In re: IMANI FE, LP, AKA Abs Bricker, LLC, AKA Abs Hollywood, LLC, AKA Abs Imani Fe, LLC, AKA Abs Magnolia, LLC, AKA Abs Mayer Bricker ( 2012 )


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  •                                                           FILED
    NOV 07 2012
    1                                                     SUSAN M SPRAUL, CLERK
    U.S. BKCY. APP. PANEL
    2                                                       OF THE NINTH CIRCUIT
    3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
    4                            OF THE NINTH CIRCUIT
    5   In re:                        )      BAP No.    CC-12-1111-HHaMk
    )
    6   IMANI FE, LP, AKA Abs Bricker,)      Bk. No.    11-20598-PC
    LLC, AKA Abs Hollywood, LLC, )
    7   AKA Abs Imani Fe, LLC, AKA Abs)
    Magnolia, LLC, AKA Abs Mayer )
    8   Bricker, LLC, AKA Abs         )
    Properties, Inc., AKA Advanced)
    9   Business Solutions, LLC,      )
    )
    10                  Debtor.        )
    ______________________________)
    11                                 )
    HILROCK CORPORATION; ALBERTO )
    12   MAKABALI; ROBERT BOGHOZIAN,   )
    )
    13                  Appellants,    )
    )
    14   v.                            )      M E M O R A N D U M1
    )
    15   IMANI FE, LP,                 )
    )
    16                  Appellee.      )
    ______________________________)
    17
    Argued and Submitted on September 21, 2012
    18                        at Pasadena, California
    19                          Filed - November 7, 2012
    20            Appeal from the United States Bankruptcy Court
    for the Central District of California
    21
    Honorable Peter H. Carroll, Chief Bankruptcy Judge, Presiding
    22
    23   Appearances:     Derek L. Tabone, of the Law Offices of Tabone,
    APC, argued for the Appellants; Louis J. Cisz,
    24                    III, of Nixon Peabody LLP, argued for the
    Appellee.
    25
    26
    1
    27          This disposition is not appropriate for publication.
    Although it may be cited for whatever persuasive value it may
    28   have (see Fed. R. App. P. 32.1), it has no precedential value.
    See 9th Cir. BAP Rule 8013-1.
    1   Before: HOLLOWELL, HAMMOND2 and MARKELL, Bankruptcy Judges.
    2        This appeal stems from the bankruptcy court’s refusal to
    3   continue a hearing on a motion to dismiss an involuntary
    4   bankruptcy petition that the appellants brought against the
    5   appellee, and the subsequent entry of an award of fees in the
    6   appellee’s favor.   We AFFIRM.
    7                                I.   FACTS
    8        Imani Fe was organized for the purpose of acquiring and
    9   developing an affordable housing project in South Central Los
    10   Angeles (the Project).   Imani Fe hired Hilrock Corporation
    11   (Hilrock) as the general contractor on the Project.   Hilrock, in
    12   turn, hired various subcontractors, including Coast to Coast
    13   Associates (Coast to Coast) and KR Electric.   A dispute arose
    14   between Hilrock and the managing member of Imani Fe’s general
    15   partner.   Hilrock contended that it did not receive full payment
    16   for overhead and profit on the Project and that it was not
    17   reimbursed for advance costs and change orders.   As a result,
    18   Hilrock recorded a mechanic’s lien against the Property.   In
    19   September 2010, Hilrock brought a state court action against
    20   Imani Fe for breach of contract, alleging damages in excess of
    21   $4.9 million and to foreclose on the lien.
    22        On March 11, 2011, Toshio Kato aka Hilrock, along with
    23   Alberto Makabali aka Coast to Coast, and Robert Boghozian dba
    24
    25
    26
    27        2
    Hon. M. Elaine Hammond, United States Bankruptcy Judge for
    28   the Northern District of California, sitting by designation.
    -2-
    1   KR Electric (the Petitioning Creditors) filed a chapter 73
    2   involuntary petition (Petition) against Imani Fe.    The
    3   Petitioning Creditors asserted claims for unpaid contractor work
    4   performed on the Project.   Hilrock asserted a claim of
    5   $4,950,102.43; Coast to Coast asserted a claim of $21,500.00 and
    6   KR Electric asserted a claim of $22,766.69.4
    7        On March 30, 2011, Imani Fe filed an answer contesting the
    8   petition and denying all material allegations.    Imani Fe asserted
    9   that the Petitioning Creditors were ineligible to file the
    10   Petition because they did not hold three separate and distinct
    11   claims and held claims subject to a bona fide dispute.     A status
    12   conference on the Petition was continued several times while the
    13   parties conducted discovery.   During that time, Imani Fe
    14   successfully defended against two motions for relief from stay
    15   filed by Wilshire State Bank, whose claim was secured by the
    16   Property.
    17        After concluding discovery, the Debtor filed, on October 11,
    18   2011, a summary motion to dismiss the Petition or summary
    19   adjudication (Motion to Dismiss).     Imani Fe asserted that
    20   deposition testimony from Coast to Coast and KR Electric
    21
    3
    22          Unless otherwise indicated, all chapter and section
    references are to the Bankruptcy Code, 
    11 U.S.C. § 101-1532
    . All
    23   “Rule” references are to the Federal Rules of Bankruptcy
    24   Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure
    are referred to as “Civil Rules.”
    25
    4
    Holding the largest claim, Hilrock has been the creditor
    26   most involved in the Petition. Hilrock’s counsel is also counsel
    27   for Coast to Coast and KR Electric. Throughout the case, Hilrock
    has taken the lead on preparing briefs and appearing at hearings
    28   for the Petitioning Creditors.
    -3-
    1   established that they were not its creditors, but creditors of
    2   Hilrock.   Imani Fe also asserted that Hilrock admitted that part
    3   of its claim was invalid.    Therefore, Imani Fe contended that
    4   Hilrock’s claim was subject to a bona fide dispute as to
    5   liability and amount.   As a result, Imani Fe argued that the
    6   Petitioning Creditors were ineligible to file the Petition and
    7   that the Petition was filed in bad faith.    Imani Fe requested
    8   that the bankruptcy court dismiss the Petition and retain
    9   jurisdiction to decide whether to award attorneys’ fees, costs
    10   and/or punitive damages.    A hearing on the Motion to Dismiss was
    11   set for November 22, 2011.
    12        On November 1, 2011, Hilrock filed an ex-parte application
    13   to continue the hearing on the Motion to Dismiss for 30 days
    14   (Motion to Continue).   Hilrock asserted that its principal,
    15   Gerald Schneiderman, had been hospitalized from October 8-25
    16   (with hydrocephalus, which required brain surgery) and was
    17   readmitted on October 31, 2011.     Thus, Hilrock asserted that due
    18   to Mr. Schneiderman’s unavailability, it was unable to draft an
    19   opposition to the Motion to Dismiss.
    20        Neither Coast to Coast nor KR Electric filed a separate
    21   opposition to the Motion to Dismiss and Imani Fe filed a notice
    22   of their non-opposition on November 2, 2011.    Hilrock filed a
    23   reply to the non-opposition, stating that the Petitioning
    24   Creditors anticipated filing a joint opposition to the Motion to
    25   Dismiss, but were hampered by Mr. Schneiderman’s hospitalization.
    26   Imani Fe filed an opposition to the Motion to Continue, alleging
    27   that counsel for Hilrock had not contacted it regarding a
    28   stipulation and had not sufficiently explained why other members
    -4-
    1   of Hilrock, Coast to Coast, or KR Electric could not assist in
    2   filing an opposition.   No opposition to the Motion to Dismiss was
    3   ever filed by any of the Petitioning Creditors; the Motion to
    4   Dismiss was therefore unopposed.
    5        On November 8, 2011, the bankruptcy court entered an order
    6   denying the Motion to Continue.     The hearing on the Motion to
    7   Dismiss went forward as scheduled on November 22, 2011.    Counsel
    8   for the Petitioning Creditors asserted that he was unaware that
    9   the Motion to Continue had been denied until he checked the
    10   docket before the hearing.   The bankruptcy court then retrieved
    11   and reviewed the case docket, and noted that it waited for Imani
    12   Fe’s opposition to the Motion to Continue before ruling, that it
    13   docketed the order denying the Motion to Continue, and that the
    14   clerk’s office sent, the same day, both electronic and mail
    15   notifications of the order to all parties.    The bankruptcy court
    16   also noted that there was no response filed to the Motion to
    17   Dismiss.   Therefore, the bankruptcy court orally ruled that:
    18        there being no response in opposition, and based upon
    the evidence in support of the [Motion to Dismiss], the
    19        Court will adopt the statement of uncontroverted facts
    and conclusions of law in support of the summary motion
    20        to dismiss and grant the summary motion to dismiss, the
    involuntary petition against the alleged Debtor Imani
    21        Fe, L.P. and reserve jurisdiction over any issue
    concerning attorney’s fees and costs under Section 303
    22        of the Bankruptcy Code.
    23   Hr’g Tr. (Nov. 22, 2011) at 4:2-9.
    24        The bankruptcy court subsequently entered its order granting
    25   the Motion to Dismiss (Dismissal Order) and retaining
    26   jurisdiction to determine any motion brought under § 303(I) on
    27
    28
    -5-
    1   November 28, 2011.   The Petitioning Creditors did not appeal the
    2   Dismissal Order.5
    3        On January 13, 2012, the Debtor filed a motion pursuant to
    4   § 303(I) requesting $373,654.69 in attorneys’ fees and $200,000
    5   in punitive damages (Fee Request).
    6        The Petitioning Creditors opposed the Fee Request.      In their
    7   opposition, the Petitioning Creditors asserted that the Fee
    8   Request was untimely under the Rules because it was not filed
    9   within 14 days of the Dismissal Order.     The Petitioning Creditors
    10   also argued the merits of the Petition and contended there was no
    11   dispute as to Imani Fe’s liability or the amount of Hilrock’s
    12   claim.   The Petitioning Creditors asserted that Imani Fe’s
    13   actions led the Petitioning Creditors to initiate litigation, not
    14   any frivolous motives on the part of the Petitioning Creditors.
    15   They also asserted that the amount of the requested attorneys’
    16   fees was excessive and unreasonable.     Finally, the Petitioning
    17   Creditors asserted that any fees awarded should be offset by the
    18   amount Imani Fe owed them and that no punitive or other damages
    19   should be awarded.
    20        A hearing on the Fee Request was held on February 7, 2012.
    21   At the hearing, the Petitioning Creditors reiterated their
    22   argument that the Fee Request was untimely, citing the Local
    23   Bankruptcy Rules (LBR).   However, the bankruptcy court concluded
    24   that a bankruptcy rule could not abridge a substantive right
    25   provided by the Bankruptcy Code.      Additionally, the bankruptcy
    26
    5
    27          The Petitioning Creditors assert that they were unable to
    prepare a response to the Dismissal Order due to
    28   Mr. Schneiderman’s poor health. He died on December 8, 2011.
    -6-
    1   court determined that the Petitioning Creditors were not entitled
    2   to setoff.   It found the amount of the attorneys’ fees requested
    3   was not unreasonable and that the costs were actually incurred
    4   and necessary in defending against the Petition.    However, the
    5   bankruptcy court did not find that there was bad faith in
    6   conjunction with the filing of the Petition, and therefore, it
    7   denied Imani Fe’s request for punitive damages.
    8        An order granting, in part, the Fee Request was entered on
    9   February 15, 2012, awarding judgment against the Petitioning
    10   Creditors jointly and severally in the amount of $373,654.69 (Fee
    11   Award).   A judgment was entered the same day.    The Petitioning
    12   Creditors timely appealed.
    13                              II.   JURISDICTION
    14        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
    15   § 1334 and 157(b)(2)(A).    We have jurisdiction under 28 U.S.C.
    16   § 158.
    17                                III.    ISSUES
    18        What is the scope of the appeal?
    19        Did the bankruptcy court abuse its discretion in awarding
    20   attorneys’ fees and costs to Imani Fe?
    21                        IV.    STANDARDS OF REVIEW
    22       We address the question of our jurisdiction de novo.     Menk
    23 v. Lapaglia (In re Menk), 
    241 B.R. 896
    , 903 (9th Cir. BAP 1999).
    24       We review the bankruptcy court’s decision to award fees for
    25 an abuse of discretion.      Orange Blossom Ltd. P’ship v. S. Cal.
    26 Sunbelt Devs., Inc. (In re S. Cal. Sunbelt Devs., Inc.), 
    608 F.3d 27
     456, 464 n.3 (9th Cir. 2010)(“The court retains broad discretion
    28
    -7-
    1 to fashion a fee award under § 303(I).”); Higgins v. Vortex
    2 Fishing Sys., 
    379 F.3d 701
    , 705 (9th Cir. 2004).
    3      A bankruptcy court abuses its discretion if it bases a
    4 decision on an incorrect legal rule, or if its application of the
    5 law was illogical, implausible, or without support in inferences
    6 that may be drawn from the facts in the record.    United States v.
    7 Hinkson, 
    585 F.3d 1247
    , 1261-62 & n.21 (9th Cir. 2009) (en banc);
    8 Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth),
    9 
    455 B.R. 904
    , 914 (9th Cir. BAP 2011).
    10                            V.   DISCUSSION
    11 A.   Scope of the Appeal
    12      The main argument presented by the Petitioning Creditors on
    13 appeal is that the bankruptcy court abused its discretion in
    14 denying the Motion to Continue and entering the Dismissal Order.
    15 However, the only order that the Petitioning Creditors appealed
    16 was the Fee Award.   Nevertheless, the Petitioning Creditors
    17 assert that the Motion to Continue and the Dismissal Order merged
    18 into the only final judgment in the case from which to appeal,
    19 namely, the Fee Award.   They are incorrect.
    20      Before the bankruptcy court entered a judgment against the
    21 Petitioning Creditors awarding Imani Fe attorneys’ fees and costs
    22 associated with challenging the Petition, it entered an order
    23 dismissing the Petition.   A dismissal of an involuntary
    24 bankruptcy petition is a final order.    See Coop. Supply Inc. v.
    25 Corn-Pro Nonstock Coop., Inc. (In re Corn-Pro Nonstock Coop.,
    26 Inc.), 
    317 B.R. 56
    , 58 (8th Cir. BAP 2004).    An order is final if
    27 it contains “‘a complete act of adjudication,’ that is, a full
    28 adjudication of the issues at bar, and clearly evidences the
    -8-
    1 judge’s intention that it be the court’s final act in the
    2 matter.”   Brown v. Wilshire Credit Corp. (In re Brown), 
    484 F.3d 3
     1116, 1120 (9th Cir. 2007)(citing Slimick v. Silva
    4 (In re Slimick), 
    928 F.2d 304
    , 307 (9th Cir. 1990)).
    5      Unlike final orders, interlocutory orders decide merely one
    6 aspect of the case without disposing of the case in its entirety
    7 on the merits.   See U.S. v. Real Prop. Located at 475 Martin Ln.,
    8 Beverly Hills, Cal., 
    545 F.3d 1134
    , 1141 (9th Cir. 2008); Am.
    9 Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 
    248 F.3d 892
    ,
    10 897 (9th Cir. 2001).   A court’s ruling on a motion to continue
    11 does not end the litigation.    Therefore, a denial of a motion to
    12 continue merges into the final order deciding the merits.       Id.;
    13 Am. Ironworks, 
    248 F.3d at 897
     (“An interlocutory order becomes
    14 appealable when final judgment is entered.”); Munoz v. Small Bus.
    15 Admin., 
    644 F.2d 1361
    , 1364 (9th Cir. 1981) (an appeal from a
    16 final judgment draws in question all earlier non-final orders and
    17 all rulings which produced the judgment).    Consequently, the
    18 bankruptcy court’s denial of the Motion to Continue merged into
    19 the final order that ended the involuntary bankruptcy case on its
    20 merits, the Dismissal Order.
    21      Once an order is final, it triggers the time in which to
    22 appeal.    Rule 8002(a).   Our jurisdiction extends only over
    23 appeals that have been filed within 14 days of entry of a final
    24 order.    Rule 8002(a); 
    28 U.S.C. § 158
    .   No appeal was taken of
    25 the Dismissal Order.
    26      The bankruptcy court may not award attorneys’ fees and costs
    27 prior to a determination of whether dismissal of the involuntary
    28
    -9-
    1 petition is warranted.    
    11 U.S.C. § 303
    (i); In re Corn-Pro
    2 Nonstock Coop., Inc., 
    317 B.R. at 58
     (“The plain language of
    3 [§ 303(i)] requires dismissal before the alleged debtor becomes
    4 entitled to damages.”).   By its language, § 303(i) contemplates
    5 sanctions only after the validity of the petition has been
    6 determined and a dismissal has been entered.   The imposition of
    7 costs, attorneys’ fees and or damages under § 303(i) “requires
    8 inquiry into and determination of a collateral issue only; it
    9 does not require any further judgment on the merits of the
    10 action.”   In re Tobacco Rd. Assocs., LP, 
    2007 WL 966507
    , *21
    11 (E.D. Pa. Mar. 30, 2007); see also, Higgins 
    379 F.3d at 707
     (by
    12 the time a motion for fees is decided, the court has already
    13 heard all the evidence surrounding dismissal).
    14      The Petitioning Creditors argue that because the bankruptcy
    15 court retained jurisdiction after the case was dismissed in order
    16 to rule on a subsequent § 303(i) motion, the Dismissal Order was
    17 not final until the fee issue was resolved.    However, there was
    18 no pending request for fees under § 303(i) at the time the
    19 bankruptcy court considered the Motion to Dismiss.   A court may
    20 preserve its jurisdiction to issue fees when it otherwise may be
    21 divested of jurisdiction upon dismissal of a proceeding or due to
    22 an appeal.   Lindblade v. Knupfer (In re Dyer), 
    322 F.3d 1178
    ,
    23 1186 (9th Cir. 2003) (“[W]e have held that unresolved issues
    24 related to attorneys’ fees do not defeat finality, regardless of
    25 whether the attorneys’ fees are available under a statute, by
    26 contract, or as a sanction for bad faith litigation.”).
    27      Because the Petitioning Creditors failed to appeal the
    28 Dismissal Order, we have no jurisdiction to review the merits of
    -10-
    1 whether the dismissal was appropriate or whether the bankruptcy
    2 court abused its discretion in denying the Motion to Continue.
    3 Therefore, we address below only whether the bankruptcy court
    4 abused its discretion in entering the Fee Award.
    5 B.    Timeliness of Fee Request
    6       The Petitioning Creditors argue that the Fee Request was
    7 untimely.   In the bankruptcy court, the Petitioning Creditors
    8 argued that the Fee Request was untimely under Rule 7054,
    9 incorporating Civil Rule 54.   They asserted that under Civil
    10 Rule 54(d), the Fee Request was required to have been filed
    11 within 14 days from the entry of the Dismissal Order.   At the
    12 hearing on the Fee Request, and in their brief on appeal, the
    13 Petitioning Creditors asserted that the LBRs6 imposed a deadline
    14 of 30-days after the Dismissal Order for the filing of the Fee
    15 Request.    For the reasons given below, we conclude that neither
    16 timeframe constrains a motion for attorneys’ fees under
    17 § 303(i)(1).
    18       Civil Rule 54(d) provides that a claim for prevailing
    19 party’s attorneys’ fees be made by motion no later than 14 days
    20 after entry of a judgment.   Rule 7054 incorporates part of Civil
    21 Rule 54 in adversary proceedings, but does not incorporate
    22 subsection (d).   Therefore, Civil Rule 54(d) is inapplicable to
    23 bankruptcy proceedings.
    24       LBR 7054-1 allows a prevailing party to seek an award of
    25 costs and attorneys’ fees:
    26
    6
    27          At the hearing, counsel for the Petitioning Creditors
    could not specifically identify which LBR applied. However, in
    28   their brief on appeal, they assert it is LBR 7054-1.
    -11-
    1      (c) Bill of Costs
    2           The prevailing party who is awarded costs shall
    have 30 days after entry of judgment to file and serve
    3      a Bill of Costs. . . .
    4      (g) Motion for Attorneys’ Fees
    If not previously determined at trial or other
    5      hearing, a party seeking an award of attorneys’ fees
    where such fees may be awarded must file and serve a
    6      motion not later than 30 days after the entry of
    judgment or other final order, unless otherwise ordered
    7      by the court. . . .
    8 LBR 7054-1.
    9      Imani Fe’s entitlement to fees is provided by § 303(I).
    10 Section 303(i)(1) permits an alleged debtor to bring a claim for
    11 an award of fees and costs if: (1) the involuntary petition was
    12 dismissed by the court; (2) the dismissal was not stipulated to
    13 by the debtor and all the petitioning creditors; and (3) the
    14 debtor did not waive its rights to judgment.   11 U.S.C.
    15 § 303(i)(1)(A)-(B).    Additionally, the statute provides that in
    16 the event of bad faith, actual and punitive damages may be
    17 awarded.   
    11 U.S.C. § 303
    (i)(2);   Jaffe v. Wavelength, Inc.
    18 (In re Wavelength, Inc.), 
    61 B.R. 614
    , 619 (9th Cir. BAP 1986).
    19      Section 303(i)(1) does not provide a timeframe in which the
    20 motion must be made.   The Bankruptcy Appellate Panel (BAP) has
    21 previously reviewed whether the timeframes of Civil Rule 54(d)
    22 and LBR 7054-1 apply to § 303(i) motions in an unpublished
    23 memorandum decision, Klein v. Cap. Fin., Inc. (In re Cap. Fin.,
    24 Inc.), 
    2007 WL 7535047
     (9th Cir. BAP Nov. 14, 2007)(unpublished).
    25 The BAP determined that LBR 7054-1 did not apply to involuntary
    26 petitions.    Instead, it recognized that attorneys’ fees under
    27 § 303(i) are “inherently different from a prevailing party
    28 statute” because § 303(i) is “‘intended to be the exclusive
    -12-
    1 remedy for regulating abuse of the involuntary bankruptcy
    2 process.’”    In re Cap. Fin., Inc., 
    2007 WL 7535047
    , at *6 (citing
    3 Wechsler v. Macke Int’l Trade, Inc. (In re Macke Int’l Trade,
    4 Inc.), 
    370 B.R. 236
    , 249 (9th Cir. BAP 2007) (emphasis in
    5 original)).   “The key distinction is that § 303(I) is substantive
    6 law providing an independent claim to an alleged debtor whenever
    7 an involuntary petition is dismissed without the alleged debtor
    8 having waived that claim.”   Id. at *5.
    9      Furthermore, in making its decision, the BAP recognized that
    10 it would be incongruous and inefficient to demand that a motion
    11 for attorneys’ fees under § 303(i)(1) be filed within a strict
    12 timeframe, while a motion for damages under § 303(i)(2) is not
    13 subject to a specific deadline.     Id. at *6.    Similarly, the BAP
    14 noted that if an order for relief had been entered, the
    15 petitioning creditors would be under no time constraint in
    16 seeking fees under § 503(b)(3)(A) and (b)(4).      Thus, the BAP
    17 reasoned that it would be unfair to impose a deadline on the
    18 alleged debtor, who did not willingly participate in the
    19 bankruptcy process, but not on the petitioning creditors who
    20 participated on their own accord.        Id.
    21      We agree with the BAP’s reasoning and conclusion that
    22 neither the Rules nor the LBRs regarding prevailing parties apply
    23 to motions for fees under § 303(I).       Section 303(I) provides the
    24 alleged debtor an independent cause of action for attorneys’ fees
    25 when it successfully defends against an involuntary petition.
    26
    27
    28
    -13-
    1 Consequently, we conclude that the Fee Request was not untimely
    2 and the bankruptcy court did not err in ruling on its merits.7
    3 C.    Reasonableness of Fee Request
    4       Section 303(I) states that the bankruptcy court may award
    5 fees and costs, rendering any award under § 303(I) discretionary.
    6 Higgins, 
    379 F.3d at 706
    .    However, in the Ninth Circuit there is
    7 a rebuttable presumption that a debtor who has successfully
    8 contested an involuntary petition will be awarded fees and costs.
    9 In re S. Cal. Sunbelt Devs., Inc., 608 F.3d at 462; In re Macke
    10 Int’l Trade, Inc., 
    370 B.R. at 250
    .      Indeed, “because of the
    11 adverse impact on the debtor and the need to encourage discretion
    12 in filing such cases, unsuccessful involuntary petitioners should
    13 routinely expect to pay the debtor’s legal expenses arising from
    14 the involuntary filing.”    
    Id.
    15       The presumption imposes on petitioning creditors the burden
    16 of presenting evidence to meet the presumption, but it does not
    17 shift the burden of proof.   See Fed. R. Evid. 301.     Petitioning
    18 creditors may overcome the presumption by demonstrating that an
    19 award of attorneys’ fees and costs is inappropriate given the
    20 totality of the circumstances.    Sofris v. Maple-Whitworth, Inc.
    21 (Matter of Maple-Whitworth, Inc.), 
    556 F.3d 742
    , 746 (9th Cir.
    22 2009); Higgins, 
    379 F.3d at 707
    .      Under a totality of the
    23 circumstances analysis, the bankruptcy court may consider:
    24 (1) the relative culpability among the petitioners, (2) the
    25 motives or objectives of individual petitioners in joining the
    26
    7
    27          Even if the LBRs did apply, LBR 1001-1(d) allows the
    bankruptcy court to waive the application of any LBR in its
    28   discretion and in the interest of justice.
    -14-
    1 involuntary petition, (3) the reasonableness of the respective
    2 conduct of the debtors and petitioners, and (4) other
    3 individualized factors.   Higgins, 
    379 F.3d at 707-08
    .   The list
    4 is not exhaustive.   A bankruptcy court may choose to consider
    5 other material factors it deems relevant.   
    Id.
    6      The Petitioning Creditors asserted that Imani Fe should not
    7 have been entitled to fees because Imani Fe manipulated the
    8 accounting on the Project and shorted contractors on payments,
    9 thereby causing the Petitioning Creditors to file the Petition in
    10 order to recover what they should have been paid.   See Opposition
    11 to Fee Request.    When the bankruptcy court dismissed the
    12 Petition, it adopted the uncontroverted facts and conclusions of
    13 law submitted by Imani Fe.   Thus, there are no facts to support
    14 the Petitioning Creditors’ contention that Imani Fe acted
    15 inappropriately.    The opportunity to rebut the presumption of
    16 fees “does not give the petitioning creditor license to . . .
    17 present evidence on an issue that has already been decided.”
    18 Higgins, 
    379 F.3d at 707
    .    Rather, all the evidence surrounding
    19 the dismissal was already presented to the bankruptcy court and
    20 taken into account in deciding whether to award fees.    The merits
    21 of the Petition were resolved by summary judgment in favor of
    22 Imani Fe.
    23      The Petitioning Creditors also asserted that Imani Fe’s
    24 attorneys’ fees were excessive and unreasonable and that Imani Fe
    25 “overworked the case.”    They contended that the amount of hours
    26 expended in conducting discovery and preparing briefs in the case
    27 was unreasonable.    Imani Fe submitted, with its Fee Request,
    28 declarations from its attorneys stating that the services
    -15-
    1 performed in defending the Petition were necessary, including
    2 researching the issues raised by the Petition, responding to
    3 Wilshire Bank’s motions for stay relief, preparing multiple
    4 briefs, responses, and replies to oppositions, preparing for and
    5 attending multiple hearings in the case, and also in conducting
    6 discovery regarding the nature and extent of the Petitioning
    7 Creditors’ asserted claims.
    8      The bankruptcy court found that the Petitioning Creditors
    9 offered no evidence that the legal work performed by Imani Fe was
    10 not actually performed or that it was unnecessary to defend
    11 against the Petition.   Indeed, while the Petitioning Creditors
    12 asserted that the practice of an attorney billing for analyzing
    13 the work of another attorney resulted in what they considered to
    14 be excessive hours worked in the case, they failed to point to
    15 itemized instances or charges that required a specific reduction
    16 from the overall award.   They simply asserted that the bankruptcy
    17 court should reduce at least by half the amount of fees requested
    18 by Imani Fe.   They based this assertion on case law, not on a
    19 calculation that deducted what they considered to be unreasonable
    20 charges.   See Opposition to Fee Request.
    21      The bankruptcy court determined that the Petitioning
    22 Creditors failed to rebut the presumption of the award of fees.
    23 Furthermore, the bankruptcy court independently reviewed Imani
    24 Fe’s Fee Request, which was supported by itemized time records
    25 describing the work performed by various members of Imani Fe’s
    26 attorneys and their staff throughout in the case.   It found that
    27 the hourly rates that were charged for the work were within the
    28 customary range for the Central District of California.
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    1       Additionally, the bankruptcy court considered the merits of
    2 the Petition and found no improper conduct on the part of Imani
    3 Fe.   Similarly, the bankruptcy court did not find that the
    4 Petitioning Creditors acted in bad faith by bringing the
    5 Petition, although it noted that Coast to Coast and KR Electric
    6 may not have fully understood the consequences of filing the
    7 Petition.   It determined that:
    8       the motivations and objectives behind the filing of the
    involuntary petition [did not] weigh in favor of a
    9       reduction of fees under the circumstances of this case,
    particularly in light of the findings and conclusions
    10       made by the Court in conjunction with the summary
    judgment entered in this case, which is a final
    11       judgment of the Court.
    12 Hr’g Tr. at 12: 10-18.   Based on its findings, the bankruptcy
    13 court refused to award punitive damages.
    14       The bankruptcy court properly evaluated relevant factors in
    15 its review of the totality of the circumstances.    Based on our
    16 review of the record, we conclude that the bankruptcy court’s
    17 decision was not illogical, implausible, or unsupported by the
    18 record.   As a result, the bankruptcy court did not abuse its
    19 discretion in entering the Fee Award.
    20       The Petitioning Creditors assert that any award of fees
    21 should be offset by the amount of debt that Imani Fe owes them.
    22 The BAP has previously addressed whether setoff is appropriate
    23 under § 303(i) motions and concluded that because the section is
    24 remedial in nature, setoff is impermissible.   In re Macke Int’l
    25 Trade, Inc., 
    370 B.R. at 255
     (citations omitted).    “If setoff
    26 were allowed, there would be little downside to a creditor’s
    27 resort to an involuntary bankruptcy petition against a debtor,
    28 even if its conduct did not rise to the level of ‘bad faith.’”
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    1 
    Id.
       Moreover, the Bankruptcy Code allows offset only of “a
    2 mutual debt owing by such creditor to the debtor that arose
    3 before the commencement of the case. . . .”   
    11 U.S.C. § 553
    (a).
    4 There is no evidence in the record that there was a mutual debt
    5 owing before the Petition was filed.    Therefore, the bankruptcy
    6 court did not abuse its discretion in denying any offset of the
    7 Fee Award.
    8                           VI.   CONCLUSION
    9       For the reasons given above, we AFFIRM the Fee Award.
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