In Re Key Auto Liquidation Center, Inc.
ORDER GRANTING MOTION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE
THIS MATTER came before the Court for hearing January 24, 2008 on the Motion for Allowance of Administrative Expense (the “Motion,” Doc. 298) filed by Anthony J. Ciano; Ciano Family Partnership, LLLP; Yannoy’s Tires, Inc.; Gulf States Auto Auction, LLC; Fact-O-Bake of Pensacola, Inc.; and Automotive Alternative, LLC (collectively, the “Petitioning Creditors”) and the objection thereto (the “Objection,” Doc. 305) filed by N.A.F. Corporation; Auto Finance Center of America, Inc.; Ohio Funding Group, Inc.; and Detroit II Automobiles, Inc. (the “Objecting Creditors”).
The Objecting Creditors attack the Motion on two fronts, contending that the Petitioning Creditors should not be reimbursed at all for filing and prosecuting the involuntary petition that commenced this case. First, the Objecting Creditors argue that Anthony . J. Ciano and Ciano Family Partnership, LLLP (“Ciano”) did not “file” the involuntary petition within the meaning of 11 U.S.C. § 503(b)(3)(A) (2007), and therefore the costs and attorneys’ fees incurred by Ciano arе not allowable. Second, the Objecting Creditors argue that Vannoy’s Tires, Inc.; Gulf States Auto Auction, LLC; Fact-O-Bake of Pensacola, Inc.; and Automotive Alternative, LLC (the “Trade Creditors”) did not actually incur any necessary expenses under 11 U.S.C. § 503(b)(3)(A) (2007), and therefore the request for fees and expenses by the Trade Creditors should be denied. Thus, the Motion and Objection raise two threshold issues: whether Ciano is a creditor that filed the involuntary рetition; and whether the Trade Creditors incurred actual, necessary expenses. For the reasons explained herein, I find that both Ciano and the Trade Creditors are eligible to seek the allowance of administrative expenses under § 503(b)(3)(A) and 503(b)(4).
Further, the Objecting Creditors contend that the amounts sought are excessive. Therefore, also at issue are the amounts sought for the filing of the involuntary petition. This is a core рroceeding over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334, 151, and 157(b)(2)(A).
Background
This case was commenced on May 4, 2007 pursuant to 11 U.S.C. § 303 by the filing of an involuntary petition under Chapter 7 against the Debtor. The second and third pages of the involuntary petition (Official Form 5) contain sections titled “Request for Relief’ and “Petitioning Creditors,” which list the names and addresses of the Trade Creditors, their signatures, and the signature of their attorney. The last page is titled “Attachment to Involuntary Petition Under Chapter ll[sic] of the Bankruptcy Code Against Key Auto Liquidation Center, Inc.” (the “Attachment”). It states in part that
The undersigned petitioning creditors join in the involuntary petition filed against Key Auto Liquidation Center, Inc. and request that an order for relief be entered against Key Auto LiquidationCenter, Inc. under chapter 7 of title 11, United States Code.
The Attachment is signed by Anthony J. Ciano, Anthony J. Ciano as Trustee of the Cianо Family Partnership, LLLP, and Ci-ano’s attorney, and it reflects claims held by Ciano in the total amount of $325,000 for loans and $5,000 for rent. Ciano has also filed several proofs of claims totaling over $330,000 in noncontingent, unsecured claims.
The Debtor, in concert with the Objecting Creditors, strenuously opposed the entry of an order for relief. To contest the involuntary petition, the Objecting Creditors hired two large law firms, one in Tampa, Florida аnd one in Ann Arbor, Michigan. The Alleged Debtor hired a local law firm. The Alleged Debtor and Objecting Creditors initially attempted to create disputes as to the amounts owed to the Petitioning Creditors. However, after it became clear that there were a sufficient number of creditors holding undisputed claims exceeding the necessary amount for purposes of § 303, the Alleged Debtor and Objecting Creditor changed tacks and argued that the filing of the involuntary petition had been orchestrated by Ciano in bad faith, relying heavily on the fact that Ciano was funding the prosecution of the involuntary petition. Ciano, through his attorney, Mr. John E. Venn, Jr., and the Trade Creditors, through their counsel, Clark, Partington, Hart, Larry, Bond,
&
Stack-house (“Clark, Partington”), actively prosecuted the involuntary petition. In pursuit of an order for relief, Mr. Venn filed a Response to the Alleged Debtor’s Answer tо Involuntary Petition and Motion to Dismiss or Abstain (Doc. 20), a Supplement to the Trade Creditors’ Motion for Summary Judgment (Doc. 21), a Response to the Alleged Debtor’s Motion to Dismiss or Abstain (Doc. 33), and briefs to support his positions. Clark, Partington moved for summary judgment, and after intense litigation the Petitioning Creditors prevailed (Doc. 81). Relief was ordered under Chapter 7 on July 31, 2007 (Doc. 82).
See generally In re Key Auto Liquidation Center, Inc.,
It is clear from the record and time-sheets on file that Ciano and his attorney were instrumental in filing and prosecuting the involuntary petition. It appears that Ciano’s attorney investigated the propriety of an involuntary bankruptcy and approached the law firm that was engaged by the Trade Creditors to file the petition. Since the Alleged Debtor had 12 or more creditors, Ciano and his attorney solicited and assisted in coordinating the Petitioning Creditors to ensure there would be a sufficient number to satisfy § 303. Ciano funded the involuntary petition. In fact, Ciano’s involvement in filing the involuntary petition provided one of the several grounds on which the Alleged Debtor and the Objecting Creditors opposed the entry of an order for relief: that it had been orchestrated in a bad faith attempt by Ciano to gain advantage in the fight for control over the Debtor. Though it has already been determined that the involuntary petition was not filеd in bad faith,
Key Auto,
Whether the Petitioning Creditors Are Eligible to Seek Reimbursement Under § 503(b)(3)(A)
A creditor that files an involuntary petition may seek the allowance as an administrative expense of its actual, necessary expenses. 11 U.S.C. § 503(b)(3)(A). In addition, such entities are allowed an administrative expense for reasonable attorneys’ fees. 11 U.S.C. § 503(b)(4).
The Bankruptcy Code does not specifically identify which creditor “files” the involuntary petition for purposes of § 503(b)(3)(A). Nonetheless, it is clear that more than one creditor can file an involuntary petition within the meaning of § 503(b)(3)(A).
See
11 U.S.C. § 102(7) (stating the rule of construction that “the singular includes the plural”). In addition, a coordinated effort among creditors to file an involuntary petition is implicitly required by § 303(b)(1) when the alleged debtor has 12 or more creditors.
See In re Tichy Elec. Co., Inc.,
Moreover, after the filing of the involuntary petition but before dismissal or the entry of an order for relief, an unsecured creditor holding a claim that is not contingent “may join in the petition with the same effect as if such joining creditor were a petitioning creditor under subsection (b).” 11 U.S.C. § 303(c) (emphasis added). The plain language of the Code does not place any limit on the effect of such a creditor’s joinder in the petition, which indicates that a properly joining creditor, like Ciano, is deemed to be a “petitioning creditor” for all purposes.
Though § 503 should be narrowly construed in ordеr to maximize the distribution to creditors,
see, e.g., In re Hanson Industries, Inc.,
Furthermore, the Code already discourages the filing of frivolous or nonmeritorious involuntary petitions.
See
11 U.S.C. § 303(i) (providing that unsuccessful petitioning creditors may be liable for the alleged debtor’s costs and attorney’s fees, plus damages and punitive damages if the petition was filed in bad faith). Section 503(b)(3)(A) should not therefore be interpreted in a way that imposes an additional deterrent to creditors filing involuntary petitions.
See Adam Furniture,
Given the plain language and purpose of §§ 503(b)(3)(A) and 503(b)(4), I find that Ciano “filed” the petition within the meaning of § 503(b)(3)(A). “[T]he controlling criteria for judging any particular interpretation of § 503(b)(3)(A) is whether that interpretation will render the creditor whole in the sense of the expense it incurred in successfully bringing the debtor into the bankruptcy court.”
Adam Furniture,
Similarly, the Trade Creditors’ expenses should not be disallowed merely because Ciano agreed to pay them. The Objecting Creditors argue that the Trade Creditors did not “incur” any “actual, necessary expenses” because Ciano agreed to pay those expenses. Once again, the Objecting Creditors are attempting to parse the statute by reading single words in isolation. The well-established principles of statutory construction do not support such a reading.
See Kelly v. Robinson,
The Compensability of the Amounts Sought
Having determined that Ciano and the Trade Creditors may be reimbursed under §§ 503(b)(3)(A) and 503(b)(4), I next consider the compensability and reasonableness of the specific amounts sought. In making the detеrminations that follow I have considered the reasonableness of the amounts requested using the factors laid out in 11 U.S.C. § 330 and
Johnson v. Georgia Highway Express, Inc.,
Petitioning creditors may seek the fees and costs directly related to preparing the involuntary petition and pursuing it to successful conclusion. §§ 503(b)(3)(A) and 503(b)(4);
Hanson Industries,
The Petitioning Creditors have conceded that fees for services provided after the entry of the order for relief are not com-pensable under § 503(b)(3)(A), and therefore post-relief fees in the amount $3,027.50 will be disallowed.
The Objecting Creditors have argued that the Petitioning Creditors are seeking reimbursement for expenses unrelated to the filing and prosecution of the involuntary petition. Based on the timesheets and case file, it appears that neither the Trade Creditors nor their law firm, Clark, Partington, were involved in the pre-petition wrаngling for control over the Debtor in the District Court. While the time entries for Clark, Partington were not specifically identified as related to the involuntary, the context of the time entries show that they did not become involved in this case until less than a month before the filing of the involuntary petition, and it appears that the only involvement of Clark, Partington in this case was related to the representation of the Trade Creditors in prеparing, filing, and prosecuting the involuntary petition. Therefore all of the fees sought by Clark, Partington up to the entry of the order for relief will be allowed.
However, it appears that the attorney for Ciano, Mr. John E. Venn, Jr., was involved at least to some extent in the District Court litigation for control over the Debtor or the exploration of nonbank-ruptcy alternatives to the involuntary petition. These services were not directly related to the involuntary petition. Though pre-petition investigation and research into the propriety of filing the involuntary petition are compensable,
Crazy Eddie,
The time spent on actions within the bankruptcy case that are nоt directly related to the prosecution of the involuntary petition or the preservation of the estate are not compensable under §§ 503(b)(3)(A) and 503(b)(4).
See Crazy Eddie,
In addition, “the time spent conferring with non-petitioning creditors produced no demonstrable benefit to the es
The Objecting Creditors have argued that some of the time entries are so vague that it is impossible to determine whether they are related to the involuntary petition at all. I disagree. The requirement that entries on timesheets be made in a manner that allows review by the court should not “impose slavish and overburdensome record-keeping requirements which, in the final analysis, result in fee applications of such enormous length and detail that they are of little ultimate value to the Court in awarding fees.”
In re Frontier Airlines, Inc.,
The Objecting Creditors have asserted that fees incurred for post-petition settlement discussions that would have resulted in the dismissal of the involuntary petition should not be allowed. Though unsuccessful pre-petition attempts at a nonbankruptcy workout are not compensa-ble,
Stoecker,
The Objecting Creditors have also objected to certain of the fees sought as being duplicative. However, “[t]he mere fact that several attorneys are representing petitioning creditors does not foreclose an award of administrative expenses to each of them, so long as there is a definite effort to avoid duplicative work and to represent all petitioning creditors on an efficient basis.”
Hanson,
ORDERED and ADJUDGED that the Petitioning Creditors’ Motion for Allowance of Administrative Expense (Doc. 298) is GRANTED in part. Ciano is allowed $924.45 under § 503(b)(3)(A) and $23,712.50 under § 503(b)(4), and the Trade Creditors are allowed $1,653.63 under § 503(b)(3)(A) and $20,127.50 under § 503(b)(4).
DONE and ORDERED.
APPENDIX
Table A
Date Description Rate Hours Cost
03/30/07 Phone call with other attorney-records, -Litvak re: corporate 250.00 0.20 50.00
03/30/07 Legal Research re: dissolution and receivership. 250.00 ,50 125.00
04/01/07 Legal Research re: miscellaneous issues relating to LLC’s. 250.00 1.50 375.00
04/01/07 Preparation of notice of special meeting of LLC’s members. 250.00 0.70 175.00
04/01/07 Phone call with Alan Siskind re: filing for receivership, etc. 250.00 .20 50.00
04/01/07 Conference with client re: notice of special meeting, etc. 250.00 .30 75.00
04/01/07 Legal Research re: rights of transferee of member of LLC.250.00 1.90 475.00
04/03/07 Preparation for meeting with Litvak & Beasley re: issues and alternatives. 250.00 0.50 125.00
04/03/07 Conference with other attorney-issues and alternatives. -Litvak & Beasley re: 250.00 1.50 375.00
04/04/07 Letter to other attorney — Raymond re: out of court work out. 250.00 0.60 150.00
04/04/07 E-Mail to — Hammer. 250.00 0.30 75.00
04/06/07 Phone call with client re: call from Foss and settlement parameters. 250.00 0.20 50.00
04/06/07 E-Mail to other attorney — Hammer. 250.00 0.50 125.00
04/11/07 Attendance at meeting re: LLC 250.00 .20 50.00
04/11/07 [Dissallowed to the extent of time spent conferencing on “alternatives”!250.00 .75 187.50
04/12/07 Phone call with client re: letter from Horvath terminating Siskind, еtc. 250.00 0.20 50.00
04/17/07 Phone call with client re: Horvath at Bank of Pensacola 250.00 0.20 50.00
04/20/07 Phone call with client re: notice of meeting, etc. 250.00 0.20 50.00
04/24/07 Conference with other attorney — Beasley, et al re: status, alternatives, and things to do 250.00 2.20 550.00
05/02/07 Investigation — re: SEC filings for CAC 200.00 0.50 100.0 0
05/02/07 Phone call with other attorney — Bates re: Horvath’s contacts with Bank of PNS. 200.00 0.30 60.00
TOTAL: 3,322.50
Table B
Date Description Rate Hours Cost
05/02/07 Preparation of complaint to guaranty fees 200.00 0.20 40.00
05/05/07 Investigation — research on UCC’s 200.00 0.50 100.00
05/05/07 Investigation — research on new rеsident agent for KALC 200.00 0.30 60.00
06/07/07 Review of Ohio Funding lawsuit — recent filings. 200.00 1.00 200.00
06/18/07 Phone call with Siskind re: hearing in Miami. 200.00 0.20 40.00
06/19/07 Letter to other attorney — Kaufman re: Ohio Funding. 200.00 0.20 40.00
05/31/07 Review of pleadings in federal court lawsuit 200.00 0.80 160.00
06/25/07 Phone call with Siskind re: change of management of Ohio Funding.200,00 0.20 40.00
06/26/07 Phone call with client re: contract on Milton store. 200.00 0.20 40.00
0.30 06/27/07 Phone call with other attorney- — Farrington re: Roche contract and deadlines. 200.00 60.00
06/28/07 Phone call with other attorney — Hammer re: termination of lease. 200.00 0.20 40.00
06/29/07 Phone call with other attorney-OHammer re: lease. 200.00 0.20 40.00
06/29/07 E-Mail to — everyone re: termination on lease. 200.00 0.20 40.00
07/09/07 Phone call with other attorney — Beasley re: termination of lease. 200.00 0.20 40.00
07/09/07 E-Mail to — Thames re: termination of lease. 200.00 0.20 40.00
07/10/07 E-Mail to — Hammer re: termination of lease. 200.00 0.20 40.00
07/10/07 Revision of motion re: termination of lease. 200.00 0.20 40.00
07/11/07 E-Mail to — Thames re: motion. 200.00 0.10 20.00
07/11/07 E-Mail to — -Lane re: motion to terminate lease. 200.00 0.10 20.00
07/26/07 Attendance at hearing re: motion to withdraw 200.00 0.30 60.00
TOTAL: 1,240.00
Table C
Date Description Rate Hours Cost
06/14/07 Phone call with other attorney — Aventura’s attorney. 200,00 0,30 60.00
06/25/07 Phone call with Siskind re: encouraging Aventura to .join involuntary.200.00 0,20 40.00
06/29/07 Letter to other attorney — Craig Waltzer. 200.00 0.30 60. 00
06/29/07 E-Mail to — to Jere Lane. 200.00 0.80 160.00
TOTAL: 320.00