Demmie Balauro Acosta

OCR transcription for search; preserved printed pages are authoritative

Entered on Docket
May 17, 2011

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Chambers, 22nd Floor, 235 Pine Street
San Francisco, Ca 94104
Tel. 415-268-2320

May 16, 2011

MEMORANDUM VIA FACSIMILE

TO: John T. Hansen, Esq. (415-398-2438)
Mark J. Romeo, Esq. ( (415-395-9318)

FROM: Judge Dennis Montali

SUBJECT: Acosta-Trust Deed Investment, Inc., No. 09-32339

I have reviewed the declaration of John T. Hansen describing
how he calculates the total claim of TDI as of April 30, 2011,
and the declaration of Phillip Goldstein setting forth his
calculations of the same obligation.

As noted by Mr. Hansen in the Reply, the court is not making
a final determination as to which party’s calculation is correct,
but is doing the calculation on an interim basis in order to
determine how much should be retained by the debtors following
the close of escrows of the 17th Street and the 18th Street
properties.

Mr. Hansen has started with TDI’s Exhibit 1 to its proof of
claim and backed out default interest, recalculated the payments
and concluded that as of April 30, 2011, TDI’s claim is
$2,169,214, plus what he calls generous, an additional $60,000 in
attorneys’ fees. The evidence does establish, however, that
through May 1, 2011, TDI’s attorneys’ fees are at least
$98,841.38, thus requiring an additional $38,841.38 to be
included on top of the “generous” $60,000 figure Mr. Hansen used.

The following are the amounts used to calculate TDI’s legal
fees to date. The first two figures are from the Exhibit 1 to
TDI’s proof of claim and the remaining six amounts from Mr.
Goldstein’s declaration and corresponding costs set forth in his
calculations.

INFORMATION
GPO 2

ao. 09-32339 Doc#508 Filed: 05/16/11 Entered: 05/17/11 13:13:14 Page 1 of

March 31, 2010 $26,401.95

April 30, 2010 7,255.27
June 14, 2010 4,030.41
August 24, 2010 30,000.00
January 19, 2011 2,990.59
February 18, 2011 3,539.60
March 29, 2011 12,714.05
May 1, 2011 11,909.51

$98,841.38

Further, Exhibit 1 to TDI’s proof of claim establishes that
a trustee fee of $8,360 was paid and late charges totaling
$14,299.98 were incurred. Thus, those two figures must be added
to TDI’s claim as of April 30.

The proof of claim exhibit also shows miscellaneous costs
and a trustee’s sale guaranty totaling $4,157.63; against that
figure is a trust account balance of $4,030.41, leaving an
additional amount of the claim to be included for these purposes
at $127.22.

Mr. Goldstein’s declaration establishes that TDI paid
$55,956.73 in taxes on September 1, 2010.

The court will exclude from the preliminary estimate the sum
of $1,586.29 as “interest on legal fees” in the proof of claim
exhibit, plus unexplained costs in the Goldstein recalculation as
follows:

August 20, 2010 $1,554.53
February 28, 2011 800.00

In summary, the Hansen declaration’s estimate of “roughly”
$2,230,000 ($2,169,214 plus $60,000) must be increased as
follows:

Additional Attorney’s Fees $38,841.38
Trustee’s Fee 8,360.00
Taxes 55,956.73
Late Charge 14,299.98
Miscellaneous Costs (Net) 127.22

TOTAL $117,585.31

From the foregoing the estimated claim (without default
interest and the excluded charges noted above) is fixed at
$2,347,585.31.

Case: 09-32339 Doc#508 Filed: 05/16/11 Entered: 05/17/11 13:13:14 Page 2 of
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