CourtListener opinion 10459911

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UNITED STATES BANKRUPTCY COURT 

 DISTRICT OF NEW MEXICO 

In re: 

RONALD CHRISTOPHER DEKEYZER Case No. 20-11271-ta13 
and SHERRY LYNN DEKEYZER, 

 Debtors. 

 OPINION 

 Before the Court is the fee application of Debtors' chapter 13 counsel, New Mexico 
Financial and Family Law, P.C. ("Counsel"). In the application, Counsel seeks allowance of 
$14,020 in professional fees, plus costs and New Mexico gross receipts tax. Because the amount 
sought is significantly higher than the average fee application for a chapter 13 case in this district, 
the Court set the matter for hearing. The Court now concludes that it will allow Counsel's 
professional fees in the amount of $8,000, plus costs and tax. 
1. Facts. 
 The Court finds:1 
 On or about January 10, 2020, Debtors retained Counsel to file this case. The billing rates 
for the professionals who worked on the case were $250/hour for Don Harris and Dennis Banning 
and $150/hour for Jill Stevenson. Debtors gave Counsel a $3,000 retainer. 
 Counsel filed the case on June 24, 2020. The initial filings included the petition, disposable 
income calculation, schedules, statement of financial affairs, plan, credit counseling certificate, 
and attorney fee disclosure. The attorney fee disclosure stated that Counsel had received a $3,000 

1 The Court took judicial notice of the docket in this case. See St. Louis Baptist Temple, Inc. v. 
Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (holding that a court may sua sponte 
take judicial notice of its docket); LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning Corp.), 
196 F.3d 1, 8 (1st Cir. 1999) (same). 
retainer and had agreed to represent Debtors for $250/hr. In Debtors' proposed plan, Counsel 
estimated its total fees, costs, and taxes would be about $7,000. Given the $3,000 retainer, Counsel 
estimated that $4,000 would be paid through the plan. 
 Debtors' schedules reflect total assets of $684,091.00 and total debts of $420,905.92 
(including total nonpriority unsecured debts of $160,193.61). 

 Debtors included Mr. DeKeyzer's mother, age 87, as a dependent on Form 122C and on 
Schedule J. She lives with Debtors. However, Debtors did not include the mother's social security 
income on the Form or Schedule I. Because of that, Debtors calculated their monthly disposable 
income to be about $571. 
 Debtors' plan, as filed on the petition date, is relatively simple. The proposed monthly plan 
payment is $600, for 60 months. The proposed plan pays Debtors' home mortgage "outside" the 
plan but pays a car loan "inside" the plan. There were essentially no pre-petition arrearages on 
either loan, which made plan drafting easier.2 
 The plan drew two objections, from the New Mexico Taxation and Revenue Department 

and the chapter 13 trustee. The Taxation and Revenue's objection was resolved when Debtors filed 
their 2019 tax return. The trustee's objection concerned Debtors' calculation of monthly disposable 
income and the size of Debtors' monthly plan payment. In particular, the trustee objected to 
counting Mr. DeKeyzer's mother as a dependent without including her social security income as 
part of Debtors' monthly income.3 The trustee also objected to discrete expenses totaling 
$434/month. 

2 Debtors' car loan was current through May 2020. Why Debtors chose to pay the loan through the 
chapter 13 trustee rather than outside the plan is not in the record. 
3 The mother's social security income is excluded from the definition of "current monthly income," 
see § 101(10A)(B)(ii)(I), but any amount paid by the mother on a regular basis for the household 
expenses would be included. § 101(10A)(B)(i); see also In re Olguin, 429 B.R. 346, 349-50 
(Bankr. D. Colo 2010). 
 The claims bar date was September 2, 2020. 22 claims were filed, totaling $412,018.64. Of 
this amount, $253,146.01 is secured, $2,152.48 is priority (IRS), and $156,720.15 is nonpriority 
unsecured. 
 The Court held a preliminary hearing on plan confirmation on September 1, 2020. A final 
hearing set for October 6, 2020, was vacated by stipulation and rescheduled for November 10, 

2020. 
 On October 19, 2020, Debtors filed an amended Form 122C, which did not list Mr. 
DeKeyzer's mother as a dependent. This increased the monthly disposable income to $1,106.01. 
 Debtors' plan was confirmed October 29, 2020, by a stipulated order agreed to by Debtors 
and the chapter 13 trustee. In the order Debtors agreed to increase their plan payments from $600 
to $1,571 a month, starting in November 2020. 
 With the increase in the monthly plan payment, Debtors' plan pays general unsecured 
creditors about 60% of their claims. The claims filed in the case are fairly consistent with the 
claims listed on Debtors' Schedules D-F. Debtors did not object to any proofs of claim. 

 Two complications arose during the case. First, Mr. DeKeyzer has an ex-wife living in 
Louisiana, and Counsel billed a couple of hours learning whether their Louisiana qualified 
domestic relations order (QDRO), which split retirement accounts in their divorce, affected 
Debtors' plan. 
 Second, Debtors filed two motions to incur debt, one so Mr. DeKeyzer could buy a car for 
his disabled adult son in Louisiana and the other to pay for LASIK eye surgery. Both motions were 
granted. 
 Additionally, Counsel represented that Debtors in this case required more "hand holding" 
than average.4 This is reflected in Counsel's fee application; several hours were dedicated to emails 
and conference calls with Debtors, scheduling the calls, or debriefing after the calls. 
 Counsel billed Debtors 51.7 hours of attorney time and 7.3 hours of paralegal time to get 
the case through confirmation and the post-confirmation motion to incur debt. The time spent and 

fees billed can be categorized as follows: 
Category Attorney time Paralegal time Combined fees 
Preliminaries; drafting 3.3 4.8 $1,545 
schedules and SOFA 
Plan drafting 3.6 1.3 $1,095 
Claims review 6.5 $1,625 
Creditors' meeting 3.0 0.2 $780 
Objections to 7.3 0.2 $1,855 
confirmation 
Fee application 1.1 $275 
Motions to incur debt 5.7 $1,425 
Louisiana QDRO 1.9 0.1 $490 
Means test/feasibility 9.7 0.2 $2,455 
Communication with 9.6 0.5 $2,475 
clients and miscellany 
Total 51.7 hours 7.3 hours $14,020 

2. General Requirements for Debtor Attorney Fee Allowance in Chapter 13. 
 Compensation of counsel for chapter 13 debtors is governed by § 330(a)(4)(B),5 which 
provides: 
 In a ... chapter 13 case ... the court may allow reasonable compensation to the 
 debtor's attorney for representing the interests of the debtor in connection with the 
 bankruptcy case based on a consideration of the benefit and necessity of such 
 services to the debtor and the other factors set forth in this section. 

4 This may have been a result of the large increase in the plan payments. Based on several of 
Counsel's time entries, it appears that Debtors were taken aback by the increase. 
5 Statutory references are to 11 U.S.C. 
This subsection was added to the bankruptcy code by the Bankruptcy Reform Act of 1994.6 
 "[A] chapter 13 debtor has the right to employ counsel so long as the following two 
requirements are met: 1) [disclosure of] compensation paid or agreed to be paid pursuant to section 
329 and 2) . . . approval of post-petition payments from property of the estate pursuant to section 
330(a)(4)(B)." In re Rosales, 621 B.R. 903, 922 (Bankr. D. Kan. 2020), quoting In re Cahill, 478 

B.R. 173, 176 (Bankr. S.D.N.Y. 2012). 
 Compensation generally can include reimbursement of expenses advanced, e.g., filing fees, 
witness fees, and deposition costs. See, e.g., In re Riley, 923 F.3d 433, 443 (5th Cir. 2019); In re 
Genatossio, 538 B.R. 615, 617 (Bankr. D. Mass. 2015) (§ 330(a)(4)(B) permits an award of fees 
and expenses); In re Marvin, 2010 WL 2176084 (Bankr. N.D. Iowa) (allowing reimbursement of 
expenses); In re Williams, 384 B.R. 191, 194 (Bankr. N.D. Ohio 2007) (court may award fees and 
expenses); but see In re Frazier, 569 B.R. 361, 369 (Bankr. S.D. Ga. 2017) (some expenses, but 
not advancement of the filing fee, can be reimbursed from the estate); In re Marotta, 479 B.R. 681, 
689–90 (Bankr. M.D.N.C. 2012) (expenses, and specifically the filing fee, not recoverable under 

§ 330(a)(4)(B)). 
 "The attorney seeking compensation bears the burden of proving entitlement to all fees and 
expenses requested." In re Dille, 2021 WL 864201, at *2 (Bankr. W.D. Mo.), citing In re Kula, 
213 B.R. 729, 736 (8th Cir. BAP 1997); In re Cooke, 2020 WL 6821730, at *3 (Bankr. D. Ariz.), 
citing In re Roderick Timber Co., 185 B.R. 601, 606 (9th Cir. BAP 1995). "This burden is not to 
be taken lightly given that every dollar expended on legal fees results i[n] a dollar less that is 

6 The Reform Act also deleted the language "or to the debtor's attorney" from § 330(a)(1). Until 
then, § 330(a)(1) had included the debtor's attorney in the list of persons who could be paid from 
the estate. In Lamie v. U.S. Trustee, 540 U.S. 526 (2004), the Supreme Court held that the Reform 
Act meant that debtor's counsel in a chapter 12 or 13 case could only be compensated under 
§ 330(a)(4)(B). 
available for distribution to the creditors." Dille, 2021 WL 864201, at *2, citing In re Ulrich, 517 
B.R. 77, 80 (Bankr. E.D. Mich. 2014). 
 In determining the allowance of compensation under § 330(a)(4)(B), the Court considers 
the factors set out in § 330(a)(3). Rosales, 621 B.R. at 927; In re Hunt, 588 B.R. 496, 499 n.4 
(Bankr. W.D. Mich. 2018). 

3. Determining How Much Compensation Should be Allowed. 
 "To be compensable, the fees must be for services that were ‘actual' and ‘necessary.' 
§ 330(a)(1)(A). If the applicant clears these hurdles, then the fees must be ‘reasonable.'" In re 
Railyard Company, LLC, 2017 WL 3017092, at *3 (Bankr. D.N.M.); see also In re Lederman 
Enterprises, Inc., 997 F.2d 1321, 1323 (10th Cir. 1993); In re Commercial Financial Services, 
Inc., 427 F.3d 804, 810 (10th Cir. 2005). 
 a. Actual Services. Compensation can only be allowed for services actually 
performed. See, e.g., In re Orthopaedic Technology, Inc., 97 B.R. 596, 601 (Bankr. D. Colo. 1989) 
("The Code requires that the services actually be performed before the compensation is awarded. 

Therefore, work to be performed does not qualify for actual services rendered"). This is not an 
issue here. 
 b. Necessary Services. Allowance is limited to "services [that] were necessary to the 
administration of, or beneficial toward the completion of a case." In re Schupbach Investments, 
LLC, 521 B.R. 449, at *8 (10th Cir. BAP 2014); In re Hungry Horse, LLC, 2017 WL 3638182, at 
*3 (Bankr. D.N.M.) (same). In chapter 13 cases, the benefit can be to the debtor rather than to the 
estate. In re Guajardo, 2020 WL 4919794, at *3 (Bankr. D.N.M.); In re Williams, 378 B.R. 811, 
823 (Bankr. E.D. Mich. 2007) (§ 330(a)(4)(B) is an exception to the general rule that professionals' 
services must benefit the estate to be compensable); In re Argento, 282 B.R. 108, 116 (Bankr. D. 
Mass. 2002) (same). 
 Reviewing the docket in this case and Counsel's fee bills, the Court concludes that some 
work was necessary in each category outlined in the table above, but not all is compensable. The 
time Counsel spent scheduling and setting up conference calls with the Debtors is clerical and 

cannot be compensated by the estate. See In re Guajardo, 2020 WL 762828, at *4 (Bankr. D.N.M.) 
("While necessary in every legal proceeding, clerical work cannot reasonably be passed onto 
clients or the estate and should instead be absorbed by the firm as overhead."); see also In re CF&I 
Fabricators of Utah, Inc., 131 B.R. 474, 489 (Bankr. D. Utah 1991) (same); In re Lady Baltimore 
Foods, Inc., 2004 WL 2192368, at *1 (Bankr. D. Utah) (same); In re Guzman, 2009 WL 607401, 
at *1 (Bankr. D.N.M.) (same). If Counsel's attorneys do their own scheduling of client meetings, 
conference calls, and the like, they must not bill for it. 
 c. Reasonable Compensation. In the Tenth Circuit, bankruptcy courts ruling on the 
reasonableness of professional fees must weigh the factors in § 330(a)(3) and those discussed in 

Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717–719 (5th Cir. 1974). See In re Market 
Center East Retail Property, Inc., 730 F.3d 1239, 1246-47 (10th Cir. 2013). Under § 330(a)(3) the 
Court must consider: 
 (A) the time spent on such services; 
 (B) the rates charged for such services; 
 (C) whether the services were necessary to the administration of, or beneficial at 
 the time at which the service was rendered toward the completion of, a case under 
 this title; 
 (D) whether the services were performed within a reasonable amount of time 
 commensurate with the complexity, importance, and nature of the problem, issue, 
 or task addressed; 
 (E) with respect to a professional person, whether the person is board certified or 
 otherwise has demonstrated skill and experience in the bankruptcy field; and 
 (F) whether the compensation is reasonable based on the customary compensation 
 charged by comparably skilled practitioners in cases other than cases under this 
 title. 

The Johnson factors are: 
 (1) The time and labor required; 
 (2) The novelty and difficulty of the questions; 
 (3) The skill requisite to perform the legal service properly; 
 (4) The preclusion of other employment by the attorney due to acceptance of the 
 case; 
 (5) The customary fee; 
 (6) Whether the fee is fixed or contingent; 
 (7) Time limitations imposed by the client or the circumstances; 
 (8) The amount involved and the results obtained; 
 (9) The experience, reputation, and ability of the attorneys; 
 (10) The "undesirability" of the case; 
 (11) The nature and length of the professional relationship with the client; and 
 (12) Awards in similar cases. 

The Court weighs the § 330(a)(3) and Johnson factors as follows: 
 § 330(a)(3)(A): Time spent. Counsel spent significantly more time on this case than in a 
typical chapter 13 case in this district. 
 § 330(a)(3)(B): Rates charged. Mr. Harris, Mr. Banning, and Ms. Stevenson are 
experienced, knowledgeable professionals. Their rates are reasonable. 
 § 330(a)(3)(C): Necessary/beneficial. In part, the work done was necessary and beneficial. 
 § 330(a)(3)(D): Timeliness. The work was timely. Four months to take the case from the 
petition date to plan confirmation is reasonable. 
 § 330(a)(3)(E): Skill/experience. Messrs. Harris and Banning are experienced and skilled 
chapter 13 lawyers. Ms. Stevenson is an experienced and skilled bankruptcy paralegal. 
 § 330(a)(3)(F): Customary compensation in non-bankruptcy cases. The rates charged are 
comparable to the rates of similarly experienced and skilled attorneys for nonbankruptcy work. 
 Johnson factor ("JF") 1: Time and labor required? If a "typical" chapter 13 case can be 
shepherded through plan confirmation for about $5,000 in attorney and paralegal fees, the time 
spent on such a case might look like this: 
Task Atty ($250/hr.) Paralegal ($150/hr.) Fee 
Petition, Schedules, 2.0 3.0 $950 
SOFAs 
Means test 1.0 $150 
Plan drafting 2.0 $500 
Claims review 1.0 $250 
Mortgage review .5 $125 
State tax issues; 1.0 $250 
collecting and 
forwarding missing 
reports, returns, and 
affidavits 
§ 341 meeting 1.0 $250 
Plan confirmation 3.0 $750 
work 
Communication with 2.0 1.0 $650 
clients/ obtaining 
needed documents 
and information 
Miscellany 4.0 1.0 $1,150 
Total 16.5 6.0 $5,025 

 Ms. Stevenson's time is not significantly far from this mark: she billed 7.3 hours. Mr. 
Banning, on the other hand, billed more than three times the estimated attorney time. Even if the 
case required more client interaction than average, the amount of time spent is high. 
 Several categories of work should be mentioned. First, it was never likely that Debtors' 
plan would pay creditors in full, so the 6.5 hours Counsel spent reviewing each proof of claim did 
not benefit the estate. Counsel should have let the trustee handle any necessary claim objections. 
See §§ 1302(b)(1) and 704(a)(5) ("the trustee shall . . . if a purpose would be served, examine 
proofs of claims and object to the allowance of any claim that is improper"). 
 Second, Counsel spent about 17 hours dealing with the trustee's objection to the proposed 
$600 plan payment. There were, however, only a handful of issues: is Mr. DeKeyzer's mother a 
dependent? Does she make regular contributions to household expenses? Are the budgeted 
expenses of $200 for telephone, $210 for pets, and $24 for gym appropriate? A stipulated plan 
payment amount should have been relatively easy to negotiate. 

 Third, the 3.0 hours spent preparing for and attending the § 341 meeting, which was held 
by Zoom, seems like a lot. The Court's hypothetical $5,000 case budgeted 1 hour for the § 341 
meeting. 
 Fourth, 9.6 hours billed for communicating with the client and miscellany is high. The 
Court projected about 6 hours for these categories. Further, some of this time was for clerical work. 
 Finally, 5.7 hours for the two motions to incur debt, neither of which was seriously 
opposed, is high.7 2-3 hours seems more appropriate. 
 JF 2: Novelty and difficulty of the questions? It does not appear that any of the legal issues 
addressed in this bankruptcy case were particularly novel or difficult. Counsel spent a reasonable 

amount of time dealing with the Louisiana QDRO, which was probably the most novel issue in 
the case. 
 JF 3: Skill requisite to perform the legal service properly? Counsel's professionals have 
the requisite skills. The case was handled well. 
 JF 4: Preclusion of other employment due to acceptance of the case? There is no evidence 
that Counsel was precluded from other work by taking Debtors' bankruptcy case. Bankruptcy work 
in this district is at a low ebb. 

7 The trustee objected to the first motion to incur debt, but her objection was resolved three days 
later by the order granting the motion. 
 JF 5: Customary fee? In this district, the customary fee to take a "typical" chapter 13 case 
through plan confirmation is about $5,000 in attorney and paralegal fees, plus costs and tax. 
Compared to this figure, Counsel's $14,020 fee request is too high. 
 JF 6: Whether the fee is fixed or contingent? The fee is fixed. 
 JF 7: Time limitations imposed by the client or circumstances? There was no significant 

time pressure in this case. The two motions to incur debt were filed timely. 
 JF 8: Amount involved and results obtained? Claims filed totaled $412,018.64, including 
$253,146 in secured claims and $2,152 in priority tax claims. That is about average for a New 
Mexico chapter 13 case. Counsel obtained a good result for its client. 
 JF 9: Experience, reputation, and ability of the attorneys? Counsel's professionals are 
experienced and skilled in chapter 13 work. 
 JF 10: Undesirability of the case? There is no indication that this case was undesirable. 
 JF 11: Nature and length of professional relationship with the client? Not applicable. 
 JF 12: Awards in similar cases? As set out above, the attorney and paralegal fees charged 

for a "typical" chapter 13 case in this district are about $5,000, plus costs and tax. 
 The Court concludes that, giving Counsel the benefit of the doubt on the issues arising in 
this case, it would be reasonable to allow fees of $8,000, or $3,000 more than the typical, simple 
case. Taxes on fees will be reduced commensurately. Costs will be allowed as requested. 
 Conclusion 
 This is a successful case: Debtors have a confirmed plan, creditors will receive a substantial 
payment on their claims, and Debtors will discharge a significant amount of unsecured debt. 
Counsel spent a lot of time to achieve this result, however. The Court concludes that fees of $8,000, 
rather than the requested $14,020, are reasonable. A separate order will be entered. 
 Hon. David T. Thuma 
 United States Bankruptcy Judge 
Entered: April 9, 2021 
Copies to: electronic notice recipients 

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