Phillip L Owens

NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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: 	Chapter 13
In re: 	:
: 	Case No. 18-35432(CGM)
Phillip L Owens 	:
:
Debtor. 	:
:
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MEMORANDUM DECISION AND ORDER DENYING REQUEST FOR
RECONSIDERATION
CECELIA G. MORRIS
CHIEF UNITED STATES BANKRUPTCY JUDGE
Mr. Phillip L Owens (the “Debtor”) filed a letter with this Court on November 19, 2021.
Mr. Owens wished to bring to the attention of the Court: 1) that his address has changed; 2) that
his financial circumstances have changed, and 3) that he does not understand this Court’s
decision on August 20, 2019 to relieve his prior legal counsel of representation. Owens 2021
Letter, ECF1 No. 32. Based on the Debtor’s letter, the docket has been updated with the address
provided. The Court scheduled a hearing on December 21, 2021 to review this letter with the
Debtor. As Mr. Owens did not appear at this hearing, the rest of this letter will be addressed in
this document, below.
Background
Mr. Owens filed for bankruptcy under chapter 13 on March 21, 2018. Chapter 13
Petition, ECF No. 1. Debtor’s plan was confirmed on June 11, 2018. Confirmation Order, ECF
1 All references to “ECF” are to this Court’s electronic docket, which may be viewed at www.pacer.gov. If you
have trouble viewing this docket, please contact the Clerk’s Office for assistance.
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No. 12. On July 25, 2019, the chapter 13 trustee filed a motion to dismiss this Debtor’s case
based upon a failure to make post-petition payments. Motion to Dismiss, ECF No. 16. The
Debtor was able to catch up on his payments and this motion to dismiss was withdrawn by the
trustee. Notice of Withdrawal, ECF No. 26.
Related to this motion to dismiss, on August 16, 2018, Mr. Owens filed a letter to bring
to this Court’s attention, concerns he had over the representation that his lawyer provided and the
fees that his lawyer charged. Owens 2019 Letter. At the time, Mr. Owens was represented by
Mr. Julius A. Rivera Jr. Id. As stated in the letter, Mr. Owens was concerned that Mr. Rivera
was charging $7,050 for a chapter 13 case. Id. Mr. Owens also advised that Mr. Rivera was
non-responsive to his attempts to communicate. Id.
On August 20, 2018 the Mr. Owens and Mr. Rivera appeared in Court. After hearing
from both Mr. Owens and Mr. Rivera, the Court saw that there was a serious breakdown in
communication and trust between the Debtor and his counsel. The Court issued an order
relieving Mr. Rivera on August 23, 2019. Order, ECF No. 19.
In his letter to this Court on November 21, 2021, Mr. Owens expressed concern that the
Court relieved him of his lawyer at that hearing. Owens 2021 Letter, ECF No. 32. Mr. Owens
has had a change in financial circumstances that needs attention. Id. Mr. Owens feels the Court
punished him for bringing his concerns over Mr. Rivera’s behavior to the Court’s attention. Id.
He feels that the Court made a mistake in relieving Mr. Rivera of his duties as attorney for the
Debtor in this chapter 13 case. Id.
In his letter to the Court, advised the Court that he has custody of his two children based
on an order of New York State Family Court. Id. He asks if this changes what he needs to pay
to the Trustee. Id.
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Discussion
A request from an unrepresented party is held to “less stringent standards” than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Tracy v. Freshwater, 623 F.3d.
90, 101 (2d Cir. 2010). Courts should assist an unrepresented party’s by taking the request as
raising the “strongest argument that [it] suggest[s].” Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir.
2010). On behalf of the Debtor, the Court will take this letter as a motion to reconsider its prior
decision and as a motion to amend his plan.
Motion to Reconsider
Where a party asks the Court to reconsider its prior ruling due to a mistake, such motion
must be made within one year of the order. Fed. Rule of Civ. P. 60(c). The Debtor filed this
letter over one year after the order relieving Mr. Rivera of his duties. The Court reads Mr.
Owens’ letter as a request to correct a mistake. The request is untimely. The Court is unable to
reconsider this decision.
Since Mr. Owens is not represented, the Court will try to explain the previous decision.
An attorney may not leave a case without permission from the Court. New York Rules of
Professional Conduct 1.3. An attorney may withdraw where it becomes unreasonably difficult
for the attorney to continue representation. New York Rules of Professional Conduct 1.16.
Courts have the power to allow an attorney to leave a case where there is breakdown of
communication and trust between a client and his counsel. Bankr. S.D.N.Y. R. 2090-1(e); In re
Spencer, 2020 WL 4810064, at *2 (Bankr. N.D. Ohio July 17, 2020).
At the hearing of August 20, 2019, Mr. Owens advised the Court that he believed his
counsel was charging more than was originally agreed to by him. Mr. Owens’s contribution
under the chapter 13 plan is $300 per month, which covers payments of secured creditors,
administrative costs, such as lawyer fees, and the balance to unsecured creditors. Chapter 13
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Plan, ECF No. 8. This resulted in a payment of approximately 25% of the unsecured creditors
accounts and upon successful completion of the payment plan, Mr. Owens will receive a
discharge on the remaining balance. 11 U.S.C. § 1328.
Mr. Owens believes that as a result of Mr. Rivera’s fees he was paying a higher monthly
payment than due. That without those fees, Mr. Owens would be paying less into the plan. That
assumption is incorrect. Regardless of the fees Mr. Rivera collects from the plan, the amount
Mr. Owens was due is $300 based on his income and expenses from his schedules. 11 U.S.C. §
1325. If Mr. Rivera charged less fees the unsecured creditors would get a larger balance of that
monthly payment.
Bankruptcy Code requires all attorney’s representing clients to file with the Court a
statement of compensation to be paid. 11 U.S.C. § 329. Bankruptcy code allows for payment of
a Debtor’s Attorney for reasonable costs and fees. 11 U.S.C. § 330. Both the Court and the
chapter 13 trustee review fees for reasonableness. Id. Section 330(a) requires the Court to take
into account a number of factors in making a determination of reasonableness. Id. These factors
include the time spent on the services, the rates charged for the service, the amount of time spent
commensurate with the complexity, nature and importance of the task, the skill of the applicant
and her experience in the bankruptcy field, and the comparison of fees with those customarily
charged by comparably skilled practitioners in non-bankruptcy cases. Id.
The Court at the prior hearing did not determine that Mr. Owens was wronged by Mr.
Rivera’s actions, or that the fees were unreasonable for the work described by Mr. Rivera. The
Court simply realized that there was significant mistrust and that the attorney-client relationship
under the circumstances would not be able to continue.
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Motion to Amend Plan
Courts may change a debtor’s plan based on a change in circumstances. See In re Solis,
172 B.R. 530 (Bankr. S.D.N.Y. 1994). The power of a court to change a confirmed plan is
discretionary and limited. In re Salpietro, 462 B.R. 360 (Bankr. E.D.N.Y. 2013). The
bankruptcy code allows for the modification of a plan after confirmation and before completion
of all plan payments. 11 U.S.C. § 1329(a).
The Court does not have enough facts to change Debtor’s plan payments. For the Court
to consider amending the Debtor’s plan, the Debtor must provide proof of his change in financial
circumstances and amend his bankruptcy schedules I & J. Debtor would also need to make a
motion to amend his plan and submit an amended plan for approval. Debtor may wish to hire
new bankruptcy counsel to assist him in this process.
Conclusion
For the foregoing reasons, and for the Debtor’s failure to appear at the December 21,
2021 hearing, it is hereby ORDERED that Debtor’s request for reconsideration of this Court’s
prior decision and Debtor’s request to amend his plan are DENIED.
Dated: January 7, 2022
Poughkeepsie, New York
/s/ Cecelia G. Morris
_______________________
Hon. Cecelia G. Morris
Chief U.S. Bankruptcy Judge
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