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Opinion 377

Case Name: 

In re Pac. Research & Dev. Corp.

Judge: 
Judge Boulden
Date: 
Apr-3-1995
Case Number(s): 
92B-24501
Status: 

UNPUBLISHED

Body: 

This matter was before the court on the final fee application of debtor's counsel ("Applicant"). The court previously denied confirmation of debtor's chapter 11 plan because it failed to afford the protections of 11 U.S.C. § 1129 to priority tax creditors. The debtor then proposed a sale of substantially all of its assets based on terms more favorable to insiders than to other potential bidders. The court denied the sale motion and the case was converted to chapter 7. Applicant filed its fifth and final fee application requesting allowance of fees and costs. Certain taxing authority creditors objected to Applicant's fees, both as not having been beneficial to the estate and because Applicant had undisclosed conflicts of interest and performed services for the benefit of corporate insiders. Under the Tenth Circuit standards set forth in Rubner & Kutner, P.C. v. United States Trustee (In re Lederman Enters., Inc.), 997 F.2d 1321 (10th Cir. 1993), the court found that the chapter 11 fees related to the sale motion were not beneficial to the estate, and thus not necessary, because Applicant should have known that the sale motion would not be granted, based on prevailing case law. Further, Applicant was representing the interests of insiders in preparing and advocating the sale motion. Therefore, the fees incurred in relation to the sale motion were denied based on Applicant's failure to provide a benefit to the estate and because Applicant represented an interest adverse to the estate. The court noted that in chapter 7 there is no requirement that the attorney for debtor be disinterested. Thus, under the standards of 11 U.S.C. § 330, the court allowed Applicant's chapter 7 fees as actual and necessary services.

Internal Ref: 
Opinion 377
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