2009 Consumer Law Recent Developments (Part II)

By Hon. William Houston Brown

Dismissal of case doesn't moot appeal. When bankruptcy court dismissed complaint filed by deceased's debtor's daughter, appeal of that dismissal was not mooted by subsequent dismissal of case. Daughter failed to meet deadline of showing qualification as administratrix, but BAP finds that daughter was not given adequate notice that complaint would be dismissed. Hamilton v. Appolon (In re Hamilton), ___ B.R. ___, 2009 WL 143731 (B.A.P. 1st Cit. Jan. 21, 2009).

Debtor's appeal dies for failure to provide transcripts. The debtor's attempted appeal of an order sustaining objection to confirmation is unsuccessful when the debtor didn't supply the BAP with transcripts of hearings, leaving the BAP with no basis to review the bankruptcy court's order. Wilson v. Wells Fargo Bank, N.A. (In re Wilson), ___ B.R. ___, 2009 WL 566326 (B.A.P. 1st Cir. Mar. 6, 2009).

12. Professionals

$1,000 per motion sanction against law firm filing bad faith motions for stay relief. Finding that the law firm repeatedly filed, and then withdrew, stay relief motions with improper purpose and in bad faith, sanctions of $1,000 per motion, for a total of $21,000 were imposed. Over a five month period, the firm filed 41 stay relief motions for mortgage creditors, but withdrew the motions before scheduled hearings; a show cause order was entered as to 21 motions, asking the firm to demonstrate that it intended to pursue those to hearing, and the court found a pattern of abusive filings with no intent to proceed to hearing. The 21 filings were in violation of Rule 9011(b)(3)'s requirement for evidentiary support. In re Cabrera-Mejia, ___ B.R. ___, 2008 WL 5567802 (Bankr. C.D. Cal. Dec. 23, 2008).

12.1. Fees

Fee application filing eliminates option of standard fee. When the bankruptcy court reduced the requested fee, making findings of excessive time, the debtor's attorney lost the opportunity to ask for "at a minimum [the] standard" or no-look fee. Colpitts v. Eck (In re Rogers), ___ B.R. ___, 2009 WL 448189 (B.A.P. 10th Cir. Feb. 24, 2009).

Disgorgement of $17,000 fee ordered. Where the debtor's attorney had a pattern of filing false Rule 2016(b) disclosures, misrepresentation of fee justifies disgorgement of $17,000 fee. In re Jackson, ___ B.R. ___, 2009 WL 485091 (Bankr. N.D. Ill. Feb. 27, 2009).

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