UNITED STATES BANKRUPTCY COURT FOR

EASTERN DISTRICT OF KENTUCKY

COVINGTON DIVISION

 

 

IN RE:

 

LORRIE A. MUELLER

 

DEBTOR                                          CASE NO. 04-21251

 

 

MEMORANDUM OPINION

Lorrie A. Mueller (the “Debtor”) is before the court on the ob­jec­tion to the allowance of the claim of Fifth Third Bank (the “Bank”) that she filed in this case on July 15, 2004. On June 15, 2004 the Bank filed a proof of claim asserting a claim secured by the Debtor’s residence in the amount of $30,611.50, including a mortgage arrearage of $7,660.96. According to the objection, $3,480.72 of that sum repre­sents attorney’s fees allegedly incurred by the Bank. On July 29, 2004 the Bank filed a response to the objection, attaching copies of in­voices for attorney’s fees aggregating $4,126.01. Hav­ing con­sidered the objection and the response thereto and the briefs and arguments of coun­sel, the court con­cludes that the objection should be overruled.

The June 2002 invoice of the firm of Fessler, Schneider & Grimme relates to the first attempt at foreclosure on the Bank’s collateral, and the fees and disbursements of $804.73 are reasonable for the title search and the preparation, filing, and service of the complaint and lis pendens notice. The September 2002 invoice of the Fessler firm also relates to that litigation, and the fees and disbursements of $608.56 are reasonable for the preparation, filing, and service of a motion for a default judgment. On September 27, 2002 the Debtor filed a vol­un­tary petition for relief under Chapter 13 of the Bankruptcy Code, commencing Case No. 02-24456 and staying the foreclosure action.[1]

The October 2002 invoice of the firm of McCalla, Raymer, Padrick, Cobb, Nichols & Clark, LLC relates to the 2002 Chapter 13 case, and the fees and disbursements of $807.00 are reasonable for the prep­a­ration and filing of a notice of appearance and proof of claim, the prep­aration, filing, service, and prosecution of a motion for relief from the automatic stay, a motion to dismiss the case, and an ob­jec­tion to confirmation of the plan. The McCalla firm’s May 2003 invoice is for an additional fee for the Chapter 13 case, and the ad­ditional $449.50 in fees and disbursements appears to repre­sent a reasonable additional sum for the services described above. The McCalla firm’s December 2003 invoice is for an additional fee for the Chapter 13 case, and the additional $200.00 in fees appears to represent a rea­sonable additional sum for the services described above. The McCalla firm’s February 2004 invoice appears to relate to the Chapter 13 case as well, and the additional $250.00 fee appears to be reasonable for the preparation and filing of a notice of default under the agreed or­der resolving the motion for relief from stay. The 2002 case was dis­missed at the Debtor’s request on May 5, 2004.

The Fessler firm’s March 2004 invoice relates to a second attempt at foreclosure on the Bank’s collateral, and the fees and disburse­ments of $906.22 are reasonable for the title search and preparation, filing, and the service of the complaint and lis pendens notice. On May 13, 2004 the Debtor filed another Chapter 13 petition. The June 2004 invoice of the Fessler firm relates to that case, and the $100 fee is reasonable for the preparation and filing of a proof of claim. The Debtor does not dispute the propriety of the March and June 2004 invoices.

For the foregoing reasons, the court concludes that attorney’s fees and disbursements of $4,126.01 were properly included in the Bank’s proof of claim and are allowable.[2] Accordingly, the court will enter a separate order overruling the Debtor’s objection to the Bank’s claim.

 

Copies to:

 

Roger W. Howland, Esq.

Joseph F. Grimme, Esq.

Beverly M. Burden, Trustee


[1]On March 31, 1995 the Debtor and her spouse had filed a Chapter 7 peti­tion (No. 95-20343) and received a discharge after reaffirming the debt to the Bank. On August 20, 2001 the Debtor and her spouse filed a Chapter 13 petition. That case was dismissed on November 14, 2001, upon the motion of the Chapter 13 trustee, prior to confirmation of a plan. On February 2, 2002 the Debtor and her spouse filed a se­cond Chapter 7 petition. The Debtors received a discharge on May 8, 2002.

[2]The Debtor’s position that the first four of five invoices should be disallowed be­cause the legal services related to the 2002 Chapter 13 case is not well taken because there is no evidence re­futing the Bank’s representations that none of the distri­butions re­ceived in that case were applied to legal fees. The Debtor has not car­ried her burden of producing evidence rebutting the prima facie validity and amount of the claim, Fed. R. Bankr. P. 3001(f), irre­spective of whether the Bank could have included some of the invoices in a proof of claim in one or more of the Debtor’s previous cases.