In Re Carter , 18 Fla. L. Weekly Fed. B 325 ( 2005 )

326 B.R. 892 (2005)

In re David Allen CARTER, Ariane Carmen-Helen Espino-Brown, Debtors.

No. 02-30463-BKC-SHF.

United States Bankruptcy Court, S.D. Florida.

July 1, 2005.

David Lloyd Merill, Stuart, FL, for debtors.

Robin R. Weiner, Ft. Lauderdale, FL, for trustee.

ORDER ALLOWING FEES

STEVEN H. FRIEDMAN, Bankruptcy Judge.

After notice to all creditors, this Court has examined all pending fee applications filed in this case. The Court has considered these applications and finds that the following allowances are reasonable.

The Court finds that reasonable compensation for John P. Barbee, trustee, is $4,709.04 plus expenses of $165.55.

The Court finds that reasonable compensation for John A. Moffa, attorney for trustee, is $12,673.00 plus expenses of $822.96.

In allowing the foregoing fees, the Court has reduced the fee request of John P. Barbee, chapter 7 trustee, by $1,229.57, and the Court has reduced the fee request of John A. Moffa, attorney for chapter 7 trustee, by $1,108.00. The rationale for the reductions in fee allowances is set forth below:

REDUCTION IN FEE REQUEST BY TRUSTEE

The fee application of John P. Barbee, as chapter 7 trustee ("Trustee"), is predicated upon the Trustee's purported disbursement of $53,772.15 during the course of the administration of this estate (C.P. 82). Pursuant to 11 U.S.C. § 326(a), the court may allow reasonable compensation to a chapter 7 trustee subject to certain delineated limitations based upon ". . . all monies disbursed or turned over in the case by the trustee to parties in interest . . .". A component of the aggregate amount of gross receipts purportedly administered by the Trustee ($53,772.15) is an amount equal to $33,800.00, ostensibly representing the proceeds derived from the Trustee's sales of two parcels of real property, which sales were authorized by the Court by way of orders entered on July 15, 2003 (C.P. 50 and 51). However, the sales of both parcels were closed through escrow agents, and the net amount of proceeds actually received by the Trustee equals $19,618.29. Nonetheless, the Trustee's fee application is computed on the basis that he disbursed a total of $33,800.00 deriving from his sale of the two real estate parcels. In actuality, the total amount of disbursements by the Trustee equals $39,590.44, and not $53,722.15. Thus, based upon the formula prescribed by 11 U.S.C. § 326, the maximum allowable compensation to the Trustee equals $4,709.04.

The position implicitly advanced by the Trustee is that, since he constructively received a total of $33,800.00 in "proceeds" from the sales of the two real estate parcels, his compensation should be computed to include the $33,800.00 as a component of his purported total disbursements of $53,722.15. This Court previously has addressed the same issue. In the case of In re Moreno, 295 B.R. 402 (Bankr.S.D.Fla.2003), the chapter 7 trustee sought an allowance of compensation based upon disbursements made, in part, through a settlement agent with regard to the trustee's sale of real property. In Moreno, the trustee sold a parcel of real property, and utilized the services of special counsel in the closing of the real estate transaction. Thereafter, the trustee sought compensation under 11 U.S.C. § 326(a), based upon disbursements ostensibly made by the trustee which included all disbursements effected by the trustee's special counsel deriving from the closing of the real estate parcel. In rejecting the "constructive disbursement" theory on trustee's disbursements, the Third Circuit Court of Appeals, in the case of In re Lan Associates XI, L.P., 192 F.3d 109 (1999) noted:

We are not persuaded by these authorities' adoption of the constructive disbursement theory for several reasons. First, because the constructive disbursement theory allows the trustee to be compensated for disbursements of property and other types of consideration, rather than simply for money disbursements as Congress defined them, it conflicts with our narrow interpretation for § 326(a).

Id. at page 118. In accord., see New England Fish Company, 34 B.R. 899 (Bankr.W.D.Wash.1983); In re Palm Beach Resort Properties, Inc., 73 B.R. 323 (Bankr.S.D.Fla.1987). Under the circumstances sub judice, the Court rejects the application of the constructive disbursement theory relating to compensation for the chapter 7 trustee.

REDUCTION IN FEE REQUEST BY ATTORNEY FOR TRUSTEE

The fee application of John A. Moffa, attorney for the chapter 7 trustee ("Moffa") seeks compensation for professional services in the amount of $13,781.00 together with reimbursement of expenses in the amount of $822.96. Included among the itemized time entries attached to Moffa's fee application are numerous time entries reflecting tasks performed by individuals employed by Moffa as secretaries or paralegals. The tasks performed by Kellye Norelius, Bridgette Paul, and Ann Marie Ellison consist almost entirely of services which are secretarial in nature, and for which professional compensation is not allowable. The tasks performed by Moffa's paralegals include: preparation of notices of appearance; telephone conversations relating to the status of the administration of this case; preparation of certificates of service relating to motions and orders deriving from Moffa's representation of the trustee; telephone conferences with the court's official copy service relating to the obtaining of copies of court papers; and the preparation of correspondence and notices to the debtors and third parties and the preparation for typing of other court papers.

Secretarial tasks are overhead expenses of the attorney and are not additionally compensable. Bonds Lucky Foods, Inc., No. 1, 76 B.R. 664, 668 (Bankr.E.D.Ark.1986).

A paralegal should be engaged in matters, under the supervision of an attorney, that require some independent judgment or are matters that an attorney would be expected to perform but can, under an attorney's supervision, be performed by an individual with specialized training or experience. Clerical functions such as typing, filing, photocopying, faxing, scanning or filing documents either electronically or traditionally, are not such functions.

Valley Historic Ltd. P'ship, 307 B.R. 508, 517 (Bankr.E.D.Va.2003), citing In re Joseph Charles & Assoc., Inc., 295 B.R. 399 (Bankr.S.D.Fla.2003). The Court accordingly reduces Moffa's fee application to the extent of $1,108.00 which represents non-compensable time expended by his secretaries or paralegals.

In allowing the foregoing fees, this Court has considered the criteria specified in 11 U.S.C. §§ 326 and 330 and the requirements of B.R.2016 in light of the principles stated in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Blum v. Stenson, 465 U.S. 886, 897, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986); and Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988).

Hours        Amount
Date    User                                      Rate           DNB          Total
ID      Task                                      Markup %       Time         DNB Amt.
-----------------------------------------------------------------------------------------------------
2/18/2003 KN                                      90.00          0.40         36.00          Billable
38913 Asset & Analysis-Probate Prepare
Notice of Appearance in the Circuit
Court of the Nineteenth Judicial
Circuit, probate Division, for the estate
of Ramio Suikki, t/c with clerk's
office re: address of same, prepare
Circuit Court service list
6/8/2004 KN                                       90.00          0.10         9.00           Billable
54325 Asset & Analysis-Probate Prepare
update for Tee re: probate case
8/31/2004 KN                                      90.00          0.10         9.00           Billable
55587 Asset & Analysis-Probate T/C
with Marydensye Ommert re: status
distribution
5/21/2003 KN                                      90.00          0.40         36.00          Billable
42194 Asset & Analysis-Real Property
Go online to Port St. Lucie Records/Recorders
Office to research and
obtain a copy of the Quit Claim Deed
for Paul, t/c with Port St. Lucie Recorder
Dept. re: same
5/29/2003 KN                                      90.00          0.10         9.00           Billable
42515 Asset & Analysis-Real Property
T/C with Mr. Racin's office re: t/o of
the deed on the Port St. Lucie lot
7/10/2003 KN                                      90.00          0.70         9.00           Billable
44202 Asset & Analysis-Real Property
Prepare order Granting Trustee's Motion
to Approve Sale of Real Property
(1110 Ingrassina Avenue, Port St. Lucie,
FL) for upcoming hearing on same
(0.30), prepare Order Granting Trustee's
Motion to Approve Sale of Real
Property (2067 McCallister Lane, Port
St. Lucie, FL), t/c with realtor re:
Deeds and legal description (0.40)
7/16/2003 KN                                      90.00          0.40         36.00          Billable
44417 Asset & Analysis-Real Property
Prepared Certificate of Service of Order
Granting Trustee's Motion to Approve
Sale of Real Property (1110 Ingrassina
Avenue, Port St. Lucie, FL)

and Order Granting Trustee's Motion
to Approve Sale of Real Property
(2067 McCallister Lane, Port St. Lucie,
FL), prepare fax letter to Realtor,
Bobbie Santiago re: Order Approving
Sale of Properties
7/28/2003 KN                                      90.00          0.40         36.00          Billable
44925 Asset & Analysis-Real Property
Prepare Certificate of Service of Corrected
Order Granting Trustee's Motion
for Approval of Sale of Real Property
(2067 McCallister Lane, Port St.
Lucie, FL), prepare fax cover letter to
the Title Co. and Bobbie Santiago,
Realtor re: same and fax
7/30/2003 KN                                      90.00          0.30         27.00          Billable
44986 Asset & Analysis-Real Property
Prepare Certificate of Service of Corrected
Order Granting Trustee's Motion
for Approval of Sale of Real Property
(1110 Ingrassina Avenue, Port St.
Lucie, Fl.), prepare facsimile cover letter
to Realtor re: same
8/7/2003 KN                                       90.00          0.60         54.00          Billable
45199 Asset & Analysis-Real Property
Go online to pacer to obtain a current
docket, several t/c with Randy from
West Palm Beach Bankruptcy Court
Clerk's office re: corrected order not
entered on the docket, prepare fax
letter to Randy from West Palm
Beach Bankruptcy Court Clerk's office
re: corrected orders and fax same
(0.50), t/c with Pacific Photocopy to
order Certified Copies of Pleadings
(0.10)
8/12/2003 KN                                      90.00          0.20         18.00          Billable
45362 Asset & Analysis-Real Property
Go online to download current docket
to highlight which CP numbers need
to be certified
8/13/2003 KN                                      90.00          0.20         18.00          Billable
45424 Asset & Analysis-Real Property
T/C with Pacific Photocopy to order
certified copies needed
7/10/2002 KN                                      80.00          0.10         8.00           Billable
30738 Asset Analysis & Recovery T/C
with office of debtors counsel regarding
tax return
4/17/2003 KN                                      90.00          0.30         27.00          Billable
40955 Asset Analysis & Recovery T/C
with David Merrill's office re: upcoming
hearing and Agreed Order, prepare
fax cover letter to Merrill's office
regarding Agreed Order
4/30/2003 KN                                      90.00          0.90         81.00          Billable

41373 Asset Analysis & Recovery Go
online to pacer to obtain a current
docket (0.20), prepared Ex-Parte
Agreed Motion to Amend Agreed Order
Granting Trustee's Motion for Order
Compelling Debtors' to Turn Over
Federal Income Tax Refunds for
1998-2001 which are property of the
estate and order granting (0.70)
5/13/2003 KN                                      90.00          0.10         9.00           Billable
41827 Asset Analysis & Recover Go
online to pacer to review a current
docket to see if Order Amending Turn
Over of Tax Refunds was entered for
Paul
5/28/2003 KN                                      90.00          0.10         9.00           Billable
42468 Asset Analysis & Recovery Go
online to pacer to review a current
docket to see if any objections to the
Agreed Order were filed
7/25/2003 KN                                      90.00          0.20         18.00          Billable
44869 Asset Analysis & Recovery Prepare
letter to debtors' counsel re: payments
in default and same needs to be
current
8/6/2003 KN                                       90.00          0.20         18.00          Billable
45170 Asset Analysis & Recovery Several
t/c with Vicki at First American
Title Co. re: the closing, certified copies
of the corrected orders and the
order appointing Trustee and the two
liens (one w/code enforcement and the
debtor has requested a hearing)
11/26/2003 KN                                     90.00          0.20         9.00           Billable
48778 Asset Analysis & Recovery T/C
with Debtor's Attorney's office re:
their clients payments overdue
7/17/2002 KN                                      80.00          0.10         8.00           Billable
31029 Case Administration Revise service
list to reflect Sandra Martinez,
Esq. address as she filed a Notice of
Appearance
7/26/2002 KN                                      80.00          0.20         16.00          Billable
31599 Case Administration T/C with
Debtors' counsel regarding copy of
2001 income tax return
1/15/2003 KN                                      90.00          0.40         36.00          Billable
37978 Case Administration Prepare
Re-notice of Rule 2004 of Ariane Carmen-Helen
Espino-Brown and David
Allen Carter
1/24/2003 KN                                      90.00          0.20         18.00          Billable
38289 Case Administration Prepared
Re-notice of Deposition of Ariane Carmen-Helen
Espino-Brown
12/30/2003 KN                                     90.00          0.30         27.00          Billable

49672 Case Administration Go online
to Pacer to review a current docket to
review docket for CP# to add to Order,
review case files for documents to
attach to motion, revise Order Revoking
10/1/2003 KN                                      90.00          0.30         27.00          Billable
47112 Claims Administration & Object
Prepare Objections to Claims
11/9/2003 KN                                           90.00         0.50          45.00     Billable
48300 Claims Administration & Object
Prepared Creditor's Motion for Extension
of Time to File an Objection to
Trustee's Objection to Claims
11/12/2003 KN                                          90.00         0.60          54.00     Billable
48371 Claims Administration & Object
Go online to Pacer to see if any objections
were filed to the objection to
claim, prepare Certificate of Contested
matter, prepare NOH for same (0.50),
review case for pleading (0.10)
1/6/2004 KN                                            90.00         0.20          18.00     Billable
49878 Claims Administration & Object
Prepare Order Sustaining Trustee's
Objection to Claim No. 8 of John
Anastasio
1/16/2004 KN                                           90.00         0.20          18.00     Billable
50308 Claims Administration & Object
Prepared COS of Order Sustaining
Trustee's Objection to Claim No. 8 of
John Anastasio and Denying Creditor,
John Anastasio's Motion for Enlargement
of Time to File a Response to
the Objection to Claim
6/19/2002 BP                                           95.00         0.20          19.00     Billable
30100 Asset Analysis & Recovery Prepared
letter to Debtor's attorney re:
$ due Debtor from estate
7/30/2002 BP                                           95.00         1.30          123.50    Billable
31719 Asset Analysis & Recovery
Draft Notice of Taking Deposition in
Aid of Execution of William T. Mosher,
and Don Donahue (0.40), draft subpeona
to William T. Mosher and Don
Donahue (0.40), review file, revised
Notices and Subpoenas, and draft letter
to debtor's attorney re: status of
sanctions order (0.50)
6/10/2002 BP                                           95.00         0.30          28.50     Billable
29527 Case Administration Prepared
letter to debtor's attorney re: 2001 tax
return, revised letter
6/25/2002 BP                                           95.00         0.40          38.00     Billable
30341Case Administration Draft 2004
Notices of Debtor
7/18/2002 BP                                           95.00         0.20          19.00     Billable

31144 Case Administration Draft follow-up
letter to Debtor's attorney re:
tax return
7/29/2002 BP                                           95.00         0.40          38.00     Billable
31660 Case Administration Revised
2004 Notices of Debtors, draft letter to
Debtor's attorney re: turnover of 2001
income tax refunds, revised letter to
Debtor's attorney
7/31/2002 BP                                           95.00         0.50          47.50     Billable
31794 Case Administration Draft Notice
of cancellation of Rule 2004 Examinations
of Debtor, draft fax cover
sheet to Mr. Merrill enclosing Notice,
revised Notice
8/12//2002 BP                                          95.00         0.30          28.50     Billable
32327 Case Administration Draft fax
letter to Trustee enclosing Mr. Merrill's
letter dated 8/6/02 for his review,
revised letter
5/16/2003 AMR                                          80.00         0.20          16.00     Billable
42037 Asset Analysis & Recovery Prepared
Certificate of Service of Agreed
Order Granting Motion to Amend
Agreed Order Granting Trustee's Motion
for Order Compelling Debtors to
T/O Federal Income Tax Refunds for
1998-2001 which are Property of the
Estate (CP# 31)
7/17/2003 AMR                                          80.00         0.20          16.00     Billable
44507 Asset Analysis & Recovery Prepared
letter to debtors' attorney reminding
them of debtors' responsibility
to pay Trustee per May 14 signed
Agreed Order Granting Motion to
Amend Agreed Order Granting Trustee's
Motion for Order Compelling
Debtors to T/O Federal Income Tax
Refunds for 1998-2001 which are
Property of the Estate
7/25/2003 AMR                                          80.00         0.10          8.00      Billable
44879 Asset Analysis & Recovery T/C
to John Barbee office and spoke to
Stephanie regarding payments the
debtors should have made and what
they have received to date.
1/14/2003 AMR                                          80.00         0.10          8.00      Billable
37901 Case Administration T/C to
David Merrill's office (attorney for
debtor) to reconfirm 2004 of debtors
for today and t/c to Barbee & Assoc.
to reconfirm
12/11/2003 AMR                                         80.00         0.10          8.00      Billable
49188 Case Administration T/C to Adrianna
Carter to let her know we received
her fax

11/2/2004 AMR                                          80.00         1.50          120.00    Billable
56465 Fee/Employment Applications
Prepared Final Fee Application