankruptcy Judge:
2
3 The debtor, Seyed Shahram Hosseini, appeals the bankruptcy
4 court’s order 1) denying his motion for attorney’s fees and 2)
5 allowing only costs for service of process requested in his bill
6 of costs.1 We AFFIRM.
7 FACTS
8 Prepetition, the debtor obtained a total of $280,046.34 in
9 student loans (“student loan debt”) from Key Bank, N.A. (“Key
10 Bank”) to fund his medical school education. Despite several
11 attempts, he was unable to pass the medical licensing exam. The
12 debtor did not become a physician, as he had hoped, but instead
13 became a night security guard earning only $13.50 per hour. He
14 also was beset with various physical and mental ailments,
15 including diabetes and depression.
16 The debtor filed a chapter 7 bankruptcy petition on May 24,
17 2010. He initiated an adversary proceeding to discharge the
18 student loan debt under § 523(a)(8). Two years after Key Bank
19 filed its answer in the adversary proceeding, the bankruptcy
20 court held a trial. It granted judgment in the debtor’s favor,
21 discharging his entire student loan debt to Key Bank (“Discharge
22 Order”).
23
1
Unless otherwise indicated, all chapter and section
24
references are to the federal Bankruptcy Code,
11 U.S.C. §§ 101-
25 1532, and all “Rule” references are to the Federal Rules of
Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of
26 Civil Procedure are referred to as “Civil Rules.”
27 The Local Bankruptcy Rules for the United States Bankruptcy
Court for the Central District of California are referred to as
28 “LBR.”
2
1 Shortly after the bankruptcy court entered the Discharge
2 Order, the debtor filed a bill of costs (“Cost Bill”) seeking a
3 total of $4,960.39 in expenses incurred by his attorney, Denise
4 Fitzpatrick, in the adversary proceeding.2 Along with the Cost
5 Bill, he submitted a declaration by Ms. Fitzpatrick (“Cost Bill
6 Declaration”), which included an itemization of each cost sought
7 to be recovered by him (“Cost Bill Itemization”).
8 According to the Cost Bill Itemization, the debtor sought
9 $101.20 for copying and printing (mostly for documents served
10 electronically), $20.90 for faxing (all for evidentiary documents
11 from the debtor to Ms. Fitzpatrick), $107.74 for “service of
12 process” (postage for service of summons, status reports and
13 other documents mailed by Ms. Fitzpatrick), and $4,730.55 for
14 miscellaneous costs (consisting of messenger service fees, online
15 software purchases, exhibit preparation costs, transportation
16 costs for Ms. Fitzpatrick’s meetings with co-counsel and/or the
17 debtor, “research and document retrieval” costs, phone charges
18 for a status conference through Court Call, a $2,500 “consultant
19 fee” to Charles Murray3 (“Murray consultation fee”), and a $500
20
21 2
The debtor initially sought $6,210.39 in costs.
22 3
Ms. Fitzpatrick employed Mr. Murray as a “consultant” to
23 help her during trial. She filed a notice of association of
counsel on July 17, 2012, indicating that Mr. Murrary was co-
24
counsel in the adversary proceeding. According to Ms.
25 Fitzpatrick, Mr. Murray “did the oral arguments” at trial.
The bankruptcy court determined that Mr. Murray was not a
26 consultant but an attorney as he “[had] tried the case.” Tr. of
27 September 10, 2012 Hr’g, 29:4. The bankruptcy court therefore
found that the $2,500 “consultant fee” for Mr. Murray actually
28 (continued...)
3
1 fee to Hector Vega for “[consultation] and appearance – necessary
2 to obtain trial continuance and prevent dismissal”).4
3 The debtor also filed a motion for allowance of attorney’s
4 fees (“Attorney Fee Motion”), seeking a total of $110,701.50 “for
5 reasonable and necessary fees incurred [by Ms. Fitzpatrick] in
6 [the adversary proceeding].”5
7 In support of the Attorney Fee Motion, the debtor relied on
8 a provision (“fee provision”) in the promissory note for the
9 student loans (“promissory note”), which he claimed authorized
10 him to seek attorney’s fees as the prevailing party in the
11 adversary proceeding.6 The fee provision stated:
12
3
13 (...continued)
was an attorney’s fee to be included in the Attorney Fee Motion.
14
4
Ms. Fitzpatrick failed to appear at the trial set for
15 April 25, 2012. She had Mr. Vega specially appear to represent
16 the debtor in her stead. It seems that the $500 fee to Mr. Vega
was for his special appearance at the April 25, 2012 hearing.
17
5
In her declaration filed in support of the Attorney Fee
18 Motion (“Attorney Fee Declaration”), Ms. Fitzpatrick claimed that
19 she spent a total of 316.29 hours litigating the adversary
proceeding. She attached to her declaration an “attorney time
20 log” that described the various tasks she performed, the time
spent on each task and the amount due.
21
6
22 The debtor also referenced LBR 7054-1(g)(1), which allows
a prevailing party to file a motion for an award of attorney’s
23 fees where such fees may be awarded, within 30 days after entry
of judgment.
24
LBR 7054-1(g) provides:
25 (1) If not previously determined at trial or other hearing,
a party seeking an award of attorneys’ fees where such
26 fees may be awarded must file and serve a motion not
27 later than 30 days after the entry of judgment or other
final order, unless otherwise ordered by the court.
28 (continued...)
4
1 When and as permitted by applicable law, I [the
borrower] agree to pay your [the lender] reasonable
2 amounts, including reasonable attorney’s fees for any
attorney who is not your regularly salaried employee and
3 court and other collection costs, that you incur in
enforcing the terms of the [promissory] Note if I am in
4 default.
5 He further relied on California Civil Code (“Civil Code”)
6 § 1717, arguing that Civil Code § 1717 reinforced the fee
7 provision through reciprocity.7 According to the debtor, Civil
8 Code § 1717 “requires payment of attorney fees to prevailing
9
10 6
(...continued)
11 (2) The requirements of LBR 9013-1 through LBR 9013-4 apply
to a motion for attorneys’ fees under this rule.
12
7
Civil Code § 1717 provides, in relevant part:
13
14 (a) In any action on a contract, where the contract
specifically provides that attorney’s fees and costs,
15 which are incurred to enforce that contract, shall be
awarded either to one of the parties or to the
16
prevailing party, then the party who is determined to
17 be the party prevailing on the contract, whether he or
she is the party specified in the contract or not,
18 shall be entitled to reasonable attorney’s fees in
19 addition to other costs.
20 Where a contract provides for attorney’s fees, as set
forth above, that provision shall be construed as
21 applying to the entire contract, unless each party was
22 represented by counsel in the negotiation and execution
of the contract, and the fact of that representation is
23 specified in the contract.
24
Reasonable attorney’s fees shall be fixed by the court,
25 and shall be an element of the costs of suit.
26 Attorney’s fees provided for by this section shall not
27 be subject to waiver by the parties to any contract
which is entered into after the effective date of this
28 section. Any provision in any such contract which
provides for a waiver of attorney’s fees is void.
5
1 parties when attorney fees are afforded to any contracting
2 party.”
3 Key Bank opposed the Cost Bill, contending that the debtor
4 could not recover certain costs because they were not allowed
5 under LBR 7054-1. Specifically, it opposed the debtor’s request
6 for recovery of costs for every copy ever made in the adversary
7 proceeding because LBR 7054-1 allowed recovery of costs of copies
8 of documents admitted into evidence only if the original
9 documents were not available. It further opposed recovery for
10 postage, Court Call charges, fax charges, messenger and delivery
11 charges, software costs, transportation costs, PACER research
12 charges and the Murray consultation fee because LBR 7054-1 did
13 not include such expenses as recoverable costs.
14 Key Bank also opposed the Attorney Fee Motion, arguing that
15 there was no statutory basis for an award of attorney’s fees
16 under § 523(a)(8) as required under the American Rule.
17 Key Bank also contended that the fee provision only applied
18 to actions seeking to enforce the terms of the promissory note.
19 Here, the debtor had initiated the adversary proceeding to
20 discharge his student loan debt under § 523(a)(8), not to enforce
21 the promissory note’s terms. The debtor therefore could not seek
22 attorney’s fees because he prevailed on a claim to relieve
23 himself from his debts under federal law, not on a Key Bank claim
24 to recover following a default under the promissory note.
25 Key Bank further asserted that Civil Code § 1717 did not
26 apply because the promissory note contained a provision stating
27 that Ohio law, not California law, governed the prevailing
28 party’s recovery of attorney’s fees (“governing law provision”).
6
1 Specifically, the governing law provision stated:
2 I understand and agree that (i) you are located in
Ohio, (ii) that this Note will be entered into in Ohio
3 and (iii) that your decision on whether to lend me
money will be made in Ohio. CONSEQUENTLY, THE
4 PROVISIONS OF THIS NOTE WILL BE GOVERNED BY FEDERAL
LAWS AND THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD
5 TO CONFLICT OF LAW RULES. I agree that any suit I
bring against you (or against any subsequent holder of
6 this Note) must be brought in a court of competent
jurisdiction in the county in which you maintain your
7 (or the county in which the subsequent holder maintains
its) principal place of business.
8
9 On September 10, 2012, the bankruptcy court held a hearing
10 on the Cost Bill and the Attorney Fee Motion.
11 After hearing extensive argument from counsel, the
12 bankruptcy court first addressed the Cost Bill. The bankruptcy
13 court agreed with Key Bank that LBR 7054-1 allowed for the
14 recovery of filing fees and certain of the service of process
15 fees, but not for the other fees requested by the debtor.
16 The bankruptcy court then turned to the Attorney Fee Motion.
17 It began by recognizing that, under the American Rule, a
18 prevailing party may not recover attorney’s fees unless there was
19 a statute or a contract authorizing such recovery. The
20 bankruptcy court acknowledged that the fee provision allowed Key
21 Bank to recover any attorney’s fees incurred in enforcing the
22 terms of the promissory note if the debtor defaulted. It also
23 acknowledged that Civil Code § 1717 provided that, in any action
24 on a contract where the contract specifically provided for the
25 recovery of attorney’s fees incurred by the prevailing party to
26 enforce the contract, the prevailing party was entitled to
27 recover reasonable attorney’s fees. The bankruptcy court noted
28 that Key Bank did not dispute that if it could recover attorney’s
7
1 fees as the prevailing party, the debtor also could recover
2 attorney’s fees if he were the prevailing party.8
3 The bankruptcy court ultimately decided that the debtor was
4 not entitled to recover attorney’s fees under the American Rule.
5 In making its determination, the bankruptcy court focused on the
6 purpose of the adversary proceeding. It emphasized that the
7 debtor initiated the adversary proceeding to discharge his
8 student loan debt to Key Bank, not to enforce the terms of the
9 promissory note or contest the amount of the debt to Key Bank.
10 Because the sole legal basis for recovery of attorney’s fees did
11 not apply – i.e., the fee provision – the bankruptcy court denied
12 the Attorney Fee Motion.
13 On September 26, 2012, the bankruptcy court entered an order
14 on both the Cost Bill and the Attorney Fee Motion (“Cost and Fee
15 Order”). In the Cost and Fee Order, the bankruptcy court allowed
16 the debtor $10.82 in costs for service of process but denied all
17 other costs.9 It denied the Attorney Fee Motion in its entirety.
18
8
19 The bankruptcy court also observed:
20 No matter how you look at this or how you cut it,
[the amount was] way too much in the way of attorney’s
21
fees in a case for hardship, to have his student loans
22 declared to be a hardship, and therefore,
dischargeable.
23 It’s either a case of over-lawyering, or a case
24 where the lawyer was not familiar with bankruptcy law
or bankruptcy trials, because there’s no way that a
25 two-hour trial or three-hour trial, should require
preparation time and trial time that totals $125,000.
26
27 Tr. of September 10, 2012 Hr’g, 30:23-25, 31:1-6.
9
28 Although it allowed the debtor to recover filing fees and
(continued...)
8
1 The debtor timely appealed the Cost and Fee Order.
2 JURISDICTION
3 The bankruptcy court had jurisdiction under 28 U.S.C.
4 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.
5 § 158.
6 ISSUES
7 (1) Did the bankruptcy court abuse its discretion in
8 allowing $10.82 in costs for service of process only?
9 (2) Did the bankruptcy court abuse its discretion in
10 denying the Attorney Fee Motion in its entirety?
11 STANDARDS OF REVIEW
12 We review a bankruptcy court’s refusal to award attorney’s
13 fees for an abuse of discretion. Renfrow v. Draper,
232 F.3d
14 688, 693 (9th Cir. 2000); Dinan v. Fry (In re Dinan),
448 B.R.
15 775, 783 (9th Cir. BAP 2011). We also review a bankruptcy
16 court’s allowance or disallowance of costs for abuse of
17 discretion. Kalitta Air LLC v. Cent. Tex. Airborne Sys. Inc.,
18 --- F.3d ---,
2013 WL 6670795 at *2 (9th Cir. 2013); Young v.
19 Aviva Gelato, Inc. (In re Aviva Gelato, Inc.),
94 B.R. 622, 624
20 (9th Cir. BAP 1988), aff’d,
930 F.2d 26 (9th Cir. 1991)(table).
21 We also review its rulings regarding the local rules for abuse of
22 discretion. Kalitta Air LLC,
2013 WL 6670795 at *2.
23 We apply a two-part test to determine objectively whether
24 the bankruptcy court abused its discretion. United States v.
25
26 9
(...continued)
27 costs for service of process, the bankruptcy court noted that the
debtor was not required to pay the filing fee for the adversary
28 proceeding. It therefore determined the amount for filing fees
to be zero.
9
1 Hinkson,
585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc). First,
2 we “determine de novo whether the bankruptcy court identified the
3 correct legal rule to apply to the relief requested.”
Id.
4 Second, we examine the bankruptcy court’s factual findings under
5 the clearly erroneous standard.
Id. at 1262 & n.20. A
6 bankruptcy court abuses its discretion if it applied the wrong
7 legal standard or its factual findings were illogical,
8 implausible or without support in the record. TrafficSchool.com,
9 Inc. v. Edriver Inc.,
653 F.3d 820, 832 (9th Cir. 2011).
10 We review de novo the bankruptcy court’s decision to deny
11 attorney’s fees under state law. See Dinan, 448 B.R. at 783
12 (citing Bertola v. N. Wis. Produce Co., Inc. (In re Bertola), 317
13 B.R. 95, 99 (9th Cir. BAP 2004)).
14 We may affirm on any ground supported by the record. Shanks
15 v. Dressel,
540 F.3d 1082, 1086 (9th Cir. 2008).
16 DISCUSSION
17 A. Cost Bill
18 Rule 7054(b) provides in relevant part: “The court may allow
19 costs to the prevailing party except when a statute of the United
20 States or these rules otherwise provides.” Rule 7054(b) arises
21 from Civil Rule 54(d)(1), which provides in relevant part:
22 “Unless a federal statute, these rules, or a court order provides
23 otherwise, costs – other than attorney’s fees – should be allowed
24 to the prevailing party.”
25 Civil Rule 54(d)(1) appears mandatory in nature, as it
26 states that costs “should be allowed,” unless it or federal
27 statute or rule otherwise directs. See 10 Collier on Bankruptcy
28 ¶ 7054.05 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. rev.
10
1 2013)(“[A]lthough ultimately leaving the question of costs to the
2 discretion of the court, [Civil Rule 54(d)] provides that the
3 court ‘should’ allow costs to the prevailing party unless it, a
4 federal statute or a Civil Rule otherwise directs.”)(hereinafter
5 referred to as “Collier on Bankruptcy”). Nonetheless, Civil Rule
6 54(d)(1) generally grants a federal court discretion to refuse to
7 tax costs in the prevailing party’s favor. Crawford Fitting Co.
8 v. J.T. Gibbons, Inc.,
482 U.S. 437, 442 (1987).
9 On the other hand, Rule 7054(b) is permissive in nature, as
10 it states that the bankruptcy court “may allow costs.” (Emphasis
11 added.) See In re Aviva Gelato, Inc.,
94 B.R. at 624 (“Although
12 [Civil] Rule 54(d) appears to be more mandatory in nature than
13 [Rule] 7054(b), the Ninth Circuit has consistently recognized
14 that the trial court has discretion as to what costs to
15 allow.”)(citation omitted). See also 10 Collier on Bankruptcy
16 ¶ 7054.05. Although it has broad discretion in determining
17 whether to deny costs, the bankruptcy court must state its
18 reasons for denying them. In re Aviva Gelato, Inc.,
94 B.R. at
19 624.
20 The debtor contends that the bankruptcy court erred in
21 limiting recoverable costs to those listed in the Court Manual
22 pursuant to LBR 7054-1(d). Instead, according to the debtor, the
23 bankruptcy court should have referenced
28 U.S.C. § 1920, which
24 permits recovery of reasonable out-of-pocket expenses typically
25 charged to clients by their attorneys.
26 We decline to consider the debtor’s argument regarding 28
27 U.S.C. § 1920, as he did not raise it before the bankruptcy
28
11
1 court.10 See Enewally v. Wash. Mut. Bank (In re Enewally), 368
2 F.3d 1165, 1173 (9th Cir. 2004)(“As a general rule, issues not
3 presented to the trial court cannot generally be raised for the
4 first time on appeal,” unless one of the four recognized
5 exceptions apply.)(quoting United States v. Flores-Payon, 942
6 F.2d 556, 558 (9th Cir. 1991)(internal quotation marks omitted)).
7 As for the bankruptcy court’s reliance on LBR 7054-1, we
8 conclude there was no error. The general rule is that the
9 bankruptcy court’s authority to tax a cost must come from “a
10 federal statute or rule of court, or in the custom, practice and
11 usage applicable in a particular district, and in some instances
12 by the exercise of the court’s general equitable discretion.” 10
13 Collier on Bankruptcy ¶ 7054.05. According to LBR 1001-1(b)(2),
14 the Local Bankruptcy Rules “apply to all bankruptcy cases and
15 proceedings . . . pending in the United States Bankruptcy Court
16 for the Central District of California.”
17 Here, the bankruptcy court’s authority to allow or deny
18 costs arose from the local rules of its district. It therefore
19 could allow such costs within the parameters of the local rules –
20 specifically, those costs listed in the Court Manual pursuant to
21 LBR 7054-1(d).
22 LBR 7054-1 provides, in relevant part:
23 a. Who May Be Awarded Costs. When costs are allowed
by the FRBP or other applicable law, the court may
24
25
10
Moreover, considering
28 U.S.C. § 1920, the Ninth
26 Circuit recently held that “the better course is to hew closely
27 to the statute’s language, scheme and context, recognizing that §
1920 is narrow, limited and modest in scope.” Kalitta Air LLC, -
28 --- F.3d ----,
2013 WL 6670795 at *3 (citing Taniguchi v. Kan
Pacific Saipan, Ltd.,
132 S.Ct. 1997, 2006 (2012)).
12
1 award costs to the prevailing party. No costs
will be allowed unless a party qualifies as, or is
2 determined by the court to be, the prevailing
party under this rule. Counsel are advised to
3 review
28 U.S.C. § 1927 regarding counsel’s
liability for excessive costs.
4 . . . .
5 d. Items Taxable as Costs. A list of the items
taxable as costs is contained in the Court Manual
6 available from the clerk and on the court’s
website.
7 . . . .
8 Section 2.8 of the Court Manual for the United States
9 Bankruptcy Court for the Central District of California provides,
10 in relevant part:
11 2.8 Miscellaneous
12 . . .
13 (d) Bill of Costs [LBR 7054-1].
14 A bill of costs filed electronically or non-
electronically must comply with LBR 7054-1.
15 The prevailing party who is awarded costs
must file and serve a bill of costs not later
16 than 30 days after entry of judgment. Each
item claimed must be set forth separately in
17 the bill of costs.
18 (e) Items Taxable as Costs. Pursuant to LBR
7054-1, the following items are taxable as
19 costs:
(1) Filing Fees. The clerk’s filing fees;
20 (2) Fees for Service of Process. Fees for
service of process (whether served by
21 the United States Marshal or in any
other manner authorized by FRBP 7004);
22 (3) United States Marshal’s Fees. Fees of
the United States Marshal collected and taxed
23 as costs pursuant to
28 U.S.C. § 1921;
24 (4) Clerk’s Fees. Fees for certification of
documents necessary for preparation for
25 a hearing or trial; and
(5) Transcripts and Digital Recordings. The
26 costs of the original and one copy of
all or any part of a trial transcript,
27 daily transcript, or a transcript of
matters occurring before or after trial,
28 if requested by the court or prepared
pursuant to stipulation. The cost of a
13
1 digital recording, if requested by the
court or obtained pursuant to
2 stipulation.
(6) Depositions. Costs incurred in
3 connection with taking depositions,
including:
4 . . .
(7) Witness Fees. Fees paid to witnesses
5 . . .
(8) Interpreter’s and Translator’s Fees.
6 Fees paid to interpreters and
translators . . .
7 (9) Docket Fees. Docket fees as provided by
28 U.S.C. § 1923.
8 (10) Certification, Exemplication, and
Reproduction of Documents. Document
9 preparation costs, including:
(A) The cost of copies of an exhibit
10 attached to a document necessarily
filed and served;
11 (B) The cost of copies of a document
admitted into evidence when the
12 original is not available or the
copy is substituted for the
13 original at the request of an
opposing party;
14 (C) Fees for an official certification
of proof respecting the non-
15 existence of a document or record;
(D) Patent Office charges for the
16 patent file wrappers and prior art
patents necessary to the
17 prosecution or defense of a
proceeding involving a patent;
18 (E) Notary fees incurred in notarizing
a document when the cost of the
19 document is taxable; and
(F) Fees for necessary certification or
20 exemplication of any document.
. . .
21 (12) Other Costs. Upon order of the court,
additional items, including the
22 following, may be taxed as costs:
(A) Summaries, computations, polls,
23 surveys, statistical comparisons,
maps, charts, diagrams, and other
24 visual aids reasonably necessary to
assist the court or jury in
25 understanding the issues at the
trial;
26 (B) Photographs, if admitted in
evidence or attached to documents
27 necessarily filed and served upon
the opposing party; and
28 (C) The cost of models if ordered by
the court in advance of or during
trial.
. . . .
14
1 Reviewing the Cost Bill Itemization, we conclude that only
2 one of the requested costs – the certified mail postage for
3 service of the alias summons and notice of the status conference
4 – was recoverable under LBR 7054-1(d).
5 Ms. Fitzpatrick listed costs for printing status reports,
6 summons, orders, notices, responses to interrogatories,
7 stipulations, briefs, declarations and exhibit lists, none of
8 which qualify as document preparation costs under Section
9 2.8(e)(10) of the Court Manual. She also listed costs for
10 numerous faxes from the debtor, explaining that these faxes were
11 “evidentiary documents.” Ms. Fitzpatrick failed to specify these
12 “evidentiary documents” and to explain their purpose. Given her
13 lack of explanation, we only can assume that she printed
14 documents and had documents faxed to her for her convenience or
15 her records. See, e.g., Fressell v. AT&T Tech., Inc.,
103 F.R.D.
16 111, 116 (N.D. Ga. 1984)(denying successful defendant’s request
17 for photocopying charges “for the convenience, preparation,
18 research, or records of counsel” under
28 U.S.C. § 1920).
19 She also listed postage for the service of various
20 documents. Section 2.8(e)(2) of the Court Manual allows for the
21 recovery of postage fees for documents served in the manner
22 required by Rule 7004. Ms. Fitzpatrick included postage, not
23 only for the alias summons, but for scheduling orders, responses
24 to interrogatories, status reports, trial briefs and
25 stipulations. Rule 7004 only requires a particular manner of
26 service for the summons and complaints. See 10 Collier on
27 Bankruptcy ¶ 7004.01. The other postage costs are not covered
28 under Section 2.8(e)(2) of the Court Manual.
15
1 Ms. Fitzpatrick further listed various miscellaneous costs,
2 such as telephone charges, messenger services, transportation,
3 online software purchases, research and document retrieval
4 charges and fees for two attorneys. Again, none of these costs
5 are listed in Section 2.8(e) of the Court Manual.
6 Based on the foregoing, we conclude that the bankruptcy
7 court did not abuse its discretion in denying all but the service
8 costs requested in the Cost Bill.
9 B. Attorney’s Fee Motion11
10
11
11 The debtor challenges the bankruptcy court’s ruling on
several grounds, which we’ve distilled down to two.
12 First, he argues that the bankruptcy court unfairly and
13 erroneously relied on Krasinski v. Goldstein (In re Goldstein),
2011 WL 3608243 (Bankr. D. Ariz. 2011), an unpublished decision.
14 According to the debtor, the bankruptcy court denied the Attorney
Fee Motion based on the reasoning set forth in the Goldstein
15
decision. The debtor claims that he could not effectively refute
16 the reasoning in the Goldstein decision because he could not
obtain a copy of the Goldstein decision. He further asserts that
17 Goldstein was legally and factually distinguishable from the
18 underlying matter.
Contrary to the debtor’s assertion, the bankruptcy court did
19 not rely on the Goldstein decision in denying the Attorney Fee
Motion. Because Key Bank cited the Goldstein decision, the
20 bankruptcy court believed it “[was] going to have to read this
21 Goldstein opinion.” Tr. of September 10, 2012 Hr’g, 27:16-17.
Upon reading it, the bankruptcy court acknowledged that “in this
22 case, we have a little slightly different situation [than that in
the Goldstein decision].” Tr. of September 10, 2012 Hr’g, 34:1-
23
2. The bankruptcy court took care to distinguish the instant
24 matter from Goldstein, stressing that Key Bank did not “sue [the
debtor]. It was [the debtor] who sought to have the debt
25 declared [dischargeable]. There was no dispute under the
26 contract as to whether he owed any sums or not. The dispute was
whether this should be discharged as a hardship debt or not.”
27 Tr. of September 10, 2012 Hr’g, 34:3-8.
Second, the debtor contends that the bankruptcy court should
28 have allowed his attorney’s fees in full unless Key Bank
(continued...)
16
1 On appeal, the debtor mainly contends that the bankruptcy
2 court erred in denying the Attorney Fee Motion by ignoring Civil
3 Code § 1717.12 He insists that Civil Code § 1717 applies.13
4
11
5 (...continued)
demonstrated, through evidence, that they were unreasonable.
6 However, the bankruptcy court would not get to reasonableness,
7 unless it first determined that there was a statutory or
contractual basis for an award of fees.
8
12
The debtor also relies on Civil Code § 1021 in support
9 of his argument. Because the debtor did not raise Civil Code §
10 1021 as an issue before the bankruptcy court, we decline to
address it here. See Enewally, 368 F.3d at 1173.
11
13
The debtor also claims that the bankruptcy court
12 acknowledged the applicability of Civil Code § 1717 but
13 misapplied it.
At the hearing, the bankruptcy court mentioned that the
14 debtor relied on Civil Code § 1717. It also stated that it had
“the California statute that says, okay, what’s good for the
15
goose is good for the gander, so to speak.” Tr. of September 12,
16 2012 Hr’g, 32:18-20.
Given the bankruptcy court’s reasoning as stated on the
17 record at the hearing, we do not believe that the bankruptcy
18 court applied Civil Code § 1717 at all. The bankruptcy court
denied the Attorney Fee Motion because the legal basis for
19 recovery of attorney’s fees, the fee provision, did not apply as
the adversary proceeding arose from a federal claim (i.e.,
20 § 523(a)(8)), not a contract claim.
21 Moreover, California courts uniformly have ruled that Civil
Code § 1717 is to be narrowly applied, and is available to a
22 party only if the dispute involves litigation of a contract
claim. Santisas v. Goodin,
17 Cal. 4th 599 (Cal. 1998)
23
(“[S]ection 1717 applies only to attorney fees incurred to
24 litigate contract claims.”). The BAP previously has relied upon
Santisas on this specific issue. Redwood Theaters, Inc. v.
25 Davison (In re Davison),
289 B.R. 716, 723 (9th Cir. BAP
26 2003)(“[W]e will follow [the Santisas] holding and narrowly apply
[Civil Code] § 1717 and approve attorney’s fees only if the
27 action involves a contract claim.”). Based on California
controlling law and BAP authority, we have held that Civil Code
28 § 1717 only can be applied to attorney’s fees disputes based on
(continued...)
17
1 We disagree. There simply is no statutory or contractual
2 basis allowing the debtor to recover his attorney’s fees here.
3 Ordinarily, under the American Rule, a prevailing party may not
4 recover attorney’s fees except as provided for by contract or by
5 statute. Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec.,
6 Co.,
549 U.S. 443, 448 (2007); Dinan, 448 B.R. at 784.
7 No general right to recover attorney’s fees exists under the
8 Bankruptcy Code. Dinan, 448 B.R. at 784. Also, nothing in
9 § 523(a)(8) authorizes a debtor to recover attorney’s fees when
10 he or she prevails in discharging his or her student loan debt.14
11 Interestingly, Ohio law has established that a contractual
12 provision allowing for the recovery of attorney’s fees to enforce
13 a defaulted debt obligation is unenforceable as against public
14
15
13
16 (...continued)
contract claims. Hamilton v. Charalambous (In re Charalambous),
17
2013 WL 3369299 at *5 (9th Cir. BAP 2013). We follow that
18 holding here.
14
19 In contrast, § 523(d) provides:
20 If a creditor requests a determination of
21 dischargeability of a consumer debt under subsection
[523(a)(2)], and such debt is discharged, the court
22 shall grant judgment in favor of the debtor for the
costs of, and a reasonable attorney’s fee for, the
23
proceeding if the court finds that the position of the
24 creditor was not substantially justified, except that
the court shall not award such costs and fees if
25 special circumstances would make the award unjust.
26
Accordingly, it appears that Congress considered when it
27 would be appropriate to award costs and attorney’s fees to a
prevailing debtor in dischargeability litigation and did not
28 expressly allow for an award of fees to the prevailing debtor in
§ 523(a)(8) adversary proceedings.
18
1 policy.15 See Simons v. Higher Educ. Assistance Found.,
119 B.R.
2 589, 593-94 (Bankr. S.D. Ohio 1990)(denying a student loan
3 lender’s request for attorney’s fees incurred in litigating a
4 debtor’s § 523(a)(8) claim because, in Ohio, “stipulations in
5 promissory notes providing for the payment of attorney’s fees,
6 arising in connection with the failure to pay the principal and
7 interest balance at maturity, are contrary to public policy and
8 are void,” and “[n]o provision exists for the granting of
9 attorneys’ fees in proceedings brought pursuant to 11 U.S.C.
10 § 523(a)(8)(B).”)(citation omitted). See also McLeod v.
11 Diversified Collection Servs. (In re McLeod),
176 B.R. 455, 458
12 (Bankr. N.D. Ohio 1994)(quoting Simons, 119 B.R. at 593-94).
13
14 15
According to the Ohio Supreme Court, although Ohio
generally follows the American Rule, attorney’s fees “may be
15
awarded when a statute or an enforceable contract specifically
16 provides for the losing party to pay the prevailing party’s
attorney fees . . . or when the prevailing party demonstrates bad
17 faith on the part of the unsuccessful litigant . . . .” Wilborn
18 v. Bank One Corp.,
121 Ohio St. 3d 546, 548 (Ohio 2009)(citations
omitted). Contracts providing for payment of attorney’s fees
19 “are generally enforceable and not void as against public
policy,” so long as the parties to the contract entered into it
20 freely (i.e., equal bargaining power was present and no indicia
21 of compulsion or duress were present) and the fees awarded were
fair, just and reasonable.
Id. at 548-49.
22 However, “contracts for the payment of attorney fees upon
the default of a debt obligation are void and unenforceable.”
23
Id. at 549. “‘It is the settled law of this state that
24 stipulations incorporated in promissory notes for the payment of
attorney fees, if the principal and interest be not paid at
25 maturity, are contrary to public policy and void.’”
Id. (quoting
26 Leavans v. Ohio Nat’l Bank,
50 Ohio St. 591 (Ohio
1893)(addressing foreclosure actions)). That is, “a provision in
27 a mortgage or promissory note that awards attorney fees upon the
enforcement of the lender’s rights when the borrower defaults,
28 such as a foreclosure action that has proceeded to judgment, is
unenforceable.”
Id. at 550.
19
1 Moreover, as the bankruptcy court pointed out, the fee
2 provision did not come into play here. The fee provision
3 specifically states that Key Bank has the right to recover
4 attorney’s fees incurred in enforcing the promissory note’s
5 terms. However, the debtor had initiated the adversary
6 proceeding under § 523(a)(8) to discharge the student loan debt,
7 not to contest its terms or amount. As the bankruptcy court
8 explained, the adversary proceeding was not “a contract dispute
9 arising out of the borrowing on the [promissory] note,” but “an
10 action brought by the Debtor to have the debt declared
11 [discharged].” Tr. of September 10, 2012 Hr’g, 34:12-13, 34:11-
12 12.
13 Neither federal nor Ohio or California law authorizes the
14 debtor to recover the attorney’s fees he incurred in discharging
15 his student loan debt under § 523(a)(8). Moreover, the fee
16 provision did not come into effect as the thrust of the adversary
17 proceeding was to discharge a student loan debt, not to enforce
18 the promissory note’s terms. Because the debtor has no statutory
19 or contractual basis on which to recover attorney’s fees, the
20 bankruptcy court did not abuse its discretion in denying the
21 Attorney Fee Motion.
22 CONCLUSION
23 For the foregoing reasons, we conclude that the bankruptcy
24 court did not abuse its discretion in allowing recovery of only
25 the debtor’s service costs and in denying recovery of the
26 debtor’s attorney’s fees. We AFFIRM.
27
28
20
