UNITED STATES BANKRUPTCY COURT FOR
EASTERN DISTRICT OF KENTUCKY
LORRIE A. MUELLER
DEBTOR CASE NO. 04-21251
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.
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. Accordingly, the court will enter a separate order overruling the Debtor’s objection to the Bank’s claim.
Roger W. Howland, Esq.
Joseph F. Grimme, Esq.
Beverly M. Burden, Trustee
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.
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.