Commercial Factors of Salt Lake City, Inc. v. Jensen (In re Jensen), 113 B.R. 51 (Bankr.D.Utah)
PUBLISHED
Creditor successfully asserted that its debt was non-dischargeable under 11 U.S.C. § 523(a)(2)(A), after having incurred both prepetition and postpetition attorney's fees in its collection efforts. The court determined that § 523(d) only authorizes debtors to recover their attorney's fees, and even then, only if the claims against the debtor were not substantially justified. However, the court held that, where the contract sought to be enforced was freely entered into between parties of relatively equal bargaining power, and provides that the winning party is entitled to recover its fees, the attorney's fees and costs incurred in enforcing the contract become part of the debt, as defined in 11 U.S.C. § 101(11). Therefore, a creditor who successfully obtains a non-dischargeable judgment against a debtor is entitled to recover the fees and costs it incurred, both before and after debtor's bankruptcy filing, as part of the non-dischargeable judgment on the contract.