Jeffrey David Heise

1 This was a case in which the Debtor was required to pay a
set amount into the plan, out of which all the attorney fees were
to be paid. 	Thus, with the attorney fees in whatever amount
coming out of the pockets of the creditors and not the Debtor,
Page 1 of 	21
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re
Jeffrey David Heise, Debtor. 	No. 13-09-13824 SA
MEMORANDUM OPINION IN SUPPORT OF ORDER
APPROVING IN PART AND DENYING IN PART
AMENDED APPLICATION FOR ALLOWANCE OF FEES
BY DEBTOR’S COUNSEL
The Amended Application for the Allowance of Fees for the
Period of February 23, 2009 to November 30, 2009 (doc 25), filed
by Debtor’s counsel (“Counsel”), together with the objection
thereto filed by the Chapter 13 Trustee (doc 26), came before the
Court for an oral argument on February 9, 2010. 	Based on the
oral argument and the record, the Court grants the application
but in a smaller amount than requested by Counsel. 	Specifically,
the Court rules that Counsel’s rate should be allowed at the rate
of $200 per hour for the work done, 1.2 hours of Counsel’s time
should be subtracted from the billing, and the time for preparing
the fee application should be allowed at one hour.
Counsel appeared and argued on behalf of the application;
the Chapter 13 Trustee, with the permission of the Court, did not
appear. 	The Debtor did not take a position on the fee
application; the Court assumes that the Debtor saw and approved
the application before it was filed. 1 	The application was argued
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the Debtor would have had no financial incentive to challenge
Counsel’s fees. 	See, e.g., In re Romero, 2010 WL 964209 (Bankr.
D.N.M. 2010), at *4; In re Szymczak, 246 B.R. 774, 778 (Bankr.
D.N.J. 2000).
2 Both judges of the United States Bankruptcy Court for the
District of New Mexico presided over the oral argument, although
the hearing was not conducted en banc.
3 The Court has been unable to exactly duplicate Counsel’s
figures, though the differences are minor. 	The Court’s own
Page 2 of 	21
at the same time as another compensation application filed by
Counsel in another unrelated chapter 13 case, In re Romero, 2010
WL 964209 (Bankr. D. N.M. 2010), pending before the Honorable
Robert H. Jacobvitz. 2 	The hearing was conducted so that Counsel
could argue that he should be entitled to bill his current usual
and customary $250 per hour for his time spent on the case rather
than the $225 per hour he was formerly charging. 	Because the
same issue was addressed meticulously and correctly by Judge
Jacobvitz in Romero, this Court will rely largely on that
decision, and add only additional considerations specific to this
case.
The application seeks approval of a total of $4,635.73,
comprised of $3,450.00 of attorney fees for Counsel at the rate
of $250 per hour (13.8 hours), $611.00 for paralegal services at
$65 per hour (9.4 hours), $294.53 for reimbursement of costs
(including $274 of the filing fees), $278.79 for reimbursement of
New Mexico gross receipts tax (“GRT”) on the fees, and $1.41 for
reimbursement of the GRT on the costs. 3 	The application also
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calculation, part of which was required by the ruling on the
application, appears at the end of this opinion.
Page 3 of 	21
recites (and the time sheets confirm) that Debtor paid Counsel
$1,000.00 (of which $274 was used to pay the chapter 13 filing
fee) as a prepetition retainer, so that Counsel seeks approval of
the total amount of $4,635.73 and payment authorization for
$3,635.73. 	In addition, the application seeks fees of $300.00
plus tax of $20.25 for preparing and filing this fee application,
plus costs of noticing of $29.00 plus tax thereon of $1.96, for
an additional amount of $351.21. 	This raises the total
application to $4,986.94, and payment authorization of $3,986.94.
The application recites that the fees arise from the “necessary
and important services [provided] to the estate in representing
the Debtor in their [sic] Chapter 13 bankruptcy”.
The Chapter 13 Trustee’s Objection to Application for
Compensation raised two objections, to the rate of $250 per hour
as too high and to the failure to timely file the Statement of
Financial Affairs that resulted in a continued section 341
meeting.
BACKGROUND
The CM file shows that the case was filed on August 26, 2009
(doc 1); the section 341 meeting was first set for, and was
initially conducted on, October 7, 2009; on October 7 the Chapter
13 Trustee continued the section 341 meeting to October 21, 2007,
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4 The order reduced the secured portion of the claim to
$11,000 from $23,203; see Chapter 13 Plan, ¶ 4.4 (doc 4).
Page 4 of 	21
on which date she conducted and concluded the continued meeting;
the Debtor successfully moved for valuation of the 2005 Dodge Ram
pick up (docs 14 and 18) without objection from the creditor 4;
and on November 17, 2009, an order confirming the plan was
entered (doc 21). 	The docket also shows that Counsel filed the
Disclosure of Compensation on August 26 (doc 9), showing that
Counsel was charging $250 per hour. 	And it shows that the
Statement of Financial Affairs (sometimes “SOFA”) was not filed
with the petition, schedules, means test, etc. (doc 1) on the
filing date, but rather on October 13, 2009 (doc 16), following
the first section 341 meeting.
The time sheets reflect representation that commenced on
February 23, 2009 and preparation of the case that began on May
1, 2009, and filing, as noted above, on August 26, 2009. 	Doc 25,
items 3 and 4. 	The time sheets show the extensive and
appropriate use of a paralegal to do much of the work, a
necessity for cost-efficient representation of chapter 13
debtors. 	And they show a billing for Counsel of .2 hour ($50) on
October 20, 2009 for preparation for the continued 341 meeting
and one hour ($250) on October 21, 2009 for attending the
continued section 341 meeting.
The CM file, including items such as the schedules and
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5 The debt numbers are rounded to the nearest $1,000.
6 The relative simplicity of the motion and the plan suggest
the reason for the lack of objections, rather than the experience
brought to bear on those issues by Counsel.
Page 5 of 	21
statement of financial affairs, does not disclose or suggest
anything unusual about the case. 	Debtor owned a home valued at
$125,000 securing repayment of two mortgage notes totaling
$106,000 5; he also owned miscellaneous items of personal property
valued at about $21,000, most of the value of which was in a 2005
Dodge Ram pick up valued at $11,000 securing repayment of a lien
of $23,000 and a pontoon boat valued at $6,000 owned free and
clear of liens. $400 of his $1,600 Textron Savings Plan was
vested. 	Debtor correctly exempted all the equity in all the
property.
The management of the case was also quite simple, about as
simple as it gets in chapter 13. 	The time sheet entries of
October 7 and October 22 do not show any negotiations with the
creditor concerning valuation of the vehicle, and the standard
form plan required only a few blanks to be filled in (doc 4).
There were no objections to the valuation motion or to the plan. 6
ANALYSIS
At oral argument Counsel correctly framed the discussion:
the ultimate question is whether the fee charged is reasonable
for the case, and the hourly rate charged by counsel is one
element in making that decision but is not by itself dispositive.
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Page 6 of 	21
See Romero, at *4. 	The applicable statute dictates this
approach.
§ 330. Compensation of officers
(a)(1) After notice to the parties in interest and the
United States Trustee and a hearing, and subject to
sections 326, 328, and 329, the court may award to a
trustee, a consumer privacy ombudsman appointed under
section 332, an examiner, an ombudsman appointed under
section 333, or a professional person employed under
section 327 or 1103--
(A) reasonable compensation for actual, necessary
services rendered by the trustee, examiner, ombudsman,
professional person, or attorney and by any
paraprofessional person employed by any such person;
and
(B) reimbursement for actual, necessary expenses.
(2) The court may, on its own motion or on the motion
of the United States Trustee, the United States Trustee
for the District or Region, the trustee for the estate,
or any other party in interest, award compensation that
is less than the amount of compensation that is
requested.
(3) In determining the amount of reasonable
compensation to be awarded to an examiner, trustee
under chapter 11, or professional person, the court
shall consider the nature, the extent, and the value of
such services, taking into account all relevant
factors, including--
(A) the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the
administration of, or beneficial at the time at which
the service was rendered toward the completion of, a
case under this title;
(D) whether the services were performed within a
reasonable amount of time commensurate with the
complexity, importance, and nature of the problem,
issue, or task addressed;
(E) with respect to a professional person, whether the
person is board certified or otherwise has demonstrated
skill and experience in the bankruptcy field; and
(F) whether the compensation is reasonable based on the
customary compensation charged by comparably skilled
practitioners in cases other than cases under this
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7 The Romero case states that a court is not confined to its
own district when surveying the rates charged for comparable
types of work, citing In re McClanahan, 137 B.R. 73, 74-75
(Bankr. M.D. Fla. 1992). 	This Court need not rule on this issue,
since Counsel presented data only from the District of New
Mexico.
8 Neither Counsel nor any other person testified under oath;
the Court took Counsel’s representations at the podium as
evidence, as it did Counsel’s exhibits. 	The Court has also taken
notice of the CM file in this case. 	F.R.Evid. 201.
Page 7 of 	21
title. 7
(4)(A) Except as provided in subparagraph (B), the
court shall not allow compensation for--
(I) unnecessary duplication of services; or
(ii) services that were not--
(I) reasonably likely to benefit the debtor's estate;
or
(II) necessary to the administration of the case.
(B) In a chapter 12 or chapter 13 case in which the
debtor is an individual, the court may allow reasonable
compensation to the debtor's attorney for representing
the interests of the debtor in connection with the
bankruptcy case based on a consideration of the benefit
and necessity of such services to the debtor and the
other factors set forth in this section.
...
(6) Any compensation awarded for the preparation of a
fee application shall be based on the level and skill
reasonably required to prepare the application.
11 U.S.C. section 330(a).
By these standards, and based on the evidence 8, Counsel’s
application should be approved but not as submitted.
To begin with, Counsel’s services overall clearly benefitted
both the estate and the individual debtor. 	Therefore the
application is allowable in some amount.
However, Counsel should not be compensated for the time
spent preparing for and attending a second section 341 meeting
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9 The Court recognizes the additional resources required of
the Chapter 13 Trustee to review the case a second time and
conduct a continued section 341 meeting based on the oversight.
The Court declines in this instance to reduce Counsel’s fees
further based on that oversight, and in any event, the Chapter 13
Trustee has not requested any such relief.
Page 8 of 	21
occasioned by Counsel’s oversight in failing to prepare and file
the SOFA. 	That oversight benefitted neither the estate nor the
Debtor and therefore cannot be compensated. 9 	E.g., Rubner &
Kutner, P.C. v. U.S. Trustee (In re Lederman Enterprises, Inc.),
997 F.2d 1321, 1323 (10 th Cir. 1993) (“[T]he beneficial nature of
legal services must be determined before a reasonableness inquiry
may even be conducted....”); In re Ewing, 167 B.R. 233, 235
(Bankr. D.N.M. 1994). 	Thus the total attorney billable hours
that may be compensated is reduced by 1.2 hours.
Regarding the proposed $300.00 flat charge requested for
preparing and filing the fee application, increased by costs and
GRT on both the $300 and the costs, for a total of $351.21,
Exhibit 1 to the application does not say how much time was
incurred by whom in preparing the application. 	A reasonable fee
for preparing a fee application is compensable, of course. 	In re
Ewing, 167 B.R. at 236; In re Fibermark, Inc., 349 B.R. 385, 397
(Bankr. D. Vt. 2006) (“Reasonable time spent preparing a fee
application is compensable....” 	Citation omitted.). 	The Court
finds that one hour should be a reasonable time for a simple
Chapter 13 fee application. 	Counsel should review the monthly
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10 Of course there should be no charge for reviewing,
correcting and adjusting the bills on a monthly basis. 	That
process is part of an attorney’s obligation to the client as a
non-compensable aspect of representing the client.
11 Indeed, counsel should record precisely the time actually
spent in preparing a fee application. 	However in this instance
the Court declines to require Counsel to supplement his fee
application to address this issue.
12 To be clear, no employment order is needed for a debtor’s
chapter 13 counsel. 	The Court discusses chapter 11 procedures in
this case in order to more fully explicate the Court’s policy.
Page 9 of 	21
bills each month when they are sent to the client, and adjust
them as needed. 10 	The bills will then be readily available when
it comes time to file the fee application, and simply inserting
the total into a form fee application, and attaching the bills to
the application, should require a minimal amount of time, most of
it clerical. 	Some minor additional attorney time is appropriate
if bills need to be reduced to reflect an overall result, and for
any redaction that the protection of the attorney client
privilege might entail. 	The amount sought in this application
will therefore be reduced to reflect a charge for one hour,
together with associated costs, plus taxes thereon. 11
On the issue of what rate should be permitted, this judge’s
practice up to now has been to require that where employment
orders were required, the employment order recite the rate of
compensation, including in hourly rate cases. 12 	That practice
had the effect of allowing everyone to know what the rate was
and, by applying the lodestar methodology, to anticipate what the
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13 Such a ruling will not necessarily ensue in any given
case. 	For example, if a fee application draws no objections
because the work was done at a reasonable cost, regardless of who
billed at what rate, the Court could approve the fee without
needing to approve the rates.
Page 10 of 	21
fees might reasonably be. 	See section 328(a) (court may change
terms and conditions of employment after the conclusion of such
employment “if such terms and conditions prove to have been
improvident in light of developments not capable of being
anticipated at the time of the fixing of such terms and
conditions.”). 	This practice was useful in several ways, not
least for budgeting purposes for the employed professional
counsel and for setting the amount of interim (monthly)
compensation for counsel in chapter 11 cases. 	The Court still
takes that approach for professionals such as real estate agents,
auctioneers, and special counsel on contingency cases, the
reimbursement terms for whom are expected to be fixed at the
outset of the employment.
On the other hand, ruling on the hourly rate in the context
of a fee application rather than at the outset in an employment
application permits the parties and a court to judge the value of
services after the fact rather than predicting it beforehand.
That is, in addition to counsel setting out the number of hours
billed and what was accomplished for the estate and the debtor,
counsel may also seek approval of the billing rate in the context
of the fee application. 13 	Of course, counsel will need to
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14 Title 42 U.S.C. § 1988(b) provides:
“In 	any 	action 	or 	proceeding 	to 	enforce 	a 	provision 	of
sections 	1981, 	1981a, 	1982, 	1983, 	1985, 	and 	1986 	of 	this
title, title IX of Public Law 92-318, the Religious Freedom
Restoration 	Act 	of 	1993, 	the 	Religious 	Land 	Use 	and
Institutionalized Persons Act of 2000, title VI of the Civil
Rights 	Act 	of 	1964, 	or 	section 	13981 	of 	this 	title, 	the
court, 	in 	its 	discretion, 	may 	allow 	the 	prevailing 	party,
other than the United States, a reasonable attorney's fee as
part of the costs ....”
Page 11 of 	21
disclose to the client at what rate counsel is billing,
regardless of the chapter under which the case is filed, and such
information must be disclosed in any employment application filed
when, for example, counsel represents a trustee or a chapter 11
debtor in possession.
This approach of ruling on the hourly rate in such a manner
that takes into account the value of the results in determining
the hourly rate of counsel might at first blush seem to run afoul
of the ruling in Perdue v. Kenny A. ex rel. Winn, ___ U.S. ___,
130 S.Ct. 1662 (2010) (in 42 U.S.C. section 1988 litigation, fee
enhancements above lodestar figure are prohibited if based on
factors incorporated into the lodestar calculation; fee
enhancements above the lodestar consequently will be rare). 	In
Perdue, the United States Supreme Court reversed a 75% fee
enhancement in a civil rights case in which counsel sought
compensation under section 1988(b). 14 	The Court reasoned that
counsel’s hourly rate should take into account the prevailing
rate in the community for similar sorts of representation (the
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15 The trial court in Perdue had based its upward adjustment
on the generalized finding that the work and the result were the
best the trial court had seen in almost six decades in practice
and on the bench, a standard which allowed no effective review on
appeal. 	Id., at 1682. 	Another factor seemed to be the Court’s
distress at the resulting enhanced hourly rate for the single
highest billing attorney – $866, id. at 1675-76 and 1683 - a rate
which far exceeded the salaries paid to Georgia state employees
who were lawyers, id. at 1676 n. 8, and which also far exceeded
the $34,000 annual per capita income of Georgia residents. 	Id.
This Court would merely note that as far back as 2001, certain
national counsel for a chapter 11 debtor in possession sought
approval of hourly rates in this district under a “bundled rate
structure [of] $445 to $670 for partners....”. 	These rates were
“subject to periodic increases in the normal course of the firm’s
business....” 	In re Furr’s Supermarkets, Inc., No. 01-10779
(D.N.M.), doc 18 (Declaration of Richard Levin under 11 U.S.C. §§
327, 329 and Bankr. Fed. R. Bankr. P. 2014 in Support of
Application for Order Approving Retention of Skadden, Arps,
Slate, Meagher & Flom LLP and Affiliated Law Practice Entities as
General Bankruptcy Counsel) at 7-8.
Page 12 of 	21
factor listed in section 330(a)(3)(F)), and that counsel’s best
efforts and superior performance should be accounted for in the
rate that counsel charges, including if counsel achieves an
excellent result. 15
Other than the commonality of the lodestar as the subject of
Perdue and of this case, which commonality arises from the fact
that the lodestar methodology for calculating fees became
commonplace after the practice of hourly billing had become
widespread, id. at 1672, the holding in Perdue is irrelevant for
this inquiry. 	The underlying inquiry in section 1988 fee cases
is whether the lodestar fee is adequate to attract competent
counsel to do that sort of work for plaintiffs. 	Id., at 1674,
citing Blum v. Stenson, 465 U.S. 886, 897 (1984). 	While Counsel
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Page 13 of 	21
made that very argument for a higher rate in chapter 13 cases,
the proof submitted by Counsel and this Court’s observations of
chapter 13 practice conducted before it suggest no significant
dearth of attorneys competently representing chapter 13 debtors.
Some examples of the enormous differences between chapter 13
debtor work and civil rights contingency work illustrate why that
is the case. 	Chapter 13 work involves relatively small fees for
each case – typically a few thousand dollars – and between the
usual up-front payment and relatively quick and sure distribution
from the chapter 13 trustee, chapter 13 debtor’s counsel are
reasonably assured (albeit not guaranteed) of payment. 	In major
civil rights’ cases, on the other hand, the required outlay of
resources may be massive (in Perdue, approximately 24,000 hours
of attorney and paralegal time; Kenny A. ex rel. Winn v. Perdue,
454 F.Supp.2d 1260, 1287 (N.D. Ga. 2006), aff’d 532 F.3d 1209
(11 th Cir. 2009), rev’d and remanded 130 S. Ct. 1662, payment
often comes only years later, Perdue at 1675, it may not come at
all, id., or it may come in a reduced amount, and it may be
subject to advancing costs of litigation (in Perdue, $1.7 million
over a three-year period with no interim reimbursement; Kenny A.
ex rel. Winn v. Perdue, 454 F.Supp.2d at 1288). 	Perdue, at 1676.
Fortunately none of these perils or burdens exist for the most
part in chapter 13 debtor work, and thus the concern addressed in
section 1988(b) to ensure incentives to counsel to undertake
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16 A number of other differences distinguish chapter 13
debtor work from civil rights litigation, but the Court need not
go into those differences for this decision.
Page 14 of 	21
civil rights cases does not exist for chapter 13 debtor
representation. 	More directly, section 1988(b) addresses the
specific problem that its plaintiffs almost by definition do not
have the resources to fund the litigation they need to vindicate
their rights. 	Chapter 13 debtors, on the other hand, if they are
appropriately in a chapter 13 case, presumably do have the
resources to pay their attorney. 	In consequence, Perdue does not
preclude this Court from adjusting the rate charged by a chapter
13 debtor’s attorney based on an after-the-fact review of the
work, and the Court is not limited to only adjusting the number
of hours for which counsel will be compensated. 16
With that preface, the Court considers the issue of the rate
charged by Counsel. 	The Court first notes that, in complying
with section 330(a)(3)(F) – “whether the compensation is
reasonable based on the customary compensation charged by
comparably skilled practitioners in cases other than cases under
this title” – Counsel submitted a chart showing only the range of
fees charged by other chapter 13 debtors’ attorneys. 	Exhibit 3.
He did not submit evidence of rates charged by creditors’
counsel, nor did he submit any evidence of rates charged in any
comparable area of law. 	And what exhibit 3 showed was a range of
hourly rates from $185 to $200. 	In consequence, the only
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17 He also stated that a number of his referrals were from
Santa Fe counsel who sent cases to him because they did not want
to do them. 	This does not necessarily support a higher hourly
rate.
18 Presumably for each case the total payout includes
payments to the chapter 13 trustee for her commission, to Counsel
for his fees and to any other administrative claimants, on
arrearages on secured claims, on priority claims, and on non-
priority unsecured claims.
19 A chapter 13 case which pays only the chapter 13 Trustee
fees and some of counsel’s fees can be confirmed in unusual
circumstances. 	See In re Molina, 420 B.R. 825 (Bankr. D. N.M.
2009); contra, In re Sanchez, 2009 WL 2913224 (Bankr. D. N.M.
2009), citing 	In re Paley, 390 B.R. 53 (Bankr. N.D.N.Y.2008).
That said, Counsel’s emphasis on the size of the payments to
creditors, particularly unsecured creditors, compared with the
amount of his fees, is salutary and argues in favor of approval
of his fees. 	In this respect, exhibit 4, which detailed the
payouts in Counsel’s cases (albeit not including cases that were
Page 15 of 	21
evidence this Court has on the issue of comparable rates shows
Counsel’s rates as an outlier on the upper end of the rates
scale.
Counsel also argued that his reputation in the legal
community was such that 90% of his cases were referrals from
other attorneys, and that he tended to get the more complicated,
business type of chapter 13 cases. 17 	Perhaps this latter
assertion is true; exhibit 3 would seem to provide at least
indirect support for that proposition in that it shows that for
15 chapter 13 cases handled by Counsel, the total payout 18 was
$1,145,062.41 with fees totaling $78,706.62, for an average fee
of $5,247.11 and an overall ratio of 0.0687357 of total fees to
total payouts. 19 	The comparable numbers in exhibit 3 for other
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dismissed or converted), was quite helpful.
20 Counsel made no representations about the methodology by
which the cases were selected. 	In two of the “other counsel”
cases, the fees had yet to be approved.
21 By the same token, the Court concedes Counsel’s point
that not all chapter 11 cases are more difficult than a complex
chapter 13 case. 	In particular, the Court notes that a number of
personal chapter 11 cases are essentially chapter 13 cases in a
different guise because the debtor could not fit under the
chapter 13 debt limitations. 	Many of these cases are relatively
easily administered.
22 The Court concedes that occasionally a cash collateral
order, or an order permitting a debtor to finance the purchase of
a vehicle, may be required, but even those tend to be simpler
Page 16 of 	21
counsel for 17 chapter 13 cases filed in CY2009 were $532,468.00
and fees of $59,531.48, resulting in an average fee of $3,501.85
for a ratio of 0.1118029. 20 	Of course, each chapter 13 case is
sui generis, and the creditors of each are entitled to receive
the maximum payment to which they are entitled based on a
reasonable fee allowed to debtor’s counsel, regardless of
counsel’s accomplishments in other cases.
More broadly, the Court concurs strongly with the rationale
and the conclusion in Romero, whereby Counsel was permitted to
charge $200 per hour. 	Acknowledging that chapter 13 cases are
not at all necessarily simple or routine 21 , seldom (if ever) do
chapter 13 cases require debtor’s counsel to negotiate or
litigate first-day orders, cash collateral orders, debtor in
possession financing, a disclosure statement, cram down or exit
financing. 22 	Thus a very experienced chapter 11 debtor’s
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than the analogous motions in a chapter 11 case.
Page 17 of 	21
attorney doing a chapter 13 case will ordinarily find little use
for many of the skills she or he has available in her or his
chapter 11 quiver. 	In those chapter 13 cases in which such
skills are called for, counsel can clearly request the
appropriate compensation, including a higher rate. 	As the
foregoing recitation of facts demonstrates, however, there was
certainly no such complexity in this case. 	Charging the estate,
in the form of a higher hourly rate, for a range of skills that
will almost certainly not be needed for the case is rather like
renting a supercomputer to do word processing; one can do it, but
why?
The fact that Counsel is competent to handle a more
complex matter fails to justify a significantly higher
hourly rate when the matter is not complex, and the
case does not involve any novel or particularly
difficult issues. Greater efficiencies of a more
skilled lawyer do not necessarily translate into lower
charges when the lawyer handles relatively routine,
repetitive tasks. 	Competent lawyers with less
experience or skill in more complicated matters who
charge lower hourly rates handle the same,
less-complicated routine tasks as competently and
efficiently as attorneys with greater skills to handle
complex cases. 	Greater skill and experience do not
justify a significantly higher hourly rate when the
greater skill is not applied to the tasks performed and
where the greater experience in complex matters does
not benefit the debtor or the estate. 	This is not to
suggest that a higher hourly rate may never be
justified in a chapter 13 case, or that Counsel would
not be entitled to a higher hourly rate in a chapter 11
case. 	The determination of a reasonable hourly rate
must be made on a case by case basis, taking into
account the complexity of the case and any other
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Page 18 of 	21
relevant factors. 	A complicated chapter 13 case could
merit Counsel charging his higher customary hourly
rate. 	But the case now before the Court was not an
unusually complex chapter 13 case, and Counsel has not
demonstrated any other factors relevant to the case
that would justify a higher rate.
Romero, at *5-6. 	(Footnotes omitted.) 	To be clear, the Court is
not discouraging any attorney who is competent to manage a
complex chapter 11 case from representing a chapter 13 debtor;
indeed, given the rising need for competent debtor
representations in the current economic circumstances, such
representation is welcome. 	Rather, the limitation is only on
what hourly rate the chapter 13 estate and debtor should be
charged.
Counsel argued that simpler cases result in less time spent,
and therefore result in a lower fee even with a higher hourly
rate. 	In a similar vein, Counsel also urged that if the Court
determined that overall the fees charged were too high, the Court
could adjust the total fee by reducing the hours instead of the
rate.
To start with, the Court has some question about the
accuracy and the applicability of the first proposition. 	As a
general rule, it probably is true that simpler cases result in
less time spent. 	But a chapter 13 case which requires few if any
motions to be filed and requires only a simple plan, can still
demand more time depending on numerous factors out of the control
of debtor’s counsel, such as the tactics and behavior of the
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23 See Black’s Law Dictionary at 533 (7 th Ed. 1999); Martin
v. Darwin, 77 N.M. 200, 202, 420 P.2d 782, 784 (1966) (“Where
plaintiff has a pre-existing condition and claims that defendant
aggravated that condition, plaintiff must prove the extent of
that aggravation.”); 2 Restatement (Second) of Torts §461 (1965)
(Harm Increased in Extent by Other’s Unforeseeable Physical
Condition); D. Dobbs, The Law of Torts §188 at 464 (2001) (“The
foreseeability or risk rule holds the defendant subject to
liability if he could reasonably foresee the nature of the harm
done, even if the total amount of harm turned out to be quite
unforeseeably large.”) (Footnote omitted.)
24 Of course, the debtor rather than creditors should pay
for excessive “hand holding”. 	This Court is not going to hazard
even a suggestion about where to draw that line.
Page 19 of 	21
other counsel or parties, the court’s handling of the case, the
demands of the chapter 13 trustee, a change in the law, etc. 	As
merely one example, the debtor may need a certain amount of “hand
holding”; e.g., more than average telephone conversations or
office visits to educate an unsophisticated debtor or reassure a
frightened debtor. 	To some extent, all attorneys who are acting
professionally take their clients as they find them, in a sort of
bankruptcy version of the “eggshell head rule” 23 , and debtors’
counsel should be compensated for a reasonable amount of time
spent serving as “counsel” for a debtor. 24 	This sort of service
would apply as well to a client with communication difficulties
or whose records are in considerable disarray. 	These factors are
easily explained in the narrative of a fee application.
More to the point, a straightforward accurate accounting for
the time spent on a case is most useful for every participant in
the process. Reducing the hours for which counsel may be
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Page 20 of 	21
compensated makes sense when time has been inappropriately billed
for some task, either because the task did not need to be
performed to begin with (e.g., attending a continued section 341
meeting because counsel failed to prepare and file a critical
document) or because too much time was devoted to the task. 	This
approach addresses the “too much time spent on the problem” issue
directly. 	Reducing hours is a very indirect and therefore much
less useful way of addressing the issue of what rate should be
charged.
CONCLUSION
Based on the foregoing, the Court has recalculated what
Counsel is allowed for the application in Exhibit A, attached
hereto. 	Based on the foregoing analysis, the Court allows the
application in the total amount of $ 3,829.82 , which sum, less the
$1,000 retainer drawn down by Counsel, entitles Counsel to
payment from the estate of $2,829.82. 	An order conforming to
this memorandum opinion will enter.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	June 30, 2010
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Page 21 of 	21
Copies to:
Daniel J Behles
Moore, Berkson & Gandarilla, P.C.
P.O. Box 7459
Albuquerque, NM 87194
Kelley L. Skehen
625 Silver Avenue SW
Suite 350
Albuquerque, NM 87102-3111
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Case 09-13824-t13 Doc 35 Filed 06/30/10 Entered 06/30/10 16:26:06 Page 21 of 22

EXHIBIT A to MEMO OPINION IN In re: Jeffrey David Heise, Debtor. 	No. 13-09-13824 SA
Biller 	Rate 	Time 	Lodestar 	Add GRT* 	Amount 	Total
1H09
Counsel 	$ 	200.00 	.8 	$ 	160.00 	6.750% 	$ 	10.80 	$ 	170.80
Paralegal 	$ 	65.00 	1.9 	$ 	65.00 	6.750% 	$ 	4.38 	$ 	69.38
Costs 	$ 	1.40 	6.750% 	$ 	0.09 	$ 	1.49
2H09
Counsel 	$ 	200.00 	11.8‡ 	$ 	2,360.00 	6.875% 	$ 	162.25 	$ 	2,522.25
Paralegal 	$ 	65.00 	7.5 	$ 	487.50 	6.875% 	$ 	33.51 	$ 	521.01
Costs 	$ 	23.13 	6.875% 	$ 	1.59 	$ 	24.72
1H10
Fee app prep 	$ 	200.00 	1.0 	$ 	200.00 	6.625% 	$ 	13.25 	$ 	215.25
Noticing 	$ 	29.00 	6.625% 	$ 	1.92 	$ 	30.92
PLUS:
Filing fee 	$ 	274.00 	$ 	274.00
GRAND TOTAL: 	$ 	3,829.82
Note: The numbers are drawn from the exhibits to the fee application. 	Doc 25.
*The GRT rates for Bernalillo County for the first half of CY2009 was 6.75%, for the second half
of CY2009 was 6.875% and for the first half of CY2010 was 6.625%.
‡This figure excludes the 1.2 hours of billing disallowed by the Court resulting from the time
spent preparing for and attending the second session of the section 341 meeting.
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