Jason O. Roose

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Jason O. Roose
04-13442
Order Granting in Part, Denying in Part [36-1] Application For Compensation
(Fees: $ 5,041.77, Expenses: $ 163.91, Total: $5,205.68) for period of 5/9/04
through 9/23/04 by Mel B O'Reilly, Debtor's Attorney. Payment to Mel B.
O'Reilly of $4517.50 in fees and $163.91 in expenses .
Received on: 2005-05-25 14:25:51.000
2005-05-25 00:00:00.000
2005-05-25 00:00:00.000
Patti Hennessy
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1Of this amount, $4,745.00 is attributable to fees.
2Mr. O’Reilly reports that he has already received payment in the amount of $354.47, including
applicable New Mexico gross receipts taxes, leaving an unpaid balance relating to the Fee Application
in the amount of $4,851.21.
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: JASON O. ROOSE, No. 13-04-13442 MA
Debtor.
ORDER GRANTING, IN PART, and DENYING, IN PART,
APPLICATION FOR ALLOWANCE AND PAYMENT OF COMPENSATION
AND REIMBURSEMENT OF EXPENSES AND COSTS
THIS MATTER is before the Court on the Application for Allowance and Payment of
Compensation and Reimbursement of Expenses and Costs (“Fee Application”) filed by Mel B.
O’Reilly, attorney for the Debtor. The Fee Application seeks approval of attorneys’ fees and costs in
the total amount of $5,205.681 as an administrative expense of the estate for the period from May 9,
2004 to September 23, 2004 and for authorization of payment by the Chapter 13 Trustee from the
estate upon confirmation, dismissal, or conversion of the outstanding balance in the amount of
$4,851.21.2 The Chapter 13 Trustee filed an objection to the Fee Application, asserting, among other
things, that the total amount of fees requested is high as compared to a typical chapter 13 proceeding,
that certain charges are excessive for the nature of the task performed, that the Fee Application is
premature because the case had not been confirmed as of the date the Fee Application was filed and
additional fees are likely, and that the costs are not described in sufficient detail. The Court held a final
hearing on the Fee Application and took the matter under advisement. After considering the Fee
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Application, and being otherwise sufficiently informed, the Court finds that some of the requested fees
and costs 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. Reasonableness is determined based upon such factors as the amount of time spent on the
service, the rate charged, and whether the services were necessary to the administration of the
bankruptcy estate. 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).
Similarly, 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 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).
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3. 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).
4. 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.
5. Time spent on matters that are clerical in nature is not compensable. See In re Copeland,
154 B.R. 693, 699 (Bankr.W.D.Mich. 1993) (examining fees requested by attorney for chapter 13
debtor, and noting that “The work for which lawyers receive compensation must be legal, not ministerial
or clerical.”). Rather, clerical work is part of office overhead. See Amdura, 139 B.R. at 985.
6. The Court finds that the hourly rate of $175.00 requested in the fee application is
reasonable.
7. The trustee objected to the costs requested in the Fee Application on grounds that they are
not described with sufficient detail so that the charge per page is ascertainable. The trustee also
objected to the requested costs to the extent the cost per page for facsimiles is $1.00. At the final
hearing on the Fee Application, Mr. O’Reilly testified that the charged cost per page for copies was 10
¢ until May of 2004, when the copy charges were raised to 15¢ per page, and that the cost for
incoming and outgoing facsimiles is 50¢ per page. The Court finds that the requested costs are
reasonable. See Clerk’s Practice and Procedure Guide, Section 14.2.5.g. (noting that copy charges
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3$4,745.00 less disallowed amount of $227.50.
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in excess of .25 per page is considered inappropriate.) But see In re CF & I Fabricators of Utah,
Inc., 131 B.R. 474, 494 (Bankr.D.Utah 1991) (noting that “[o]utgoing telecopies should be charged at
the cost of long distance telephone rates, and incoming telecopies charged at the actual costs of paper,
toner, or ink, etc.”).
8. 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. Specifically, the
following entries are disallowed for the reasons stated:
Date Entry Time Amount Reason for Disallowance
5/12/04 Received setting from
Bankruptcy Court Special
Master Baca; Review and
response to report setting;
copy to opposing counsel re:
arrearages
.50 $87.50 There is no special master Baca
at the bankruptcy court;
excessive time billed
06/01/04 Received Objections to Plan
from Wells Fargo; called
opposing counsel’s office to
request information
.65 $113.75 Excessive time; reduce allowed
time billed to .25 of an hour
06/04/04 Received Objection from
IRS; call to client; conference
re information needed
.90 $157.50 Excessive time; reduce allowed
time billed to .50 of an hour
The total disallowed amount is $227.50 (1.30 hours @ $175.00/hour).
WHEREFORE, IT IS HEREBY ORDERED, that the Fee Application is approved, in part,
and denied, in part. Total fees in the amount of $4,517.503 and costs in the amount of $163.91 are
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allowed, plus applicable New Mexico gross receipts taxes in the amount of $283.81 (at rate of 6.0625
as reported on the Fee Application), less $354.87 which counsel has already received, leaving a
balance of allowed fees and costs in the amount of $4,610.35 due and compensable from the
bankruptcy estate. The remainder of fees requested in the Fee Application are disallowed.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
Mel B. O’Reilly
Attorney for Debtor
7125 Prospect Place NE
Albuquerque, NM 87110
Kelley L. Skehen
Chapter 13 Trustee
625 Silver Ave. SW, Suite 350
Albuquerque, NM 87102
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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