In Re Lewis
MEMORANDUM OPINION
I. INTRODUCTION
The above-captioned chapter 13 bankruptcy cases were dismissed prior to confirmation of each debtor’s chapter 13 plan. In each case, the law firm of Jenkins & dayman (“J
&
C”), served as counsel for the Debtor and requested that the court direct the chapter 13 trustee (“the Trustee”) to make a distribution to J
&
C on
In this Memorandum Opinion, I will explain why I believe that J & C is entitled to the relief that it has requested in In re Lewis, Bky. No. 04-36778 (“Lewis”), but is not entitled to the relief in In re Nesmith, Bky. No. 04-34214 (“Nesmith”).
II. PROCEDURAL HISTORY
A. Lewis
Shekima T. Lewis filed a voluntary petition under chapter 13 of the Bankruptcy Code on December 20, 2004.
1
In the statement filed pursuant to
1. ...
For legal services, I have agreed to accept...........$1,986.00
Prior to the filing of this statement I have received.......$ 306.00
Balance
Due ...................$1,680.00
5. In return for the above fee, I have agreed to render legal service for all aspects of the bankruptcy case, including:
a.Analysis of the debtor’s financial situation, and rendering advice to the debtor in determining whether to file a petition in bankruptcy;
b. Preparation and filing of any petition, schedules, statement of affairs and plan which may be required;
c. Representation of the debtor at the meeting of creditors and confirmation hearing, and any adjourned hearings thereof;
d. Representation of the debtor in adversary proceedings and other contested bankruptcy matters.
e. Other: $194 filing fee has been paid
6. By agreement with the debtor(s), the above-disclosed fee does not include the following services: .... 2
The Debtor’s chapter 13 plan was primarily designed to cure a default on a lease of residential real property, estimated in the plan to be approximately $2,700, while the Debtor made post-petition lease payments directly to the lessor. The plan also provided for an assumption of the lease.
See
According to the docket, the major events in the bankruptcy case were:
• two separate Motions to Dismiss filed by the Trustee, the second of which was originally scheduled for June 28, 2005, but was repeatedly continued to July 26, 2005, August 16, 2005, September 6, 2005, September 20, 2005, November 1, 2005 and November 22, 2005;
• a Motion for Relief from the Automatic Stay filed by the lessor, which was granted by the court by order docketed April 6, 2005.
On November 29, 2005, J & C filed a Motion Requesting that the Standing Chapter 13 Trustee Be Directed to Hold All Pre-Confirmation Funds on Hand Pending Appeal. 3 On December 1, 2005, J & C filed a Notice of Appeal with respect to the bankruptcy court’s denial of the Lewis Motion. Neither the Debtor nor J & C appealed the bankruptcy court order dismissing the bankruptcy case.
Following the appeal, the bankruptcy court docketed a Memorandum pursuant to L.B.R. 8001 — 1(b).
4
In the Memorandum, the court explained that the denial of the
Lewis Motion
was based on
Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title—
(3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.
In re Lewis, Bky. No. 04-36778, slip op. at 3 (Bankr.E.D.Pa. December 15, 2005). The court also observed: “I am not unmindful of the difficulty debtor’s counsel may sometimes face in collecting unpaid fees in dismissed chapter 13 cases; however, compelling the chapter 13 trustee, and inviting the Court, to join the fee collection process under these circumstances is not appropriate.” Id., slip op. at 4 n. 4.
On February 7, 2006, while the district court appeal was pending, J & C filed an Application for Compensation (“the Lewis Application”) in the bankruptcy court requesting the allowance of compensation. The Lewis Application is confusing. It refers to “the original retainer” of $1,986 as well as “non-standard fees” (a term that reads like a term of art but which is unknown in this court) of $1,762. The Application then “request[s] an allowance of $420.” In another paragraph, it states that “the total of both standard and nonstandard fees is $1,762.00 and expenses total $0.00, (a total of $1,762.00) [and] requests a total allowance of $420.” The Application does include time records, which I interpret to state that various attorneys in the firm collectively expended 7.3 hours in providing services to the Debtor during the period February 2, 2005 through January 17, 2006. The services centered on the lessor’s motion for relief from stay, the Trustee’s Motion to Dismiss and the unsuccessful effort to obtain confirmation of the proposed chapter 13 plan.
It appears that J & C requests an allowance of $420.00, based on the practicality that the Trustee has only $420.00 on account derived from the Debtor’s pre-con-firmation chapter 13 plan payments. I
On March 7, 2006, the district court vacated the bankruptcy court’s order denying the Lewis Motion. The district court stated:
Collectively, sections 330(a), 503(b) and 1326(a) permit attorneys’ fees and other administrative expenses be deducted from funds held by the Trustee before the balance is returned to the debtor, even when the case is dismissed before a plan is confirmed. The bankruptcy judge, however, never discussed what impact, if any, the characterization of attorneys’ fees as an administrative expense has onsection 349(b)(3) ’s requirement of reversion of funds to the debtor. Although the Bankruptcy Court relied onsection 349(b)(3) and raised justifiable concerns about judicial administration, the record is not adequate to explain whether the disallowance of сounsel’s requested fees was made in light of the Bankruptcy Code’s language [that] attorneys’ fees may qualify as administrative expenses subject to disbursement prior to reversion of funds to the debtor. Because the Bankruptcy Court made no explicit reference to nor addressed the interaction of all the relevant Code provisions, I am reluctant to rule on this issue in the absence of any record of such consideration.
In re Lewis,
The district court vacated the Bankruptcy Court Order and remanded the matter to this court:
to make findings and provide further explanation to support its reasoning.... Therefore, on remand, the Bankruptcy Court shall make appropriate findings as to whether11 U.S.C. § 330(a) , 503(b) and 1326(a) permit an award of attorneys’ fees in cases dismissed prior to plan confirmation and the timeliness of [J & C’s] application for attorney’s fees filed on February 7, 2006 in light of11 U.S.C. § 503(a) .
Id. at *2.
After the return of the appeal to the bankruptcy court from the district court on April 10, 2006, a hearing was held on May 9, 2006. The Debtor did not attend the hearing. No formal evidence was offered by any party in interest during the hearing.
B. Nesmith
James D. Nesmith, Jr. filed a voluntary petition under chapter 13 of the Bankruptcy Code on October 21, 2004. In the statement filed pursuant to
1. ...
For legal services, I have agreed to accept...........$1,986.00
Prior to the filing of this statement I have received.......$ 456.00
Balance Due ................$1,530.00
5. In return for the above fee, I have agreed to render legal service for all aspects of the bankruptcy case, including:
a. Analysis of the debtor’s financial situation, and rendering advice to the debtor in determining whether to file a petition in bankruptcy;
b. Preparation and filing of any petition, schedules, statement of affairs and plan which may be required;
c. Representation of the debtor at the meeting of creditors and confirmation hearing, and any adjourned hearings thereof;
d. Representation of the debtor in adversary proceedings and other contested bankruptcy matters.
e. Other: $194 filing fee has been paid
6. By agreement with the debtor(s), the above-disclosed fee does not include the following services: .... 5
All three chapter 13 plans filed by the Debtor were designed primarily to cure a residential mortgage prepetition payment delinquency, estimated in the plan to be approximately $13,000, while the Debtor made post-petition plan payments directly to the mortgage lender.
6
See
The docket reflects a substantial amount of activity in this chapter 13 case, including:
• two separate Motions to Dismiss filed by the Trustee, the hearings on which were continued numerous times between March 2005 and February 2006;
• the filing of two amended chapter 13 plans by the Debtor (both titled “Amended Chapter 13 Plan;”
• a Motion for Relief from the Automatic Stay filed by a home mortgage lender, which by the court granted by order entered September 1, 2005;
• a Motion to Reimpose the Automatic Stay filed by the Debtor, which was filed on November 29, 2005 and withdrawn on January 16, 2006;
• continuances of the confirmation (originally scheduled for April 5, 2005) to May 17, 2005, June 14, 2005, July 26, 2005, August 16, 2005, September 20, 2005, November 1, 2005, November 29, 2005, December 20, 2005, January 17, 2006 and February 7, 2006.
On October 13, 2005, after relief from stay was granted but before the Debtor filed the Motion to Reimpose the Stay, J & C filed a Motion to Approve the Distribution of Pre-Confirmation Payments Held by the Chapter 13 Standing Trustee to Debtor’s Counsel for Outstanding Legal Fees. That Motion was withdrawn on November 16, 2005.
On February 7, 2006, the court signed an order dismissing this bankruptcy case. The order was entered on the docket on February 8, 2006. As of that date, the Debtor had made $3,735.57 in chapter 13 plan payments to the Trustee.
Two days later, on February 10, 2006, J & C filed another Motion to Approve the Distribution of Pre-Confirmation Payments Held by the Chapter 13 Standing Trustee to Debtor’s Counsel for Outstanding Legal Fees (“the
Nesmith Motion”).
On March 14, 2006, a hearing was held on the
Nesmith Motion.
The court entered an order directing J
&
C to file an application for compensation pursuant to
A hearing on the Nesmith Motion and the Nesmith Application was held on May 9, 2006. The Debtor attended the hearing, but was unrepresented with respect to the Nesmith Motion and the Nesmith Application. In response to a question from the court, the Debtor stated that he believed that he was entitled to a return of $2,000 of the $3,735.57 held by the Trustee. No formal evidence was offered by any party in interest during the hearing.
To resolve the disputes before me, I must consider the meaning and interrelationship of several different provisions of the Bankruptcy Code and rules of procedure.
Since J & C seeks a distribution on account of counsel fees allegedly earned in representing the bankruptcy debtors in the two matters before me, the starting point is
In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.
The procedure for allowance of compensation is set forth in
In this district, the procedures of
The next relevant statutory provision is
Finally, there are two additional Code provisions that govern the disposition of assets in the bankruptcy estate in related circumstances.
Section 1326(a)(2) deals with the disposition of the plan payments held by the chapter 13 trustee prior to confirmation of a plan and provides, in pertinent part:
A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deductiny any unpaid claim allowed undersection 503(b) of this title.
Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title—
(3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.
IY. CONTENTIONS OF THE PARTIES
J & C’s argument may be summarized as follows:
1. Even after dismissal of a case, the court retains jurisdiction to address the disposition of estate property.
2. Under§ 349(b) , the court has discretion to modify the automatic re-vesting of estate property (in this case, the undistributed chapter 13 plan payments) in the entity in which the property was vested pre-petition. 8
3. In determining whether to exercise the authority granted to the court by§ 349(b) , the court should be influenced by the policy reflected in ■§ 1326(a)(2) — which governs cases in which a chapter 13 plan is not confirmed — and which provides for the payment of administrative expenses allowed under§ 503(b) before the monies derived from chapter 13 plan payments are returned to a debtor.
4. The court should exercise its authority under § 349(b) to override the automatic revesting of the estate assets in the debtor and direct that administrative expenses be paid before any funds are returned to each Debtor.
The Trustee’s arguments may be summarized as follows:
1. After dismissal of the cases before the court, the court lacks jurisdiction to consider the disposition of the funds held by the Trustee because the dismissal order did not specifically retain jurisdiction over any estate property.
2. Even if there is jurisdiction following dismissal, where J & C had not even filed a fee application prior to dismissal, there were no allowed administrative expenses at the time of dismissal. Thus, even if, upon dismissal under§ 349(b)(3) , allowed administrative expenses should be paid before the ‘remainder of the funds revest in the debtors as provided in§ 1326(a)(2) , J & C did not satisfy the requirements of§ 1326(a)(2) because counsel fees had not been allowed as an administrative expense at the time of dismissal. 9
3. In any event, J & C has not established “cause” for overriding the automatic revesting of estate property in the debtor pursuant to11 U.S.C. § 349(b)(3) .
There are reported decisions that support arguments advanced by both sides in this dispute. Among the cases that provide some support to J & C’s position are:
In re Steenstra,
Y. THE RECENT DECISION IN THIS DISTRICT IN IN RE RAGLAND
After the hearing held on May 9, 2006 in both cases, and while the
Nesmith Motion,
the
Nesmith Application,
the
Lewis Motion
and the
Lewis Application
were under advisement in this court, another bankruptcy court in the district issued a Memorandum decision explaining the basis for its ruling in two cases.
See In re Ragland,
Bky. No. 05-18142BIF,
The facts in
Ragland
and its companion case, Neil, are the same as those in
Nes-mith.
In each of the three cases, the dismissal order was entered prior to the confirmation of a chapter 13 plan. Each dismissal order was unconditional. The orders did not purport to retain jurisdiction over any matters. They did not expressly override the ordinary functioning of
In its analysis, the
Ragland
court began with the proposition that as a general rule, the bankruptcy court lacks jurisdiction over proceedings related to the bankruptcy after dismissal of the underlying case. Slip op. at 11 (citing
In re Smith,
The court’s logic leads to the conclusion that in Ragland, Neil (and now Nesmith), where no proceeding had been instituted by J & C at the time of the entry of an unconditional dismissal order, the court lacks jurisdiction over J & C’s post-dismissal motion, unless some other legal principle supports the existence of jurisdiction. The court then discussed three possible sources of jurisdiction.
First, the court looked to
Next, the court considered whether the principle of ancillary jurisdiction provided a basis to consider the post-dismissal request for an award of compensation. The court acknowledged the existence of case-law that suggests that a bankruptcy court has the power to rule on a counsel fees matter even if it is first raised after dismissal and the dismissal order did not expressly retain jurisdiction over the subject.
15
However, the court looked for guidance in the Supreme Court’s decision in
Kokkonen v. Guardian Life Insurance Co.,
Finally, the court considered the possibility that reconsideration of the dismissal order under
VI. J 8c C IS ENTITLED TO THE RELIEF REQUESTED IN LEWIS
A.
J & C filed the
Lewis Motion
prior to the dismissal of the ease, request
However, another threshold question is whether the finality of the dismissal order in
Leíais
precludes consideration of the merits of J & C’s request under
I conclude that the appeal of the bankruptcy court’s order denying J
&
C’s request for a pre-confirmation distribution was adequate to preserve J & C’s asserted rights under
As I conceptualize it, the issues of dismissal of the case and the disposition of estate assets were bifurcated by the entry of two separate court orders. One of those orders (the dismissal order) became final while the other order (the order determining the disposition of the estate assets) was timely appealed. Although the underlying bankruptcy case has been dismissed, the question whether the court should exercise the power to override the automatic revesting of estate property and the proper disposition of estate property has never been finally determined. I am satisfied that the appeal of the separate order denying the Lewis Motion preserved the issue addressed by that order: J & C’s entitlement to payment from the pre-con-firmation plan payments. 18
On the merits, the issue, as framed by J
&
C, is whether counsel for a chapter 13 debtor can establish that “cause” exists under
These two Code sections cover similar subject matter but provide for presumptively different outcomes with respect to the treatment of allowed administrative expenses.
By comparison, the text of
The key issue is whether the text of
After considering the text of both provisions, I find neither competing interpretation of the statute to be fully satisfactory.
21
Thus, I must cobble together a construction of the statute which seeks to best carry out Congress’ goals in both provisions and to harmonize the two provisions, if possible.
See, e.g., In re Handel,
Although the issue of statutory construction is a difficult one and cogent arguments can be presented in support of a contrary result, I conclude that: (1)
C.
Based upon its structure,
The subject matter of
The first sentence of
While this interpretation of the statute has a certain appeal, it also presents several textual problems.
First, while the structure of
Second, construing
One way to resolve the potential gap in
Aside from the textual analysis set forth above, I observe that a number of reported cases have employed the
Notwithstanding the foregoing discussion, treatment of
First and foremost, the plain language of the third sentence of
In this district, it is the exceedingly rare chapter 13 case in which administrative expenses (most commonly, attorney’s fees for the debtor’s counsel) are formally allowed by the court prior to confirmation of the debtor’s chapter 13 plan. There is a very good reason for this. Deferral of the allowance of professional compensation in a chapter 13 case until confirmation facilitates the court’s task of applying the standards of reasonableness, benefit and necessity set forth in
When a chapter 13 plan is confirmed, there is an obvious and demonstrated benefit to the debtor and, presumably, counsel’s services contributed to completion of the case. In most cases, additional proof will not be needed. But when cases are dismissed prior to plan confirmation, Counsel must provide an explanation in the fee application and evidence that counsel provided substantial, valuable professional services including investigation, evaluation, and counseling that was intended and designed to achieve an objective appropriate for chapter 13 cases.
In re Phillips,
If
My view, that the application of
If a plan is not confirmed, however, it is unlikely that use of the so-called “no look” fee allowance process under L.B.R.2016-2 would be appropriate. Rather, if a request for compensation is made in a case that will not be confirmed and is subject to dismissal, the court would have to employ the traditional analysis of determining the
In most chapter 13 cases in which pre-confirmation dismissal looms as a danger to the debtor, it should be expected that the energies of the debtor’s counsel, as the debtor’s legal advocate, will be focused on avoiding dismissal and obtaining confirmation of the debtor’s chapter 13 plan. This is appropriate since the purpose of counsel’s endeavors is to achieve the goals of the debtor-client rather than to maximize counsel’s compensation. Counsel should not be encouraged to presume that the case is futile and to shift his or her efforts to the protection of counsel’s rights under
In short, even if one concludes that the policy of
For all of the reasons expressed above, I conclude
D.
Application of the legal principles discussed above to this case is not difficult.
In this case, at the time of the dismissal, J & C’s request for allowance of an administrative expense had not been “allowed.” Thus, even if
As the court pointed out in
Ragland,
slip op. at 20 & n. 13, there is another issue that merits consideration. The debtor’s counsel, by virtue of the information available to him due to his role in the case, is likely to be in a far better position to recognize when a case is likely to be dismissed than the debtor’s creditors and therefore, is also in a far better position to initiate a request that the court exercise its discretion under
In exercising the discretion afforded to the court under
After the disposition of the Lewis Application and resolution of any other issues that may arise with respect to the disposition of the pre-confirmation plan payments, I anticipate that the Trustee will be able to deliver the money in his possession to the proper parties and that this case will be ready to be closed.
E.
One last issue must be addressed before the Lewis Motion is ready for disposition. The issue arises from the procedural posture of the case.
This court’s order denying the Lewis Motion was appealed. On appeal, the order was vacated and the matter was remanded to the bankruptcy court. The mandate of the district court, see slip op. at 6, supra, possibly could be read to limit my authority to making appropriate findings explaining the prior bankruptcy court decision (which was made by a different judge) and nothing more. However, I do not interpret the district court order to impose such a limitation, which allows me to reach a result which is contrary to that initially reached by my predecessor judge in this case.
I conclude that issuance of an order in this case modifying the presumptive revesting of all estate property under
For these reasons, I find that my plenary reconsideration of the issues raised in J & C’s appeal is consistent with the district court’s mandate, thereby permitting the entry of another order by this court addressing the subject matter. Of course, upon entry of the order accompanying this Memorandum Opinion, any aggrieved party may file an appeal.
VIL J&CIS NOT ENTITLED TO THE RELIEF REQUESTED IN NESMITH
As stated above, the operative facts in Nesmith are the same as those in Ragland. Thus, if I were to follow Rag-land, the proper result would be to deny the Nesmith Motion and the Nesmith Application for lack of subject matter jurisdiction. I agree that with the Ragland court’s conclusion that a bankruptcy court lacks jurisdiction to determine the proper disposition of funds held by the chapter 13 trustee, based upon the type of motion filed by J & C after the entry of the case dismissal order. Therefore, as in Rag-land, I will deny the Nesmith Motion. I address the issue in order to briefly amplify the reasoning for the decision.
The
Ragland
court’s conclusion that it lacked jurisdiction was premised substantially on its view that the funds in dispute were no longer property of the estate due to the entry of the unconditional order dismissing the bankruptcy case. Slip op. at 13-14. The filing of J & C’s motion within three days after the entry of the dismissal order raises the question whether the motion stripped the dismissal order of its finality to the extent that the dismissal order purported to remove the pre-confirmation plan payments from the bankruptcy estate pursuant to the revest-ing provision of
The court in
Ragland
treated J
&
C’s motion, filed within three days of the entry of the dismissal order, as a motion for relief from judgment or order under
A court enjoys considerable discretion in deciding a
I conclude that the
Nesmith Motion
does not allege any grounds which bring it within the three categories identified by the Court of Appeals for
Separate orders will be entered in Lewis and Nesmith consistent with this Memorandum Opinion.
ORDER
AND NOW, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED and DETERMINED that:
1. Jenkins & dayman’s Motion to Approve the Distribution of Pre-Confirmation Payments Held by the Chapter 13 Standing Trustee to Debtor’s Counsel for Outstanding Legal Fees (“the Motion”) is GRANTED IN PART AND DENIED IN PART:
(1) Pursuant to
(2) In all other respects, the Motion is DENIED.
2. A hearing shall be held on, _, at __..m, in Bankruptcy Courtroom No. 1, U.S. Courthouse, 901 Market Street, Philadelphia, PA to consider Jenkins & dayman’s Application for Compensation.
3. Any other party who asserts an entitlement to the allowance of an administrative expense pursuant to
4. Jenkins & dayman shall serve a copy of this Order on all creditors and file a Certification of Service prior to the hearing date set forth in Paragraph 2 above.
ORDER
AND NOW, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that:
1. Jenkins & dayman’s Motion to Approve the Distribution of Pre-Confirmation Payments Held by the Chapter 13 Standing Trustee to Debtor’s Counsel for Outstanding Legal Fees is DENIED.
2. Jenkins & dayman’s Application for Compensation is DENIED.
Notes
. The court may take judicial notice of the docket and the content of the bankruptcy schedules and other documents filed in the case for the purpose of ascertaining the timing and status of events in the case and facts not reasonably in dispute.
See
. No excluded services were identified in Paragraph 6 of the 2016(b) Statement.
. The docket does not reflect any further activity with respect to the motion requesting that the Trustee hold all pre-confirmation funds. However, the Trustee has represented to the court in subsequent hearings that he is voluntarily holding the funds until this matter is resolved. At the time of the dismissal, the Debtor had paid the Trustee $420.00 in chapter 13 plan payments.
. The decision was rendered by the Hon. Kevin J, Carey, prior to his appointment to the U.S. Bankruptcy Court for the District of Delaware.
. No excluded services were identified in Paragraph 6 of the 2016(b) Statement.
. The Debtor’s estimate was relatively close to the amount of the arrears set forth in the proof of claim filed by the mortgage lender.
.
. There is no suggestion that the funds held by the Trustee in any of the cases before me are derived from an entity other than the debtor. Therefore, on occasion, for ease of reference in this Memorandum Opinion, I will refer to the revesting of the funds "in the debtor,” even though
. The Lewis Motion, for distribution of the pre-confirmation funds, was filed before dismissal of the case. The Nesmith Motion was filed after dismissal of the case.
. These distinctions may not apply to certain principles expressed in
Lampman.
However,
Lampman
is distinguishable as a post-confirmation dismissal case, which renders the third sentence of
The Lampman court went beyond deciding the case before it and announced its intent to follow a particular procedure by which a debtor's counsel could request payment from undistributed funds in a case in which a chapter 13 plan has not been confirmed at the time of dismissal of the case. In doing so, the court appeared to be engaged in the process of "local rulemaking” via judicial opinion. The court described the new procedure as follows:
[0]n motion to voluntarily dismiss prior to confirmation, the debtor’s attorney must also move for allowance of its fees, and furnish sufficient documentation to permit the court to rule on whether the fees should be allowed. The motion must be countersigned by the debtors, to assure the court that the debtors are aware of the fees being requested, and concur in their payment. The order granting voluntary dismissal must contain the following language:
The attorneys' fees requested are hereby allowed as an administrative claim, and are to be deducted from any funds on hand with the Chapter 13 Trustee and paid over to the attorneys. The allowance is, however, contingent upon the Chapter 13 Trustee having the right to object to the allowance of the claim within ten (10) days of the entry of this order. The Chapter 13 Trustee may waive the right to object by tendering the fees allowed. If the Chapter 13 Trustee timely objects, then the trustee shall retain the funds deducted, pending a ruling by the court on the objection. The court by this order, retains continuing jurisdiction to adjudicate any objections to the allowance of fees notwithstanding the dismissal of the case.
. The Ragland written Memorandum is reported on the website maintained by the bankruptcy court in this district and may be accessed at the following URL: http://www.paeb.uscourts.gov/pages/pubo-pins/pdP ragland_05-18142_neiL05-31361 fee_disbursejurisdiction.wo.pdf
. The procedural history in
Lewis
is different. In
Lewis, the Lewis Motion
(requesting that the court direct the Trustee to make a distribution to J & C on account of unpaid counsel fees allegedly earned by J & C in the course of the bankruptcy representation) was pending before the court when the case was dismissed. The order denying the
Lewis Motion
was appealed and remanded. J & C did not appeal the dismissal order itself and, through the passage of time, that order has become final for purpose of appeal.
See
. In support of this proposition, the
Ragland
court cited
In re Gregory,
. The court cited
In re Fox,
. The court cited
In re Taylor,
.
.Courts have held that
. Had I concluded otherwise, other thorny issues come to mind. In light of the procedural complexities in this case, would relief from the dismissal order under
. The court in Ragland did not decide this issue. Slip op. at 19 n. 12.
. In making this point in
Barbee,
Judge Ginsberg referred to
. Nor can I locate any legislative history which is helpful in explicating the relationship between
. I doubt that anyone would dispute the proposition that if confirmation of a plan is denied and the case is not being dismissed,
. A parallel construction would read as follows: "If confirmation of a plan is denied, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under
. In a chapter 13 case prior to confirmation, property of the estate includes most legal and equitable interests of the debtor in property as of the commencement of the case,
see
. Further support for this interpretation of the relationship between the two Code sections may be found in the general principle that a more specific statutory provision (in this case,
.
In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including—
(A) the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
(E) with respect to a professional person, whether the person is board certified or otherwise has demonstratеd skill and experience in the bankruptcy field; and
(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
.
In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debt- or's attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.
. As a general principle, the timing of the actual payment of allowed administrative expenses (as opposed to the allowance of the administrative expenses) in bankruptcy cases rests within the sound discretion of the court.
See
4
Collier on Bankruptcy
¶ 503.03 (15th rev. ed.2005);
In re Dieckhaus Stationers of King of Prussia, Inc.,
. Another critique of the application of
. The Trustee argues that the
Lewis Motion
should not be treated as an application for allowance of compensation because it did not comply with the requirements of
. The Trustee should not have to bear this expense. See Ragland, slip op. at 20 & n. 14.
. I do not endorse all of the court’s reasoning in Ragland. Compare Part VI., supra with Ragland, slip op. at 19 n. 12 & accompanying text.