In Re Carter

326 B.R. 892 (2005)

In re David Allen CARTER, Ariane Carmen-Helen Espino-Brown, Debtors.

No. 02-30463-BKC-SHF.

United States Bankruptcy Court, S.D. Florida.

July 1, 2005.

*893 David Lloyd Merill, Stuart, FL, for debtors.

Robin R. Weiner, Ft. Lauderdale, FL, for trustee.

ORDER ALLOWING FEES

STEVEN H. FRIEDMAN, Bankruptcy Judge.

After notice to all creditors, this Court has examined all pending fee applications filed in this case. The Court has considered these applications and finds that the following allowances are reasonable.

The Court finds that reasonable compensation for John P. Barbee, trustee, is $4,709.04 plus expenses of $165.55.

The Court finds that reasonable compensation for John A. Moffa, attorney for trustee, is $12,673.00 plus expenses of $822.96.

In allowing the foregoing fees, the Court has reduced the fee request of John P. Barbee, chapter 7 trustee, by $1,229.57, and the Court has reduced the fee request of John A. Moffa, attorney for chapter 7 trustee, by $1,108.00. The rationale for the reductions in fee allowances is set forth below:

REDUCTION IN FEE REQUEST BY TRUSTEE

The fee application of John P. Barbee, as chapter 7 trustee ("Trustee"), is predicated upon the Trustee's purported disbursement of $53,772.15 during the course of the administration of this estate (C.P. 82). Pursuant to 11 U.S.C. § 326(a), the court may allow reasonable compensation to a chapter 7 trustee subject to certain delineated limitations based upon ". . . all monies disbursed or turned over in the case by the trustee to parties in interest . . .". A component of the aggregate amount of gross receipts purportedly administered by the Trustee ($53,772.15) is an amount equal to $33,800.00, ostensibly representing the proceeds derived from the Trustee's sales of two parcels of real property, which sales were authorized by the Court by way of orders entered on July 15, 2003 (C.P. 50 and 51). However, the sales of both parcels were closed through escrow agents, and the net amount of proceeds actually received by the Trustee equals $19,618.29. Nonetheless, the Trustee's fee application is computed on the basis that he disbursed a total of $33,800.00 deriving from his sale of the two real estate parcels. In actuality, the total amount of disbursements by the Trustee equals $39,590.44, and not $53,722.15. Thus, based upon the formula prescribed by 11 U.S.C. § 326, the maximum allowable compensation to the Trustee equals $4,709.04.

The position implicitly advanced by the Trustee is that, since he constructively received a total of $33,800.00 in "proceeds" from the sales of the two real estate parcels, his compensation should be computed to include the $33,800.00 as a component of his purported total disbursements of $53,722.15. This Court previously has addressed the same issue. In the case of In re Moreno, 295 B.R. 402 (Bankr.S.D.Fla.2003), the chapter 7 trustee sought an *894 allowance of compensation based upon disbursements made, in part, through a settlement agent with regard to the trustee's sale of real property. In Moreno, the trustee sold a parcel of real property, and utilized the services of special counsel in the closing of the real estate transaction. Thereafter, the trustee sought compensation under 11 U.S.C. § 326(a), based upon disbursements ostensibly made by the trustee which included all disbursements effected by the trustee's special counsel deriving from the closing of the real estate parcel. In rejecting the "constructive disbursement" theory on trustee's disbursements, the Third Circuit Court of Appeals, in the case of In re Lan Associates XI, L.P., 192 F.3d 109 (1999) noted:

We are not persuaded by these authorities' adoption of the constructive disbursement theory for several reasons. First, because the constructive disbursement theory allows the trustee to be compensated for disbursements of property and other types of consideration, rather than simply for money disbursements as Congress defined them, it conflicts with our narrow interpretation for § 326(a).

Id. at page 118. In accord., see New England Fish Company, 34 B.R. 899 (Bankr.W.D.Wash.1983); In re Palm Beach Resort Properties, Inc., 73 B.R. 323 (Bankr.S.D.Fla.1987). Under the circumstances sub judice, the Court rejects the application of the constructive disbursement theory relating to compensation for the chapter 7 trustee.

REDUCTION IN FEE REQUEST BY ATTORNEY FOR TRUSTEE

The fee application of John A. Moffa, attorney for the chapter 7 trustee ("Moffa") seeks compensation for professional services in the amount of $13,781.00 together with reimbursement of expenses in the amount of $822.96. Included among the itemized time entries attached to Moffa's fee application are numerous time entries reflecting tasks performed by individuals employed by Moffa as secretaries or paralegals. The tasks performed by Kellye Norelius, Bridgette Paul, and Ann Marie Ellison consist almost entirely of services which are secretarial in nature, and for which professional compensation is not allowable. The tasks performed by Moffa's paralegals include: preparation of notices of appearance; telephone conversations relating to the status of the administration of this case; preparation of certificates of service relating to motions and orders deriving from Moffa's representation of the trustee; telephone conferences with the court's official copy service relating to the obtaining of copies of court papers; and the preparation of correspondence and notices to the debtors and third parties and the preparation for typing of other court papers.

Secretarial tasks are overhead expenses of the attorney and are not additionally compensable. Bonds Lucky Foods, Inc., No. 1, 76 B.R. 664, 668 (Bankr.E.D.Ark.1986).

A paralegal should be engaged in matters, under the supervision of an attorney, that require some independent judgment or are matters that an attorney would be expected to perform but can, under an attorney's supervision, be performed by an individual with specialized training or experience. Clerical functions such as typing, filing, photocopying, faxing, scanning or filing documents either electronically or traditionally, are not such functions.

Valley Historic Ltd. P'ship, 307 B.R. 508, 517 (Bankr.E.D.Va.2003), citing In re Joseph Charles & Assoc., Inc., 295 B.R. 399 (Bankr.S.D.Fla.2003). The Court accordingly reduces Moffa's fee application to the extent of $1,108.00 which represents non-compensable *895 time expended by his secretaries or paralegals.

In allowing the foregoing fees, this Court has considered the criteria specified in 11 U.S.C. §§ 326 and 330 and the requirements of B.R.2016 in light of the principles stated in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Blum v. Stenson, 465 U.S. 886, 897, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986); and Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988).

                                                                 Hours        Amount
Date    User                                      Rate           DNB          Total
ID      Task                                      Markup %       Time         DNB Amt.
-----------------------------------------------------------------------------------------------------
2/18/2003 KN                                      90.00          0.40         36.00          Billable
        38913 Asset & Analysis-Probate Prepare
        Notice of Appearance in the Circuit
        Court of the Nineteenth Judicial
        Circuit, probate Division, for the estate
        of Ramio Suikki, t/c with clerk's
        office re: address of same, prepare
        Circuit Court service list
6/8/2004 KN                                       90.00          0.10         9.00           Billable
        54325 Asset & Analysis-Probate Prepare
        update for Tee re: probate case
8/31/2004 KN                                      90.00          0.10         9.00           Billable
        55587 Asset & Analysis-Probate T/C
        with Marydensye Ommert re: status
        distribution
5/21/2003 KN                                      90.00          0.40         36.00          Billable
        42194 Asset & Analysis-Real Property
        Go online to Port St. Lucie Records/Recorders
        Office to research and
        obtain a copy of the Quit Claim Deed
        for Paul, t/c with Port St. Lucie Recorder
        Dept. re: same
5/29/2003 KN                                      90.00          0.10         9.00           Billable
        42515 Asset & Analysis-Real Property
        T/C with Mr. Racin's office re: t/o of
        the deed on the Port St. Lucie lot
7/10/2003 KN                                      90.00          0.70         9.00           Billable
        44202 Asset & Analysis-Real Property
        Prepare order Granting Trustee's Motion
        to Approve Sale of Real Property
        (1110 Ingrassina Avenue, Port St. Lucie,
        FL) for upcoming hearing on same
        (0.30), prepare Order Granting Trustee's
        Motion to Approve Sale of Real
        Property (2067 McCallister Lane, Port
        St. Lucie, FL), t/c with realtor re:
        Deeds and legal description (0.40)
7/16/2003 KN                                      90.00          0.40         36.00          Billable
        44417 Asset & Analysis-Real Property
        Prepared Certificate of Service of Order
        Granting Trustee's Motion to Approve
        Sale of Real Property (1110 Ingrassina
        Avenue, Port St. Lucie, FL)
*896
        and Order Granting Trustee's Motion
        to Approve Sale of Real Property
        (2067 McCallister Lane, Port St. Lucie,
        FL), prepare fax letter to Realtor,
        Bobbie Santiago re: Order Approving
        Sale of Properties
7/28/2003 KN                                      90.00          0.40         36.00          Billable
        44925 Asset & Analysis-Real Property
        Prepare Certificate of Service of Corrected
        Order Granting Trustee's Motion
        for Approval of Sale of Real Property
        (2067 McCallister Lane, Port St.
        Lucie, FL), prepare fax cover letter to
        the Title Co. and Bobbie Santiago,
        Realtor re: same and fax
7/30/2003 KN                                      90.00          0.30         27.00          Billable
        44986 Asset & Analysis-Real Property
        Prepare Certificate of Service of Corrected
        Order Granting Trustee's Motion
        for Approval of Sale of Real Property
        (1110 Ingrassina Avenue, Port St.
        Lucie, Fl.), prepare facsimile cover letter
        to Realtor re: same
8/7/2003 KN                                       90.00          0.60         54.00          Billable
        45199 Asset & Analysis-Real Property
        Go online to pacer to obtain a current
        docket, several t/c with Randy from
        West Palm Beach Bankruptcy Court
        Clerk's office re: corrected order not
        entered on the docket, prepare fax
        letter to Randy from West Palm
        Beach Bankruptcy Court Clerk's office
        re: corrected orders and fax same
        (0.50), t/c with Pacific Photocopy to
        order Certified Copies of Pleadings
        (0.10)
8/12/2003 KN                                      90.00          0.20         18.00          Billable
        45362 Asset & Analysis-Real Property
        Go online to download current docket
        to highlight which CP numbers need
        to be certified
8/13/2003 KN                                      90.00          0.20         18.00          Billable
        45424 Asset & Analysis-Real Property
        T/C with Pacific Photocopy to order
        certified copies needed
7/10/2002 KN                                      80.00          0.10         8.00           Billable
        30738 Asset Analysis & Recovery T/C
        with office of debtors counsel regarding
        tax return
4/17/2003 KN                                      90.00          0.30         27.00          Billable
        40955 Asset Analysis & Recovery T/C
        with David Merrill's office re: upcoming
        hearing and Agreed Order, prepare
        fax cover letter to Merrill's office
        regarding Agreed Order
4/30/2003 KN                                      90.00          0.90         81.00          Billable
*897
        41373 Asset Analysis & Recovery Go
        online to pacer to obtain a current
        docket (0.20), prepared Ex-Parte
        Agreed Motion to Amend Agreed Order
        Granting Trustee's Motion for Order
        Compelling Debtors' to Turn Over
        Federal Income Tax Refunds for
        1998-2001 which are property of the
        estate and order granting (0.70)
5/13/2003 KN                                      90.00          0.10         9.00           Billable
        41827 Asset Analysis & Recover Go
        online to pacer to review a current
        docket to see if Order Amending Turn
        Over of Tax Refunds was entered for
        Paul
5/28/2003 KN                                      90.00          0.10         9.00           Billable
        42468 Asset Analysis & Recovery Go
        online to pacer to review a current
        docket to see if any objections to the
        Agreed Order were filed
7/25/2003 KN                                      90.00          0.20         18.00          Billable
        44869 Asset Analysis & Recovery Prepare
        letter to debtors' counsel re: payments
        in default and same needs to be
        current
8/6/2003 KN                                       90.00          0.20         18.00          Billable
        45170 Asset Analysis & Recovery Several
        t/c with Vicki at First American
        Title Co. re: the closing, certified copies
        of the corrected orders and the
        order appointing Trustee and the two
        liens (one w/code enforcement and the
        debtor has requested a hearing)
11/26/2003 KN                                     90.00          0.20         9.00           Billable
        48778 Asset Analysis & Recovery T/C
        with Debtor's Attorney's office re:
        their clients payments overdue
7/17/2002 KN                                      80.00          0.10         8.00           Billable
        31029 Case Administration Revise service
        list to reflect Sandra Martinez,
        Esq. address as she filed a Notice of
        Appearance
7/26/2002 KN                                      80.00          0.20         16.00          Billable
        31599 Case Administration T/C with
        Debtors' counsel regarding copy of
        2001 income tax return
1/15/2003 KN                                      90.00          0.40         36.00          Billable
        37978 Case Administration Prepare
        Re-notice of Rule 2004 of Ariane Carmen-Helen
        Espino-Brown and David
        Allen Carter
1/24/2003 KN                                      90.00          0.20         18.00          Billable
        38289 Case Administration Prepared
        Re-notice of Deposition of Ariane Carmen-Helen
        Espino-Brown
12/30/2003 KN                                     90.00          0.30         27.00          Billable
*898
        49672 Case Administration Go online
        to Pacer to review a current docket to
        review docket for CP# to add to Order,
        review case files for documents to
        attach to motion, revise Order Revoking
10/1/2003 KN                                      90.00          0.30         27.00          Billable
        47112 Claims Administration & Object
        Prepare Objections to Claims
11/9/2003 KN                                           90.00         0.50          45.00     Billable
        48300 Claims Administration & Object
        Prepared Creditor's Motion for Extension
        of Time to File an Objection to
        Trustee's Objection to Claims
11/12/2003 KN                                          90.00         0.60          54.00     Billable
        48371 Claims Administration & Object
        Go online to Pacer to see if any objections
        were filed to the objection to
        claim, prepare Certificate of Contested
        matter, prepare NOH for same (0.50),
        review case for pleading (0.10)
1/6/2004 KN                                            90.00         0.20          18.00     Billable
        49878 Claims Administration & Object
        Prepare Order Sustaining Trustee's
        Objection to Claim No. 8 of John
        Anastasio
1/16/2004 KN                                           90.00         0.20          18.00     Billable
        50308 Claims Administration & Object
        Prepared COS of Order Sustaining
        Trustee's Objection to Claim No. 8 of
        John Anastasio and Denying Creditor,
        John Anastasio's Motion for Enlargement
        of Time to File a Response to
        the Objection to Claim
6/19/2002 BP                                           95.00         0.20          19.00     Billable
        30100 Asset Analysis & Recovery Prepared
        letter to Debtor's attorney re:
        $ due Debtor from estate
7/30/2002 BP                                           95.00         1.30          123.50    Billable
        31719 Asset Analysis & Recovery
        Draft Notice of Taking Deposition in
        Aid of Execution of William T. Mosher,
        and Don Donahue (0.40), draft subpeona
        to William T. Mosher and Don
        Donahue (0.40), review file, revised
        Notices and Subpoenas, and draft letter
        to debtor's attorney re: status of
        sanctions order (0.50)
6/10/2002 BP                                           95.00         0.30          28.50     Billable
        29527 Case Administration Prepared
        letter to debtor's attorney re: 2001 tax
        return, revised letter
6/25/2002 BP                                           95.00         0.40          38.00     Billable
        30341Case Administration Draft 2004
        Notices of Debtor
7/18/2002 BP                                           95.00         0.20          19.00     Billable
*899
        31144 Case Administration Draft follow-up
        letter to Debtor's attorney re:
        tax return
7/29/2002 BP                                           95.00         0.40          38.00     Billable
        31660 Case Administration Revised
        2004 Notices of Debtors, draft letter to
        Debtor's attorney re: turnover of 2001
        income tax refunds, revised letter to
        Debtor's attorney
7/31/2002 BP                                           95.00         0.50          47.50     Billable
        31794 Case Administration Draft Notice
        of cancellation of Rule 2004 Examinations
        of Debtor, draft fax cover
        sheet to Mr. Merrill enclosing Notice,
        revised Notice
8/12//2002 BP                                          95.00         0.30          28.50     Billable
        32327 Case Administration Draft fax
        letter to Trustee enclosing Mr. Merrill's
        letter dated 8/6/02 for his review,
        revised letter
5/16/2003 AMR                                          80.00         0.20          16.00     Billable
        42037 Asset Analysis & Recovery Prepared
        Certificate of Service of Agreed
        Order Granting Motion to Amend
        Agreed Order Granting Trustee's Motion
        for Order Compelling Debtors to
        T/O Federal Income Tax Refunds for
        1998-2001 which are Property of the
        Estate (CP# 31)
7/17/2003 AMR                                          80.00         0.20          16.00     Billable
        44507 Asset Analysis & Recovery Prepared
        letter to debtors' attorney reminding
        them of debtors' responsibility
        to pay Trustee per May 14 signed
        Agreed Order Granting Motion to
        Amend Agreed Order Granting Trustee's
        Motion for Order Compelling
        Debtors to T/O Federal Income Tax
        Refunds for 1998-2001 which are
        Property of the Estate
7/25/2003 AMR                                          80.00         0.10          8.00      Billable
        44879 Asset Analysis & Recovery T/C
        to John Barbee office and spoke to
        Stephanie regarding payments the
        debtors should have made and what
        they have received to date.
1/14/2003 AMR                                          80.00         0.10          8.00      Billable
        37901 Case Administration T/C to
        David Merrill's office (attorney for
        debtor) to reconfirm 2004 of debtors
        for today and t/c to Barbee & Assoc.
        to reconfirm
12/11/2003 AMR                                         80.00         0.10          8.00      Billable
        49188 Case Administration T/C to Adrianna
        Carter to let her know we received
        her fax
*900
11/2/2004 AMR                                          80.00         1.50          120.00    Billable
        56465 Fee/Employment Applications
        Prepared Final Fee Application