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500 B.R. 163
Bankr. M.D. Fla.
2013
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Background

  • Creditors investigated the Debtors’ alleged Ponzi scheme in state court after suing Engler and Private Commercial Office.
  • Creditors filed involuntary bankruptcy petitions in March 2008 and obtained an order for relief in April 2008; Tar-dif became Trustee.
  • Creditors’ counsel Fowler White rendered pre-petition services investigated assets and grounds for filing, later serving as special counsel to the Trustee.
  • Creditors seek administrative expenses under 11 U.S.C. § 503(b)(3)(A) for pre-petition work and under § 503(b)(3)(B) for post-petition work aiding asset recovery.
  • Court preliminarily approved fee requests; Trustee objected to most amounts; summary judgment briefing ensued.
  • Court holds pre-petition work not recoverable unless it would not have been done but for the involuntary case; post-petition work requires court-approved recovery under § 503(b)(3)(B).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether pre-petition research is recoverable under § 503(b)(3)(A). Creditors: work directly related to filing; includes pre-petition research. Trustee: work would have been done anyway; not direct to petition. Not recoverable; pre-petition work would have occurred absent filing.
Whether pre-petition work would have been done but for the involuntary case, affecting recoverability. Research was directly related to filing and essential. Work would have occurred regardless of petition. Court adopts bright-line that pre-petition work that would have been done anyway is not recoverable.
Whether post-petition fees can be recovered under § 503(b)(3)(B) without prior court approval. Creditors contributed to estate recovery; should be reimbursed. Prior court approval required; absent it, no recovery. Prior court approval required; no recovery for post-petition fees.
Whether any extraordinary circumstances justify nunc pro tunc approval to allow post-petition recovery. Alternatively, such approval should be available to avoid chilling creditor participation. No extraordinary circumstances; cannot bypass explicit requirement. No nunc pro tunc relief; three tests require prior approval and none satisfied.

Key Cases Cited

  • In re Hanson Indus., Inc., 90 B.R. 405 (Bankr.D.Minn.1988) (pre-petition fees only recoverable if closely tied to filing; timing not sole test)
  • In re Baldwin-United Corp., 79 B.R. 321 (Bankr.S.D.Ohio 1987) (pre-petition research may be allowable; contextualized for involuntary cases)
  • In re Crazy Eddie, Inc., 120 B.R. 273 (Bankr.S.D.N.Y.1990) (recognizing limitations of broad administrative expense recovery)
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Case Details

Case Name: In re Engler
Court Name: United States Bankruptcy Court, M.D. Florida
Date Published: Sep 30, 2013
Citations: 500 B.R. 163; 24 Fla. L. Weekly Fed. B 249; 70 Collier Bankr. Cas. 2d 781; 2013 WL 5441730; 2013 Bankr. LEXIS 4076; Case No. 9:08-bk-04360-MGW, Case No. 9:08-bk-04365-MGW
Docket Number: Case No. 9:08-bk-04360-MGW, Case No. 9:08-bk-04365-MGW
Court Abbreviation: Bankr. M.D. Fla.
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