484 B.R. 667
Bankr. E.D. Va.2012Background
- H. Jason Gold, chapter 7 trustee, seeks a stay pending appeal to withhold additional trustee’s fee from distributions.
- Court previously allowed a reduced trustee’s fee of $8,020.00 (not the full requested $17,254.61) due to failure to properly and timely discharge duties.
- Gold appeals to district court arguing § 330(a)(7) fixes a fixed commission, potentially requiring the full fee.
- The court applies a four-factor standard for stays pending appeal: likelihood of success, irreparable injury, lack of substantial harm to others, and public interest.
- Court finds Gold’s merits weak because he failed to timely administer the estate and properly supervise fees; delay harmed creditors and increased bank charges.
- Judge grants a stay pending appeal upon posting an appeal bond, permitting withholding of $9,234.61 from distributions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay pending appeal should be granted | Gold argues entitlement to full fee under § 330(a)(7) as fixed commission. | Court must consider four-factor stay test and trustee’s failure to timely administer reduces likelihood of success. | Stay granted subject to bond; merits show low likelihood of full entitlement on appeal. |
| Whether the trustee’s delay justifies reducing fees and distribution | Fee should reflect fixed commission under § 326; delay not fatal to entitlement. | Delays and improper administration justify reduction and no presumption of full fee. | Yes; trustee’s delay and inadequate administration support reducing fees and distribution relief. |
| Is an appeal bond and withholding portion of funds appropriate | Bond not necessary beyond blanket bond; withholding unnecessary. | Appeal bond is required to protect estate; bond of $750 posted and funds withheld. | Bond required; $9,234.61 may be withheld pending appeal; separate appeal bond imposed. |
Key Cases Cited
- Hopkins v. Asset Acceptance LLC (In re Salgado-Nava), 473 B.R. 911 (9th Cir. BAP 2012) (trustee fees may be presumptively reasonable but can be reduced for extraordinary circumstances)
- Winter v. NRDC, 555 U.S. 7 (U.S. Supreme Court 2008) (standards for issuing stays pending appeal)
- Blackwell lder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977) (early articulation of stay standards)
- Long v. Robinson, 432 F.2d 977 (4th Cir.1970) (four-factor stay test)
- Hunt v. Bankers Trust Co., 799 F.2d 1060 (5th Cir.1986) (four-factor stay test application)