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Local Rule/Procedure (Judge Gargotta)

Standing Order for Chapter 13 Case Administration in the Austin Division

Attorney's Fees
In re Aclin (Mar. 11, 2010)
Issue: Is Applicant entitled to fees in excess of what the Austin Division Standing Order (Dated March 1, 2007) allows for cause based on that it took over three proposed Chapter 13 plans, a series of proposed plan modifications, and eleven months after filing bankruptcy before a plan was finally confirmed?
Holding: The Court looked to Section 330(a)(4)(B) of the Bankruptcy Code to determine the amount that should be considered “reasonable compensation” and granted in part, denied in part, an application for $12,801.25 in additional fees, since the Applicant did not fully met the burden of showing that the requested compensation provided a benefit to the estate that could be measured against any net increases to the base amount of the Plan.

Ingalls v. Phillips (Nov. 4, 2009)
Issue: Should Trustee’s Complaint for turnover of funds that the Trustee asserts were improperly retained by Defendant in connection with his representation of Debtor be granted?
Holding: Yes. No matter how this case is dissected, Defendant has no legal authority for his retention of the funds paid to him by the Debtor during the Chapter 13 part of this case without Court permission and in violation of a prior Court order.

In re Pina (Dec. 23, 2007)
Issue: Is Debtor’s counsel entitled to additional attorney’s fees for filing a Motion for moratorium of plan payments?
Holding: Debtor’s Counsel’s fee request for $300 is Granted in this limited circumstance. The Court will continue to review fee requests on a case by case basis and may ultimately decide to further amend the Standing Order on fees to preclude or allow fee requests of this type.

In re Spence (Dec. 12, 2007)
Issue: Should Motion to examine fees be granted, in which the Trustee argued that the fees Debtor’s counsel may have received in connection with the representation of Debtor may be excessive or inappropriate in light of the services performed and results obtained as outlined in In re First Colonial Corp., 544 F.2d 1291 (5th Cir. 1997), where Debtor’s counsel has entered into a contingent fee arrangement for home equity litigation, because Debtor’s counsel feels it was appropriate because it is a new area of litigation, particularly in bankruptcy court?
Holding: Trustee’s Motion to Examine Fees is Granted to the extent that the Debtor’s agreement with her attorney regarding their “limited scope contract” is denied.

Resetting Creditors' Meeting/Extension of Time for Filing Schedules
In re Requejo (Sep. 17, 2008)
Issue: Should Order resetting creditors’ meeting and confirmation hearing and extending deadlines for filing claims and dischargeability complaint be granted when procedure outlined by Standing Order for Case Administration for Austin Division (Nov. 15, 2000) outlines the workable and appropriate procedure, but cause for continuing creditors meeting is known to exist long before the scheduled meeting?
Holding: In such cases, filing a motion and obtaining an order continuing the meeting is advisable in order to prevent unnecessary and avoidable appearances by parties in interest at the original meeting. The Court finds that cause for a continuance exists and that therefore the motion should be granted.

In re Haltom (Aug. 27, 2008)
Issue: Should Order resetting creditors’ meeting and confirmation hearing and extending deadlines for filing claims and dischargeability complaints be granted after Trustee was consulted prior to filing the Motion, but movant has not provided dates and times obtained from the Trustee?
Holding: The Court finds in this case that cause for a continuance exists and that therefore the motion should be granted. Because the movant has not provided dates and times obtained from the Trustee, however, the Court finds that Debtor’s counsel should obtain from the Trustee dates and times for the reset creditors’ meeting and the reset confirmation hearing, and should file and serve a notice of that reset meeting and hearing and of the extended deadlines calculated as set forth below, on all parties in interest in the case.

Local Rule 1020, Small Business Debtor Designation
In re Save Our Springs (S.O.S.) Alliance, Inc. (August 11, 2008)
Issue: Is Debtor a “Small Business Debtor” as Defined in 11 U.S.C. § 101(5D) and is this case a “Small Business Case” as Defined in 11 § 101(5D) and/or should the Debtor be judicially and/or equitably estopped from denying that it is a small business debtor as originally claimed in this case?
Holding: The Court finds that the Debtor is a small business debtor, being judicially and equitably estopped at this stage of the case from changing that position.

Local Rule 3007, Objections to Claim
In re Becker (Aug. 12, 2010)
Issue: Do the Western District’s Local Rules regarding 21-day negative notice conflict with Federal Rule 3007’s requirement that the claimant be served 30 days before a hearing on the objection?
Holding: Since the Movant did not respond to the objection to claim, he did not receive a hearing. When no hearing is requested within the negative notice period, Bankruptcy Rule 3007’s requirement of providing a party thirty day notice of a hearing becomes irrelevant. The Motion to Reconsider is denied.

Local Rule 7054, Claims for Attorney's Fees
Century 21 v. Gharbi (March 3, 2011)
Issue: Whether the Defendant Mohammad Gharbi (“Defendant”) violated the Anticybersquatting Consumer Protection Act, 15 U.S.C. §1125(d), when he continued to use domain names which contained the Century 21 marks after his franchise agreements with Century 21 had been terminated? If so, what is the amount of damages to be awarded under § 1117(d), and will that award be held nondischargeable under 11 U.S.C. § 523(a)(6)?
Holding: The Court finds (1) that the Defendant had a bad faith intent to profit from the use of the domain names and therefore violated 15 U.S.C. § 1125(d). The Court further finds that (2) Plaintiff should be awarded $25,000 per violation, or $75,000 total, plus attorneys’ fees as determined under Federal Rule of Bankruptcy Procedure 7054; and (3) that this award will be held nondischargeable under 11 U.S.C. § 523(a)(6) because Defendant caused Plaintiff a willful and malicious injury. The relief requested by the Plaintiff should be GRANTED.