Haykel Ammari

In re
HAYKEL AMMARI,
Debtor
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
Chapter 7
Case No. 08-19347-FJB
MEMORANDUM OF DECISION ON
TRUSTEE’S MOTION FOR CONTEMPT OF COURT ORDER AND FOR SANCTIONS
AND ON TRUSTEE’S APPLICATION FOR COMPENSATION
On August 18, 2009, the Court ordered the debtor, Haykel Ammari, to turn over to the
chapter 7 trustee, Stephen Shamban, by September 2, 2009 the sum of $13,894, representing
his one-half share of the 2008 federal income tax refund that he and his wife had jointly
received. The Debtor paid the trustee only $2,000 by the September 2 deadline, whereupon the
trustee filed the present motion for contempt, asking the court to (i) compel the debtor to turn
over the balance forthwith and (ii) order the debtor to pay as a further contempt sanction the
fees incurred by the trustee in bringing this motion and obtaining the debtor’s compliance. At a
preliminary hearing on the motion, the court entered an agreed order under which the debtor is
obligated to pay the trustee $2,000 per month until the turnover sum is paid in full. With respect
to fees, the court ordered the trustee to file a cost and fee application, permitted the debtor to
file a response, and indicated that the court would them decide whether to allow fees and, if so,
the amount. The trustee did file a fee application seeking fees of $16,862.50 and expenses of
$764.95; and the debtor has responded, opposing any award of fees and further challenging the
amount as grossly excessive and punitive.
The Court will now deny fees as a contempt sanction because it appears that, when the
debtor was ordered to turn over the tax refund, he no longer had the refund in his possession.
The order of turnover had been entered on the understanding that the fund was available and
capable of being turned over. The understanding, of which debtor’s counsel had failed to
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disabuse the court, turns out to have been false. The debtor consequently lacked the ability
either to turnover the actual funds constituting the tax refund or even to repay the sum from
other funds in the time required for turnover. As the debtor had no ability to comply with the
court’s order, his failure to do so is not contempt, and therefore no contempt sanction is
appropriate. 1 A separate order will enter accordingly. The order shall be without prejudice to
trustee’s counsel’s seeking compensation for the same fees from the estate in a final application
at the close of the case.
Date: October 30, 2009 	_______________________________
Frank J. Bailey
United States Bankruptcy Judge
1 The Court need not determine whether the amount sought is excessive.
2
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