William Ridings, Jr. v. Daniel Casamatta ( 2021 )

United States Bankruptcy Appellate Panel
For the Eighth Circuit
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No. 20-6023
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In re: Zachary L. Allen, II; Tiara C. Donegan
Debtors
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William H. Ridings, Jr.
Respondent - Appellant
v.
Daniel J. Casamatta, Acting U.S. Trustee
Movant - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 19, 2021
Filed: June 21, 2021
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Before SHODEEN, DOW and RIDGWAY, Bankruptcy Judges.
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RIDGWAY, Bankruptcy Judge.
William H. Ridings, Jr. appeals the November 23, 2020 order of the
bankruptcy court 1 granting the motion of the U.S. Trustee to determine the
reasonableness of Mr. Ridings’s attorney’s fees. We have jurisdiction over this
appeal under 28 U.S.C. § 158(b). For the reasons stated herein, we affirm.
STANDARD OF REVIEW
We review the bankruptcy court’s findings of fact for clear error and its
conclusions of law de novo. In re Zepecki, 277 F.3d 1041 (8th Cir. 2002).
We also review “a decision regarding attorney fees for an abuse of discretion.”
In re Clark, 223 F. 3d 859, 862 (8th Cir. 2000) (citing Grunewaldt v. Mutual Life
Ins. Co. (In re Coones Ranch, Inc.), 7 F.3d 740, 744 (8th Cir. 1993)). To find an
abuse of discretion here, we must be “convinced that no reasonable person could
agree with the bankruptcy court.” In re Zepecki, 258 B.R. 719, 723 (B.A.P. 8th Cir.
2001), aff’d, 277 F.3d 1041 (8th Cir. 2002).
BACKGROUND
Mr. Ridings is a consumer bankruptcy attorney practicing in the St. Louis
area. His practice, consisting of filing chapter 7 and chapter 13 cases, has been in
business for twenty-two years. He was separately retained by two clients, Zachary
Allen, II, and Tiara C. Donegan, to file a chapter 7 bankruptcy for each. The record
reflects that both dockets were unremarkable.
On May 21, 2020, Mr. Ridings filed a chapter 7 petition and creditor matrix
on behalf of Mr. Allen. The schedules, statement of financial affairs, and disclosure
of attorney’s fees were filed forty-four minutes later. Mr. Allen received his
discharge September 23, 2020.
1
The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
2
On May 22, 2020, Mr. Ridings filed a chapter 7 petition and creditor matrix
on behalf of Ms. Donegan. The schedules, statement of financial affairs, and
disclosure of attorney compensation were filed ten days later. She received her
discharge the same day as Mr. Allen.
As part of his routine chapter 7 practice, Mr. Ridings offers debtors two
options to pay his attorney’s fees. Under the first option, a debtor could pay in full,
up front and prepetition. In that instance, the charge would be $1,500, which would
consist of $1,165 of attorney’s fees and $335 for the filing fee. If a debtor selected
the second option, to pay postpetition, the charge would be $2,000, or $1,665 of
attorney’s fees and $335 for the filing fee.
Under either payment option, Mr. Ridings provided “pre-filing services” that
included meeting with the clients; analyzing the information from the clients’
worksheet regarding their financial condition; providing the clients “due diligence,
legal analysis and legal advice in order to help [them] make important legal choices
and to comply with the bankruptcy code and rules;” and preparing and filing the
chapter 7 petition, pre-filing credit counseling certificate, and list of creditors.
The “post-filing services” promised by Mr. Ridings included: the preparation
and filing of schedules, statement of financial affairs, means test calculations and
disclosures; attending the meeting of creditors; “administrating and monitoring” the
clients’ case and maintaining a line of communication with them; responding to
inquiries from the case trustee; “reviewing and advising” the clients regarding any
reaffirmation agreements, redemptions, or any motions for stay relief; and “[a]ny
[unspecified] legal service required by the local rules.”
In these cases, both clients selected the “later pay” option, which allowed
payment to be made postpetition monthly for twelve months – $167 for Mr. Allen
3
and $117 for Ms. Donegan, who had paid Mr. Ridings $600 prepetition. 2 In each
case, the U.S. Trustee filed a motion challenging the higher amount charged under
the post-filing payment agreements, claiming the fees were “unreasonable” given
the inability of both Mr. Allen and Ms. Donegan to pay the fee charged by Mr.
Ridings up front. The motion asked that any compensation paid to Mr. Ridings that
exceeded the reasonable value of the services be returned to the respective debtors.
Mr. Ridings opposed both motions in a consolidated response. The
bankruptcy court, with the parties’ consent, conducted an evidentiary hearing
involving both cases. At the conclusion of the hearing the bankruptcy court made
oral findings of fact and conclusions of law. In each case, it approved attorney’s fees
of $1,165 as being reasonable, and excused each debtor from any payment of
attorney’s fees that exceeded that sum. Any fees paid over that amount were found
to be unreasonable and ordered returned to the appropriate debtor.3
DISCUSSION
This case presents the issue of the reasonableness of fees charged by a
consumer bankruptcy attorney for all work associated with filing a chapter 7 case
2
To finance his bifurcated fee arrangements, Mr. Ridings uses a third-party
financing service called Fresh Start Funding, LLC. Under this line of credit, Fresh
Start advances Mr. Ridings up to 75% of the total fees charged his client; 60% of
the total is paid to him up front, with 15% of the total held back in the event of
non-payment of the fees by the client. Payments are made by the client directly to
Fresh Start; if the client defaults, Fresh Start may initiate collection against the
client. The U.S. Trustee questioned Mr. Ridings’s fee arrangement with Fresh
Start; that was the reason for the second meeting of creditors in each of these cases.
Mr. Ridings’s arrangement with Fresh Start was not an issue addressed in the
bankruptcy court’s findings, however, and nothing about that arrangement changes
our analysis.
3
The bankruptcy court clearly ordered that the “fees” referred only to the adjusted
award of attorney’s fees, and not the filing fee.
4
using a bifurcated arrangement. 4 The use of such a fee arrangement is seen as a
means for a consumer bankruptcy attorney to remain competitive among many such
attorneys vying for clients in the same geographic area. These arrangements are
designed to offer the would-be debtor the option to pay reduced or no fees up front
by dividing the attorney’s services in the case into two parts: prepetition services and
postpetition services. Because any prepetition obligation that is not paid prior to a
chapter 7 filing is subject to discharge under § 524 of the Bankruptcy Code, these
bifurcated agreements are designed to change the attorney’s fees into a postpetition,
nondischargeable debt that can be collected from the client without violating either
the automatic stay or the discharge injunction.
As the proponent of the request for approval of his fees, Mr. Ridings bears the
burden of proving the reasonableness of the fees. Hensley v. Eckerhart, 461 U.S.
424, 433 (1983); In re Clark, 223 F.3d 859, 863 (8th Cir. 2000). As will be discussed,
he has not met that burden here.
The Bankruptcy Code is clear in its provisions governing the nature of the fee
arrangement between a debtor and the debtor’s attorney. Section 329 provides in
pertinent part:
(a) Any attorney representing a debtor in a case under this title, or in
connection with such a case, whether or not such attorney applies for
compensation under this title, shall file with the court a statement of the
compensation paid or agreed to be paid, if such payment or agreement
was made after one year before the date of filing of the petition . . .
4
This is the only issue presented to us. We decline to express an opinion on the
validity of bifurcation agreements generally or any problems associated with the
“unbundling” of legal services, i.e., “. . . limited scope of representation [as] an
alternative to traditional, full-service representation. Instead of handling every task
in a matter from start to finish, the lawyer handles only certain parts and the client
remains responsible for the others.” American Bar Association, Unbundling
Resource Center, 2012.
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(b) If such compensation exceeds the reasonable value of any such services,
the court may cancel any such agreement, or order the return of any such
payment, to the extent excessive, to –
(1) the estate, if the property transferred –
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan under
chapter 11, 12, or 13 of this title; or
(2) the entity that made such payment.
11 U.S.C. § 329.
The procedural mechanism for the application of this statute is Fed. R. Bankr.
P. 2017. This rule allows the court, after notice and a hearing, to determine whether
payments made to an attorney either before or after the filing of a petition are
excessive. Fed. R. Bankr. P. 2017(a), (b). 5
Here, both debtors chose the second option, with Mr. Allen paying $0.00
prepetition and Ms. Donegan paying $600. In doing so, each would pay an extra
$500 later. Any balance owed would be paid by the debtor postpetition in a series of
twelve equal monthly payments. Both fee arrangements were clearly worded and
explicit in their terms, and because Mr. Ridings clearly disclosed such arrangements,
there was no violation of § 329(a). Both cases were routine; there were no motions
to dismiss, no motions for relief from the automatic stay, and no complaints seeking
to except a debt from discharge or an outright denial of discharge. Further, neither
case involved a reaffirmation agreement, a means test issue, or a debtor audit. Again,
there was nothing remarkable about either of these cases.
5
“The test under § 329 measures reasonable value of the services provided by the
attorney. To the extent that the fees due or paid are not reasonable in light of the
services provided, the court may cancel the fee agreement or order disgorgement.”
In re Redding, 247 B.R. 474, 478 (B.A.P. 8th Cir. 2000) (emphasis in original).
The Redding court also held that Ҥ 329 is about disclosure and reasonableness of
attorney fees, and governs the fee arrangements between a debtor and the attorney
representing the debtor.” Id.
6
The bankruptcy court found that Mr. Ridings provided the same services he
would have provided to both Mr. Allen and Ms. Donegan, regardless of whether his
fees were paid under the prepetition or postpetition payment option. He provided
prepetition counseling, filed the petition, filed the statement of financial affairs, filed
all documents required by § 521 of the Bankruptcy Code, and attended two § 341
hearings. 6 Mr. Allen and Ms. Donegan each received a discharge in due course, and
the trustee filed a report of no distribution in each case. Based on these findings, the
court found that the “extra $500” contemplated under the post-filing fee arrangement
exceeded the value of the services provided by Mr. Ridings.
Mr. Ridings argues that the bankruptcy court was required to consider the
reasonableness of his fees in these cases under a lodestar analysis, that is “the number
of hours reasonably expended on the litigation [is] multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. at 433.
Mr. Riding’s argument misses the mark. Courts are not bound to apply the
lodestar calculation in every case where attorney’s fees are challenged. For example,
in In re Kula, we found that in chapter 13 cases, wherein most of the attorney
services are “normal and customary,” the lodestar analysis may not be the best
method to use when determining reasonableness. 213 B.R. 729, 737 (B.A.P. 8th
Cir.1997). Similarly, the Eighth Circuit affirmed the reduction of legal fees in a
chapter 7 case based on a consideration of the “lack of complexity and the customary
legal fees that are awarded in [the relevant] community for planning, preparing, and
filing the necessary schedules and petition for a Chapter 7 case.” Snyder v. Dewoskin
(In re Mahendra), 131 F.3d 750, 758 (8th Cir. 1997). See also, In re Geraci, 138
F.3d 314, 319 (7th Cir. 1998).
6
Regarding the matter of extra charges for Mr. Ridings’s attendance at a second
§ 341 meeting, the court noted that “Mr. Ridings testified honestly that
notwithstanding the agreement, the contract, if you filed upfront the full filing fee
of the court and the attorney’s fees, continued 341s would be included in that
charge. And I’ve already said that they were included in the $1,665 two-payment
charge.” Tr. at 130.
7
Indeed, Mr. Ridings testified that his primary practice involves use of “no
look” fees in chapter 13 cases. He also testified that he does not keep
contemporaneous time records when performing services in his chapter 7 cases.
Because there were no time records kept, no lodestar analysis could be undertaken.
Mr. Ridings also stated that he does not charge an hourly rate for his consumer
bankruptcy cases and never has. He stated that the fees he charges for typical chapter
7 cases are all the same. The only evidence Mr. Ridings was able to produce in
support of his lodestar argument was Exhibit L, a so-called “demonstrative exhibit,”
which purported to show a breakdown of hourly legal services he might charge a
debtor in a hypothetical chapter 7 case. However, it bore little resemblance to Mr.
Ridings’s customary practice in handling chapter 7 cases and included work that
typically does not arise in a straightforward chapter 7 filing. The exhibit lacked any
relevance as to what services were actually performed by Mr. Ridings in these cases,
as opposed to some hypothetical case. Simply put, Mr. Ridings presented no
evidence that would enable the court to conduct a lodestar analysis.
We find no clear error in any of the findings of fact made by the bankruptcy
court. It was well within its authority to reduce Mr. Ridings’s fees by $500 and did
not abuse its discretion in doing so.
CONCLUSION
For the reasons stated above, we affirm the bankruptcy court.
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