MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The Court herein considers settlement motions made in two separate cases whose facts and procedural posture are substantively the same. In the first case, In re David H. and June M. Furgeson, Ch. 13 Case No. 99-64888, the Furgesons seek approval of the settlement of their claim against an estate creditor as a result of that creditor’s alleged willful violation of the stay. In the second case. In re Kenneth A., Sr. and Florence E. Carson, Ch. 13 Case No. 00-60267 the Carsons seek approval of the settlement of their claim arising from a creditor’s alleged contempt of an existing order of this Court finding that creditor willfully violated the automatic stay.
On March 22, 2000, the Debtors David H. Furgeson and June M. Furgeson (collectively “Furgesons”) filed a motion pursuant to Section 362(h) (“Furgeson § 362(h) Motion”) of the U.S. Bankruptcy Code, 11 U.S.C. §§ 101-1330 (“Code”) against creditor Otsego County Department of Social Services (“Otsego”) seeking damages and attorneys’ fees in unspecified amounts alleging that Otsego willfully violated the automatic stay. 1 See Code § 362(h). Currently before the Court in *31 the Furgeson case is the Furgesons’ September 11, 2000 Motion to Approve Settlement (“Furgeson Settlement Motion”) of said claims in the aggregate sum of $5,800; $2,280 to be paid to the Furgesons’ attorneys pursuant to a contingency fee arrangement with the balance of $3,520 to be paid directly to the Furgesons.
On August 23, 2000 the Debtors Kenneth A. Carson, Sr. and Florence E. Carson (collectively “Carsons”) filed a motion pursuant to Federal Rule of Bankruptcy Procedure 9020(b) (“Carson Contempt Motion”) seeking to hold estate creditor Lin-eare, Inc., Region 2 (“Lineare”) in civil contempt for failing to comply with the July 12, 2000 Order and Judgment of this Court finding Lineare in willful violation of the automatic stay and awarding the Car-sons damages and attorneys’ fees in the sum of $3,000 plus interest (“Carson § 362(h) Order”). The relief sought in Carson Contempt Motion consists of a $10,000 sanction against Lineare and $500 per day for each day Lineare allegedly fails to comply with the Carson § 362(h) Order. Currently before the Court in the Carson case is the Carsons’ October 12, 2000 Motion to Approve Settlement (“Carson Settlement Motion”) of both the Carson Contempt Motion and the Carson § 362(h) Order in the aggregate sum of $3,500; $2,100 to be paid to the Carsons’ attorneys with the balance of $1,400 to be paid directly to the Carsons.
The Chapter 13 Trustee (“Trustee”) filed an Affidavit in Opposition (“Trustee’s Opposition”) 2 to the proposed settlement in the Furgeson case on October 4, 2000, and in the Carson case on November 7, 2000, wherein the Trustee objects in both instances to the settlement funds being paid directly to the respective Debtors rather than being distributed to their creditors through their confirmed individual debt adjustment plans (the “Furgeson Plan” and “Carson Plan,” respectively). The Trustee also objects to the allegedly “excessive” attorneys’ fees sought in each case. See Trustee’s Opposition, at ¶4. Limited oral argument in the Furgeson case was heard at the Court’s regular motion term held in Utica, New York on October 10, 2000, at which time the parties were afforded the opportunity to submit supplemental memoranda of law.
Additionally, on October 27, 2000, the Trustee filed a motion pursuant to Code § 1329(a) to Modify the Furgeson Plan (“Motion to Modify”) seeking to distribute the settlement proceeds to creditors through the Furgeson Plan. The Furge-sons filed an Affirmation in Opposition to the Trustee’s Motion to Modify on November 7, 2000, along with Memorandum of Law (“Furgeson Memo”) both supporting the Furgesons’ Settlement Motion and opposing the Trustee’s Motion to Modify. On November 13, 2000, the Trustee submitted a Memorandum of Law supporting both his objection to settlement and his Motion to Modify (“Trustee’s Memo”).
At the Court’s regular motion term held in Utica, New York on November 14, 2000, the parties consented to consolidate oral argument in both the Furgeson and Carson cases given the similarity of the legal *32 and factual issues presented in the cases. Following oral argument on that date, the matters were submitted for written decision.
JURISDICTION
The Court has core jurisdiction over the parties and the subject matter of these contested matters pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157(a), (b)(1) and (b)(2)(A) and (O).
FACTS
The Furgesons filed for protection under Chapter 7 of the Code on September 7, 1999. Among the creditors holding unsecured non-priority claims scheduled in the Furgesons’ case was Otsego for the sum of $4,074.12. On January 14, 2000, the case was converted to one under Chapter 13 on a motion by the Furgesons. On March 23, 2000, this Court entered an Order confirming the Furgesons’ Plan (“Furgeson Confirmation Order”). Under the Furgeson Plan, the Furgesons are required to make monthly payments of $120 to the Trustee for sixty months with those creditors holding unsecured non-priority claims receiving a dividend of no less than 5% of their respective claims. Paragraph 12 of the Furgesons’ Confirmation Order states in pertinent part “That all property of the estate, including any income, earnings or other property which may become a part of the estate during administration of the case, which property is not proposed or reasonably contemplated to be distributable to claimants under the Plan, shall re-vest in the Debtor(s)”... Such property as may revest in the Debtor(s) shall so re-vest upon the approval of the Court and the Chapter 13 Trustee. Furgeson Confirmation Order, at ¶ 12 (emphasis added).
On March 22, 2000, the Furgesons filed their § 362(h) Motion seeking damages and attorneys’ fees resulting from Otsego’s alleged willful violation of the automatic stay. While the specific circumstances surrounding Otsego’s alleged conduct is irrelevant to the instant motion, the Court notes that all of the stay violations are alleged to have occurred prior to the entry of the Furgeson Confirmation Order. See Furgeson Settlement Motion, Exhibit A. After several consensual adjournments of the pending § 362(h) Motion, the Furge-sons filed the instant motion on September 11, 2000, seeking approval of the settlement agreement purporting to settle the Furgesons’ claims against Otsego for the sum of $5,800.
The Carsons filed for protection under Chapter 13 of the Code on January 24, 2000. Among the creditors holding unsecured non-priority claims scheduled in the Carsons’ case was Lineare for the sum of $270.37. On June 6, 2000 the Carsons filed their § 362(h) Motion against Lineare seeking damages, attorneys’ fees and costs in excess of $4,000 as a result of Lincare’s alleged willful violation of the automatic stay. On June 29, 2000, this Court entered an Order confirming the Carson Plan (“Carson Confirmation Order”). Under the Carson Plan, the Carsons were required to make monthly payments to the Trustee of $550 for the first two months and $650 per month for the remaining fifty-eight months with those creditors holding unsecured non-priority claims receiving a dividend of no less than 54% of their respective claims. Paragraph 11 of the Carson Confirmation Order contained a provision identical to that found in Paragraph 12 of the Furgeson Confirmation Order. See Carson Confirmation Order, at ¶ 11.
After no opposition to the Carson § 362(h) Motion was submitted by Lin-eare, this Court entered the Carson § 362(h) Order as a default judgment on July 12, 2000, ordering Lineare to pay *33 damages and attorneys’ fees to the Car-sons in the amount of $3,000 plus interest. On August 23, 2000, the Carsons filed their Contempt Motion seeking $10,000 in sanctions against Lineare and $500 per day for each day Lineare allegedly fails to comply with the Carson § 362(h) Order.
ARGUMENTS
At issue in both of the settlement motions pending before the Court is whether the settlement proceeds resulting from this Court’s approval of the respective settlement agreements should be paid to the Debtors directly or should properly be paid to the Trustee for distribution to creditors who are receiving only 5% and 54% dividends, respectively. The Trustee contends that since the settlement proceeds are both property of the estate and disposable income, they are properly payable to the Trustee for distribution to creditors through their respective Plans. The Trustee argues that the settlement proceeds are no different than those cases holding that a Chapter 13 debtor’s post-petition acquisition of gifts, inheritance or lottery winnings are property of the Chapter 13 estate subject to plan distribution. In addition, the Trustee contends the settlement proceeds are not in the nature of actual damages and as such are additional disposable income. In this regard, the Trustee concedes that if the Debtors had suffered actual damages, i.e. the repossession of an automobile or medically verifiable and/or treatable emotional distress, that reimbursement for those damages should be paid to the Debtors directly. However, the Trustee contends that in this case the Debtors have suffered no actual damages and any settlement proceeds payable directly to the Debtors would result in an unforeseen windfall.
In addition, the Trustee contends that the fees requested by the Debtors’ attorney should be denied because the Debtors’ attorney has both failed to provide the Court with information relevant to determining if the fees requested are reasonable and because the application for the fees requested fails to comply with the local rules of the Court pertaining to fee applications.
The Debtors contend that characterizing the settlement proceeds as “disposable income” is irrelevant since the funds revest-ed in the Debtors at confirmation and are not property of the estate subject to distribution. Additionally, the Debtors contend that the proceeds arose from the wrongful conduct of a creditor and allowing at least a portion of the proceeds to be distributed back to that very same creditor is inequitable.
Debtors’ counsel’s response to the Trustee’s contention that the fees should be denied as excessive is that the reasonableness of attorneys’ fees under Code § 362(h) is not determined by what percentage of the total recovery they constitute. In this regard, the Debtors’ attorney contends that his requested percentage of the total recovery is commensurate with the line of cases allowing attorney’s to recover up to 62% of the debtor’s total recovery.
DISCUSSION
I. Property of the Estate
Pursuant to Code § 541, property of a debtor’s bankruptcy estate includes “all legal or equitable interests of the debt- or in property as of the commencement of the case.” Code § 541(a)(1). Legislative history suggests that the Congress intended the scope of § 541 to be broad enough to include causes of action accruing to the debtor and claims by the debtor against third parties.
See U.S. v. Whiting Pools, Inc.,
It is worthy to note, albeit inapplicable to the instant case for reasons discussed
infra,
that the broad stroke of Code § 1306(a) is tempered by the seemingly irreconcilable provisions of Code § 1327(b) which states that “[e]xcept as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.” Code § 1327(b). The difficulty in reconciling these two provisions is evident in that the vesting of estate property in the debtor at plan confirmation contravenes the inclusion of post-confirmation assets in estate property until the case is closed, dismissed or converted.
See In re Rangel,
First, the Debtors’ reading disregards the qualifications of such revesting outlined in the terms of the Confirmation Orders themselves. A closer reading of the terms of the Confirmation Orders reveals that “[s]uch property as may revest in the Debtor(s) shall so revest
upon the approval of the Court and the Chapter 13
Trustee.”
5
Ferguson Confirmation Order, at ¶ 12; Carson Confirmation Order, at ¶ 11. No such approval has been sought. The requirement of prior Court and Trastee approval before revesting will occur simply belies the viability of the Debtors’ contention that the settlement proceeds automatically revested in the Debtors at confirmation.
See In re Hoffmeister,
The second flaw in the Debtors’ argument is that it seems to ignore Code § 1327(b) which provides in its entirety that
“[e]xcept as otherwise provided in the plan or the order conñrming the plan,
the confirmation of a plan vests all of the property of the estate in the debtor.” Code § 1327(b)(emphasis added). As outlined in the immediately preceding discussion, the Debtors’ Confirmation Orders provide for something other than the automatic revesting suggested in Code § 1327(b), namely, prior approval of such revesting by the Court and the Trustee. As such, there can be no revesting of estate property in the Debtors without approval of this Court and the Trustee. As contemplated under Code § 1327(b), the Debtors’ Confirmation Orders “otherwise provided” for the revesting of estate property, and as such, revesting could not have automatically occurred at confirmation as the Debtors suggest.
7
See
Code § 1327(b);
see also, In re Hoffmeister, supra,
II. Modification of the Furgeson Plan
Pursuant to Code § 1329(a), the Court may, at the request of the Trustee any time subsequent to confirmation but prior to completion of the confirmed plan, modify a debtor’s plan to increase or reduce payments to a particular creditor class.
See
Code § 1329(a). “A trustee’s application [for plan modification] ‘should be limited to situations in which there has been a
substantial change
in the debtor’s income or expenses that was
not anticipated
at the time of the confirmation hearing.’ ”
9
In re Solis,
As a final note on modification, the Court finds meritless the Furgesons’ contention that modification of their Plan is inappropriate since the result will return a portion of the settlement proceeds to Otse-go, whose alleged willful conduct resulted in the Furgesons obtaining the funds in the first instance. This argument fails to recognize the rights of all of the estate’s unsecured creditors, other than Otsego, each of whom is currently receiving a pittance of their original claim. In this regard, inequity would result only if the Furgesons were allowed to retain that which properly belongs to the estate.
III. Attorney’s Fees
Pursuant to Code § 330(a)(4)(B) the court may allow a chapter 13 debtor’s counsel reasonable compensation “based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.” Code § 330(a)(4)(B). The burden of demonstrating entitlement to the fee requested lies with the fee applicant.
See In re Thorn,
In the instant cases there is no evidence currently before the Court which
*39
would enable it to determine the reasonableness of the attorneys’ fees requested. In this regard, the Debtors’ counsel has failed to carry its burden to establish entitlement to the fees requested.
See In re Thorn,
Based on the foregoing, it is hereby
ORDERED, that the Debtors’ Settlement Motions are granted in part and denied in part, and it is further
ORDERED, that the Trustee’s Motion to Modify the Furgeson Plan is granted, and it is further,
ORDERED, that Otsego is directed to pay the sum of $5,800 to the Trustee in satisfaction of the pending § 362(h) Motion in the Furgeson case, and it is further
ORDERED, that Lineare is directed to pay the sum of $3,500 to the Trustee in satisfaction of the § 362(h) Order, money judgment and pending Contempt Motion in the Carson case, and it is further
ORDERED, that the Trustee is directed to stay any distribution of such proceeds to creditors until such time as a determination is made as to the reasonableness of the attorneys’ fees requested in these cases, and it is further
ORDERED, that the Debtors’ counsel is directed to submit contemporaneous time records evidencing the time, nature and extent of services provided in prosecuting the Furgesons’ § 362(h) Motion and the Carsons’ § 362(h) and Contempt Motions within thirty days of the date of this Order.
Notes
. The automatic stay provision in Code § 362 serves to alleviate debtors in bankruptcy of the burdens associated with debt collection activity as of the date of the filing of the bankruptcy petition through the pendency of the debtor’s bankruptcy case. See Code § 362(a). Code § 362(h) provides an avenue of redress to debtors against estate creditors *31 who willfully violate that protection. See Code § 362(h). Specifically, Code § 362(h) provides, in its entirety, that ''[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages." Code § 362(h).
. The substantive paragraphs of the Trustee’s Affidavits in Opposition in both the Carson and the Furgeson cases are nearly identical. For the sake of clarity, the Court will refer singularly to the "Trustee’s Opposition" when referring to the Trustee’s Affidavit in Opposition in both cases.
. In
Brown v. U.S.,
the debtors' plan was confirmed in June 1986, completed in November 1990 and the case was closed in December 1990.
See Brown,
. For a discussion of the various lines of cases and schools of thought that have emerged in an attempt to reconcile Code § 1306(a) with Code § 1327(b) see
In re Rangel,
. The Court notes at oral argument the Debtors’ urged the Court to follow the strict language of the Confirmation Orders in determining whether the § 362(h) causes of action and the settlement proceeds derived therefrom revested in the Debtors at confirmation. To this end, the Debtors' counsel argued that "Whether.. .acquisition of a post-confirmation asset goes to the debtor or to the estate is determined by the confirmation order and is determined by the analysis of 'did this revest in the debtor' .. .you look at the confirmation order.. .we are bound by the confirmation order.” Statement by James F. Selbach, Esq., Attorney for the Debtors. Hearing on Furgeson Settlement Motion and Trustee’s Motion to Modify, In re Furgeson, Ch. 13 Case No. 99-64888 (Bankr.N.D.N.Y. November 14, 2000, Gerling, C.J.), Hearing on Carson Settlement Motion, In re Carson, Ch. 13 Case No. 00-60267 (Bankr.N.D.N.Y. November 14, 2000, Gerling, C.J.).
. In
In re Hoffmeister,
cited
supra,
the debt- or’s confirmation order stated, much akin the Confirmation Order in the instant case, that “Such property as may revest in the debtor(s) shall so revest upon the approval by the Court of the Trustee's Final Report and Account.”
In re Hoffmeister,
. The Court notes that one court in this Circuit, in an attempt to reconcile Code § 1306(a) with Code § 1327(b), has held "that upon confirmation of a Chapter 13 plan, all property of the estate is emptied from the estate and revested in the Debtors under § 1327(b). Such property is no longer property of the estate. Immediately after confirmation, the estate begins to be refilled by property acquired by Debtors post-confirmation. That property is protected by the automatic stay and remains so until the case is closed, converted, or dismissed.”
Holden v. U.S. (In re Holden),
. Note, however, that in
In re McCray,
the court stated that § 1327(b) controlled with regard to post-confirmation revesting of property in the debtor, but was silent as to whether the debtor's plan provided for the occurrence of an event as a condition to revesting, as in the instant case.
See In re McCray,
. The Court acknowledges a competing line of cases holding that Code § 1329 requires no change in circumstances as a threshold requirement to modification.
See in re Studer,
. Oversight Hearings on Personal Bankruptcy Before the Subcommittee on Monopolies and Commercial Law of the House Committee on the Judiciary, 97th Cong., 1st Sess. 181, 215-16, 221 (1981-82)("The ability-to-pay standard would be made applicable to plan modifications following confirmation, by the addition of a new subsection 1329[a], which would permit the debtor or the holder of an allowed unsecured claim to request modification of the plan in response to changes in the circumstances of the debtor substantially affecting the ability of the debtor to make future payments under the plan. New subsection 1329[a] would provide a measure of flexibility not presently available by permitting accommodation of the performance required under the chapter 13 plan to better suit the actual circumstances encountered during the course of the plan.. .The purpose of this amendment is to permit the debtor or the holder of an allowed unsecured claim to request modification of a confirmed chapter 13 plan in response to changes in circumstances of the debtor substantially affecting (favorably or unfavorably) the ability of the debtor to make payments under the plan, as determined by reference to the ability-to-pay test set forth in § 1325”), as quoted in. In re Fitak, 92 B.R. 243, 249 (Bankr.S.D.Ohio 1988).
. By virtue of Code § 1329 the right to seek modification is reserved exclusively to the debtor, trustee and unsecured creditors. See Code § 1329(a). As such, the settlement proceeds in the Carson case will be payable to the Trustee pending a motion to modify the current plan by a party authorized to make such motion.
. Debtors’ counsel cites
In re McCormack,