Leslie Francis Graf and Marilyn Rae Graf

1The Fee Application requested approval of total fees, taxes and expenses in the amount
of $17,514.11. Subsequently, Behles Law Firm, P.C. filed an Errata Notice to First Fee
Application which reduced the requested amount to $16,295.40* as a result of a reduced hourly
rate and the corresponding reduction in applicable state taxes. Of this amount, $15,265.00 is
attributable to attorneys fees. See Errata Notice to First Fee Application (Docket # 66) (stating
that the fees in the amount of $16,062.50 reflected in the billing statements should be reduced by
$797.50 to account for the reduced hourly rate of $225.00). Behles Law Firm, P.C. received a
pre-petition retainer of $2,500.00 from the Debtors which was drawn down to a zero balance,
leaving an unpaid balance attributable to the Fee Application in the amount of $13,785.40.
*The Errata Notice to First Fee Application appears to contain a typographical error in
that the total amount reported therein was $15,295.40, yet subtracting the amounts reported
($797.50 attributable to fees and $53.83 attributable to corresponding taxes) from the amounts
contained in the Fee Application yields a total of $16,295.40.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	LESLIE GRAF and
MARILYN GRAF, 	No. 13-05-10363 MS
Debtors.
ORDER GRANTING, IN PART, and DENYING, IN PART,
FIRST FEE APPLICATION OF BEHLES LAW FIRM, P.C., FOR PAYMENT
OF FEES AND REIMBURSEMENT OF EXPENSES
FOR THE PERIOD SEPTEMBER 2004 THROUGH FEBRUARY 2005
THIS MATTER is before the Court on the First Fee Application of Behles Law Firm,
P.C., for Payment of Fees and Reimbursement of Expenses for the Period September 2005
through February 2005 (“Fee Application”) filed by counsel for the Debtors. The Fee
Application seeks approval of attorneys’ fees, applicable state taxes, and expenses in the total
amount of $16,295.40 as an administrative expense of the estate to be paid along with all other
expenses of the same priority. 1 No objections to the Fee Application were filed. However,
because the total fees requested is a significant amount to be charged in connection with a
Chapter 13 matter, the Court set the matter for presentment and held a final hearing on the Fee
Application on June 13, 2006, after which the Court took the matter under advisement. After
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considering the Fee Application, and being otherwise sufficiently informed, the Court finds that
some of the requested fees must be disallowed. 	In reaching this determination the Court
FINDS:
1. Pursuant to 11 U.S.C. § 330(a)(4)(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.
11 U.S.C. § 330(a)(4)(B).
2. The Court has an independent duty to review the reasonableness of attorneys’ fees
requested under 11 U.S.C. § 330. 	See In re Tahah, 330 B.R. 777, 780-781 (10th Cir. BAP 2005)
(“It is well-settled that bankruptcy courts have a duty to independently evaluate the propriety of
the compensation requested under § 330) (citation omitted).
3. Reasonableness is determined based upon such factors as the amount of time spent on
the service, the rate charged, whether the services were necessary to the administration of the
bankruptcy estate, and whether the services performed were performed within a reasonable
amount of time, given the complexity and nature of the task addressed. 11 U.S.C. § 330(a)(3).
Compensation will not be allowed for “unnecessary duplication of services”, for services that
“were not reasonably likely to benefit the estate” nor for services that are not “necessary to the
administration of the case.” 11 U.S.C. § 330(a)(4)(A).
4. The fee applicant bears the burden of showing entitlement to the requested
compensation. See In re Recycling Industries, Inc., 243 B.R. 396, 402 (Bankr.D.Colo. 2000) (“It
is well settled that the burden of proof as to the reasonableness of compensation is on the fee
applicant.”); In re Amdura Corp., 139 B.R. 963, 968 (Bankr.D.Colo. 1992).
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5. Time keeping records submitted in support of a fee application must sufficiently
describe the work performed to enable the Court to determine whether the fees requested are
reasonable and necessary. Amdura, 139 B.R. at 972. 	Descriptions for completed tasks that are
too vague prevents the Court from determining reasonableness, and may result in the denial of
fees for those tasks. Id.
6. The Court finds that the hourly rates of $225.00 for attorney-partners, $125.00 for
attorney-associates, and $75.00 for para-professionals requested in the Fee Application is
reasonable.
7. After review of the itemized billing records attached to the Fee Application, the Court
finds that some entries must be disallowed because they are not reasonable or necessary, and the
time spent was excessive for the work performed. Specifically, the summary of professional
services reports total time of 6.4 hours, at a rate of $125.00 for work performed in connection
with the Debtors’ meeting of creditors. The itemized billing records report the following entries:
3/10/06 	trip to Santa Fe for 341 meeting, meeting with clients 	3.8 hrs
4/14/05 	work on refile schedule A, call to court clerk to 	4.8 hrs
put on docket, call from trustee, attend 341 hrg
in Santa Fe
Presumably these entries include travel time from Albuquerque to Santa Fe to attend the
creditor’s meeting. 	Travel time is generally not compensable at an attorneys’ regular hourly rate
unless work is actually being performed during travel time. See In re Seneca Oil Co., 65 B.R.
902, 909 (Bankr.W.D.Okla. 1986) (“Unproductive travel time should not be billed. Only that
portion of travel time actually used to administer necessary services to a client will be
compensated.”) (citation omitted); In re Automobile Warranty Corp., 138 B.R. 72, 78
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(Bankr.D.Colo. 1991) (and cases cited therein, finding it inappropriate to allow unproductive
travel time at the full hourly rate, and allowing travel time to be billed at one-half the normal
hourly rate). But see, Amdura, 139 B.R. at 982-983 (finding that travel time for out of state
counsel to appear was reasonable and necessary, and, therefore compensable).
In addition, because the amount charged in the detailed time entries totals more than the
total amount requested for work performed in connection with the meeting of creditors, these
entries appear to include time for other categories of work. In other words, the work description
includes “lumped” time. See Automobile Warranty, 138 B.R. at 76 (noting that fee applicants
cannot avoid the requirement for describing activities in detail by lumping several activities into
a single entry so that the court cannot determine whether each task was performed
expeditiously)(citations omitted). The Court finds that of the requested 6.4 hours of time spent
in connection with the creditors’ meeting, only 3.0 hours are compensable at the regular hourly
rate of $125.00. 	Accordingly, $425.00 will be disallowed.
The Fee Application requests compensation for work performed in connection with the
plan as follows: 9.2 hours at $225.00 per hour and 9.8 hours at $125.00 per hour. 	In reviewing
the itemized time entries for work performed in this category, the Court finds that the amounts
billed are excessive. 	When excessive time is billed for uncomplicated matters, the attorney is
not entitled to compensation for the total requested amount despite the fact that the work was
actually done. 	See In re Colorado-Ute Elec. Ass’n, Inc., 132 B.R. 174, 177 (Bankr.D.Colo.
1991) (“In applying for fees, attorneys ‘should make a good-faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.’” (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-1940, 76 L.Ed.2d 40 (1983)). In re
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2($225.00 X 3.2 hours disallowed = $720.00) + ($125.00 X 3.8 hours disallowed =
$450.00) = $1,195.00
3$15,265.00 less disallowed attorneys’ fees in the total amount of $1,620.00 = $13,645.00
4This figure includes applicable taxes. See Summary Sheet attached to First Fee
Application.
5
Reconversion Technologies, Inc., 216 B.R. 46, 56 (Bankr.N.D.Okla. 1997) (In determining the
amount of reasonable compensation, the court “should disallow hours that were 'duplicative,
unproductive, excessive, or otherwise unnecessary.’” (quoting In re Shades of Beauty, Inc., 56
B.R. 946, 951 (Bankr.E.D.N.Y.1986) (citations omitted).
In support of the Fee Application, counsel for the Debtors stated that this case was
complicated due to the following: 1) Debtors owned a business which was sold; 2) capital gains
tax issues; 3) property valuation issues for property located out of the country; and 4) the
Debtors moved to Arizona during the pendency of the proceeding, causing changes to their
income and expenses. Of the 19.0 total hours of work described in the billing statements as
preparing, reviewing, and revising the plan, and consulting with opposing counsel and clients
regarding the plan, the Court finds that the following amount of time is reasonable to perform
such tasks: 	6.0 hours at $225.00 per hour and 6.0 hours at $125.00 per hour. 	Therefore,
$1,195.002 of the total amount of fees requested for work on the plan will be disallowed.
WHEREFORE, IT IS HEREBY ORDERED, that the Fee Application is approved, in
part, and denied, in part. Total fees in the amount of $13,645.003 and expenses in the amount of
$367.394 are allowed, plus applicable New Mexico gross receipts taxes in the amount of $921.04
($13,645.00 X .0675), less $2,500.00 which counsel has already received, leaving a balance of
allowed fees and expenses in the amount of $12,433.43 due and compensable from the
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bankruptcy estate.
The remainder of fees requested in the Fee Application are disallowed.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
COPY TO:
Jennie Deden Behles
Attorney for Debtors
PO Box 7070
Albuquerque, NM 87194
Kelley L. Skehen
Chapter 13 Trustee
625 Silver SW, Suite 350
Albuquerque, NM 87102
Office of the United States Trustee
PO Box 608
Albuquerque, NM 87103
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