In Re Vernon-Williams
These matters come before the Court upon remand from the United States District Court for the Eastern District of Virginia. On November 28, 2006, the United States District Court issued a Memorandum Opinion and Order in the above captioned matters which affirmed in part and reversed in part this Court’s Order Denying Supplemental Fees and Costs entered on April 27, 2006. Hearings were held on April 30, 2007. At the conclusion of the hearings, the Court took these matters under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. Upon consideration of the evidence and arguments presented by counsel at the hearings and the pleadings submitted, the Court makes the following findings of fact and conclusions of law.
I. PROCEDURAL HISTORY
The procedural history and applicable facts of these cases were thoroughly discussed in this Court’s previous Memorandum Opinion.
See In re Vernon-Williams,
On May 8, 2006, counsel for The Bole-man Law Firm, P.C. (the “Boleman Firm”) timely filed the firm’s Notice of Appeal with the Court. On May 18, 2006, the Boleman Firm filed its Statement of Issues Presented, which listed ten issues for the United States District Court to determine on appeal. Those issues included whether this Court erred in holding “that funds received as reimbursement for costs were actually applied to fees” and in holding “that all requested costs must be denied despite relevant, trustworthy and persuasive evidence that costs were incurred in providing required services.” Statement of Issues Presented, filed by The Boleman Law Firm, P.C., May 18, 2006, Docket Entry 208, at 2. 2 In its brief filed in the District Court, the Boleman Firm stated with regard to the cost issues:
While Boleman initially appealed the Bankruptcy Court’s rulings denying both fees and costs, this brief — and the appeal — are limited solely to the issue of the Bankruptcy Court’s denial of supplemental attorneys’ fees. Boleman intends to submit additional cost information to the Bankruptcy Court, at least with respect to the remaining 122 cases....
Excerpt of Brief of Appellant, The Bole-man Law Firm, P.C., in Support of its Appeal from the United States Bankruptcy Court, filed May 2, 2007, Docket Entry 257. 3
On November 28, 2006, Chief United States District Judge James R. Spencer issued a Memorandum Opinion and Order affirming in part, reversing in part, and remanding the cases for further proceedings consistent with the opinion.
The Boleman Law Firm, P.C. v. United States Trustee,
On January 10, 2007, counsel for the Boleman Firm filed a Motion to Rescind Order Continuing Generally All Cases and for Order Allowing All Pending Supplemental Fee Applications with a Ten Percent (10%) Downward Adjustment or, in the Alternative, to Set All Pending Supplemental Fee Applications for Trial (“Motion to Rescind”). The Boleman Firm requested that the Court’s previous order continuing generally the remaining cases associated with the United States Trustee’s First and Second Omnibus Objections to Supplemental Fee Applications of the Boleman Law Firm be rescinded and that the firm’s request for supplemental fees in those cases be approved, less a ten percent reduction to account for the firm’s failure to “maintain traditional time records for these cases” so as to be consistent with the ruling by the United States District Court and to “provide[ ] a mechanism by which the voluminous pending Supplemental Fee Applications can be resolved without undue burden on the Court and other affected parties.... ” Motion to Rescind, filed Jan. 10, 2007, Docket Entry 230, at 3-4.
The United States Trustee filed a response to the Motion to Rescind on February 12, 2007. The United States Trustee opposed the suggestion to approve the fee applications subject to a ten percent reduction, arguing that the request “completely ignores the extensive legal process that has taken place so far and glosses over serious deficiencies and irregularities in the Boleman system of keeping time records .... ” Response by United States Trustee to Motion to Rescind, filed February 12, 2007, Docket Entry 233, at 1-2.
On March 13, 2007, this Court conducted a Status Hearing with regard to the Motion to Rescind and the Court’s previous order continuing generally the remaining cases associated with the United States Trustee’s First and Second Omnibus Objections. Upon consideration of the representations made by counsel for both the Boleman Firm and the United States Trustee of their desire to set all of the pending Supplemental Fee Applications for hearings, the Court set the remanded cases as well as all pending Supplemental Fee Applications for evidentiary hearings for April 30, 2007, thereby granting in part the Boleman Firm’s Motion to Rescind. By request of the parties, this Court held a telephonic hearing on April 5, 2007, during which the parties moved to restrict the hearings scheduled for April 30, 2007, to those cases which were the subject of the remand of the District Court and to continue generally the remaining cases associated with the United States Trustee’s First and Second Omnibus Objections. The Court granted the parties’ request.
On April 20, 2007, the Boleman Firm filed its lists of exhibits, numbered 1R through 19R,
5
and witnesses with the
Hearings were held and concluded on April 30, 2007. The Court denied the Boleman Firm’s request to approve the Supplemental Fee Applications subject to the suggested ten percent reduction. The Court provisionally admitted the Boleman Firm’s Exhibits 1R through 19R. The Court also admitted the Boleman Firm’s Exhibits 20R through 30R which were offered during the hearing. At the conclusion of the hearings, the Court directed the parties to submit concurrent briefs within thirty days regarding: (1) whether the Court should be permitted to accept the additional evidence offered by the Boleman Firm so as to supplement the evidence before the Court; and (2) whether the Court has jurisdiction to revisit its previous denial of costs in the eleven remanded cases, as sought by the Boleman Firm. The Court also directed that the parties submit their closing arguments in concurrent briefs within the thirty-day period following the hearing. The Court ordered that concurrent reply briefs were due within fifteen days after the filing of the initial concurrent briefs. Finally, the Court directed counsel for the Boleman Firm to file as an exhibit with the Court the relevant portion of the firm’s appellate brief filed with the District Court, so as to aid the Court in its determination of whether the Court could reconsider at this stage of the proceedings the issue of reimbursement of costs allegedly incurred in these cases.
Prior to the submission of briefs, the parties submitted to the Court a stipulation and consent order with regard to the taking of new evidence on remand. In that stipulation, the United States Trustee agreed to withdraw its objection to the admission of the Boleman Firm’s Exhibits 1R through 19R which the Court provisionally admitted at the April 30, 2007, hearings. The parties further agreed that the Court should consider all of the evidence submitted to the Court at the hearings. The Court accepted the stipulation and entered the consent order on May 29, 2007, which admitted all evidence previously provisionally admitted by the Court and removed the requirement for the parties to submit post-hearing briefs on the issue of whether the Court should be permitted to
This opinion addresses the issue of whether the Court should award supplemental compensation to the Boleman Firm. The Court concurrently issued a separate Memorandum Opinion Concerning Reconsideration of Costs.
II. FINDINGS OF FACT
This Court makes the following findings of fact based upon the testimony given by the sole witness at the hearing, Mark Lef-fler (“Leffler”), an attorney at the Bole-man Firm, 6 and exhibits submitted at the April 30, 2007, hearings. These findings of fact supplement the factual findings made by this Court in its previous Memorandum Opinion issued April 27, 2006, and include references to the Court’s previous findings as necessary.
A. Ellen Lucille Vemovr-Williams, 04-37223-DOT
Ellen Lucille Vernon-Williams was subject to a number of collection actions when she engaged the Boleman Firm to represent her in her Chapter 13 bankruptcy case. These actions included a warrant in debt; two payroll levies; and the imminent repossession of her automobile. Transcript of April 30, 2007, hearings, at 43-44 (hereinafter “Tr.”). According to Leffler, in addition to providing services that the firm typically considers to be “no-look services,” 7 the firm also provided supplemental services, 8 including halting pre-petition collections activities by immediately communicating to those creditors that Ms. Vernon-Williams had filed bankruptcy. Id. at 44^45. The firm also addressed an objection to confirmation of the debtor’s initial Chapter 13 plan filed by the Internal Revenue Service (“IRS”) on the basis that the plan did not provide for the secured claim of the IRS. Id. at 45. The firm, after reviewing Ms. Vernon-Williams’ credit report, which they had accessed prior to filing her petition but which did not reflect the IRS lien, agreed with the IRS that the objection should be sustained as to the original Chapter 13 plan and that a modified Chapter 13 plan should be filed. Id. at 46.
Leffler also testified regarding the general timekeeping manner at the Boleman Firm, referencing the Supplemental Fee Application filed in the Vernon-Williams ease. 9 When asked whether the amounts of 3.1 hours each billed by the individuals identified by the initials “RA” and “PK” was accurate, Leffler stated that time is recorded in tenths of an hour and that if the hours spent were multiplied by the 6-minute increment, the total may exceed the time actually spent. Leffler qualified his statement, however, noting that he did not meet with Ms. Vernon-Williams, and he did not prepare the fee application in that case. Id. at 60-61.
Both attorneys and administrative staff at the Boleman Firm keep time for all tasks performed, including performing legal work and executing clerical duties such as making and serving copies of documents. Id. at 64, 67. Leffler confirmed that photocopies were made of various documents during the course of a bankruptcy case, including the debtor’s driver’s license; pay stubs; Kelley Blue Book values; and Chapter 13 plans. Id. at 65. Leffler stated his belief that it was proper to bill for the time spent making photocopies because of the requirements in the Federal Rules for serving documents on parties in interest. Id. at 66. "When asked whether any tasks performed at the Bole-man Firm would be considered overhead, Leffler stated that “things that are of a general nature that address the business needs of our firm” would be considered such, but that time is kept for every task performed, unless the task is de minimis, such as receiving a telephone call from a client on a matter not related to the bankruptcy case. Id. at 67.
Regarding the Vernon-Williams case in particular, Leffler stated that the four separate creditor actions the debtor was facing “required our firm to act rapidly in taking Ms. Vernon-Williams from the initial consultation to the bankruptcy filing, just two days later.”
Id.
at 47. He went on to state that the number of creditors pursuing collection from Ms. Vernon-Williams was “a bit above and beyond the typical bankruptcy case.”
Id.
Leffler also believed that the response to the objection to confirmation by the IRS should properly be considered supplemental because the
Leffler discussed the Boleman Firm’s Exhibit 20-R with relation to the Vernon-Williams case. According to Leffler, he reviewed the Supplemental Fee Application and verified that the numbers contained on Exhibit 20-R matched those contained in the Supplemental Fee Application. Id. at 53. Leffler explained that the third section of the document reflected the total amount that was requested in the application; the voluntary reduction by the Boleman Firm attributable to their “good billing judgment”; and the overall percentage and amount of that reduction attributable to the fees. Id. at 54-55 (referencing Exhibit 20-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 04-37223-DOT, Ellen Lucille Vernon-Williams). As the exhibit reflects, the total fees sought by the Boleman Firm as of the date of the Supplemental Fee Application was $2,574.50, comprised of the amount from Line 114 ($1,795.50) and Line 204 ($779.00) of the document attached to the Supplemental Fee Application. When the “no-look” amount of $1,500.00 is subtracted, the net fee is $1,074.50. 10 The exhibit further shows that the total amount of fees and costs requested in the application was $800.00, reduced by $426.98 from the total fees and costs of $1,226.98. The firm calculated that 88% of the total amount sought related to the firm’s fees, resulting in the portion of the total amount requested attributable to fees as $704.00. See Boleman Law Firm Exhibit 20-R.
B. Gerald & Vicki Doelling, 03-32020-DOT
Gerald and Vicki Doelling had been recently evicted from their home and owed a significant debt to the Internal Revenue Service when they met with Leffler. Mr. Doelling had suffered from extensive serious illnesses and was receiving disability payments, and Mrs. Doelling was unemployed at that time. The Doellings were referred to the Boleman Firm by a local charity that often refers clients to the firm. Tr. at 73.
Leffler reviews every fee application made in a consumer bankruptcy case that appears on the Court’s docket in the Richmond, Norfolk, and Newport News divisions. Based upon his review of those applications, he does not see anything on the Supplemental Fee Application filed in Doelling case that is inconsistent with general billing practices.
Id.
at 75-76. The supplemental services provided by the firm to the Doellings consisted of responding to a Motion for Relief from the Automatic Stay; responding to multiple objections by the Internal Revenue Service to confirmation of the Chapter 13 plans; filing modified Chapter 13 plans; and responding to two Motions to Dismiss filed by the Chap
The objection to confirmation filed by the IRS, relating to the failure to provide for the priority tax debt owed to the agency and the general tax lien secured by the Doellings’ property, was the “primary” focus of the effort expended on behalf of the Doellings. Id. at 81. Leffler initially believed that, although a large amount of tax debt was owed to the IRS, none of that debt was incurred within the priority time period prescribed by the Bankruptcy Code. However, the IRS cited in its objection to confirmation that the Doellings had not filed several tax returns. Members of the Boleman Firm other than Leffler consulted with the Doellings regarding the tax lien. The objection was sustained by the Court, and the Doellings filed a modified plan. Id. at 81-83. The modified plan did not reflect the tax lien, which the IRS indicated had been filed in Kansas, but where the Doellings insisted they had never lived. The IRS objected to the modified plan on the basis that there was no provision for the agency’s secured claim. The firm again consulted with the Doell-ings, and the IRS continued its investigation of the lien. The parties agreed to sustain the objection to confirmation; Lef-fler stated that “the idea was that we would get this worked out with the IRS.” Id. at 83. Leffler explained that the firm stayed in contact with the IRS, and eventually the IRS confirmed that the tax lien had been filed in the wrong jurisdiction. According to Leffler, the IRS amended its proof of claim, removing the designation of secured status, classifying a small portion of the debt as priority debt and the remainder as a general unsecured claim. Id. at 83-84. Leffler testified on cross-examination that he had inquired at the initial interview with the Doellings as to whether they had filed all of their tax returns, and they answered in the affirmative. Id. at 84.
The Doellings’ case has since been dismissed, after remaining in their Chapter 13 bankruptcy case for approximately three years. According to Leffler, the Doellings suffered additional employment and income problems and even though they eventually became current on their payments to the Chapter 13 Trustee, their case was dismissed. Id. at 74. 11
Referencing the Boleman Firm’s Exhibit 11-R, Leffler explained that beginning on the effective date of BAPCPA, the firm instituted a policy of keeping time in all cases, regardless of whether they were filed prior to the enactment of BAPCPA.
Leffler provided explanation with regard to Boleman Firm Exhibit 21-R relating to the Doelling case. Again, Leffler testified that the amounts contained in Exhibit 21-R are an accurate representation of the amounts contained in the Supplemental Fee Application filed in the Doelling case. Id. at 79-80 (referencing Boleman Law Firm Exhibit 21-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-32020-DOT, Gerald and Vicki Doelling).
A review of Exhibit 21-R reveals that the fees sought are comprised of the amount from Line 114 ($1,795.50) and Line 242 ($2,006.00) of the document attached to the Supplemental Fee Application. When the “no-look” amount of $1,500.00 is subtracted, the net fee, as represented on the exhibit, is $2,301.50. 12 The exhibit further shows that the total amount of fees and costs requested in the application was $1,600.00, reduced by $1,685.58 from total fees and costs of $3,285.58. See Boleman Law Firm Exhibit 21-R. According to Lef-fler, of the $1,600.00 total amount requested, 70% of that amount, or $1,120.00 was attributable to fees. Tr. at 79-80
C. Jimmy & Deborah Pyles, 03-32251-DOT
Jimmy and Deborah Pyles had experienced instability in their income during the years prior to filing their Chapter 13 case. According to Leffler, there were no “specific big types of action” pending against the Pyles at the time they first visited the Boleman Firm; instead, the Pyles were facing a substantial debt load when their income significantly decreased. Tr. at 89.
When asked to explain what services the initial $1,500.00 “no-look” fee encompassed, Leffler began by describing the initial consultation that a prospective debtor has with a paraprofessional (non-lawyer or administrative) staff member of the Boleman Firm, in which information is gathered from the clients and documents are reviewed. Once internal forms are completed by the paraprofessional, an attorney reviews the forms, asks clarifying questions of the client, and explains to the client how the bankruptcy process works as well as alternatives to filing bankruptcy. Id. at 90-91.
With regard to the Pyles case, Leffler referenced Exhibit 60 for the hearing held March 7-8, 2006, the Supplemental Fee Application filed in the Pyles case and recounted that a paraprofessional member of the firm met with the Pyles on February 22, 2003, reviewed their documents, and completed the firm’s internal forms.
Id.
at 92. This employee spent 3.1 hours total performing the initial consultation with the debtor.
Id.
at 102. Attorney Butch Cabreros met with the Pyles and reviewed their information. The Pyles finalized their decision to file bankruptcy and retained the Boleman Firm as counsel. The paraprofessional who initially met with the Pyles prepared the physical file for another employee, who prepared the petition and schedules. According to Lef-fler, the application accurately reflects the services provided for the initial $1,500.00 “no-look” fee.
Id.
at 92-93. Leffler later
Regarding the supplemental services provided to the Pyles, Leffler explained that approximately eighteen months after filing the case, Mrs. Pyles informed the firm that her wages were being garnished by a creditor that was not listed in the original bankruptcy schedules and was not listed on the credit reports the firm accessed for the Pyles. The firm amended the bankruptcy schedules and contacted the creditor to halt the garnishment, which was released approximately one month after the firm contacted the creditor. Id. at 98. The firm also addressed a Motion to Dismiss by the Chapter 13 Trustee for failure to make payments. Upon contacting their clients, the firm learned that Mrs. Pyles had been out of work. Mr. Pyles was able to bring the payments current with his earnings. The firm monitored the Pyles’s payments prior to the hearing on the Motion to Dismiss by asking the Pyles to provide them with copies of all payments sent to the Chapter 13 Trustee’s lock box. Those copies were provided to the Chapter 13 Trustee, who withdrew his motion based upon the curing of the payment arrears. Id. at 98-99. According to Leffler, the Boleman Firm generally requests supplemental fees for these types of services. Id. at 99-100.
Leffler represented to the Court that the Pyles remain in their Chapter 13 case, with the last payment being due to the Chapter 13 Trustee in November 2007. He further informed the Court that the Pyles were in the process of seeking the Court’s approval to purchase a home, as they did not own real property prior to filing their Chapter 13 bankruptcy. Id. at 97. 13
Regarding Exhibit 22-R of the Boleman Firm relating to the Pyles case, Leffler once again testified that the amounts contained in the exhibit are an accurate representation of the amounts contained in the Supplemental Fee Application filed in the Pyles case.
Id.
at 94 (referencing Bole-man Law Firm Exhibit 22-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-32251-DOT, Jimmy and Deborah Pyles). Exhibit 22-R represents that the fee request is comprised of the amount from Line 114 ($1,795.50) and Line 185 ($514.00) of the document attached to the Supplemental Fee Application. The net fee, after subtracting the “no-look” fee, is $809.50. The total amount of fees and costs owed is represented as $649.74, but the firm is only requesting supplemental fees of $500.00.
See
Boleman Law Firm Exhibit 22-R. Leffler explained that the entire $500.00 being requested in the Supplemental Fee Application is attributable to fees because as of the date of the filing of the Supplemental Fee Application, the firm had received monies from the Chapter 13 Trustee for the reimbursement of costs that exceeded the costs actually incurred. Tr. at 95. According to Exhibit 22-R, the Boleman Firm incurred costs totaling $505.24. The Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate for costs. The firm represents that it received $385.00 from the Pyles that it applied to costs, thus resulting in a credit balance of $159.76. However, it appears that the total fees and costs of $649.74 was computed by subtracting the credit balance for costs of $159.76 from the total
D. Geraldine Bessie Markins, 03-34259-DOT
Geraldine Markins, a self-employed painting contractor, owed numerous medical bills and was being sued in state court by one of her medical creditors when she met with Leffler. She also owed federal and state tax obligations. Tr. at 105-06. Leffler confirmed that the typical initial consultation procedures were provided to Ms. Markins when she first visited the Boleman Firm on April 22, 2003. The firm prepared bankruptcy petition and schedules for Ms. Markins’ signature, which she provided on April 29, 2003; the firm filed her petition that same day. Id. at 106.
With regard to the initial services provided to Ms. Markins, Leffler testified that he had no reason to doubt that the descriptions and time records in the Markins case were identical to those same entries in the Vernon-Williams, Doelling, and Pyles cases for both the attorney and the paraprofessional members of the firm. Id. at 113.
The Boleman Firm also provided supplemental services to Ms. Markins. Leffler explained that upon filing Ms. Markins’ case, the firm contacted the creditor that had filed a warrant in debt, providing the creditor with the relevant documentation regarding the bankruptcy filing and advising the creditor of the automatic stay. The firm later followed up with the creditor to ensure that the warrant in debt had been dismissed, which it had. Id. at 107. Ms. Markins’ initial Chapter 13 plan was confirmed, but the total amount of the claims filed by her creditors was higher than anticipated. When the Chapter 13 Trustee advised the firm by letter of the underfunding issue created by the higher-than-anticipated claims, the firm reviewed the situation with Ms. Markins and proceeded to file a modified Chapter 13 plan to address the funding concerns of the Chapter 13 Trustee. Id. at 107-08. The filing of this modified plan does not appear on the Supplemental Fee Application filed in the Markins case, and Leffler confirmed that the firm was not seeking compensation for that particular service. Id. at 109— 10.
Later in the case, the Chapter 13 Trustee filed a Motion to Dismiss the case for unreasonable delay precipitated by the underfunding issue. This underfunding concern resulted from the filing of a claim by the IRS for a significant post-petition tax claim under Section 1305 of the Bankruptcy Code for tax liability incurred by Ms. Markins in 2003. Because this priority debt had to be paid in full, payment to the general unsecured creditors was insufficient, leading the Chapter 13 Trustee to file a Motion to Dismiss. The firm met with Ms. Markins to discuss the matter, and the parties decided to file a modified plan which increased her plan payment to sufficiently fund the plan. Id. at 108-09. Leffler confirmed that 1.7 hours of attorney time and 3.5 hours of paraprofessional time was listed on the document attached to the Supplemental Fee Application with regard to the Chapter 13 Trustee’s Motion to Dismiss. Id. at 114 (referencing Supplemental Fee Application filed in the Markins case, submitted as Exhibit 126 at the hearing held March 7-8, 2006).
When asked on cross-examination to explain why this Motion to Dismiss required these amounts of attorney and paraprofessional (non-lawyer) time, and the Motion to Dismiss listed on Boleman Law Firm Exhibit 15-R, Statement of Additional Supplemental Fees — Markins, lists only 0.9 hours of attorney time and 0.4 hours of paraprofessional time, Leffler offered that the bases of the motions were distinct, in that the second Motion to Dismiss, con
Leffler testified that Ms. Markins remained in bankruptcy for forty months before her case was dismissed for failure to make her Chapter 13 plan payments. She also benefitted from the firm’s services by receiving protection under the automatic stay. Id. at 110.
Leffler confirmed that the amounts contained on the Boleman Firm’s Exhibit 23-R relating to the Markins case were the same as those contained in the Supplemental Fee Application filed in that case. Id. at 112 (referencing Boleman Law Firm Exhibit 23-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-34259-DOT, Geraldine Bessie Markins). Leffler recited that the total amount of the fee request is $700.00, with 76% of that amount, or $532.00 attributable to fees. Id. at 112. A review of Exhibit 23-R reveals that the total fees in the Markins case consist of the amount from Line 114 ($1,866.50) and Line 181 ($564.00) of the document attached to the Supplemental Fee Application. 14 The amount requested in the fee application was reduced from $1,282.26. The net fee, as represented on the exhibit, is $930.50 when the “no-look” amount of $1,500.00 is subtracted. See Boleman Law Firm Exhibit 23-R.
E. Michael Lee Lipscomb, Jr., 03-35603-DOT
Michael Lipscomb, Jr., engaged the services of the Boleman Firm when he faced the threat of repossession of his automobile and experienced difficulty making payments on his secured and unsecured debts. Tr. at 118-19. The initial services provided to Mr. Lipscomb were “very similar, if not identical” to the ones described in the other cases before the Court. Due to the threat of repossession, Lipscomb’s case was filed quickly. Id. at 119.
Leffler confirmed that the Boleman Firm provided Mr. Lipscomb with the same services for the $1,500.00 “no-look” portion of their fees as provided to their other clients previously described. Id. at 120. He further affirmed that the Supplemental Fee Application filed in the Lipscomb case reflects that for the initial client meetings, 3.1 hours of attorney time and 3.1 hours of paraprofessional time was listed, the same as in the other cases previously discussed. Id. at 128.
The firm provided two services to Mr. Lipscomb which Leffler classified as supplemental. First, after filing the petition, the firm immediately contacted the creditor that was threatening to repossess Mr. Lipscomb’s automobile. Second, when Mr. Lipscomb became unemployed approximately six months after his Chapter 13 case was filed and subsequently defaulted on his Chapter 13 plan payments to the Trustee, the Trustee filed a Motion to Dismiss based on that default. The firm reviewed Mr. Lipscomb’s case, met with him to review his budget, and filed a modified plan that, combined with a payment made in the interim to the Chapter 13 Trustee by the debtor, cured the payment
According to Leffler, the actions taken to prevent repossession of Mr. Lipscomb’s automobile is listed as supplemental and beyond the scope of the $1,500.00 “no-look” fee because such action is “of an urgent nature, that would significantly impact our client and create all sorts of additional work if we didn’t respond to them.” Id. at 122. As to the Motion to Dismiss specifically, Leffler stated that motion was filed more than a year after the case was filed, and “[fit’s a traditionally supplemental type of service, especially given the change in circumstances that the client has experienced from the time of filing that was not anticipated ... and the modified plan that was filed in connection with the motion to dismiss, the reason for putting it in the supplemental time frame.” Id. When asked why the time amount listed in the document attached to the Supplemental Fee Application for the Motion to Dismiss in the Lipscomb case was larger than for the Motion to Dismiss in the Markins case, which also was filed on the basis of a default in plan payments, Leffler stated that the motion in the Markins case was not time-consuming because Ms. Markins communicated quickly to the firm that she desired for her case to be dismissed as opposed to curing the arrears. Id. at 127.
The Boleman Firm’s Exhibit 24-R relating to the Lipscomb case reflects, per Lef-fler, the same amounts as contained in the Supplemental Fee Application filed in that case. Id. at 124 (referencing Boleman Law Firm Exhibit 24-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-35603-DOT, Michael Lee Lipscomb, Jr.). The total amount of the fee request in the Supplemental Fee Application is $700.00, with the entire amount attributable to fees. Id. at 124. According to Exhibit 24-R, the request was reduced from the total amount (fees plus costs) of $962.09. The total fees in the Lipscomb case are reflected in Line 114 ($1,795.50) and Line 190 ($720.50) of the document attached to the Supplemental Fee Application. 15 The net fee, as represented on the exhibit, is $1,016.00 when the “no-look” amount of $1,500.00 is subtracted. See Boleman Law Firm Exhibit 24-R.
F. Thomas D. Childrey, IV, 03-37186-DOT
Leffler met with Thomas Childrey when he visited the firm. Mr. Childrey had suffered a loss of income due to an employment-related injury and had fallen behind on various debt payments. He was facing an imminent foreclosure on his residence and threats of service disconnection by utility companies. Tr. at 129-30. The firm filed Mr. Childrey’s Chapter 13 case within one week of the initial meeting with him due to the urgent situation created by the pending foreclosure and possibility of the disconnection of utilities.
Id.
at 130. Leffler confirmed to the Court that the
The Boleman Firm is seeking supplemental compensation in the Childrey case for several tasks. First, the firm notified the law firm that was to conduct the foreclosure sale of the filing of Mr. Childrey’s Chapter 13 case. The firm also notified two different utility companies of the filing of the bankruptcy case and the imposition of the automatic stay; however, these activities are not reflected in the Supplemental Fee Application, and the firm is not requesting compensation for performing those services. Id. at 131. The firm is seeking compensation for negotiating a consent order with the lienholder on Mr. Childrey’s automobile whereby Mr. Chil-drey was permitted to retain his vehicle and cure the arrearage of post-petition payments to that creditor after that creditor had filed a motion seeking relief from the automatic stay. Id. at 131-32. The firm also addressed a Motion for Relief filed by Mr. Childrey’s mortgage company relating to post-petition mortgage payment arrears. The firm negotiated a consent order in that matter as well, which allowed Mr. Childrey to retain possession of the property, retain the benefit of the automatic stay as to that property, and to cure his arrears over a short period of time. When Mr. Childrey again fell behind in his mortgage payments, the firm addressed the Notice of Default issued by the mortgagee. After communicating with the client several times, receiving proof of payments from him, and reviewing the information, the firm communicated their client’s position to the mortgagee, and the issue was resolved. Id. at 132-33. Finally, Leffler related details of the Motion to Dismiss filed by the Chapter 13 Trustee which the firm also addressed for Mr. Childrey. A problem arose with the funding of the plan due to the filing of a large secured claim that the firm eventually determined was filed in error. The firm communicated this conclusion to the creditor, who withdrew the claim, and the Trustee withdrew his Motion to Dismiss. Id. at 133.
Mr. Childrey completed the payments in his Chapter 13 plan with funds derived from the refinance of his mortgage, which was approved by the Court after the Bole-man Firm filed the appropriate motion on behalf of the debtor. Mr. Childrey’s creditors were paid one-hundred percent of their claims, and Mr. Childrey received his discharge. Id. at 135-36.
Leffler opined that the supplemental services provided in the Childrey case for which the Boleman Firm seeks compensation are of the type typically listed as supplemental in applications for compensation that the firm files with the Court, and that the services are similar to those appearing on supplemental applications for compensation filed by other firms. Id. at 133-34.
Exhibit 25-R submitted by the Boleman Firm reflects, as confirmed by Leffler, that the $2,000.00 amount sought is solely attributed to fees.
Id.
at 137 (referencing Boleman Law Firm Exhibit 25-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-37186-DOT, Thomas D. Childrey, IV). As represented on Exhibit 25-R, Line 114 of the document attached to the Supplemental Fee Application filed in the Childrey case shows fees of $1,866.50, and Line 224 reflects fees of $2,356.50. The net fee is $2,723.00 when the “no-look” amount of $1,500.00 is subtracted. The firm reduced the amount it is seeking in its application to $2,609.61. This amount appears to reflect the application of a credit balance for
G. A’braham Barakhyahu, 03-37623-DOT
A’braham Barakhyahu, a self-employed event planner, and his wife had a large amount of unsecured debt, a portion of which was connected with three different automobile loans. One of the automobiles was set to be repossessed for payment default at the time the Barakhyahus visited the Boleman Firm. According to Lef-fler’s review of their file, the Barakhyahus received the same initial services for the $1,500.00 fee that are provided to other clients that visit the firm seeking to file for bankruptcy protection. Tr. at 140-41.
Leffler testified that as soon as the joint bankruptcy case was filed on behalf of the Barakhyahus, the firm took steps to ensure that the automobile that was set to be repossessed remained in the possession of the debtors by contacting the creditor to advise that the automatic stay was in effect. Id. at 141, 148. The Chapter 13 Trustee filed an objection to confirmation of the Barakhyahu plan on the basis that the plan did not commit all available disposable income. Leffler explained that after the case was filed, Mr. Barakhyahu secured higher paying employment, which was disclosed to the Chapter 13 Trustee at the Section 341 Meeting of Creditors, but the original plan did not account for his new income. A member of the firm attended the hearing on the objection, which was sustained by the Court. The firm then filed a modified plan to provide for one-hundred percent repayment of the claims that were anticipated at that time. Id. at 141 — 42.
After the modified plan was confirmed, the Chapter 13 Trustee determined that the claims that had been filed totaled an amount higher than anticipated and that the plan would not pay the proposed percentage. The Trustee advised the firm of this fact by letter, and the firm reviewed the claims, ultimately determining that another modified plan needed to be filed to avoid a future Motion to Dismiss by the Trustee Id. at 142-43.
Subsequently, the Barakhyahus encountered difficulty making their plan payments, due to the instability of Mrs. Bara-khyahu’s income and her post-petition debt. They consulted with the firm about converting their case to one under Chapter 7, but the firm concluded at that time that remaining under Chapter 13 would provide a better result for the debtors. The firm filed another modified plan for the Bara-khyahus, in which the debtors surrendered one of their automobiles which was being paid for through the plan, resulting in a lower monthly plan payment. 17 The lien-holder of that automobile later filed a motion seeking relief from the automatic stay, to which the debtors consented, and the Boleman Firm facilitated the transfer of the vehicle to the creditor’s possession. Id. at 143-44.
Leffler informed the Court that not all of the services he discussed appeared on
Leffler confirmed that the amounts contained on the Boleman Firm’s Exhibit 26-R relating to the Barakhyahu case were the same as those contained in the Supplemental Fee Application filed in that case. Id. at 146 (referencing Boleman Law Firm Exhibit '26-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-37623-DOT, A’braham Barakhyahu). Leffler stated that of the total amount sought in the supplemental application for compensation, $561.00 is attributable to fees. Id. at 147. A review of Exhibit 26-R reflect that the total amount requested in the Supplemental Fee Application is $850.00, reduced from $1,382.69, and that fees comprise 66% of that total. 18 The total fee in the Barakhyahu case is $2,792.50, consisting of $1,795.50 from Line 114 and $997.00 from Line 181 of the document attached to the Supplemental Fee Application. The net fee is $1,292.50 when the “no-look” amount of $1,500.00 that the firm has already received is subtracted. See Boleman Law Firm Exhibit 26-R.
H. Carrol & Melinda Wood, 03-37772-DOT
When the Woods first visited the Bole-man Firm, a foreclosure was scheduled on their home; two judgments had recently been entered against them; and they were unable to pay their debts as they came due. The firm provided initial services in the Wood case similar to those provided to other debtors. Because of their particular situation, the Woods’ case was filed within eight days after their first meeting at the firm, according to Leffler. Tr. at 152-53. With regard to those services, Leffler testified that 3.7 hours was spent on the Woods matter on the day of the initial meeting because the petition was also prepared that day. Id. at 158-59.
Leffler explained to the Court the four supplemental services that appear on the fee application. The firm immediately addressed the foreclosure by contacting the firm that was to conduct the foreclosure. The firm also contacted counsel for a cred
Leffler testified that Boleman Firm Exhibit 27-R presented an accurate representation of the fees set forth in the Supplemental Fee Application filed in the Wood case. Id. at 156 (referencing Bole-man Law Firm Exhibit 27-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-37772-DOT, Carrol and Melinda Wood). The fees in the Wood case as of the filing of the Supplemental Fee Application totaled $2,731.00, as represented by Line 114 ($1,795.50) and Line 211 ($935.50) of the document attached to the application. When the “no-look” amount of $1,500.00 is subtracted, the net fee is $1,231.00. The total amount of fees and costs according to Exhibit 27-R is $1,382.69, 20 but the firm is seeking only $750.00 on its application. See Boleman Law Firm Exhibit 27-R. Lef-fler further represented that based upon a proration of the fees sought, of the amount requested, $667.50, or 89%, was attributable to fees. Tr. at 157.
I. Zoe Laquanda Jarrell, 03-37773-DOT
Zoe Jarrell had fallen into arrears on her mortgage payment and was facing foreclosure when she sought the services of the Boleman Firm. In addition, a warrant in debt had been filed against her; she was behind on her automobile loan payments; and she had debts related to numerous credit cards. Referencing the Supplemental Fee Application filed in the Jarrell case, which was submitted to the Court at the March 7-8, 2006, hearing as Exhibit 71 of the Boleman Firm, Leffler affirmed that the initial services provided were similar to those performed in other cases. Id. at 162-63.
With regard to the initial services, Lef-fler confirmed on cross-examination that
Leffler described the supplemental services that the firm provided to Ms. Jarrell. The firm addressed the pending foreclosure and the warrant in debt, which were dealt with on the day that the petition was filed with the Court. Id. at 164, 173. The firm also addressed post-filing threats to discontinue certain utilities services due to Ms. Jarrell’s non-payment by contacting the creditors and advising of her bankruptcy filing. Leffler informed the Court that utility creditors had not been included on the petition initially because she did not realize that they could be included, and consequently the firm amended Ms. Jar-rell’s schedules. Id. at 164.
When Ms. Jarrell’s mortgage holder filed a Motion for Relief for post-petition payment default, the firm negotiated a consent order which allowed six months to bring her mortgage payments current. Id. at 164-65. The firm also consulted with Ms. Jarrell when she continued to experience difficulty paying her Chapter 13 plan payment and her regular mortgage payment plus the mortgage arrears. When Ms. Jarrell defaulted with regard to the consent order related to her mortgage payments and the mortgagee moved to foreclose on her home, the firm filed a modified plan which provided for the surrender of the residential real property and resulted in a lower monthly plan payment. Id. at 165. The firm addressed a second Motion for Relief, this one by the holder of Ms. Jarrell’s automobile loan, which alleged the debtor was not maintaining full insurance coverage on her automobile as she was contractually obligated to do. The firm communicated to Ms. Jarrell the importance of maintaining insurance coverage, and when the coverage was obtained, the creditor dismissed its motion. Id. at 165-66. Leffler represented that all of these services are listed in the Supplemental Fee Application filed in Ms. Jarrell’s case and that such services are similar to those for which other practitioners before the Bankruptcy Court in Richmond seek compensation. Id. at 166.
The firm also provided two services to Ms. Jarrell that are not listed on the supplemental fee application filed in her case. First, the firm communicated the existence of the automatic stay in Ms. Jarrell’s case to the Virginia Employment Commission with regard to a suit the commission had filed against her. The firm also communicated with a medical office that had refused treatment to Ms. Jarrell because of an outstanding debt to that office. After speaking with the client, the firm amended Ms. Jarrell’s schedules to provide for the payment of the medical debt. Id. at 167.
When asked to speak of the benefits that Ms. Jarrell has received from the services performed by the Boleman Firm, Leffler stated that Ms. Jarrell remained in her residence for over a year despite a “spotty payment history to her mortgage
Leffler confirmed for the Court that the amounts on the Boleman Firm Exhibit 28-R correlate to the amounts appearing on the Supplemental Fee Application filed in Ms. Jarrell’s case. Id. at 169-70 (referencing Boleman Law Firm Exhibit 28-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-37773-DOT, Zoe Laquanda Jarrell). Of the $1,200.00 amount requested in the fee application, 99%, or $1,188.00, is apportioned to fees. Id. at 170. The total amount (fees and costs) as of the date of the application was $1,808.37. 22 A review of Exhibit 28-R reflects that the total fee as of the date of the fee application was $3,283.50, the sum of the amounts contained on Line 114 ($1,795.50) and Line 228 ($1,488.00) of the document attached to the application. See Boleman Law Firm Exhibit 28-R.
J. Mary Lou Ann Ranicki, 03-38152-DOT
When Mary Lou Ranicki first met with the Boleman Firm, she was not working and was living on retirement income. Ms. Ranicki attempted to formulate a consolidation plan for her credit card debt through a credit counseling agency, but her attempt was unsuccessful. Ms. Ranicki also had mortgage debt. Tr. at 176-77. Referencing the Supplemental Fee Application filed in the Ranicki case, which was filed as Boleman Law Firm Exhibit 137 in the March 7-8, 2006, hearing, Leffler affirmed that Ms. Ranicki was provided with the same initial services that all debtors receive. Id. at 177. These services, as in previous cases, necessitated 3.1 hours of paraprofessional time and 3.1 hours of attorney time, according to the application. Id. at 188.
According to Leffler, the services that the firm classifies as supplemental in the Ranicki case were all provided post-confirmation. Id. at 177, 188. Ms. Ranicki’s initial Chapter 13 plan was confirmed after no objections were filed. However, the Chapter 13 Trustee filed a Motion to Dismiss post-confirmation on the basis of underfunding, which resulted from the filing of an unanticipated mortgage arrears claim and a higher than anticipated balance to be paid on her automobile. Ms. Ranicki had also fallen into arrears on her plan payments. Just prior to the hearing, Ms. Ranicki made a large payment to the Trustee, and the firm also filed an amended Chapter 13 plan to correct the underfunding issue. Based upon these actions, the Chapter 13 Trustee withdrew his motion. Id. at 177-78.
The firm also addressed a Motion for Relief from Stay filed by Ms. Ranicki’s mortgage company. After consulting with the client, the firm negotiated a consent order that allowed Ms. Ranicki a short period of time to cure the arrears owed to the mortgage company. Id. at 178-79.
A second Motion to Dismiss for payment arrears was filed by the Chapter 13 Trustee at approximately the same time that the Motion for Relief was filed. According to Leffler, Ms. Ranicki had relocated out
The Chapter 13 Trustee filed a third Motion to Dismiss later in the case due to the debtor’s failure to make plan payments. According to Leffler, Ms. Ran-icki’s financial circumstances had changed, and the firm formulated another modified Chapter 13 plan to allow the debtor to become current on her plan payments. The Trustee again withdrew his motion. Id. at 179. This Motion to Dismiss was not included on the fee application, however, and the firm is not seeking compensation for its services in connection with this particular matter. Additionally, the firm is also not seeking compensation for addressing two additional Motions to Dismiss by the Chapter 13 Trustee that were filed subsequent to the filing of the Supplemental Fee Application in the Ranicki case. Id. at 181-82. Despite five Motions to Dismiss in total, Ms. Ranicki did receive her Chapter 13 discharge and paid all creditors in full through her plan. Id. at 190.
Leffler testified that the fees listed in the supplemental application are accurately reflected in Boleman Firm Exhibit 29-R. According to Leffler, supplemental fees totaled $2,162.50, and cumulative fees as of the filing of the application totaled $3,958.00. Id. at 186 (referencing Boleman Law Firm Exhibit 29-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-38152-DOT, Mary Lou Ann Ranicki). After subtracting the $1,500.00 “no-look” fee that the firm had already received, the net fees equaled $2,458.00. The total fees and costs according to Exhibit 29-R is $2,646.01, but the firm is requesting only $1,900.00 in supplemental fees. 23 Boleman Law Firm Exhibit 29-R. Of that amount, 93%, or $1,767.00, is attributable to fees. Tr. at 187.
K. Celestine Berryman, 03-39422-DOT
Celestine Berryman was facing repossession of her automobile and the foreclosure of her home, both of which she had been attempting to address in a prior Chapter 13 case, which was dismissed shortly before she met with the Boleman Firm. After reviewing her circumstances and budgetary abilities, the firm decided that it was appropriate for the debtor to file another Chapter 13 case. Id. at 192-93.
Referencing the Supplemental Fee Application filed in Ms. Berryman’s case, which was previously submitted to the Court as Exhibit 148 in relation to the March 7-8, 2006, hearing, Leffler confirmed that Ms. Berryman’s initial services were essentially the same as those provided in other cases, with the added issues of good faith and feasibility being addressed in light of Ms. Berryman having previously filed a Chapter 13 case.
Id.
at 193-94. The initial services in the Berryman case
The Boleman Firm addressed two matters post-confirmation that are classified as supplemental services on the Supplemental Fee Application. First, Leffler recounted that the Chapter 13 plan in the Berryman case had funding issues due to the filed claims totaling more than anticipated. The firm discussed this issue with the client, as well as her ability to pay an increased Chapter 13 plan payment and the appropriateness of filing an amended plan. The firm filed an amended Chapter 13 plan for Ms. Berryman which addressed the underfunding issue by increasing her plan payment. Id. at 194. Second, the Chapter 13 Trustee filed a Motion to Dismiss for failure to make plan payments. Ms. Berryman brought her plan payments current, and the Trustee withdrew his motion at the hearing, which the Boleman Firm attended for the debtor. Id. at 194-95. Both of these services appear on the Supplemental Fee Application; are of the type typically reflected in such applications; and are of the type that other practitioners before the Bankruptcy Court in Richmond generally included on their supplemental fee applications as well. Id. at 195. Not included on the Boleman Firm’s application are supplemental services provided to Ms. Berryman post-filing of the application, including addressing a Motion for Relief and subsequent Notice of Default filed by the mortgage company; and a second Motion to Dismiss by the Chapter 13 Trustee for failure to make Chapter 13 plan payments which led to the dismissal of Ms. Berryman’s case. Id. at 195-97. Despite the fact that Ms. Berryman’s case was ultimately dismissed, Leffler opined that the services provided by the firm helped keep Ms. Berryman in her case for approximately two years and allowed her to remedy problems with her mortgage for a period of time. Id. at 197-98.
Regarding Exhibit 30-R of the Boleman Firm relating to the Berryman case, Lef-fler confirmed that the amounts contained in the exhibit accurately represent the amounts contained in the Supplemental Fee Application filed in the Berryman case. Id. at 198-99 (referencing Boleman Law Firm Exhibit 30-R, Recap of Total Fees and Supplemental Fee Request Breakdown, Case Number 03-39422-DOT, Celestine Berryman). According to the exhibit, the total fee as of the filing of the application was $2,411.50, consisting of the $1,795.50 amount found on Line 114 and $616.00 located on Line 184 of the document attached to the Supplemental Fee Application. 24 See Boleman Law Firm Exhibit 30-R. Leffler further testified that of the total $625.00 amount sought in the application, 90%, or $562.50, is related to fees, after a discount of $385.25 is applied to the total fee and costs owed of $1,010.25. Tr. at 199.
III. ARGUMENTS
On April 27, 2007, counsel for the Bole-man Firm filed a Trial Memorandum containing a chart which purports to represent a breakdown of the reimbursement sought in each of the eleven cases. Trial
A second chart contained in the memorandum purports to contain the lodestar analysis for each of the eleven cases. The memorandum then addresses the Barber factors as applied to each case. First, as to the time and labor expended, the firm provides a recitation, in chart format, as to the supplemental services provided in each case. According to that chart, in nine of the eleven cases, the firm provided some services which were not included on the Supplemental Fee Applications in each of those cases. Id. at 5-6.
The final section of the memorandum addresses the absence of traditional time records in the cases at issue. The Bole-man Firm offers that even though traditional time records do not exist, contemporaneous records of the services provided were made, which additionally documents the employees providing each service and the date on which the service was performed.
Id.
at 11. The firm reminds that there was no dispute that the work was actually performed.
Id.
(citing
The Boleman Law Firm, P.C. v. United States Trustee,
Further, the firm asserts that even if traditional time records had been kept, the Court was not required to find that the actual number of hours spent performing the tasks in each case was reasonable. Instead, the Court must make the ultimate decision as to reasonableness after reviewing the fee applications, taking the
Barber
factors into account, and adjusting the fee award as necessary.
Id.
(quoting
Guidry v. Clare,
The firm asserts that it has already substantially adjusted the lodestar figures downward, resulting in discounts ranging from 8.5% to 32.2% of the total fees and costs. In doing so, the firm ensures that creditors are not prejudiced and “demonstrates [the firm’s] commitment to promoting the success of the debtor in that the reduction of fees and costs allows the plan to continue without the potential for disruption or extension by the Chapter 13 trustee.”
Id.
at 12. By charging $165.00 to $175.00 per hour, the firm “is implicitly discounting its compensation.”
Id.
at 13.
In its closing argument brief, the firm argues that the United States Trustee does not believe that services provided at the commencement of representation should be classified as “supplemental” and that such services should be subsumed into the “initial” services. Closing Arguments filed by The Boleman Law Firm, P.C., filed May 30, 2007, Docket Entry 276, at 2 (hereinafter “Boleman Closing Arguments”). The firm contends that the point in time when the services are performed should not matter and points out that neither Local Bankruptcy Rule 2016-1, which addresses compensation to professionals, nor Section 330 of the Bankruptcy Code contains any distinction between “initial” and “supplemental” services.
Id.
at 6. Instead, this nomenclature has “developed locally over time,” similar to the use of the phrase “flat fee,” which the court often refers to in its opinions.
Id.
(citing
In re Harris,
Case No. 96-36765-T,
Ordinarily this charge should cover interviews with the client, contacting creditors when necessary and verifying other information for the statements and schedules, preparation of petition, schedules and a confirmable plan, attendance at the § 341 meeting of creditors, and, finally, attendance to other routine matters encountered in the case.
... When additional fees are sought, the judges expect attorneys to demonstrate that the total fee in a case is reasonable in light of all circumstances.
In re Harris,
The Boleman Firm also expands upon its legal argument relied upon during the April 30, 2007, hearing. The firm contends that, unlike in the case of
J.P. v. County School Board of Hanover,
Case No. 3:06cv028,
The Boleman Firm further relies on the
Board of Hanover
case for the proposition that in the event that the firm did not put forth sufficient evidence regarding the twelve
Johnson
(or
Barber)
factors, such should not result in an automatic downward adjustment in the lodestar figure. The firm likens the urgent time constraints it faced in the instant cases to the circumstances faced in the
Board of Hanover
case by the plaintiffs’ counsel, which took over the case mid-way through the administrative hearing proceedings.
Id.
(quoting
Board of Hanover,
In his argument at the hearing held on April 30, 2007, counsel for the United States Trustee represented and reiterated his position from the earlier hearings that he did not contest that the work represented by the Boleman Firm had not been performed; rather, the crux of the case lay in the amount of time spent performing that work. Tr. at 24.
The United States Trustee urges that certain tasks should not be considered supplemental, because they were performed at the inception of the case. Other services, however, could be considered supplemental in nature, but that if the Court decides to give further consideration to awarding compensation for these supplemental services, any award should be dependent upon whether the firm has proven that it earned the initial $1,500.00 fee. Closing Argument filed by the United States Trustee, filed May 30, 2007, Docket Entry 277, at 2-3 (hereinafter “United States Trustee Closing Argument”). To this extent, he offers argument on two additional issues against awarding compensation in each of the eleven cases. First, he argues that the Court should consider that many tasks listed in the exhibit attached to the fee application are clerical in nature that should be absorbed into overhead, as they require no special expertise.
Id.
at 3 (citing
In re Peoples Sav. & Inv., Inc.,
Second, the United States Trustee urges that many of the time amounts listed on the application appear to be overstated, specifically the number of hours of attorney time and paraprofessional time billed on the first day clients visit the firm. He
IV. CONCLUSIONS OF LAW
The provisions of the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, and the Local Bankruptcy Rules that apply to the analysis of supplemental fee applications were discussed in depth in this Court’s previous opinion. The Court relies on and incorporates that recitation herein, to the extent not reversed by the District Court on appeal.
The Fourth Circuit requires courts to evaluated attorney fees utilizing a “hybrid” of the
Barber
factors and the lodestar method.
In re Vernon-Williams,
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.
Barber,
As this Court earlier stated, “[ajpplying these factors, attorneys’ fees are to be evaluated by the lodestar method. ‘[T]he product of reasonable hours and a reasonable rate constitutes the lodestar [method].’ ”
In re Vernon-Williams,
Because it remains undisputed that the records presented to the Court do not contain contemporaneously recorded time, the traditional starting point in the lodestar analysis, that is, multiplying the number of hours spent by the hourly rate, cannot be performed. Thus, in accordance with Chief Judge Spencer’s instruction, the Court will begin its analysis of the supplemental fee requests by examining them in the context of the Barber factors. Next, the Court will analyze other considerations raised by the parties. Finally, the Court will determine whether a reduction in fees is appropriate, and if so, whether that reduction should be in the nature of disallowing compensation for the inadequately documented hours or whether the Court should reduce the fees sought by a fixed percentage.
A. The Time and Labor Expended
The first
Barber
factor is the most contested of the twelve. As stated during the course of this litigation, it is undisputed that services for which the Boleman Firm seeks compensation were performed for the clients. These services are reflected in the documents submitted as attachments to the Supplemental Fee Applications.
In re Vernon-Williams,
The Court previously explained at length the numerous difficulties arising from the lack of contemporaneous time records in this case.
See id.
at 788-98. The evidence presented on April 30, 2007, did not provide any clarification regarding the use of “minimums” by the Boleman Firm, but rather, focused on the uncontested fact that the services listed on the individual fee applications had been performed. While the firm asserts in its trial memorandum that the length of time that it takes attorneys in its firm to complete tasks has not been rebutted
(see
Boleman Trial Memorandum, at 13), such assertion is immaterial, given that the firm has the burden of proving that it earned the fees sought.
Boleman Law Firm, P.C. v. U.S. Trustee,
Regarding the time expended by the Boleman Firm, the United States Trustee argues that time amounts listed for the first day that each of the clients visited the firm appear to be overstated, in light of testimony given at the March 7-8, 2006, hearing that the tasks listed could be performed in less time. The United States Trustee also contends that Leffler’s testimony at the April 30, 2007, hearings that multiplying the total time by the six-minute increment may result in an amount greater than the amount of time actually spent exemplifies the problems that result when tasks are itemized individually without accounting for any overlap between them. The United States Trustee also asserts that the time amounts listed for the first day the clients visited appear to be identical on a majority of the applications.
The firm counters that the United States Trustee is attempting to relitigate the issue of the lack of contemporaneous time records, which it asserts was resolved by Judge Spencer. According to the firm, sufficient evidence has been submitted to allow the Court to determine the reasonableness of the hours spent. The firm concedes that the lack of contemporaneous time records for services performed at the beginning of the cases (which tasks totaled 3.1 hours in a majority of the cases at issue) provides sufficient cause for the Court to discount the fees sought for those tasks. Further, to the extent that entries for time spent making photocopies of documents were lumped with other tasks, a discount should be applied to those hours as well, in accord with Judge Payne’s recent decision in J.P. v. County School Board of Hanover.
The Court recognizes the issue raised by the United States Trustee regarding the possible overstatement of time that could result from listing discrete tasks
B.The Novelty and Difficulty of the Questions Raised
This Court previously stated that: Most of the tasks which the Boleman Firm cite to as supporting their entitlement to fees over and above the amounts heretofore received are not atypical of those occurring frequently in Chapter 13 cases, such as motions for relief from the automatic stay, objections to confirmation, objections to claims, or filing modified Chapter 13 plans. These tasks are hardly novel to a Chapter 13 debtor’s attorney; their difficulty, however, is especially impossible to quantify without the accurate knowledge of how much time each task consumed.
In re Vernon-Williams,
The firm asserts that the skills of an experienced bankruptcy practitioner were required for the proper performance of the services. While the firm’s assertion is true, it is likewise accurate that the experience gained by the attorneys of the Bole-man Firm over the years logically make the issues faced by their clients less novel and less difficult in nature to those attorneys when compared with attorneys who have less experience or knowledge about bankruptcy-related issues. As the lack of time records impacts the analysis of this Barber factor, as previously expressed, the Court will also take this conclusion into determining the appropriate fee reduction.
C.The Skill Required to Properly Perform the Legal Services Rendered
According to the firm, the clients it serves need attorneys with expert qualifications to perform the services for which they are requesting compensation. The Court agrees that qualified attorneys inevitably aid their clients by performing necessary services during the course of representation. As this Court has stated previously, the firm “enjoys an excellent reputation for the performance of its duties in representing debtors” and has a “well-deserved reputation for competence.” Id. at 810.
D.The Attorney’s Opportunity Costs in Pressing the Instant Litigation
As this Court stated in its previous opinion, “[t]he evidence is unconvincing regarding any sacrifice of opportunity costs in undertaking each of these eleven cases or that the cases are undesirable within the legal community, in that the Boleman Firm has elected to limit its practice to primarily the representation of debtors in Chapter 13 bankruptcy cases.”
Id.
at 797 n. 33;
see also id.
at 772 (recounting testimony by G. Russell Boleman that the firm limits its practice to debtor representation). Because the firm concentrates its practice representing mainly one category of clientele, it stands to reason that if the
E. The Customary Fee for Like Work
This Court stated in its previous opinion that the hourly rate of $165.00 charged by the Boleman Firm for attorney work in these cases was “quite reasonable.” Id. at 808 n. 52. The firm utilized that hourly rate in nine of the eleven cases before the Court, but applied an hourly rate of $175.00 for attorney work in the Markins and Childrey cases, according to its Closing Argument brief, though the firm provides no explanation as to why a different rate was used in these cases either in that brief or those respective fee applications. 27 Further, the firm utilizes an hourly rate of $65.00 for its paraprofessional workers. The United States Trustee has voiced no objection to the use of either the $65.00 per hour rate for paraprofessionals or the use of a blended per hour rate for attorneys.
In reviewing the Supplemental Fee Applications, the Court observes, using the application in the Vernon-Williams case by example, that of the sixteen attorneys listed, the hourly rate for six of those attorneys is $155.00, or $10.00 less than the “blended” hourly rate. The Court notes, however, that only the “current hourly rates” for the attorneys are provided. Information is provided as to when each attorney’s individual hourly rate last increased prior to the filing of the application, and by comparing those dates with the date on which Ms. Vernon-Williams first visited the firm in July 2004, the Court finds that five attorneys’ hourly rates have increased since that time. The firm does not endeavor to provide the Court with additional information as to what the applicable hourly rates were for those five attorneys at the time of Ms. Vernon-Williams’s initial consultation with the firm or prior to their rate increases. As of the date the application was filed, the rate for four of the attorneys listed was $155.00 per hour, which logically means the rates for those attorneys (absent unusual circumstances) was less than $155.00 prior to the rate increase. Of the eleven attorneys whose rates did not increase, only two of those attorneys’ rates are listed at $155.00 per hour. Thus, nine of the attorneys whose hourly rates have not increased were charging in excess of $165.00 per hour when Ms. Vernon-Williams retained the firm. Specifically, those rates ranged from $175.00 to $195.00 per hour. The firm notes in the Supplemental Fee Application that “a blended hourly rate of $165.00 per hour validly represents a reasonable rate that is actually lower than a rate based upon the individual rates of each attorney who provided services.” In reviewing each of the Supplemental Fee Applications, the Court finds that practically identical representations were made in those applications as
The Court previously declined to address the appropriateness of utilizing such a rate since it concluded that fees should be denied for lack of contemporaneous time records.
Id.
A “blended” rate is “ ‘meant to account for the different billing rates of partners and associates by taking an average of the two.’ ”
McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund,
In the instant matter, the Court heard testimony from Messrs. Hyman, Matson, and White in which they confirmed that an hourly rate of $165.00 for attorney work was quite reasonable for the Richmond, Virginia market. In re
Vernon-Williams,
Finally, in the Supplemental Fee Application filed in the Vernon-Williams case, the firm represents that the paraprofessional hourly rate of $65.00 “represents a rate that is lower than a rate based upon the individual rates of each para-professional who provided services.” In reviewing these rates (which are represented to be current hourly rates and without any additional information as to any rate changes), the Court notes that the hourly
F.The Attorney’s Expectations at the Outset of the Litigation
This Court previously opined that “[t]he expectation at the outset of these cases is to receive the ‘no-look’ fee and perhaps some additional amounts if a supplemental fee application is approved by the Court.” Id. at 797 n. 33. The firm confirmed this expectation in its trial memorandum and in its closing argument brief, where, citing on Lefñer’s testimony, the firm stated that it relied on the historical practice of Chief Judge Tice of reviewing supplemental fee applications for compliance with the Barber factors. With regard to the Boleman Firm’s expectations as to the outcomes of the cases, the firm notes that it expects the cases it files on behalf of debtors to proceed without difficulty and to achieve confirmation of the Chapter 13 plans. Such expectations as to the progression of the cases are reasonable, especially in light of the experience and knowledge of the members of the firm.
G.The Time Limitations Imposed by the Client or Circumstances
The nature of the proceedings before this Court require prompt action and “[t]he time limitations imposed are typical of those in all Chapter 13
filings...” Id.
The firm cites that it is bound also by the time constraints and limitations contained in the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules. The firm urges this Court to find that the time constraints it faces are similar in nature to those faced by counsel in the
J.P. v. County School Board of Hanover
case. In that case, the plaintiffs’ counsel undertook representation of the client mid-way through the administrative hearings
(see J.P. v. County School Board of Hanover,
Case No. 3:06cv028,
H.The Amount in Controversy and the Results Obtained
“The results obtained in these cases appear to be satisfactory, as Chapter 13 plans were confirmed and continue to
pay-out....” In re Vernon-Williams,
I.The Experience, Reputation and Ability of the Attorney
“[T]he Boleman Firm is experienced and enjoys a good reputation in its representa
J.The Undesirability of the Case Within the Legal Community in Which the Suit Arose
As the Court reminded above when discussing the opportunity costs to the firm in representing the clients in these eleven cases, the Court previously expressed that it was unconvinced regarding the undesirability of the cases at issue within the legal community. Id. The Bole-man Firm urges that the difficulty in obtaining payments for services rendered and the imposition of the substantial fee cuts makes these cases undesirable. The Court certainly appreciates the firm’s concern about obtaining compensation for the work performed for the debtors it represents. However, given the firm’s calculation that seventy percent of the debtors it represents receive their discharge, it stands to reason that in at least that percentage of cases, the firm receives full payment of at least the $1,500.00 “no-look” fee, 29 notwithstanding any supplemental compensation which may be approved. Further, even in the thirty percent of cases where the debtors do not receive a discharge, it seems likely that the debtors in those cases have made at least a portion, though perhaps only a few, payments towards their Chapter 13 plans in those cases, which funds would have been first used to satisfy administrative expenses of the estate, including attorney fees, in these pre-BAPCPA cases. See 11 U.S.C. § 507(a)(1) (2004). 30 Therefore, the Court remains of the opinion that the cases before it are not undesirable in the legal community.
K.The Nature and Length of the Professional Relationship Between Attorney and Client
“[T]he relationship of the Boleman Firm with its debtor-client is simply transactional in length, lasting for the duration of the bankruptcy itself.”
In re Vernon-Williams,
L.Attorneys’ Fees Awards in Similar Cases
According to the Boleman Firm, the fees sought in these cases are consistent with or below those sought by other bankruptcy practitioners. The firm contends that the Richmond Division of the Bankruptcy Court has historically approved supplemental fee applications filed by the Bole-man Firm.
It is difficult for the Court to analyze this factor in light of the issues surrounding the failure of the firm to contemporaneously record the time spent performing each task, as expressed above, even though the rates utilized by the firm in calculating the fees its seeks are reasonable. Thus, the Court finds that this circumstance should be considered as part of the larger issue of the lack of adequate time records
M. The Exercise of Billing Judgment
With the analysis of the
Barber
factors complete, the Court now turns to the issue of “billing judgment.” This Court previously discussed the consistent requirement of attorneys to exercise “billing judgment” when an award of fees is sought. “ ‘[B]illing judgment is the voluntary reduction of a fee by counsel to a private client for services [that] either conferred a negligible benefit or were excessive.’ ”
Id.
at 807 (quoting
In re Maxine’s Inc.,
The Court previously opined as to the difficulty in examining or quantifying the amount of fees discounted or waived by the Boleman Firm, as well as the contention of the firm regarding its practice of not billing for certain services, and Lef-fler’s testimony from March 2006 that the firm engages in billing judgment by “ ‘waiving fees’ ” for certain tasks.
In re Vernon-Williams,
The exhibits submitted at this stage of the proceedings provide no additional assistance to the Court in determining how the “discount” amount was computed or how the firm determined how the discount would be apportioned between fees and costs as set forth on Exhibits 20-R through 30-R. Similar to the previous hearing, no testimony during the instant hearings explained the “discount” amounts. In the trial memorandum submitted prior to the hearings on April 30, 2007, the firm states that its voluntary reductions, which range from 8.5% to 32.2%, “demonstrates its commitment to promoting the success of the debtor in that the reduction of fees and costs allows the plan to continue without the potential for disruption or extension by the Chapter 13 trustee” and that by charging $165.00 to $175.00 per hour, the firm “is implicitly discounting its compensation.” From
The firm also asserts that its intentional omission from the fee applications of certain tasks serves as additional evidence of a voluntary downward adjustment of the firm’s fees and favors awarding the supplemental fees sought. A chart provided in the trial memorandum serves as the first mention of the specific services that were provided but not listed in the Supplemental Fee Applications in nine of the eleven cases at issue. The Court is perplexed as to how, prior to the submission of the trial memorandum (which was filed electronically with the Court after the close of business on the last business day prior to the April 30, 2007, hearings), it was to factor the omission of any services into its analysis without copiously examining each of the case files; even then, some of the services that were omitted may not have been apparent. Further, the chart contained in the memorandum does not delineate whether the services were omitted as an exercise of billing judgment, or rather, because the services were provided after the filing of the fee applications.
In any event, Leffler did provide some additional testimony regarding the services that were not included on the Supplemental Fee Applications. His testimony corresponded with the chart in the trial memorandum with the exception that two services omitted from the fee application filed in Doelling case and one service omitted from the Childrey fee application were not mentioned by Leffler. According to Leffler, all of the omitted services performed in the Pyles, Wood, Jarrell, and Berryman cases were performed after filing the supplemental fee applications in those cases. The omitted services listed for the Markins case were performed prior to the filing of the fee application. Services omitted from the Barakhyahu and Ranicki fee applications were performed both prior to and after the filing of the fee applications in those cases.
The Court finds that little weight should be placed on any of the purported voluntary reductions with regard to the Pyles, Wood, Jarrell, and Berryman cases since the omitted services were all performed after the filing of the Supplemental Fee Applications. While some weight could be given to the omission of certain services in the Markins, Barakhyahu, and Ranicki cases, since those services were provided prior to the submission of the applications, the Court overall finds it is difficult to place much weight on the supposed voluntary discount that may result from the omission of certain tasks from the fee applications, given the difficulty in sorting out whether these omitted services were performed before or after the filing of the supplemental fee applications. The Court is also disturbed that the Boleman Firm possibly attempted to skew the evidence as to the voluntary reductions in fees by labeling services performed after the filing of the supplemental applications as “omitted.” Thus, even though the Boleman Firm argues that it has adjusted fees downward, it remains difficult for this Court to determine whether an appropriate amount of discount was taken without being privy to the discount determination process and whether the motivation for reducing the fees was genuine.
N. Point in Time that Services were Performed
This Court stated in its previous opinion that “[i]t is axiomatic that in order to approve an award of supplemental compensation in a Chapter 13 case, the Court
The parties disagree as to whether the point in time services are performed should dictate whether a service may be classified as “supplemental” and as to whether the firm has proven that it earned the $1,500.00 “no-look” fee in each of the cases before the Court. While the United States Trustee does not object to an award of compensation for certain services the firm has deemed to be “supplemental,” so long as the firm proves that it earned the “no-look” fee, he does object to the classification of services performed in the early stages of the case as “supplemental,” contending that those services should be included in the “no-look” fee. He argues that “supplemental” services should not occur simultaneously with the filing of a case. This argument is made specifically with regard to the firm contacting creditors who had collection actions (such as warrants in debt or imminent repossessions or foreclosures) in progress at the time of the filing of the case to inform them of the bankruptcy filing, which occurred in the Vernon-Williams, Lipscomb, Childrey, Barakhyahu, Wood, and Jarrell cases. This argument is also employed by the United States Trustee regarding a motion for relief from the automatic stay that was settled shortly after the Section 341 Meeting of Creditors in the Doelling case; efforts by the firm to secure the release of a post-petition garnishment in the Pyles case; and amending the Chapter 13 plan in the Barakhyahu case when the debtor secured new employment soon after the Section 341 Meeting of Creditors. The United States Trustee also points to the firm’s own separation of the tasks listed on the fee applications into categories of “initial” and “supplemental.” Further, the United States Trustee relies on the Requirements for Supplemental Fee Applications in Chapter 13 Cases, issued by the Richmond Division of this Court, which states that unless unusual circumstances are presented, the “no-look” fee should encompass routine services in asserting that the firm has not proven it has earned the “no-look” fees in these cases.
The Boleman Firm argues that no provision in either the Bankruptcy Code or the Bankruptcy Rules distinguishes “initial” from “supplemental” services and that this nomenclature has developed in the Eastern District of Virginia along with the term “flat fee.” Instead, the firm, relying on Chief Judge Tice’s decision in the In re Harris case and the decision by the Bankruptcy Court for the District of Colorado in In re McNally, asserts that the question that the Court must answer is not whether the flat fee has been earned, but whether the value of all of the services performed for the client equals at least the total fee accrued. The firm argues that it has proven that it earned the “no-look” fee of $1,500.00 in each case by virtue of the fact that the firm provided “core” services to those debtors and that those services, while requiring substantial time on the part of the firm, “have a value in and of themselves,” citing such services as attending the Section 341 Meeting of Creditors and filing the requisite documents for the debtors. The firm also relies on the United States Trustee’s acknowledgment that certain services are eligible for compensation. The firm additionally contends that, given the results achieved for the debtors, limiting the firm to compensation of only $1,500.00 is not reasonable.
Chief Judge Tice previously concluded that the “no-look” fee should “cover interviews with the client, contacting creditors
Based upon these findings, the Court concludes that steps taken at the beginning of a case to notify creditors of the filing of a case should be included as part of the “no-look” fee, absent compelling circumstances. As explained above, it is not beyond reason that the clients served by the Boleman Firm were all facing financial hardship that included imminent action by one or more creditors. As a result, the act of contacting creditors to inform them of the filing of a bankruptcy petition should not be viewed as a task that is anything other than routine and part of the duty owed to the client. Further, without taking such action, the firm unnecessarily invites the possibility of having to pursue an action against these creditors for possible violations of the automatic stay under Section 362 of the Bankruptcy Code. Instead, this Court finds that such tasks clearly fall within the category of “contacting creditors when necessary” that Chief Judge Tice previously discussed. Further, the Boleman Firm has not provided the Court with sufficient evidence to demonstrate that such activities in any of the eleven cases at issue were anything other than “routine.”
See In re Roman,
The Court declines to make a ruling regarding the other services that the United States Trustee complains were performed in the beginning stages of the cases and thus should be included in the “no-look” fee. In the instant cases, difficulties again arise with regard to the lack of contemporaneous time records, and without such records, the Court cannot determine whether those tasks should be subsumed into the “no-look” fee. This is not to say, however, that the timing of the performance of activities is the only consideration. While the temporal nature of the task is certainly to be considered, it is but one factor, and the Court must consider tasks within the context of the case as a whole. There are undoubtedly scenarios where tasks performed at the inception of a case may be warrant supplemental compensation. Those tasks are more properly addressed by the Court on a case by case basis.
O. Should Certain Services be Classified as “Clerical” or “Overhead”?
The United States Trustee argues that certain services provided by the firm are more properly classified as clerical tasks and that the firm should not be reimbursed for such tasks. These services include making copies; general filing; maintaining files; communicating with clients regarding appointment times; and routine tasks that are not legal in nature. The Boleman Firm argues that requirements within the Bankruptcy Code and applicable rules necessitate the completion of certain tasks, such as making and serving copies of documents on the pertinent parties. The firm points to language from the
McNally
decision where the Court found such charges to be
de minimus
in light of the fee application as a whole and when
Like the other considerations discussed above, an inherent difficulty arises in trying to resolve this question because of the lack of contemporaneous time records. Even if the Court were to determine that services cited by the United States Trustee should not be considered to be clerical in nature and should not be subsumed into the general overhead costs associated with operating a law firm, the Court still is left without a reliable record of the length of time it took to perform those tasks. The Court in
In re McNally,
Case No. 06-10073-HRT,
Difficulty also arises were the Court to conclude in accord with the United States Trustee’s position. Many of the tasks he cites as “clerical” are grouped together with other tasks which may be compensa-ble. For example, Line 192 of the document attached to the Supplemental Fee Application in the Vernon-Williams case contains several tasks: “Prepare photocopies of plan, review for accurate collation, organize and log on USBC filing manifest.” Similar entries are found not only in the document attached to the Vernon-Williams Supplemental Fee Application, but in the fee applications in the other cases as well. Supposing that the Court found that the preparation of photocopies of the plan was a clerical task for which the Boleman Firm could not seek compensation, this Court would then be challenged with the task of separating out the time for making photocopies from the remaining tasks, an inherently difficult task to perform when the time that is listed is admittedly not accurate. That is not to say, however, that if the Court were provided with accurate time records, it would find such a task compensable. In this instance, however, no determination can be made on this issue given the evidence before the Court.
P. Fee Award
Upon consideration of the Supplemental Applications for Compensation pursuant to the
Barber
factors and the additional issues discussed above, the Court concludes that the supplemental fees sought should be awarded but that the fees should be reduced by a fixed percentage. The lack of contemporaneous time records and use of time “minimums” gives rise to various problems, including the possible overstatement of time set forth for discrete tasks; identical entries for tasks performed at the beginning of representation of the debtors in virtually all of the cases; difficulty in discerning both the novelty and difficulty of the questions addressed by the Boleman Firm on behalf of the clients; and how the fees sought compare with fee awards in similar cases. “[I]t is well-settled that uncertainties arising because of inadequate records must be resolved against the applicant.”
In re Gen. Oil Distrib., Inc.,
The Court notes that an award of two-thirds of the fees sought still results in the Boleman Law Firm receiving the vast majority of the total fees claimed in these cases. 31 As set forth in the chart below, the firm is still receiving not less than 80% of the total fees sought in each of these cases.
The following table summarizes the amounts relevant to the Court’s calculations and its determination of fees.
Pees Paid Percentage of Through Supplemental Total Fees Supplemental Total Pees Total Fees Debtor(s) Plan Pees Sought Sought Pees Awarded Awarded Awarded
Vernon-Williams_$1,500.00_$ 704.00_$2,204.00_$ 469.36_$1,969.36_89.35%
Doelling_$1,500.00_$1,120,00_$2,620.00_$ 746.70_$2,246.70_85.75%
Pyles_$1,500.00_$ 500.00_$2,000.00_$ 333.35_$1,833.35_91.67%
Markins_$1,500.00_$ 532.00_$2,032.00_$ 354.68_$1,854.68_91.27%
Lipscomb_$1,500.00_$ 700.00_$2,200.00_$ 466.69_$1,966.69_89.40%
Childrey_$1,500.00_$2,000,00_$3,500.00_$1,333.40_$2,833.40_80.95%
Barakhyahu $1,500.00_$ 561.00_$2,061.00_$ 374,02_$1,874.02_90.93%
Wood$1,500.00$ 667.50 $2,167.50$ 445.02$1,945.02_89.74%
Jarrell $1,500.00 $1,188.00 $2,688.00 $ 792.04 $2,292.04 85.27%
Ranicki$1,500.00$1,767.00$3,267.00$1,178.06$2,678.06_81.97%
Berryman $1,500.00 $ 562.50 $2,062.50 $ 375.02 $1,875.02 90.91%
The Clerk shall deliver copies of this Memorandum Opinion to C. Thomas Ebel, L. Lee Byrd, Jeffrey H. Geiger, and William A. Gray, Counsel for the Boleman Law Firm, P.C.; Robert B. Van Arsdale, Assistant United States Trustee; the above-captioned eleven Debtors; all Debtors who have requested notice and are listed in attached Exhibit B; and Robert Hyman, Chapter 13 Trustee.
Exhibit B
Debtors’ Requests for Notice Filed in Case 04-37223, Vernon-Williams
1) Martha Lee Allen 04-34543
2) Abraham Barakhyahu 03-37623
3) Linda D. Bell 04-37683
4) Angelia Braxton 02-67376
5) Crezone T. Burton 01-32300
6) Rebecca S. Cox 04-38066
7) George A. Ford 03-36598
8) Mark Fuller 04-31276
9) Kimberly Games 04-39777
10) Alma Campbell Gates 04-35414
11) Hilary L. Graf 04-33142
12) Susan S. Gray-Hurst 04-36261
13) Jennifer Griffith 02-64916
14) Shirley D. Harrison 04-38072
15) Tracy & Wayne Harrison 04-35223
16) David & Sarah Hill 03-33220
17) Wayne L. Johnson 04-38676
18) Gerald D. LaPierre 04-34551
19) Cheryl A. McGuire 04-32975
20) Bruce & Holly Paige 04-30146
21) Marlene Pelham 03-31603
22) Bascom & Helen Perkins 04-33467
23) Dawn S. Randall 03-40947
24) Lance Singleton 04-38350
25) Stanley Taylor 04-37360
26) Kenneth Wilkerson 04-37133
27) Vernon & Debra Womack 04-30481
Notes
. The procedural history since the issuance of the Court's previous Memorandum Opinion is also contained in the Court’s Memorandum Opinion Concerning Reconsideration of Costs, issued concurrently.
. Unless otherwise noted, all pleadings cited were filed in the case of Ellen Lucille Vernon-Williams, Case No. 04-37223-DOT, which was designated as the lead case by the Court for these proceedings.
.At the conclusion of the hearings held on April 30, 2007, the Court directed counsel for the Boleman Firm to file as an exhibit in the instant case the portion of the firm's Appel
. In
Barber v. Kimbrell’s, Inc.,
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the timelimitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.
Barber,
. The exhibits offered by the Boleman Firm were so designated with the letter “R” to differentiate the exhibits offered at the April 30, 2007, hearings from those offered at the
. Mr. Leffler provided testimony at the hearing held on March 7-8, 2006. Mr. Leffler is a five percent shareholder of the Boleman Law Firm and has worked at the firm since 2000.
In re Vernon-Williams,
. As explained in this Court’s earlier opinion, this Court routinely approves a Chapter 13 fee request that is at or below the amount permitted under this Court’s Local Bankruptcy Rule 2016-1 ($1,500.00), and the general custom in this district is that the fee is approved without a hearing. This request is typically referred to in the district as the "no-look” fee.
In re Vernon-Williams,
.While several references within the findings of fact speak of "supplemental services,” this terminology is used only to indicate the designation given to those services by Leffler within his testimony. The Court makes no finding in this section as to whether the services deemed to be “supplemental” in nature by the Boleman Firm are properly classified as such.
. The Supplemental Fee Application filed in the Vernon-Williams case was submitted as Exhibit 38 to the Court during the course of the March 7-8, 2006, hearings.
. Costs incurred by the Boleman Firm, according to Exhibit 20-R, totaled $782.48. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $350.00 from Ms. Vernon-Williams that it applied to costs. Thus, a balance of $152.48 remained for costs.
. The Court notes for the record that on July 19, 2007, a combined Motion to Reopen Case, Motion to Substitute Attorney, and Motion to Vacate Order Dismissing Case was filed by proposed new counsel for the Doellings, H. Darden Hutson. Gerald & Vicki Doelling, Case Number 03-32020-DOT, Motion to Reopen Case, Motion to Substitute Attorney, and Motion to Vacate Order Dismissing Case, filed July 19, 2007, Docket Entry 91. A hearing was held on the motion on August 8, 2007, before Chief Judge Tice of this Court, and the matter was taken under advisement. On August 9, 2007, an Order granting the combined Motion was entered by the Court.
. Costs incurred by the Boleman Firm, according to Exhibit 21-R, totaled $1,449.08 as of the date of the Supplemental Fee Application. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $185.00 from the Doellings that it applied to costs. Thus, a balance of $984.08 remained for costs.
. The Court notes that the Pyles’ Chapter 13 discharge was entered on July 27, 2007.
. Costs incurred by the Boleman Firm, according to Exhibit 23-R, totaled $966.76. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $385.00 from Ms. Markins that it applied to costs. Thus, a balance of $301.76 remained for costs.
. Costs incurred by the Boleman Firm, according to Exhibit 24-R, totaled $551.09. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $325.00 from Mr. Lipscomb that it applied to costs. Thus, a credit of $53.91 existed for costs. It appears that this amount was subtracted from the net fees of $1,016.00, to arrive at the total amount of $962.09.
. Costs incurred by the Boleman Firm, according to Exhibit 25-R, totaled $491.61. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $325.00 from Mr. Childrey that it applied to costs. Thus, a credit of $113.39 existed for costs. It appears that this amount was subtracted from the net fees of $2,723.00, to arrive at the total amount of $2,609.61.
. The Court notes that on July 21, 2005, after the filing of the Supplemental Fee Application in her joint case with her husband, Mrs. Barakhyahu filed a Notice of Voluntary Conversion to Chapter 7 in relation to her case only. According to the Court’s review of Mr. Barakhyahu's case file, he remains in his Chapter 13 case as of September 12, 2007.
. Costs incurred by the Boleman Firm, according to Exhibit 26-R, totaled $1,270.25. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $325.00 from the debtor that it applied to costs. Thus, a balance of $665.25 remained for costs.
. According to the Court’s review of the Woods case file, the Woods remain in their Chapter 13 case as of September 12, 2007.
. Costs incurred by the Boleman Firm, according to Exhibit 27-R, totaled $816.69. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $385.00 from the Woods that it applied to costs. Thus, a balance of $151.69 remained for costs.
. According to the Court's review of Ms. Jarrell's case file, she remains in her Chapter 13 case as of September 12, 2007.
. Costs incurred by the Boleman Firm, according to Exhibit 28-R, totaled $639.87. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $335.00 from Ms. Jarrell that it applied to costs. Thus, a balance of $24.87 remained for costs.
. Costs incurred by the Boleman Firm, according to Exhibit 29-R, totaled $793.01. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $325.00 from Ms. Ranicki that it applied to costs. Thus, a balance of $188.01 remained for costs.
. Costs incurred by the Boleman Firm, according to Exhibit 30-R, totaled $578.75. Of this amount, the Chapter 13 Trustee paid $280.00 to the firm from the bankruptcy estate. The firm represents that it received $200.00 from Ms. Berryman that it applied to costs. Thus, a balance of $98.75 remained for costs.
. The Court observes that the amounts contained in the reimbursement summarization with regard to the total fees and the amount requested in the Supplemental Fee Applications are identical to those contained in Exhibits 20-R through 30-R and thus will not repeat those amounts here. The amounts for "Total Fees and Costs Incurred" and "Discount” contained in the chart are not identical to Exhibits 20-R through 30-R, apparently due to the inclusion by the firm of costs incurred in the cases after the filing of the supplemental applications in the calculations. See Boleman Trial Memorandum, at 3 fn. 1.
. In the recent case of
Guidry v. Clare,
Lumping and other types of inadequate documentation are thus a proper basis for reducing a fee award because they prevent an accurate determination of the reasonableness of the time expended in a case. Such a reduction can be accomplished in one of two ways: (i) by identifying and disallowing specific hours that are not adequately documented, or (ii) by reducing the overall fee award by a fixed percentage or amount based on the trial court's familiarity with the case, its complexity, and the counsel involved.
Id.
at 294 (citing
Equal Employment Opportunity Comm’n v. Nutri/System, Inc.,
. The petitions in ten of the eleven cases at issue were filed between February 2003 and October 2003. The Vernon-Williams petition was filed July 29, 2004.
. Slight variations were noted between the applications, but none that impact the Court’s analysis of this issue.
. The "no-look” fee of $1,500.00 was in effect at all times relevant to the eleven cases at issue here.
. Because the cases at issue were filed prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the version of the Bankruptcy Code in effect in 2004 would apply to the priority of payments from the bankruptcy estate.
. As indicated in the chart below, the total fees claimed by the Boleman Firm is the sum of the "no-look” fee of $1,500.00 paid in each of these cases and the supplemental fees sought by the Boleman Firm, as set forth in Exhibits 20R through 30R.