In Re Hagin , 21 F.2d 434 ( 1927 )

BURNS, District Judge.

Petitioners for review, E. A. Carrere Sons, complain of error in an order of the referee- dated June 14, 1927, in that the referee allowed the Phoenix Building & Homestead Association, holder of a first mortgage, interest on its claim up to date of sale, and beyond the date of adjudication, together with certain fines and penalties assessed by the said homestead association, according to its by-laws, pursuant to the act of mortgage, after the date of adjudication, and attorney’s fees up to $400.

Petitioner is the holder of a second mortgage, which cannot be paid in full because, while the- security, consisting of real estate, sold for- more than enough to pay the first mortgage, the overplus is not enough to pay petitioner in full. Hence this review.

Petitioner contends that no attorney’s fees should be allowed, although stipulated for in the. mortgage, because the mortgage was not due or exigible at the time of adjudication; that no suit by the mortgagee was necessary, and that the trustee made the sale; that such expenses are not provable or dis-chargeable in bankruptcy — citing section 63a of the Bankruptcy Act (11 USCA § 103); A. G. Gugel, Trustee, v. N. O. Bank (5 C. C.. A.) 239 F. 676, 39 Am. Bankr. Rep. 161; In re Roche (5 C. C. A.) 101 F. 956; British & A. M. Co. v. Stuart (5. C. C. A.) 210 F. 425, 31 Am. Bankr.. Rep. 465, and several other eases to the effect that such attorney’s fees are not’ provable debts.

My conclusion is that section 63a has no bearing on the question. Section. 67d (11 USCA § 107) applies. The vendor’s lien and first mortgage before the court in this ease is not attacked for invalidity. It is settled law that interest is to be computed on the mortgage up to the date of sale, where the security brings sufficient by its sale to pay the mortgage in full, in accordance with the terms of the mortgage, and that attorney’s fees are allowable- to the mortgagee in a reasonable amount, commensurate with the service rendered in the bankruptcy court. Such allowances do not depend upon or arise out of the contractual or conventional stipulation- in the note and mortgage. Coder v. Arts (8 C. C. A.) 152 F. 943, 15 L. R. A. (N. S.) 372; affirmed in 213 U. S. 223, 29 S. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; San Antonio Loan & Trust Co. v. Booth (5 C. C. A.) 2 F.(2d) 590; In re Fabacher (D. C.) 193 F. 556, 27 Am. Bankr. Rep. 534; Remington, §§ 921, 2615; In re Torchia (D. C.) 185 F. 576.

The order of the referee discloses no error. The petition for review is denied. A decree may be entered, affirming the referee’s order.