Promptly after a trustee or successor trustee is appointed in a chapter 11 case, the trustee must file and serve notice of such appointment on all creditors and parties in interest, and to such other parties as the Court may direct, in each pending action, proceeding, or matter.

(a)  Form of Fee Application.  Except for those applying for fees pursuant to L.B.R. 2016-3(a), every request for professional compensation to be paid by the estate pursuant to 11 U.S.C. §§ 330 or 331 must include:

     (1)  A completed cover sheet in substantial conformity with L.B.F. 2016-1.1;

     (2)  A fee application that contains the following information:

(A) Introduction.  The introductory statement must set forth a brief history of the case, pending matters, and future matters anticipated before closure of the case.

(B) Narrative by Category.  The professional fee application must contain a narrative that describes the work performed divided in categories of major/significant services.  Within each category, the narrative must describe:

(i)    the nature of the services;

(ii)   the results obtained, if any;

(iii) the benefits to the estate;

(iv) a general description of any additional work remains to be done with respect to the matter;

(v)   a statement of the number of hours spent on the particular matter and by whom; and

(vi) the portion of the total fee applicable to the particular category.

(C) Time Records.

(i)    The fee application must attach as a separate exhibit a copy of detailed time entries from records kept contemporaneously by the applicant, including the date of the work performed, the individual performing the services, an allocation of time spent on each task (expressed in tenths of an hour), the total fee for each task, and a detailed description of the work performed.

(ii)   No Lumping.  Daily entries by each professional must contain separate time allocations for each separate task.

(iii) The applicant must establish separate billing categories for daily time entries so that the time entries of all professionals working on a particular matter will be billed separately to that matter.

(D) Expense Records.  The applicant should retain cost/expense invoices or documentation for items over $50 in the event that the Court or an objecting party questions the expense.

(3)  No Retroactive Fees.  The application must not seek to obtain compensation for services rendered prior to the effective date of the Order approving the employment of the applicant

(4)  Jointly Administered Cases.  In jointly administered cases, the applicant must file its fee application only in the lead case.  Regardless of whether the applicant has performed services for the estate of more than one debtor, all services must be included in a single fee application.  If the applicant has performed services for more than one estate, then the fee application must include a proposed allocation of the fees to be billed to each separate estate.

(a)  Presumptively Reasonable Fee Application.

(1)  Eligibility.  To be eligible to use the Presumptively Reasonable Fee Application (the “PRFA”) procedure, the applicant must request a fee that is at or below the presumptively reasonable fee (the “PRF”) amount provided in the General Procedure Order titled, “In the Matter of Chapter 13 Fee,” as amended from time to time.  The applicant must provide all reasonably necessary and appropriate services during the pendency of the entire case.

(2)  Presumptively Reasonable Fee.  To the extent provided for in the chapter 13 plan, the PRF, or lesser amount if requested by the plan, is to be paid by the trustee upon confirmation of the plan, to the extent funds are available after payment of the applicable trustee fee.  The chapter 13 trustee may recommend or the Court may determine, in appropriate cases, that a lower fee be allowed.   

(3)  Form of Application.  Applications for allowance of fees and reimbursement of expenses pursuant to the PRFA procedure must be made using the checkbox on the chapter 13 plan, L.B.F. 3015-1.1.  Applicant need not supplement L.B.F. 3015-1.1, except upon formal objection, written request of the debtor, or order by the Court.

(4)  Extraordinary Costs.  If a case has costs in excess of the amount provided for in the General Procedure Order published by the Clerk, In the Matter of Procedures for Fee Applications in Chapter 13 Cases, as amended from time to time, an attorney may file a Supplemental Fee Application using L.B.F. 2016‐3.5 and appropriate supplementary documentation.

(5)  Post‐Confirmation Fees.  Election of the PRF or any lesser fee does not preclude an attorney from filing a Supplemental Fee Application for post‐confirmation work.  Electing the PRF does not preclude an attorney from providing for a greater amount in the plan.

(6)  Order.  The chapter 13 confirmation order will serve as the order approving the payment of the PRF, or lesser amount requested.  

(b)  Long Form Fee Application.

(1)  Eligibility.  If the applicant requests allowance of a fee in excess of the PRF amount, the attorney may not use the PRFA procedure and must use the Long Form Fee Application (the “LFFA”) procedure in addition to compliance with L.B.R. 2016-1(a)(2)(C)(i) and (ii).  The applicant must provide all reasonably necessary and appropriate services during the pendency of the entire case.

(2)  Form of Applications.  Applications for allowance of fees and reimbursement of expenses pursuant to the LFFA procedure must be made using L.B.F. 2016-3.1, and must be supplemented by the attachments outlined in L.B.F. 2016-3.1.

(3)  Service, Notice, and Objections.  Debtor’s attorney must serve a copy of the LFFA, L.B.F. 2016-3.1, along with a notice in substantial conformity with L.B.F. 2016-3.2, on the chapter 13 trustee, the debtor, and any parties requesting notice.  Prior to the deadline to file a non-governmental proof of claim, the notice, without the LFFA form, must be served on all other creditors, claimants, and parties in interest.  If the non-governmental claims deadline has passed, the notice, without the LFFA form, must be served on claimants and governmental creditors.  Parties will have 21 days from service of the notice within which to file an objection.

(4)  Timing.  Fee applications under the LFFA must be filed no sooner than the date of entry of the order confirming the chapter 13 plan and no later than 28 days after the date of entry of the order confirming the chapter 13 plan.

(5)  Order.  The attorney must submit a form of order in substantial conformity with L.B.F. 2016-3.3, listing the specific amount of fees and expenses requested, the amount received outside of the plan or previously paid, and the amount payable from plan payments.

(c)   Supplemental Form Fee Application.

(1)  Eligibility.  If the applicant provides services post-confirmation and requests allowance of a supplemental fee for post-confirmation services, the applicant must use the Supplemental Form Fee Application (the “SUPFFA”) procedure in addition to compliance with L.B.R. 2016-1(a)(2)(C)(i) and (ii).

(2)  Form of Applications.  Applications for allowance of fees and reimbursement of expenses pursuant to the SUPFFA procedure must be made using L.B.F. 2016-3.4, and must be supplemented by the attachments outlined in L.B.F. 2016-3.4.

(3)  Service, Notice, and Objections.  Debtor’s attorney must serve a copy of the SUPFFA, L.B.F. 2016-3.4, along with a notice in substantial conformity with L.B.F. 2016-3.2, on the chapter 13 trustee, the debtor and those parties requesting notice.  Prior to the deadline to file a non-governmental proof of claim, the notice, without the SUPFFA form, must be served on all other creditors, claimants, and parties in interest.  If the non-governmental claims deadline has passed, the notice, without the SUPFFA form, must be served on claimants and governmental creditors.  Parties will have 21 days from service of the notice to file an objection.

(4)  Timing.  Fee applications under SUPFFA may not be filed until after entry of an order approving an application under either the PRFA procedure or the LFFA procedure, and no later than the date the chapter 13 trustee files a final report.

(5)  Order.  The attorney must submit a form of order in substantial conformity with L.B.F. 2016-3.5, listing the specific amount of post-confirmation fees and expenses requested, the amount previously approved by the Court, the amount received outside of the plan or previously paid, and the amount payable from plan payments.

(d)  Hearing.  If the applicant elects the PRFA procedure through a chapter 13 plan, any objection will be considered through the confirmation process.  For all other types of fee applications, if no objection is filed, the Court may allow the requested fee in full or in part, upon the filing of a Certificate of Non-contested Matter in substantial conformity with L.B.F. 9013-1.3, or may order further supplementation or set the application for hearing.  If an objection is filed, the applicant is responsible for filing a Certificate of Contested Matter and Request for Hearing in substantial conformity with L.B.F. 9013-1.4.  Upon the filing of the Certificate of Contested Matter, the Court may set the matter for hearing.

Commentary

The PRFA and LFFA procedures establish the time frame and process within which an applicant must apply initially for approval of chapter 13 fees and reimbursement of expenses.  However, regardless of whether the applicant utilizes the PRFA or LFFA procedures, the prohibitions against and restrictions on limited representation contained in L.B.R. 9010-1 require that the engagement does not terminate at plan confirmation.  Rather, representation must last through the earlier of entry of discharge, or the conversion or dismissal of the case unless the attorney is permitted to withdraw in accordance with L.B.R. 9010-4.

The PRFA procedure is for requesting fees and is not intended to limit the scope of chapter 13 engagements.  When requesting fees using the PRFA procedure, attorneys are not required to submit their engagement letter or other fee agreement, detailed time slips, or a narrative unless requested by the trustee or otherwise ordered by the Court.  However, attorneys are advised that if their fees are questioned, it may be quite difficult to prevail without the assistance of some or all of those items.  Although the PRFA process does not limit the ability of debtor’s attorney to seek additional fees post-confirmation, certain routine post-confirmation services are expected to be rendered by applicant as part of the PRF.  For example, in most cases, such routine post-confirmation services will include reviewing claims after the expiration of the claims date; advising on the requirement that the debtor complete a financial management course; communicating with the debtor, creditors and other parties in interest concerning the case; defending a motion for relief from stay or motion to dismiss; and, completing the debtor's certification for discharge.  However, generally, prosecuting or defending against a motion for a plan modification would not be considered a routine post-confirmation service.

The LFFA procedure is intended to be a fee-for-service arrangement where it is anticipated that total attorney fees for the case will exceed the PRF amount.  The SUPFFA procedure completes payment for post-confirmation services reasonably necessary and appropriate for the engagement.  The Court will entertain supplemental fee applications that comply with the SUPFFA procedure, supported by time records, for post-confirmation services.  Like the LFFA, applications under the SUPFFA must be supplemented by the same attachments.

(a)  Initial Motions.  During the first 21 days following entry of the Order for Relief, the debtor may obtain expedited consideration for entry of orders by filing a Motion Seeking Expedited Entry of Order(s) and Notice of Impending Hearing Thereon (the “Motion”) as follows:

(1)  Motion.  The Motion must contain sufficient factual recitations regarding the nature of the debtor’s business and the need for the types of relief sought.  The Motion need not be accompanied by briefs or authorities.  The movant must certify that the relief sought by the Motion is needed by the debtor on an expedited basis.  If the Motion requests more than one order, the motion must separately identify and discuss each requested relief or intended action.

(2)  Cover sheet.  The Motion must be accompanied by a cover sheet in substantial conformity with L.B.F. 2081-1.1.

(3)  Affidavits.  The Motion must be accompanied by one or more factual affidavits by a representative of the movant or executed by an individual having personal knowledge of the facts therein supporting the requested relief.

(4)  Notice.  The Motion must be accompanied by a notice in substantial conformity with L.B.F. 2081-1.2 and a copy of a response form in substantial conformity with L.B.F. 2081-1.3.

(5)  Proposed Order.  The Movant must file a proposed order for each type of requested relief.  The proposed order must clearly state the relief requested, but should not contain proposed findings of fact or conclusions of law.

(b)  Service of the Motion.

(1)  Service on the United States Trustee.  A copy of the Motion, cover sheet, affidavits, notice, and proposed orders must be hand delivered or emailed to the United States Trustee, either before or within four hours after the Motion is filed.

(2)  Service on other Parties.  A copy of the Motion, cover sheet, affidavits, notice, and proposed orders must be served by hand delivery, overnight mail, facsimile or email initiated on the day the Motion is filed, to:

(A) any appointed chapter 11 trustee or examiner;

(B) any creditors’ or equity security holders’ committee pursuant to L.B.R. 2081-2;

(C) if there is no committee, the 20 largest unsecured creditors;

(D) any indenture trustee;

(E) the IRS and other relevant government entities;

(F)  all parties who have requested notice;

(G) any party whose interest in property of the estate will be directly affected by any order requested; and

(H) the United States Trustee.

(c)  Hearing.

(1)  Scheduling the Hearing.  The chambers of the judge assigned to the case will provide movant’s attorney with a hearing date to be held that is, if possible, not more than three days after the date of the filing of the Motion.  For purposes of this hearing only, if the judge’s calendar cannot be arranged to accommodate a hearing within three days, the judge’s staff will notify the Clerk, who may refer the matter to any other available judge.

(2)  Service of Notice of Hearing.  As soon as the movant is notified of the hearing date, the movant must serve notice of the date and time of the hearing in substantial conformity with L.B.F. 2081-1.4 to:

(A) parties who were served with copies of the Motion; and

(B) those parties who have requested notice in the case or those who have responded to the Motion on L.B.F. 2081-1.3.  The movant must notify each of the above of the date, time, and place of the hearing by email or facsimile, as requested in such party’s response, within the later of: (i) four hours after movant receives responder’s request for notice, or (ii) four hours of being notified by the Court of the date and time of the hearing.

(3)  Proof of Service.  The debtor must file an affidavit of compliance with the service requirements of this Rule prior to the commencement of any hearing pursuant to this Rule.

(4)  Objections.  Parties may file an objection in writing prior to the hearing and/or may appear at the hearing to state or supplement their objection orally.

(5)  Procedure at Hearing.  At any hearing set pursuant to this Rule, the parties will proceed in accordance with the Fed. R. Bankr. P. and the Federal Rules of Evidence.  The movant must be prepared to present evidence in support of its Motion.  Any unopposed request may be granted in the Court’s discretion on the basis of affidavits, arguments, or representations of the parties or attorneys, as appropriate.

(d)  Orders.  At the conclusion of any hearing held pursuant to this Rule, the Court will make such findings of fact only as are supported by the record and will:

(1)  enter or deny any or all of the orders requested;

(2)  enter any or all of the orders requested on an interim basis pending such additional notice as the Fed. R. Bankr. P. or the Court may direct; and/or

(3)  continue the hearing with respect to any or all of the orders requested.  Only interim orders will be entered pursuant to this Rule respecting cash collateral or post-petition financing.

(e)  Other Expedited Relief.  The availability of expedited consideration of motions under this Rule will not preclude ex parte relief or other emergency relief where appropriate upon specific request.