Cuevas-Segarra v. Contrevas

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 97-1234

           JOSE A. CUEVAS-SEGARRA, & AMNERIS MARTINEZ,
                           Appellants,

                                v.

                      MARIA LUISA CONTRERAS,
                            Appellee.

                                           

        ANTONIO R. CONCEPCION-VELAZQUEZ, AGNA I. MORALES,
                            Appellees.

                                           

No. 97-1265

           JOSE A. CUEVAS-SEGARRA, & AMNERIS MARTINEZ,
                            Appellees,

                                v.

                      MARIA LUISA CONTRERAS,
                            Appellee.

                                           

        ANTONIO R. CONCEPCION-VELAZQUEZ, AGNA I. MORALES,
                           Appellants.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]
                                                                  

                                           


                              Before

                     Torruella, Chief Judge,
                                                     

                      Lynch, Circuit Judge,
                                                    

               and DiClerico, Jr.,* District Judge.
                                                            

                                           

     Charles A.  Cuprill-Hern ndez, with whom  Carlos A. Surillo-
                                                                           
Pumarada and  Charles A.  Cuprill-Hern ndez Law  Offices were  on
                                                                  
brief for appellants.
     Mar a Luisa Contreras,  with whom Mar a Luisa  Contreras Law
                                                                           
Offices was on brief for appellees.
                 

                                           

                         January 23, 1998
                                           

                    
                              

*  Of the District of New Hampshire, sitting by designation.

                               -2-


          Per  Curiam.  The bankrupt estate of Jos  M ndez-Rosado
                    Per  Curiam.
                               

and his wife, Alejandra Becerra, had few assets.  One of the most

significant was  a malpractice  claim against  Dr. Karl Horn  and

Dr. Julio  Westerband.   On August  26,  1988, attorneys  Antonio

Concepci n   and  Jos   A.  Cuevas-Segarra  filed  a  Motion  for

Designation of Special Counsel, hoping to obtain bankruptcy court

approval to settle the malpractice suit on behalf of the debtors.

The Motion was denied without prejudice because the attorneys had

failed  to  abide by  Bankruptcy  Rule 2014,  which  required the

inclusion  of  a  verified  statement  that  the  attorneys  were

disinterested persons.1   Instead of amending the  application to

include the verified statement, the attorneys settled the case in

February 1989,  without bankruptcy  court approval  or notice  to

creditors, dividing $70,000 between themselves and the debtors.2

          For  five   years,  the   players  in  the   bankruptcy

proceedings took no notice of  the settlement.  In February 1994,

a new bankruptcy trustee, Mar a Luisa Contreras, was appointed to

                    
                              

1  The relevant part of Bankruptcy Rule 2014 reads:

          The application [for employment of attorneys]
          shall be accompanied  by a verified statement
          of  the person  to be employed  setting forth
          the  person's  connections with  the  debtor,
          creditors,  or any  other party  in interest,
          their respective  attorneys and  accountants,
          the  United States  trustee,  or any  persons
          employed in  the office of  the United States
          trustee.

2  Cuevas  and Concepci n claim that they  thought the bankruptcy
case was closed, and that bankruptcy court approval was no longer
necessary for  the representation.   Nothing to that  effect ever
issued from the bankruptcy court.

                               -3-


the  case.   Ms. Contreras  soon  learned of  the settlement  and

immediately  filed a complaint with the bankruptcy court alleging

that  Cuevas  and  Concepci n were  improperly  in  possession of

property belonging to the debtors'  estate.  On November 3, 1995,

the bankruptcy  court entered a decision and order that, pursuant

to 11 U.S.C.    105(a), 362(c), and 542(a), Cuevas and Concepci n

must  return  $27,456.00 in  fees  that  they  received from  the

settlement.  Cuevas and Concepci n  appealed this decision to the

federal  district  court  in   Puerto  Rico,  which  subsequently

affirmed the bankruptcy  court opinion.  They  again appealed the

decision, and we  now reaffirm the judgment for  the trustee, Ms.

Contreras.

          The decisions of the bankruptcy and district courts are

premised  upon three alternative  grounds.  First,  the decisions

rely upon Bankruptcy  Code (the "Code")    105(a), a  "catch-all"

section  which provides a  bankruptcy court with  broad powers to

enforce  the Code,  preserving the  integrity  of the  bankruptcy

system.3  Second, reliance is placed on Bankruptcy Code   362(c),

which provides for an automatic  stay of any act against property

                    
                              

3  The section reads:

          The Court  may issue  any order, process,  or
          judgment that is necessary  or appropriate to
          carry out the  provisions of this title.   No
          provision  of this  title  providing for  the
          raising  of an issue  by a party  in interest
          shall be  construed  to  preclude  the  court
          from, sua sponte, taking any action or making
          any determination necessary or appropriate to
          enforce or  implement court orders  or rules,
          or to prevent an abuse of process.

                               -4-


of the  estate unless approved  by the court.4   Any non-approved

monetary  transaction affecting  estate  assets  is thus  voided.

Finally, the  opinions look  to Bankruptcy  Code   542(a),  which

requires an entity in control of property of a bankrupt estate to

return that property to the trustee.5

          We need  look no  further than    105(a) to  affirm the

courts' decisions.  The broad authority conferred by this section

of  the  Code provides  "teeth"  to  the  equitable powers  of  a

bankruptcy  court.   See Noonan  v. Secretary  of Health  & Human
                                                                           

Servs. (In re Ludlow Hosp. Soc., Inc.), 124 F.3d 22, 27 (1st Cir.
                                                

1997)  ("[s]ection  105(a)  empowers  the   bankruptcy  court  to

exercise  its   equitable   powers  --   where   'necessary'   or
                    
                              

4  The section provides for:

          (1) the stay  of an act against  the property
          of the  estate under  subsection (a) of  this
          section continues  until such property  is no
          longer property of the estate; and
          (2)  the   stay  of  any   other  act   under
          subsection (a) of the section continues until
          the earliest of -
          (A) the time the case is closed;
          (B) the time the case is dismissed; or
          (C) if the case is  a case under chapter 7 of
          this title concerning an individual . . . the
          time a discharge is granted or denied.

5  The section reads:

          Except as provided in  subsection (c) or  (d)
          of this  section,  an entity,  other  than  a
          custodian,   in   possession,   custody,   or
          control,  during the  case, of  property that
          the  trustee may  use, sell,  or lease  under
          section 363 of this title . . . shall deliver
          to  the   trustee,  and  account   for,  such
          property  or  the  value  of  such  property,
          unless  such property  is of  inconsequential
          value or benefit to the estate.

                               -5-


'appropriate'  --  to  facilitate  the  implementation  of  other

Bankruptcy  Code provisions").  A proper  application of   105(a)

will  effectuate  the  Bankruptcy   Code  without  fashioning  or

altering  substantive  rights of  debtors or  creditors, ensuring

that  "technical  considerations  will  not  prevent  substantial

justice from being done."   Pepper v.  Litton, 308 U.S. 295,  305
                                                       

(1939); see also Noonan, 124 F.3d at 27; Gens v. Resolution Trust
                                                                           

Corp., 112 F.3d 569, 576 (1st Cir. 1997).
               

          In light of these standards, we conclude that the broad

authority of   105(a) was properly brought to bear against Cuevas

and Concepci n in  this case.  A  bankruptcy court has a  duty to

review  the  fees paid  to  professionals and     105(a) provides

authority  to effectuate judgments  such as the  denial of Cuevas

and Concepci n's Motion for  Designation of Special Counsel.   In

spite of the  fact that they had been refused court permission to

settle  the pending  malpractice action,  these attorneys  forged

ahead, settling the case and  failing to apprise the creditors or

the  court  of  the  payments  received by  the  debtors  and  by

themselves.   Such  behavior  undermines  the  integrity  of  the

bankruptcy system and public  confidence therein.  See In  re E Z
                                                                           

Feed Cube Co., 123 B.R. 69, 74 (Bankr. D. Or. 1991) (holding that
                       

professionals' fees  must  be returned  to  the trustee  under   

105(a) in a similar situation).

          Most  of  the energy  expended  in this  case  has been

directed toward the dispute over whether   542(a) can be  used to

recover a post-petition transfer.  The appellants argue that only

                               -6-


  549 provides  for such recoveries, and that  a two-year statute

of  limitations bars  the trustee's  action in  this case.   This

argument  is  moot.     Although  the  equitable  powers  of  the

bankruptcy court are  limited, see Noonan, 124 F.3d at 27, only a
                                                   

hopelessly  strained interpretation  of the  Code  would tie  the

court's  hands  while  attorneys ignore  a  direct  court ruling,

hoping  that  the statute  of  limitations  will  run before  the

creditors, trustees or judge catch on.

          Cuevas and Concepci n protest that much of the blame in

this case belongs  to H ctor L. Urrutia, the  original trustee in

this case and a predecessor  to Contreras.  Cuevas and Concepci n

allegedly  wrote numerous letters  to Urrutia requesting  that he

submit  to  the   bankruptcy  court  an  application   for  their

employment, which  would have paved  the way for them  to receive

court  approval for  their  representation.    According  to  the

authors, these letters received no response.  Nevertheless, it is

undisputed that Urrutia ultimately  advised Cuevas and Concepci n

to  check  with the  bankruptcy  court before  taking  any action

regarding the malpractice action.  They did not do so.

          For  the reasons  stated herein,  the  decision of  the

district court  is  affirmed.   Costs  and  attorney's  fees  are
                              affirmed
                                      

awarded  to Ms. Contreras.   Furthermore,  the district  court is

directed  to review  the  conduct  of  attorneys  Concepci n  and

Cuevas-Segarra in this matter to determine whether they should be

subject to disciplinary procedures. 

                               -7-