Union Home and Industrial, Inc.

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO

PACER Cover Sheet
for Electronically Filed Documents

Any data shown here are current as of 06/10/06 . Any element of information on this form,
except the received date, is subject to change as changes may be made to the Court's official docket.

Case Title: Union Home and Industnal, Inc.

Case Number: 04-15755

Description: Memorandum Opinion and Order Denying re: [98-1] Request for Disqualification of
Bankruptcy J udge by Union Home and Industnial, Inc. .

Received on: 2006-02-09 10:28:30.000
Date Filed: 2006-02-09 00:00:00.000

Date Entered On 2006-02-09 00:00:00.000
Docket:

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Submitted By: James Burke

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vs. coves A SEGA-15755-S11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 1 of 49

GPO

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
UNION HOME AND INDUSTRIAL,
Debtor. 	NO. 11-04-15755 SR
MEMORANDUM OPINION AND ORDER DENYING REQUEST FOR DISQUALIFICATION
OF BANKRUPTCY JUDGE IN PROCEEDING OR PROCEEDINGS
The Debtor in Possession (“Debtor”) has filed a Request for
Disqualification of Bankruptcy Judge in Proceeding or Proceedings
(“Disqualification Request”) (doc 98). 	The Disqualification
Request will be denied.
Procedural Background
The Debtor filed its voluntary chapter 11 petition on August
9, 2004 (doc 1). 	A day later Debtor filed its Motion to Employ
Counsel (“Motion to Employ”) seeking approval of its hiring of
the Behles Law Firm, P.C. (“Firm”, whose principal is Jennie
Deden Behles – “Senior Counsel”) (doc 5), accompanied by the Rule
2016 disclosure of compensation (doc 4). 	No rule 2014 affidavit
was filed at that time, although paragraph 3 of the Motion to
Employ (which was signed by Senior Counsel for the Firm) recited
as follows:
3. 	To the best of the attorneys [sic] knowledge,
attorneys have no conflict with the Debtor, their [sic]
creditors, the United States Trustee, or any party in
interest herein that would disqualify attorneys from
this representation pursuant to 11 U.S.C. § 327;...
The United States Trustee (“UST”) filed a limited objection
to the Motion to Employ (doc 17), stating that hourly fees in
excess of $200 per hour were the exception rather than the rule
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 2 of 49

1 That case was In re Mach 2 Machining and Manufacturing,
Inc., No. 11-04-13983 SA. 	Counsel in that case sought an hourly
rate of $225 per hour and submitted affidavits from various
counsel in support of the request. 	(Those affidavits were
treated as evidence in this case with the consent of Senior
Counsel.) 	The Court entered an order in Mach 2 permitting
primary counsel in that case to charge $225 per hour. 	Doc 98.
That was the only case in which that attorney has billed at that
rate; in subsequent cases the attorney has billed at the rate of
$200 per hour. 	E.g., Stipulated Order Approving Debtor’s Motion
to Employ Attorneys, In re New Mexico Motor Speedway, Inc., No.
11-05-14845 SA (doc 46).
Page 2 of 	32
for bankruptcy cases in the District of New Mexico, and that the
Debtor’s request to pay the Firm $250 per hour for Ms. Behles’
services should require a showing concerning among other things
Ms. Behles’ expertise and the difficulty of the case. 	The
limited objection also noted that the Court had just previously
required another counsel in another case to provide a “market
survey” to justify an hourly rate of $225 per hour. 1 	The Court
entered an interim order approving the employment of the Firm and
a billing rate of $200 per hour for Senior Counsel and taking
under advisement the request for $250 per hour. 	Doc 38. 	The
order approving the employment contained the Court’s standard
provision requiring the Firm to make a separate showing of its
entitlement to an hourly rate of more than $200 per hour. 	See,
e.g., In re Mach 2 (doc 57), In re R.G. Cantina, Ltd., No. 11-03-
11510 (doc 21), and In re Gilliland, No. 11-05-10492 SA (doc 17);
see also the Court’s written materials for the New Mexico State
Bar Bankruptcy Law Section’s Year in Review continuing legal
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 3 of 49

2 “And my practice has also been by and large to approve a
rate of up to $200/hour, with the proviso in the order that if
the attorney wants a higher rate, the attorney can request a
specific hearing on that issue to present evidence and legal (or
other) argument for the increased rate.” 	A copy of the written
CLE materials, available as “Year in Review 2004" on the Court’s
public web page, is attached to this memorandum opinion for ease
of reference.
3 Although Senior Counsel promptly filed the Rule 2014
affidavit (doc 88), the Firm has yet to submit an order
(re)employing the Firm.
4 In fact, the Firm had filed the motion for the third
(continued...)
Page 3 of 	32
education (“CLE”) program on March 4, 2005 at paragraph 1(b). 2
On April 1, 2005 the Court entered an order and supporting
memorandum opinion setting aside the employment order and denying
the request for the $250 rate, and detailing the reasons
therefor. 	Docs 85 and 87 respectively. 3 	The Court “unemployed”
the Firm as the attorney for the Debtor because of the Firm’s
failure to file a Rule 2014 statement, and the Court limited
Senior Counsel’s rate to $200 per hour based on the evidence,
including data concerning market rates and Senior Counsel’s
performance in this and other cases.
In the meantime (as detailed in the memorandum opinion, doc
87) the Debtor sought three extensions of exclusivity. 	The Court
ultimately denied those requests because the Debtor initially
failed to file a certification of service of the first motion to
extend exclusivity and later failed to file the third request for
extension of exclusivity timely. 4 	The Debtor also struggled to
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 4 of 49

4(...continued)
extension one day late. 	Memorandum Opinion and Order Denying as
Moot Motion for Reconsideration of Order Denying Extension of
Exclusivity, at 2 note 1. Doc 239. 	The issue was mooted by the
fact that the Debtor filed and confirmed its plan without any
other party having filed a competing plan. 	Docs 134 and 239.
5 The details are set out in the order denying the
employment. 	Doc 84. 	The order also explained how the problem
could easily be solved and invited the Debtor to submit an
additional affidavit from the accountant and an order employing
the accountant. 	Debtor instead filed a motion to reconsider the
order not employing the accountant (doc 95), then filed a second
affidavit from the accountant (doc 105), but has not submitted an
order to employ the accountant as permitted by the order.
Submitting the order allowing the employment of the accountant
will moot the motion for reconsideration.
Page 4 of 	32
obtain the employment of the accountant because of a failure to
properly disclose financial transactions or arrangements with the
Debtor. 5
Shortly after the attorney “de-employment” order (doc 85)
was issued, the Debtor filed its Motion for New Trial
(Reconsideration of) April 1, 2005 Order and Memorandum to the
Honorable James S. Starzynski on the Motion to Employ Counsel,
the Behles Law Firm, P.C. (Doc 97) (“Attorney Reconsideration
Motion”), for reconsideration of the order denying employment of
the accountant (doc 95), and a motion to set aside the order
denying the motions for the second and third extensions of
exclusivity (doc 96). 	On the same date Debtor filed the
Disqualification Request (doc 98). 	Because the Disqualification
Request incorporates the issues raised by the various motions for
reconsideration (doc 98 at 2-3, 5), the Court has delayed ruling
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 5 of 49

Page 5 of 	32
on those various motions until it rules on the Disqualification
Request. 	While there is probably no statute or rule that
prevents a judge from ruling on matters pending a decision on a
disqualification motion, see In re Spirtos, 298 B.R. 425, 433
(Bankr. C.D. Cal. 2003), it is probably prudent to do so, see
Allen-Myland, Inc. v. Int’l Business Machines Corp., 714 F.Supp.
707, 708-09 (S.D. N.Y. 1989). 	This would especially be the case
if the Court were to disqualify itself. 	Cf. Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 866 (1988) (had trial
court judge discovered that he was disqualified under § 455
before he issued the judgment, he would have been required to
recuse before issuing the judgment; instead, having
(constructively) discovered the ground of disqualification
afterward, he was required to disclose and recuse immediately so
that the parties could file a motion for a new trial instead of
having to file a Rule 60(b) motion considerably later).
Debtor supported the Disqualification Request with seven
affidavits of attorneys and others (docs 112-117 and 119) and
with a brief (doc 122). 	The Office of the United States Trustee
took no position on the Disqualification Request (doc 108), nor
did any other creditor or party in interest. 	The Court conducted
two preliminary hearings on the Disqualification Request (minutes
– docs 106 and 121) and entered the Pre-Trial Scheduling Order in
Regard to Recusal (doc 109). 	Decretal paragraph 8 of that
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Page 6 of 	32
scheduling order provided that “[t]he parties have agreed and the
Court has approved the submission of this matter by affidavits,
as well as judicial notice of matters of record without further
oral presentation of evidence.”
Analysis
A preliminary issue that needs to be addressed is that the
Disqualification Request sought removal of the Court for only
part of the proceedings – those having to do with the
reconsideration motions. 	Doc 98 at 1, 3, 5; see also Debtor’s
Brief in Regard to Limited Disqualification (doc 122). 	Citing
Rule 5004(a) and (b), Senior Counsel made clear that the Debtor
did not want the Court to recuse itself from continuing with the
confirmation process or the rest of the case. 	The primary
creditor Daryl Gough concurred in that position. 	Pretrial
Scheduling Order in Regard to Recusal, at “decretal” paragraph 3.
Doc 109.
The Court agrees that the language and advisory committee
comment of Rule 5004 appear to permit the Court to continue to
preside over the remaining part of the case. 	Rule 5004(a)
provides in part that “[a] bankruptcy judge shall be ...
disqualified from presiding over the proceeding or contested
matter in which the disqualifying circumstances arises [sic] or,
if appropriate, shall be disqualified from presiding over the
case.” 	The Advisory Committee Notes explain in part that
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 7 of 49

6 § 455. Disqualification of justice, judge, or magistrate
judge.
(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
(continued...)
Page 7 of 	32
[i]n a case under the Code it is possible that the
disqualifying circumstance will be isolated to an
adversary proceeding or contested matter. 	The rule
makes it clear that when the disqualifying circumstance
is limited in that way the judge need only disqualify
himself from presiding over that adversary proceeding
or contested matter.
See generally In re Norton, 119 B.R. 332, 338-40 (Bankr. N.D. Ga.
1990)(discussing differences between civil cases and bankruptcy
cases in the context of § 455), but compare id. at 340 (“There
can be little disagreement that a disqualifying circumstance
relating to debtor’s counsel would require a judge to recuse
himself from the entire case, as debtor’s counsel’s role is
substantial and ongoing throughout the course of the bankruptcy
case and [she] is likely to be involved in virtually all
contested matters and adversary proceedings.”). 	Thus, pending
the decision on the Disqualification Request, the Court entered
orders approving the Debtor’s disclosure statement (docs 110 and
111), conducted a confirmation hearing (minutes doc 129), and
entered the confirmation order on August 8, 2005 (doc 134). 	And
the Debtor has filed objections to numerous claims which the
Court will rule upon. 	Docs 135-180; 193-237.
The Debtor sought disqualification of the Court primarily on
the grounds of § 455(a) 6 and Rule 5004(a). 	The Debtor stated
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 8 of 49

6(...continued)
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness
in the proceeding.
7 Rule 5004. 	Disqualification.
(continued...)
Page 8 of 	32
that it was not trying to prove that the Court was in fact biased
against Senior Counsel, but rather that a reasonable person
looking at the facts would conclude that the Court was biased
against Senior Counsel. 	Doc 122 at 2-3. 	The Debtor also cited
Rule 5004(a) and (b) as the basis for disqualification, although
subsection (a) would seem to be the applicable portion of the
rule. 7
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 9 of 49

7(...continued)
(a) Disqualification of Judge.
A bankruptcy judge shall be governed by 28 U.S.C. § 455, and
disqualified from presiding over the proceeding or contested
matter in which the disqualifying circumstance arises or, if
appropriate, shall be disqualified from presiding over the case.
(b) Disqualification of judge from allowing compensation.
A bankruptcy judge shall be disqualified from allowing
compensation to a person who is a relative of the bankruptcy
judge or with whom the judge is so connected as to render it
improper for the judge to authorize such compensation.
The Firm argues that Rule 5004(b) is “implicated” in this
matter. 	Doc 98 at 3. 	Unless the Firm is arguing that the Court
has such a bias against Senior Counsel that she should be
considered to be “a person ... with whom the judge is so
connected as to render it improper for the judge to authorize
such compensation” (similar to a relative), this subsection of
the rule is inapplicable. 	The issue of bias is sufficiently
addressed in subsection (a).
8 28 U.S.C. § 144, a similar statute, does not apply to
bankruptcy judges. 	See Williams v. Southwestern Gold, Inc. (In
re Williams), 99 B.R. 70, 71 n.1 (Bankr. D. N.M. 1989).
Page 9 of 	32
Before discussing each of the specific grounds alleged by
the Debtor as a basis for recusal, the Court will briefly review
the law on disqualification of a judge.
Title 28 U.S.C. § 455(a) 8 provides:
Any justice, judge or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
Under this statute, a judge has a continuing duty to recuse
before, during, or, in some circumstances, after a proceeding if
the judge concludes that sufficient factual grounds exist to
cause an objective observer reasonably to question the judge’s
impartiality. 	United States v. Cooley, 1 F.3d 985, 992 (10 th
Cir. 1993). 	The judge’s actual state of mind or lack of
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Page 10 of 	32
partiality is not the issue in subsection (a) of the statute.
Id. at 993. 	The test in the Tenth Circuit is “whether a
reasonable person, knowing all the relevant facts, would harbor
doubts about the judge’s impartiality.” 	Id. (citing United
States v. Burger, 964 F.2d 1065, 1070 (10 th Cir. 1992)).
[T]he hypothetical reasonable observer is not the
judge himself or a judicial colleague but a person
outside the judicial system. 	Judges, accustomed to the
process of dispassionate decision making and keenly
aware of their Constitutional and ethical obligations
to decide matters solely on the merits, may regard
asserted conflicts to be more innocuous than an
outsider would. 	On the other hand, a reasonable
outside observer is not a person unduly suspicious or
concerned about a trivial risk that a judge may be
biased. 	There is always some risk of bias; to
constitute grounds for disqualification, the
probability that a judge will decide a case on a basis
other than the merits must be more than “trivial.”
United States v. DeTemple, 162 F.3d 279, 287 (4 th Cir. 1998),
cert. denied, 526 U.S. 1137 (1999)(citing In re Mason, 916 F.2d
384, 386 (7 th Cir. 1990)).
The standard is purely objective. 	The inquiry is
limited to outward manifestations and reasonable
inferences drawn therefrom. 	In applying the test, the
initial inquiry is whether a reasonable factual basis
exists for calling the judge’s impartiality into
question.
Cooley, 1 F.3d at 993. (Emphasis in original.) 	Section 455(a)
must not be construed to require recusal on the “merest
unsubstantiated suggestion” of bias or prejudice. 	Id. 	“The
statute is not intended to give litigants a veto power over
sitting judges, or a vehicle for obtaining a judge of their
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Page 11 of 	32
choice.” 	Id. 	Finally, there is as much of an obligation for a
judge not to recuse when there is no ground to do so as there is
for the judge to do so when there are grounds. 	Id. at 994; Bryce
v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 659
(10 th Cir. 2002).
Section 455(a) is silent as to procedures that the Court
should follow. 	“A reading of case law shows that Motions for
Disqualification are typically decided on the documents submitted
to the court.” 	Lieb v. Tillman (In re Lieb), 112 B.R. 830, 836
(Bankr. W.D. Tex. 1990). 	Factual allegations in the pleadings do
not have to be taken as true. 	Hinman v. Rogers, 831 F.2d 937,
939 (10 th Cir. 1987)(per curiam). 	“Nor is the judge limited to
those facts presented by the challenging party.” 	Id.
The Disqualification Request alleges several factual bases
for the disqualification. 	Summarized, they appear to be (a) the
orders setting aside the counsel employment order, not employing
the accountant and not extending exclusivity were wrongly decided
because the Court took into account various irrelevant and
inaccurate matters (doc 98 at 2-3), (b) the Court assembled and
cited evidence on its own (doc 98 at 3), (c) the Court entered
orders without providing the Debtor the opportunity for a hearing
before entering such orders (doc 98 at 3-4 and at 4; see also doc
122, at 11-12, asserting that the Court made its decision on
evidence which the Debtor was given no opportunity to challenge),
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Page 12 of 	32
(d) the Court’s alleged use against the Firm of the decisions
that it has rendered in this case (doc 98 at 4), and (e) the
Court’s allegedly having decided the compensation issue, or at
least having discussed it, before issuing the decision (doc 98 at
4-5). 	The Court will address the allegations in the order
listed.
The orders setting aside the counsel employment order, not
employing the accountant and not extending exclusivity were in
fact entered in part in reliance on facts other than as presented
or argued by Senior Counsel. 	For example, the order which set
aside the Firm’s employment (doc 85) was based on the Court’s
examination of the docket in this case, thereby discovering that
the Firm had failed to file its Rule 2014 statement. 	Similarly,
when the Court was faced with contradictory filings by the
accountant and the Debtor that suggested a clear conflict of
interest forbidden by § 327(a), the Court had no choice but to
raise the issue and get it resolved if it was going to allow the
employment. 	Doc 84. 	That inquiry necessarily involved an
examination of information in the file. 	And finally, when the
Court discovered that the ACE docket did not reflect that the
creditor body was notified of the first motion to extend
exclusivity, the Court was obliged to deal with that by refusing
the extensions of exclusivity until at least it was clear that
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9 To be clear, the Firm had provided the requisite notice
for the first request, but had erroneously filed a document other
than the certificate of service. 	Thus, when the Court examined
the ACE docket, it appeared that the Firm had failed to provide
sufficient notice of the first request for an extension. 	The
Firm does not dispute these facts.
10 That part of the decision cites five cases in which
Senior Counsel or one of her firms represented a debtor or
debtors at one time or another and reads as follows:
“ Miller v. United States Trustee, 288 B.R. 879 (10 th Cir. BAP
2003) (in Chapter 12 case, affirming hourly rate of no more than
$200 and affirming award for fees for total number of hours spent
confirming the plan); In re Bennett, 283 B.R. 308 (10 th Cir. BAP
2002) (setting out the drawn out conduct of the chapter 12 case
and denying the petition for mandamus seeking to disqualify the
judge on the grounds, among others, of permitting no more than a
$200 hourly rate and of raising sua sponte Debtors’ failure to
file chapter 12 plan or obtain an extension of time to do so
timely); Behles-Giddens, P.A. v. Raft (In re K.D. Company, Inc.),
254 B.R. 480 (10 th Cir. BAP 2000) (affirming requirement that
Behles-Giddens, P.A. disgorge approximately $40,000); In re Love,
163 B.R. 164 (Bankr. D. Montana 1993) (second DIP attorney fee
application for $71,000 in fees and $20,000 in costs denied in
(continued...)
Page 13 of 	32
the Firm had provided the requisite notice. 9 	Doc 58. 	The
details of those decisions are set out in the orders themselves,
so the Court will not elaborate further on those issues except to
comment that this Court’s actions, even in the absence of an
objection or request from a party, in reading the pleadings
carefully, examining the docket and requiring the Firm and the
Debtor to abide by the Code and the rules ought not to be
construed as a basis for disqualification.
Senior Counsel also objected to the Court’s partial reliance
on “various incorrect or irrelevant prior cases, none of which
bear on or prove counsel’s ability or hourly rate....” 10
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10 (...continued)
full for lack of full disclosure in Rule 2014 statement, actual
charge for services exceeded estimate and services benefitted DIP
personally rather than estate); and In re Ewing, 167 B.R. 233
(Bankr. D. N.M. 1994) (chapter 7 case in which Senior Counsel
represented the debtor; fees of $40,000 sought and $6,500
awarded).” 	Doc 87 at 5-6.
Page 14 of 	32
Disqualification Request at 3. 	As the Court set out in its
memorandum opinion at 19-23 (doc 87), a decision on what rate to
compensate an attorney is one that requires examination of a
number of factors. 	Performance in previous cases, as reflected
in published decisions, is one legitimate basis for judging an
attorney’s professional judgment and skill.
There were several components of the evidence concerning
rates being charged by various attorneys. 	One of them was the
affidavits submitted by the attorney in the Mach 2 case, which
the Court and the Firm agreed should be used in this case.
Memorandum opinion at 3 n. 4 (doc 87); see the hearing exhibit
list (doc 90).
And the Court cited the cases which Senior Counsel had not
brought to the attention of the Court. 	Since these cases are all
matters of record – each of them a published case – F. R. Evid.
201 permitted the Court to take judicial notice of them. 	It did
take a short Westlaw search to assemble them, but that minor
effort to provide a better record for making the compensation
decision does not in the Court’s opinion qualify as bias against
Senior Counsel.
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 15 of 49

11 The relevant portions of Article II – Judicial Notice –
are as follows:
Rule 201. 	Judicial Notice of Adjudicative Facts
...
(b) Kinds of facts. 	A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trail court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. 	A court may take judicial notice,
whether requested or not.
...
(e) Opportunity to be heard. 	A party is entitled upon timely
request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. 	In
the absence of prior notification, the request may be made after
judicial notice has been taken.
(f) Time of taking notice. 	Judicial notice may be taken at any
stage of the proceeding....
Page 15 of 	32
A substantial part of the Debtor’s complaint is that the
Court took judicial notice of portions of its own files. 	The
process of taking judicial notice is governed by F.R. Evid. 201
and provides a method of gathering of evidence, whether supplied
by the parties or noticed by the Court on its own. 11 	Rule 201
also requires that the Firm be allowed to be heard on the
propriety of that notice being taken. 	The Debtor is correct in
asserting that it was entitled to address the accuracy of those
facts and whether the Court should have taken the judicial notice
to begin with. 	The Court is granting Debtor that opportunity in
connection with the motion for reconsideration of the attorney
employment order.
The cases cited by the Firm for the proposition that the
Court may not in effect collect evidence on its own, so to speak,
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 16 of 49

Page 16 of 	32
are inapposite. 	Doc 122, at 4-6. 	Three of the cases cited by
the Debtor arose from circumstances in which the court in
question, through a law clerk, effectively took evidence “outside
the record”, Price Brothers Co. v. Philadelphia Gear Corp., 629
F.2d 444 (6 th Cir. 1980), which could not be examined because no
record was kept or notice given. 	Standard Alliance Industries,
Inc. v. Black Clawson Co., 587 F.2d 813, 828-29 (6 th Cir. 1978),
cert. denied 441 U.S. 923 (1979). 	The bizarreness of the facts
of those various cases is partly what makes them so inapplicable
to the case at hand. 	E.g., Kennedy v. Great Atlantic & Pacific
Tea Co., 551 F.2d 593 (5 th Cir. 1977) (judge allowed his law
clerk to testify to what the law clerk observed at the scene of
the accident, although the judge cautioned the jury not to
attribute any special significance to the law clerk’s testimony).
Nor did this Court retain evidence that was not admitted as part
of the record, or have any ex-parte contacts with any party. 	Doc
122, at 6-7.
In contrast, rather than go “outside the courtroom” to
obtain evidence, this Court consulted its own publicly accessible
records to assemble the evidence of debtor-in-possession counsel
fees in all the chapter 11 cases in the District of New Mexico
since the beginning of calendar year 2002. 	The Court could have
drawn on or cited this data without putting it into the table,
but that would have left the Firm and every other person reading
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Page 17 of 	32
the decision without the specifics of what that data showed –
unless of course the Firm or some other party went to the trouble
of compiling that data on their own. 	The Court did not make up
any of that data; it merely took judicial notice of what was
already in the files. 	Fed. R. Evid. 201. 	(The Firm does not
dispute that any of the data was incorrect, at least as appears
from the Attorney Reconsideration Motion.) 	Historical rates of
compensation, leading up to the date of the decision on rates in
this case, are relevant. 	See Miller v. United States Trustee (In
re Miller), 288 B.R. 879, 883 (10 th Cir. B.A.P. 2003) (court
should consider hourly rates of bankruptcy attorneys in its
jurisdiction and adjust for applicant’s experience). 	As with
Senior Counsel’s criticism of this Court’s reviewing the files on
its own in connection with the three orders concerning the Firm’s
employment, the accountant, and exclusivity, the Court’s going to
the trouble of examining and publishing relevant data upon which
it relied in making its decision is the sort of thing that, in
the Court’s opinion, constitutes careful work, even if Senior
Counsel, and perhaps others, incorrectly take it as evidence of
bias.
Similarly, another one of Senior Counsel’s objections is
factually correct: the Court did enter certain orders without
giving the Firm further opportunity to object and without
conducting any further hearings. 	For example, after discovering
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 18 of 49

Page 18 of 	32
that the Firm had failed to file a Rule 2014 statement, the Court
on its own set aside the interim employment order. 	The Court did
provide the Firm with the opportunity to file the Rule 2014
statement (which the Firm promptly did the next day) and be
reinstated as counsel (albeit not retroactive to the date of the
filing of the Motion to Employ Attorneys), doc 87 at 16, n. 15,
but the Court did not set a hearing on the matter. 	Similarly,
after the Firm had been afforded the opportunity to submit
whatever evidence it wished, and after taking judicial notice of
certain facts, the Court made a decision on Senior Counsel’s
hourly rate, again without setting a further hearing. 	If the
Firm believes that there are certain facts that were overlooked
or incorrect conclusions drawn, the Firm has available to it the
standard remedies which target the problem much more accurately;
to wit, a motion for reconsideration, which it has filed, or an
appeal. 	Asking the Court to recuse itself from hearing certain
matters is not a substitute for either of those. 	In re Bennett,
283 B.R. 308, 325 (10 th Cir. B.A.P. 2002).
The Firm also objects to the Court’s use of its rulings on
exclusivity and the hiring of the accountant as part of the
reason for denying the requested hourly rate. 	The Court will not
repeat the findings and rulings in those decisions, other than to
summarize them as being based on a finding of poor work by the
Firm. 	The Firm concedes that a decision on an attorney’s hourly
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 19 of 49

Page 19 of 	32
rate should be based on the quality of the attorney’s work;
otherwise, there would be no point in the Firm having submitted
the affidavits from other counsel that described Senior Counsel
as, for example, “above average” with respect to her “knowledge
of the law, legal abilities, and skill”. 	Arland affidavit (doc
40). 	What the rulings supply is concrete evidence of the quality
of the Firm’s work, as opposed to the conclusory albeit laudatory
statements of the affidavits. 	Any court ought to be expected to
use the most probative evidence available, and thus using the
Firm’s conduct so far in the case ought not be construed as
evidence of bias toward the Firm or Senior Counsel. 	This is not
to say that the Court did not consider the affidavits of the
other attorneys concerning Senior Counsel’s qualifications. 	The
Court did consider all of the evidence submitted by the Firm, but
did not find those affidavits to be as persuasive as the Firm
does.
The Firm also argues that in effect the Court had already
decided the issue of the rate of compensation before issuing its
decision, and left the impression that the Court must have relied
on matters outside the record in making its decision. 	The Firm
cites this Court’s remarks at the Year in Review CLE program on
March 4, 2005, and remarks made by the Court at a hearing on
April 5, 2005. 	Doc 122, at 7-11, 16-17.
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Page 20 of 	32
What exactly the Court said at the CLE program has not been
provided by the Firm; the CLE program was videotaped, as it is
every year, and so the exact wording is available if the Firm
wants to provide that record. 	The materials attached to this
memorandum opinion were the basis of what this Court orally
presented at that program. 	The relevant portions of the
materials are at pages 190-91 and include the following:
For some time now the issue of what rates attorneys
should be allowed to charge has presented itself to
both bankruptcy judges in this district. Specifically
the issue has been that certain counsel have, for
several years now, requested permission to charge
hourly rates in excess of $200/hour. 	I currently have
a number of thoughts about that subject, which
necessarily do not take into account all the
contingencies and details that might arise in different
cases. 	And of course, the decision in any given case
will be based on the evidence and the legal argument
presented. 	Nevertheless, some of my thoughts on this
subject are as follows....
(Emphasis added.) 	The Court was not announcing the decision in
this case; indeed, the quoted portion of the materials,
particularly the emphasized text, makes clear that the Court was
not discussing any particular case. 	Instead, as the context
makes clear, the Court was talking with the District’s bankruptcy
bar about a variety of practice and policy issues, including a
general discussion of employment and fee issues (a staple of many
bankruptcy CLE programs). 	As with the other practice and policy
issues discussed by this Court with the bankruptcy bar over the
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 21 of 49

12 This Court began these discussions almost as soon as the
Court’s judicial service began. 	The first presentation was at
the 14 th Annual Year in Review (1998), conducted in February
1999. 	Two of the presentations that have been available during
the course of this case are currently on this Judge’s publicly
available homepage on the United States District/Bankruptcy Court
website, nmcourt.fed.us, titled “Year in Review 2001” and “Year
in Review 2002”. 	These two presentations had previously been
identified on the web page as “The Main List - I” and “The Main
List – II” (as in the “main lists” of things to keep in mind when
practicing in this Court). 	The Court’s purpose in making these
presentations to the bar and putting the written materials on the
Court’s web page is to make the Court’s operations and procedures
as transparent as possible to every attorney and every party who
appears before the Court, regardless of where the attorney or
party is from or how often the attorney or party has appeared
before the Court.
13 Canon 4: A Judge May Engage in Extra-Judicial Activities
to Improve the Law, the Legal System, and the Administration of
Justice.
A judge, subject to the proper performance of judicial duties,
may engage in the following law-related activities, if in doing
so the judge does not cast reasonable doubt on the capacity to
decide impartially any issue that may come before the judge:
A. 	The judge may speak write, lecture, teach, and participate in
other activities concerning the law, the legal system, and the
administration of justice.
...
Commentary
(continued...)
Page 21 of 	32
years, 12 the issue of hourly rates in excess of $200 per hour was
one that was coming up with increasing frequency, as the quoted
text states, and thus a subject ripe for discussion with the bar.
As is the case with many judges, this Court considers that
participating in CLE programs to improve bankruptcy practice and
increase knowledge is a worthwhile endeavor. 	Canon 4 of the Code
of Judicial Conduct for United States Judges recognizes that such
activities will take place and approves of them. 13 	The Court is
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13 (...continued)
Canon 4. 	As a judicial officer and person specially learned in
the law, a judge is in a unique position to contribute to the
improvement of the law, the legal system, and the administration
of justice, including revision of substantive and procedural law
and improvement of criminal and juvenile justice. 	To the extent
that the judge’s time permits, the judge is encouraged to do so,
either independently or through a bar association, judicial
conference, or other organization dedicated to the improvement of
the law....
Page 22 of 	32
not inclined to deprive the bar of the opportunity to communicate
with the Court, and vice versa, because one firm or attorney
chooses to construe what is neutral commentary as evidence of
bias. 	E.g., doc 122, at 10 (“On the one hand, [the comments by
the Court] might be characterized as legitimate efforts to
explain operative law, or what the judge thinks operative law
might be. 	On the other hand, this could be understood as
reflection of a partiality, or as preview [sic] of a ruling on
the merits of petitioner’s motion....” 	(Internal quotations
omitted.)).
And as is also apparent from the text of the materials, the
Court did not announce any per se rule that no counsel would be
allowed fees in excess of $200 per hour. 	In fact, the Court
stated that rates in excess of $200 per hour would become the
norm for some counsel in the future. 	And the Court has allowed
hourly rates of more than $200 per hour for chapter 11 debtor in
possession counsel, as Senior Counsel admits in paragraph 24 of
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14 Pretty clearly Senior Counsel was relying on a hearsay
account of the Court’s presentation.
15 The Debtor provided no more specific citation, and so the
Court has reviewed the audio record of that morning’s
proceedings. 	It is clearly the movant’s obligation to provide a
transcript or at least a specific citation to the record. 	Such
can easily be done; the movant needs merely to obtain the audio
compact disk of the proceedings that morning (fee: $26.00) and
locate the comments at issue. 	However, because of the importance
of this issue, the Court has searched the record itself for the
comments in question. 	What the Court believes are the comments
that the Debtor is referring to are set out on the digital audio
recording (using FTR technology) of a hearing on that date.
Attached to this memorandum opinion is a two-page unofficial
partial transcript of the colloquy between counsel in that case
and the Court that contains the comments in question. 	The Debtor
can of course obtain a copy of that recording to confirm the
accuracy of the transcription.
Page 23 of 	32
her affidavit. 14 	Doc 115. 	See In re Mach 2 (doc 98) and In re
Gilliland (doc 56).
The Debtor also cites some unspecified remarks made by the
Court on record on the April 5, 2005 trailing docket. 15
Disqualification Request at 4. 	These remarks are cited for the
proposition that, together with the CLE remarks, “[t]his produces
the appearance that a decision was made in this case and
announced as an opinion of the Court prior to the actual decision
or publication of the decision, and may have been based on things
outside of the record.” 	Disqualification Request, at 4-5.
As listening to the record (or reading the text) shows, the
Court did indeed cite the opinion to other counsel, in order to
inform other counsel of a pertinent ruling and to reduce
counsel’s preparation time. 	(The latter was the same benefit the
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 24 of 49

16 United States v. Cooley, 1 F.3d at 993.
Page 24 of 	32
Firm received in this case by being able to use the “market”
materials from the Mach 2 case; hearing exhibit list – doc 90.)
Courts routinely cite counsel to cases that have already been
decided; in a larger context, publication of decisions is largely
how the common law works. 	In this case nothing at that April 5
hearing, even when taken together with the CLE remarks, produces
any appearance that a decision was made beforehand. 	And to the
extent that the Firm is arguing that the Court’s remarks show
that the Court had decided the compensation issue before issuing
the opinion, the memorandum opinion on rates of compensation in
this case was issued April 1, 2005 and docketed on April 2 (doc
87), before the April 5 hearing at which the quoted colloquy took
place.
The Debtor is certainly correct in arguing what the test is:
“disqualification should follow if the reasonable man, were he to
know all the circumstances, would harbor doubts about the judge’s
impartiality.” 	Note, Disqualification of Judges and Justices in
the Federal Courts, 86 Harv. L. Rev. 736, 745 (1973). 	The Tenth
Circuit employs the same standard. 16
In support of its position, the Debtor has submitted the
affidavits of Senior Counsel and of six other people, all stating
that this Court’s actions in this case leave them with the
impression that the Court is not impartial. 	In this memorandum
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 25 of 49

17 In the current ACE system (to be discontinued and
replaced by the CM/ECF system supported by the Administrative
Office of the United States Courts in May 2006), items submitted
for filing are transmitted by e-mail into a virtual “bin”, where
the submissions are reviewed by a docket clerk and then either
filed or returned to the sender because of a major defect (e.g.,
the transmitting e-mail does not have attached the document
proposed to be filed). 	When an e-mail is sent to the Clerk’s
office with a document to be filed, the e-mail is receipted in
and acknowledged by a separate document; an example is shown on
pages 2 and 3 of Exhibit 1 attached to doc 104. 	(A copy of
Exhibit 1 is attached to this memorandum opinion for ease of
reference.) 	If the submitted item is filed by the clerk’s
office, it appears on the docket. 	An example of that are the
docket notations for doc 71 on March 9, 2005 (Third Motion for
Extension of Exclusivity). 	(A copy of the single page of the
docket sheet which includes doc 71 is attached hereto.) 	Nothing
on the docket entry for doc 71 discloses the failed attempt to
(continued...)
Page 25 of 	32
opinion and in the orders the Court is simultaneously issuing in
response to the motions to reconsider, the Court has addressed a
number of its actions that the affiants consider to be evidence
of bias. 	However, the affiants fail to address those issues in
sufficient detail to demonstrate that they “know all the
circumstances”. 	Thus they fail to present any real evidence of
partiality.
For example, Messrs Giddens (doc 119), Martin (doc 113),
Maguire (doc 117) and Puccini (doc 112) in their affidavits talk
about the late-filed request for the third extension of
exclusivity but fail to mention, or more likely were not aware,
that at the time the Court denied the motion three weeks later
(doc 83) the ACE docket still reflected only the late filing and
not the rejection from the bin 17 as the reason for the late
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17 (...continued)
file the Third Motion on the previous day, March 8.
18 Senior Counsel’s affidavit mirrors almost all of the
statements of all the other affidavits (or, perhaps more
accurately, vice versa). 	Senior counsel also states that she
asked for a hearing on the timeliness of the filing but the
Court, after granting that request, decided the matter two days
later without conducting a hearing. 	Behles affidavit at
paragraph 18. 	Doc 115. 	The Court has reviewed the ACE docket
but is unable to find what it is that Senior Counsel is referring
to. 	The ACE docket reflects in part as follows: (First) Motion
to Extend Exclusivity (doc 41), (First) Motion to Extend
Exclusivity (doc 43), Notice of Deadline to Object to doc 43 (doc
44), Second Motion to Extend Exclusivity (incomplete) (doc 46),
Notice of Deadline to Object to doc 46 (doc 47), Second Motion to
Extend Exclusivity (doc 55), Order Granting doc 41 (doc 53),
Order Withdrawing doc 53 and denying doc 55 (doc 58), Notice of
Deadline to Object to doc 43 (doc 59), Motion to Set Aside doc 58
(doc 60), Affidavit of Williams-Rawls (doc 61), Request for
Hearing on doc 60 (doc 62), Notice of Preliminary Hearing on doc
60 (doc 65), Minutes of Hearing on doc 60 (doc 70) (hearing
continued), Third Motion to Extend Exclusivity (doc 71), Notice
of Deadline to Object to doc 71 (doc 72), Notice of continued
Preliminary Hearing on doc 60 (docs 73 and 74), Letter from
Senior Counsel to Court concerning doc 70 (doc 75), Stipulated
Order between Debtor and Creditor and UST to reschedule
preliminary hearing on doc 60 (doc 76), Minutes of preliminary
hearing on doc 60 (doc 79), Order Denying doc 60 and doc 71 (doc
83), Second Affidavit of Williams-Rawls (referenced exhibit not
attached) (doc 93), Notice of [sic – should be Request for]
Hearing on doc 60 (doc 94), Motion to Set Aside doc 83 (doc 96),
Request for Hearing on doc 96 (doc 100), Request for Hearing on
doc 96 (and other motions) (doc 101), and Errata Notice to doc 93
with attached exhibit (doc 104). 	Perhaps what Senior Counsel is
referring to is the preliminary hearing that took place on March
29, 2005 (minutes – doc 79), at which the Court orally denied the
Motion to Set Aside the Order not continuing exclusivity (doc 60)
and the written order implementing that oral ruling entered April
1, 2005 (doc 83). 	In the future it would be helpful if the Firm
or Senior Counsel provided specific citations to the record to
the extent there are such instances in the record.
Page 26 of 	32
filing. 18 	In his affidavit Mr. Martin states that he has never
seen a court decide a matter, absent a stipulation, at a
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 27 of 49

19 Paragraphs 17 and 20 of the Behles affidavit (doc 115)
recite as follows:
17. 	At no time was there ever any disclosure that the
court’s clerk, James Burke, had been involved with the
previous Chapter 7 filed by a Charles R. Jones, from
the same area. 	Burke clearly was appointed the Trustee
in this case on 8/18/93 and served as such. 	The Jones
case is 93-12452, a copy of the docket showing said
entry is attached hereto and incorporated herein as
Exhibit A. 	Despite appearances, it is not the same
Charles R. Jones.
...
20. 	In the 30 plus years I have been practicing law, I
have never on one occasion had the court question the
veracity of an accountant professional, without having
in hand evidence upon which to base such questions.
Counsel has been somewhat concerned that the reason
that this was the case was that, in fact, there was a
Chapter 7 at one point for a Charles R. Jones who had
possibly been involved in a feed yard bankruptcy in
Roswell which [sic] James Burke, the clerk for the
Judge, was a trustee. 	At the time there had been some
allegations that perhaps there had been some accounting
problems. 	Counsel has no idea whether such a
(continued...)
Page 27 of 	32
preliminary hearing. 	That statement simply reflects counsel’s
lack of experience; courts frequently decide matters at a
preliminary hearing when the issue to be decided is not
evidentiary or the relevant evidence is not disputed.
The affidavits of Messrs Giddens, Armstrong (doc 114),
Martin, Maguire, and Corliss (doc 116) which see partiality in
the Court’s hesitation to employ the accountant, fail to explain
how the Court can appoint a professional for the estate when the
record on its face reflects that the accountant had a claim
against the estate in violation of the disinterestedness
requirement of § 327(a). 19 	Nor do the affidavits of Messrs
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 28 of 49

19 (...continued)
recollection on behalf of the Court’s clerk [sic] might
have been the basis for such speculation, or if it was
merely speculation. 	Nevertheless, this speculation
without evidence, casts aspersions on the accountant,
the Debtor, and would lead a reasonable man to believe
there is some prejudice or bias in that regard.
At the June 1, 2005 hearing on the Disqualification Request,
Senior Counsel explained that the Charles R. Jones of Carlsbad
that is proposed as an accountant in this case is not the same as
the Charles R. Jones of Roswell who was an accountant in
connection with a feedlot case in the early 1990's, but that the
“Carlsbad Mr. Jones” has suffered several cases of mistaken
identity and was concerned that this might be one of them. 	The
Court assured Senior Counsel that this was not one such case, and
that in fact Mr. Burke had considerable difficulty even recalling
the case or the “Roswell Mr. Jones” described by Senior Counsel.
Tr. 1.23.21 to 1.28.00. 	“A judge should not recuse ... on
unsupported, irrational, or highly tenuous speculation.” 	Hinman
v. Rogers, supra, 831 F.2d at 938-39.
Page 28 of 	32
Giddens, Martin, Maguire and Puccini explain why there needs to
be an evidentiary hearing concerning the Firm’s employment when
it is clear from the record that the Firm never filed a Rule 2014
statement in the case. 	Alternatively, it is not reasonable to
insist on the Firm’s right to a final hearing when the record
clearly discloses a lack of compliance with the statute.
Similarly, the Corliss affidavit, which describes virtually
no facts but instead is comprised mostly of conclusions, and the
Armstrong, Martin, Giddens affidavits, all argue that lawyers
should be able to charge and clients should be allowed to pay
higher rates. 	Whether that is true, it is not evidence of bias.
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 29 of 49

20 “The bankruptcy judge before whom the matter is pending
determines whether disqualification is required.” 	Advisory
Committee Notes to the 1987 amendments to Rule 5004.
21 The fact that the affiants look on those actions as
evidence of bias does not of course make them so. 	“Factual
allegations do not have to be taken as true, and there is as much
obligation for a judge not to recuse when there is no occasion to
do so as there is to recuse when there is.” 	Lopez v. Behles (In
re American Ready Mix Inc.), 14 F.3d 1497, 1501 (10 th Cir.),
cert. denied, 513 U.S. 818 (1994) (Internal punctuation
omitted.); accord, Hinman v. Rogers, supra, 831 F.2d at 939.
Page 29 of 	32
It is ultimately the Court’s decision, 20 and an appellate
court’s decision should there be an appeal, about what a
reasonable person would or should think or believe in these
circumstances. 	That is, the “reasonable person” standard does
not call for polling the bar but rather is the measure a court
uses to assess the conduct at issue. 	E.g., compare §
523(a)(2)(B)(iii) (use of a statement in writing on which the
creditor reasonably relied) with § 523(a)(2)(A) (fraud exception
to discharge requires only justifiable reliance). 	Field v. Mans,
516 U.S. 59, 74-75 (1995). 21 	The decision is based on the
courts’ experiences; the circumstances of this case do not
comprise a situation in which affidavits are required to supply
to the Court information about a subject that the Court has no
familiarity with or expertise in. 	So while the recusal
affidavits are in evidence and must be (and have been)
considered, they are not in themselves determinative. 	The Court
determines what is reasonable to believe in the circumstances of
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Page 30 of 	32
the case and therefore what constitutes an “appearance of
impropriety”.
What appears to have triggered the Disqualification Request
at least in part is the Firm’s determination to obtain a higher
hourly rate for Senior Counsel, see, e.g., the Corliss,
Armstrong, Martin, Maguire, Giddens, and Behles affidavits, a
tactic Senior Counsel has unsuccessfully attempted in a previous
case. 	See Bennett, 283 B.R. at 325.
[I]n assessing the reasonableness of a challenge to his
impartiality, each judge must be alert to the avoid the
possibility that those who would question his
impartiality are in fact seeking to avoid the
consequences of his expected adverse decision.
Artoc Bank and Trust, Ltd. v. Apex Oil Co. (In re Apex Oil Co.),
981 F.2d 302, 304-5 (8 th Cir. 1992) (Citation omitted.). 	The
Court’s denial of a higher hourly rate does not evidence bias
against the estate, the Firm or Senior Counsel. 	Id. at 324-25.
One cannot infer prejudice to a client from actions taken
against the attorney in the case. 	In re Shuma, 124 B.R. 446,
449-50 (Bankr. W.D. Pa. 1990)(The protections of § 455 extends
only to parties. 	“Prejudice toward counsel is not ordinarily
imputed to the party and is not generally sufficient grounds for
disqualification of a judge.”) 	This is true even if counsel’s
basis for recusal relates to fees:
[N]o objectively reasonable litigant could believe that
a bankruptcy judge who follows consistent authority to
rely on experience in fee hearings should therefore
have his impartiality reasonably questioned. 	We who
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Page 31 of 	32
serve on the Bankruptcy Court in this District are
entitled to rely in part on our judicial and non-
judicial experience in considering fee applications,
and all do so to some degree. 	Further, we have a duty
to inquire into fees even when no objections are raised
as noted at the outset of this opinion. 	No objective
litigant could reasonably conclude that these practices
give rise to questions about impartiality.
In re Wyslak, 94 B.R. 540, 545 (Bankr. N.D. Ill. 1988).
“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” 	Liteky v. United States, 510
U.S. 540, 555 (1994). 	The Firm’s remedy is by way of appeal, not
a recusal motion. 	In re Bennett, 283 B.R. at 325.
Conclusion and Ruling
For the reasons set forth in this memorandum opinion, the
Court finds no basis for recusing itself from continuing to
preside over all aspects of the case.
IT IS THEREFORE ORDERED that the Request for
Disqualification of Bankruptcy Judge in Proceeding or Proceedings
(doc 98) is denied.
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on February 9, 2006, a true and correct
copy of the foregoing was electronically transmitted, faxed,
delivered, or mailed to the listed counsel and/or parties.
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 32 of 49

Page 32 of 	32
Jennie D Behles
PO Box 7070
Albuquerque, NM 87194-7070
Alice Nystel Page
PO Box 608
Albuquerque, NM 87103-0608
Michael Newell
PO Box 1599
Lovington, NM 88260-1599
Rod M Schumacher
PO Box 700
Roswell, NM 88202-0700
Stephen Stuart Shanor
PO Box 700
Roswell, NM 88202-0700
Michael R Enright
280 Trumbull St
Hartford, CT 06103-3509
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 33 of 49

© Ever More Advice and Thoughts from Judge Starzynski
prepared for

BANKRUPTCY 2004: The 20" Annual Year in Review
March 4, 2005

The Honorable James S. Starzynski
United States Bankruptcy Judge
District of New Mexico

The following continues my “More than You Probably Wanted to Know”
monologues with practitioners at the Annual Year in Review programs, which deal
largely with practice and procedures in my courtroom and chambers.

These practice and procedure tips are in addition to those already listed on my
chambers website. If you are interested in or need to know about these practice tips,
then you need to also review the other practice tips at my chambers website. To get to
my chambers website, go to www.nmcourt.fed.us, then click on U.S. Bankruptcy Court,
then on Judges, then on Judge Starzynski's “homepage”, and then start clicking on the
various topics you want or need to read about. (Note that at that site there is a list of
Judge Starzynski’s decisions (pdf) filed chronologically and that there is a “last updated”

© line at the bottom of that page, which will help you remain current on what is filed on
that page.) There is a wealth of other information on the chambers website as well,
such as a “matters pending” list and the court calendar for the upcoming six months,
which is usually updated once a week and is searchable. Spending some time at that
site might be useful, especially if you are new to bankruptcy practice in this district.

Note: items marked with a “*” indicate repeats from last year.

1. For some time now the issue of what rates attorneys should be allowed to
charge has presented itself to both bankruptcy judges in this district. Specifically the
issue has been that certain counsel have, for several years now, requested permission
to charge hourly rates in excess of $200/hour. | currently have a number of thoughts
about that subject, which necessarily do not take into account all the contingencies and
details that might arise in different cases. And of course, the decision in any given case
will be based on the evidence and the legal argument presented. Nevertheless, some
of my thoughts on this subject are as follows:

a. Judge McFeeley has allowed recently rates of $225/hour and
$250/hour respectively to specific counsel in certain cases. E.g., In re Robert and Mitzi
Miller, No. 12-98-13174, Memorandum Opinion on Second Interim Fee Application,
docketed June 14, 2004 (doc 337). | have been more reluctant to allow such higher
rates (the Furrs case being the notable, and sui generis, exception, and unlikely to
repeat itself, given the ultimate disposition of certain fee applications in that case),
although | did recently allow one attorney to charge $225/hour in a certain case.

} Nevertheless, the rise of rates generally in the market for legal services, coupled with

Page 1 of 7

190
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 34 of 49

the dictate of Section 330(a)(3)(E) (“...whether the compensation is reasonable based ©
on the customary compensation charged by comparably skilled practitioners in cases

other than cases under this title.”), foretells that rates in excess of $200/hour will be the

norm for at least some counsel sometime before August 2012.

b. The process of determining rates generally occurs in connection with
chapter 11 cases, in connection with employment applications for counsel for the debtor
in possession or for the unsecured creditors committee. My practice has been to
approve a rate at the beginning of the employment (and to have that rate clearly set out
in the employment order so that anyone can easily find out what the rate is and so that
there is no question about what the rate is), so that everyone in the case can (sort of)
calculate or estimate what the fees will be, and so that the attorney can estimate during
the case what the income will be for the purpose of running his or her business. Should
the attorney want to increase the rate of compensation during the case, then the
attorney can file an application to do so, with notice to the creditors. (But part of the
language of Section 328(a) may come into play here: “[T]he court may allow
compensation different from [that permitted in the employment order if the
compensation terms and conditions] prove to have been improvident in light of
developments not capable of being anticipated at the time of the fixing of such terms
and conditions.”) And my practice has also been by and large to approve a rate of up to
$200/hour, with the proviso in the order that if the attorney wants a higher rate, the
attorney can request a specific hearing on that issue to present evidence and legal (or
other) argument for the increased rate.

c. In making the decision about a compensation rate, Section ©
330(a)(3)(E) refers to rates of comparably skilled practitioners in cases other than cases
under this title. Case law also says to look at the rates being charged by attorneys in
bankruptcy cases in that jurisdiction. E.g., Miller v. United States Trustee (In re Miller),
288 B.R. 879, 883 (10" Cir. B.A.P. 2003) (court should consider hourly rates of
bankruptcy attorneys in its jurisdiction and adjust for applicant’s experience). What
those standards are aiming at, it seems to me, is a prediction about the value to be
brought to the estate by the professional in the form of the quality of the professional's
work. That prediction is expressed in the form of the rate allowed, as determined by the
market. The determination about the applicant’s experience, in order to permit the
adjustment called for in the Miller decision, will often be governed at least in part by the
past performance of the applicant. The mere number of years in practice is not
necessarily an accurate predictor of what value the professional will bring to the estate;
after all, twenty years’ of experience for one professional might be characterized by
continual improvement, whereas another attorney might repeat the first-year learning
experience twenty times.

d. Keep in mind also that if you are trying to establish a rate for legal
work and you solicit affidavits from various attorneys who represent secured creditors,
there are other counsel for secured creditors who work on a flat-fee or reduced-fee
basis. Those rates are also part of the market.

2. If you are charging the estate $225/hour, or even $200/hour, you need to
work efficiently and bill reasonably. For example, if it takes you a total of one minute to @

Page 2 of 7

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Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 35 of 49

© place a call to chambers and get a call back from chambers taking a hearing off the
docket, you should not charge the estate .2 hour. Frankly, you probably should not be

doing that even if you are only charging $150/hour. But it is particularly egregious if you
are charging $200/hour or more; at that rate, you should be focusing your efforts on the
bigger strategic aspects of the case and conducting the tough negotiations that will
solve problems and avoid litigation, and leave your paralegal — better yet, your clerical
help — to make phone calls like that. (After all, we deal with your secretaries every day
and sometimes they are as well known to us as you are.)

3. As you might have gathered, | tend to look at fee applications somewhat
more closely when the rate being charged is relatively high (say, $200/hour or more, vs.
$150/hour). | tend to look more closely also when the amount being charged is
relatively high. For example, | don’t devote a lot of time to examining chapter 13 fee
applications for $2m to $2.5m, whereas one for $4-5m (or more) leads me to examine
the docket and application and seek an explanation about why the cost was higher than
average. For those of you submitting fee applications for higher amounts in chapter 13
cases, you can shorten the approval process by providing up front, especially in the
application and repeated in the transmittal e—mail, the information that tells me, and the
trustee and creditors, what led the application to be as high as it is. Understand that |
don’t have a problem with paying for the work done; in fact, attorneys need to get paid
for doing the work, all the work, that is needed for their client’s case. And depending on
the client and the problems, that could be a little work or a huge amount of work. And it

r should all be paid for, as long as it was necessary and it was efficiently done. Which is
what takes us back to the fee applications and the need for a full explanation of why the
amount of the fee application is what it is.

* More on Chapter 13 fee applications specifically: If your fee application asks for
more than about $2,000 or so, you should provide a brief explanation in your fee
application in order to permit me to facilitate my review of the application and approval
of your fee order. If you do not do that, | am likely to send the order back and ask for
the supplement. The supplement can be as little as an extra sentence; e.g., “Counsel
had to spend several additional hours negotiating the claim of the IRS.” These are
things that are not immediately apparent from the time sheets. Of course, if your fee
application is for substantially higher amounts, then a slightly longer explanation may be
in order.

4. Federal Bankruptcy Rule 7004(h) requires, in connection with adversary
proceedings and contested proceedings under Rule 9014 and with certain exceptions,
service by certified mail on certain institutions that are insured by the Federal Deposit
Insurance Corporation. The following is some detail about complying with that
requirement (compiled by Jim Burke):

Rule 7004(h) discusses service "on an insured depository institution (as
defined in section 3 of the Federal Deposit Insurance Act )". Section 3 of the Federal
Deposit Insurance Act (FDI Act) is 12 U.S.C. Section 1813. Section 1813(c)(2) defines
"insured depository institution" as "any bank or savings association the deposits of
© which are insured by the Corporation pursuant to this chapter."

Page 3 of 7

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Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 36 of 49

"Bank" is defined in Section 1813(a)(1) as "any national bank and State
bank, and any Federal branch and insured branch” and includes former savings
associations that have converted from a savings association charter and is a Savings
Association Insurance Fund member. State banks includes banks, banking
associations, trust companies, savings banks, industrial banks, or similar depository
institutions that operate like an industrial bank, and other banking institutions that are
engaged in the business of receiving deposits. (Section 1813(a)(2).) "Savings
association" is defined in Section 1813(b)(1) as any Federal savings association, any
State savings association, and any corporation that is determined to be operating in
substantially the same manner as a savings association. State savings associations
include building and loan associations, savings and loan associations, homestead
associations, and cooperative banks. (Section 1813(b)(3).)

So, it appears that pretty much any Federal or State bank or bank-like
institution COULD be covered. The best news, however, is that there is an internet site
that lists all FDIC insured institutions. http://www3.fdic.gov/idasp/. So, it should be
easy enough for any lawyer to check this site to see if certified mail is required.

However, nowhere is there a reference to credit unions in the FDI Act.
The Federal Credit Union Act, 12 U.S.C. 1751 et seq. Section 1781 states that the
National Credit Union Administration Board "shall" insure all federal credit unions and
"may" insure state credit unions. Section 1783 then establishes the "National Credit
Union Share Insurance Fund” as a separate US Treasury fund to pay insurance related
to credit unions. So, credit unions have their own insurance fund, and Rule 7004(h),
which refers to "insured depository institutions" as defined in the FDI act, would not
apply to credit unions.

Note: On January 24, 2005, the Court sent out a Notice to Practitioners
(“NTP”) about this subject (No. 2005-1).

5. Federal Bankruptcy Rule 7004(b)(3) requires, if you serve by mail (i.¢., post),
that the service of an adversary proceeding complaint or a paper initiating a contested
matter (Rule 9014) upon a corporation, partnership or other unincorporated association
(presumably including a limited liability company) be by mailing a copy of the summons
and complaint “to the attention of an officer, a managing or general agent, or to any
other agent authorized by appointment or by law to receive service of process and, if
the agent if one authorized by statute to receive service and the statute so requires, by
also mailing a copy to the defendant.” Actions included in this category of “contested
proceedings” include motions to avoid liens, motions to value collateral, motions to
assume or reject contracts or leases, objections to proofs of claim, and similar such
requests for relief, but would presumably not include such things as service of a chapter
13 plan which proposes “merely” to pay less than the full amount of the unsecured claim
of a creditor. The new form chapter 13 plan, like the current form chapter 13 plan, has
specific service provisions that comply with commonly used portions of Rule 7004(b).
And note that our current case management system has space for four lines for each
address on the mailing matrix, such that you can insert “Attn Branch Mgr.” or whatever
other language is appropriate, which will allow you to use the mailing matrix for many
notices to corporations et al. without having to separately address envelopes.

Page 4 of 7

193
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 37 of 49

© Note: On January 24, 2005, the Court sent out an NTP about this subject
(No. 2005-1).

6. And don’t forget the extra service requirements if you want to sue or engage
in a contested proceeding with the government; see Federal Bankruptcy Rule
7004(b)(4), requiring at a minimum service on the civil process clerk of the applicable
office of the United States Attorney together with mailing a copy of the complaint and
summons to the office of the Attorney General in Washington, D.C.

7. Waiver of the 10-day stay of a modification of the stay provided by Rule
4001(a)(3): If the creditor does not ask for this relief in its motion, then | won’t grant it in
a default order (assuming | know when the order comes in that it has not been asked
for). On the other hand, if it is asked for explicitly in the motion, | will grant it in a default
order. And | will grant it if the respondent agrees to it, as in a stipulated order. But | will
not grant it at the end of a contested hearing (particularly an evidentiary hearing) in
which | have granted stay relief, at least without a showing by the movant of a good
reason for depriving the respondent of that protection.

8. White v. General Motors Corporation, Inc., 908 F.2d 675, 682 ((10" Cir.
1990) (White v. GMC II)(“Part of a reasonable attorney's prefiling investigation must

include determining whether any obvious affirmative defenses bar the case. An
attorney need not forbear to file her action if she has a colorable argument as to why an

© otherwise applicable affirmative defense is in applicable in a given situation.... The
attorney's argument must be nonfrivolous, however; she runs the risk of sanctions if her
only response to an affirmative defense is unreasonable...(if failure to make prefiling
investigation is sanctionable so too is failure to disclose adverse results of
investigation).”). (Citations omitted.) This would seem to be particularly applicable, for
example, to a trustee pursuing preferential transfers between a business and creditors
who comes across evidence of payments constituting subsequent new value. (Note:
This admonition is not directed at the trustees and their counsel in this district, who as
far as | can see certainly appear to be heeding this admonition.)

9. As areminder, attached are the current chapter 13 procedures for
confirmation, dismissal and similar hearings and the form scheduling order in effect in
my courtroom (Le., proceedings before me). These procedures are the second attempt
to work out with chapter 13 practitioners and the chapter 13 trustee’s office a set of
procedures that minimize the amount of time that counsel and parties have to spend in
court and preparing for court. The first attempt (also worked out with chapter 13
practitioners and the chapter 13 trustee’s office) was met with some unhappiness on the
part of just about everyone but us, but so far, these new procedures seem to be working
well, or at least better. The chapter 13 committee, co-chaired by Jerry Velarde and
Kelley Skehen, is also working on a revised version of the “combo” chapter 13 plan, and
on other issues, including any other procedures in my courtroom that could be
improved. So if you have any thoughts or concerns about the procedures in my

r courtroom, or about anything else having to do with chapter 13 cases, feel free to let us

Page 5 of 7

194
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 38 of 49

or the co-chairs know.

10. Debtors cannot use section 522(f) to avoid liens on vehicles. See Martinez
v. Government Employees Credit Union of El Paso (In re Martinez), 22 B.R. 7 (Bankr.
D. N.M. 1982). Section 522(f)(B) is limited to nonpossessory, nonpurchase-money
security interests in 1) household furnishings and household goods, 2) implements and
tools of the trade, and 3) health aids. Also, under 522(g), the general rule is that a
debtor cannot exempt property recoverable by a trustee if the debtor's transfer of that
property was voluntary.

11. * Sharing Fees: It appears that the practice of paying another attorney to do
part of the work in a bankruptcy case, particularly covering the § 341 meeting in another
town, apparently is fairly routine. | have not decided whether such a practice constitutes
fee sharing, and thus requires disclosure pursuant to Rule 2016(b), and the issue to
date has not officially come to my attention, but you may want to consider that issue
next time you file a Rule 2016(b) statement. | certainly have no problem with the
practice itself; in this state, such an arrangement may almost be a prerequisite to
conducting an economically viable debtor-representation case. The concern, rather, is
disclosure. So think about that in connection with any of your pending or future cases.
(Perhaps this might be applicable as well if you pay someone to cover your cases in
your absence.)

12. * (and supplemented) Filing what you send us: One consequence of the ©
“paperless” or, more accurately, “less paper’ filing system now in effect is that there will
not be filing on the “left side” of the file, since that refers to the paper files that the
Clerk’s office used to maintain, where it used to keep things like correspondence that
were not treated as part of the pleadings. Now, if you send something to the Clerk’s
office or my chambers such as, for example, a letter brief, a letter in response to an
order to show cause, or a letter asking for some sort of relief (although the last item is
what we receive from pro se parties rather than attorneys, usually), that document will
be filed as a pleading and will appear on the ACE docket. And this applies to e-mail
transmissions which we send back to you for some reason but which we also deem of
sufficient importance in the case such that, if there were a “left side” of the file, we would
have filed a paper copy of the e-mail transmission there.

13. * Areminder of the obvious: If the Clerk’s office, including particularly a case
manager, contacts you about getting something done so the case can be closed, or for
some other reason, please have the good sense to do what you need to do, and do it
promptly.

14. * (supplement to last year’s entry) Hang up and drive: As an addition to my
continuing focus on discouraging people from participating in hearings by telephone
while operating a motor vehicle: A recent article in both The New York Times and the
Albuquerque Journal (ensuring truly national publication) reported about a study done in
Salt Lake City in which 20-year old drivers using cell phones drove as if they had the ©

Page 6 of 7

195
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 39 of 49

r reflexes and reactions of 70-year olds. This is in addition to the article in The New York
Times, Tuesday, July 1, 2003, page D8: In an experiment done in Spain, tests done on

the road showed that talking with someone is more distracting than just listening, and
trying to follow instructions (as in answering questions from the judge) is even worse.
The ability to pay attention to what was happening on the road dropped by 1/3, and that
result was the same when using a hands-free cell phone as well. In other words, when
you are talking on a cell phone while driving, the problem is not so much that your
hands are otherwise engaged as it is that your brain is otherwise engaged. So if you
are driving when you are called for hearing, let me know and I will call you back shortly
when you have had a chance to pull over safely and can talk.

15. Remember that if you have any complaints or concerns about how | or any
of my staff are performing our duties, you may contact me or any chambers staff
directly, or contact the Clerk of the Court, anonymously or otherwise, or contact Fred
Hart, anonymously or otherwise. Professor Hart is the Judicial Performance Liaison
who has agreed to serve in that role. See NTP 2004-1 (March 3, 2004). Of course, you
can also complain directly to the Tenth Circuit pursuant to 28 U.S.C. Section 372(c)
(see N.M.L.B.R. 9028-1 (August 13, 1996 edition) Disability or Misconduct of a Judge).

Page 7 of 7

196
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 40 of 49

r REVISED CHAPTER 13 DAY PROCEDURES

These procedures will be in effect for chapter 13 days in Judge Starzynski’s court
beginning in January 2005.

1. Debtor’s counsel will request a preliminary hearing on confirmation for all cases
in which an objection has been filed, in accordance with the requirements of the
local rules.

2. Debtor’s counsel is encouraged to set a meeting with the trustee as soon as
possible after requesting a hearing.

3. At the hearing debtor’s counsel will be expected to outline the issues for the court
and report what steps have been taken to resolve the issues. Other counsel will be
prepared to discuss their particular issues.

4. All counsel will be prepared to state when the case will be ready for trial and the
anticipated length of trial.

5. A scheduling order will be completed at the hearing and subsequently entered.
The trustee will bring partially completed orders for each case, and chambers will
complete the necessary items. The order will include deadlines for matters such
© as filing of amendments, filing of tax returns, and the like. (See attached form.)

6. On the date scheduled for the final hearing, all counsel shall be prepared to go
forward with a trial on the merits, unless all counsel have signed off on an order
resolving the matters at issue.

7. Debtor’s counsel is expected to arrange to confer, and to then actually confer,
with any opposing parties, including particularly the trustee, far enough in
advance of the final hearing so that a trial on the merits can be avoided where
reasonably possible.

8. Final hearing day will not have the “conferring break” as in the past. The only
break will be the brief one (albeit perhaps more than one) ordinarily taken during
the course of a trial day to attend to physical needs (e.g., stretching, coffee, etc.).
Settlement negotiations and discussions should occur prior to hearing day. The
trustee or her attorney will be available at 1:00 in the courtroom on hearing day to
review last minute changes to confirmation orders or finalize orders that have
been agreed to ahead of time.

9. Ifthe debtor is going to convert or dismiss a chapter 13 case, debtor’s counsel
should notify the other parties of that intended action as soon as reasonably
possible.

198
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 41 of 49

Td UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO

IN RE: No. 13- - S
Debtor(s).

SCHEDULING ORDER FROM PRELIMINARY CONFIRMATION HEARING

THIS MATTER came before the Court for a preliminary hearing on Confirmation
of the Chapter 13 Plan on . Counsel for the parties are listed
below.

Final hearing on confirmation is set for
at AM/PM, in the:

Animas Courtroom, 13" Floor, Federal Building and US Courthouse,
500 Gold SW, Albuquerque, NM 87102.

United States Courthouse and Federal Building, 200 E. Griggs, Las
Cruces, NM 88001

United States Courthouse and Federal Building, 500 N. Richardson,
Roswell, NM 88201.

@ Video Conferencing will be employed. See instructions on Court web site.

| The Plan will be amended and/or modified and served on creditors no later
| than:

All unfiled tax returns will be delivered to counsel for the IRS, Department
of Labor and/or Taxation and Revenue Department no later than :
If not, taxing authority counsel shall promptly file a certificate of nomcompliance.

All documents requested by the Trustee shall be delivered to the Trustee no
later than:

Other:

The Trustee may submit for entry an order dismissing the case if the deadlines
established herein are not met.

The next page will contain James S. Starzynski
© the names and addresses of all United States Bankruptcy Judge
parties entitled to notice of this order

200
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 42 of 49

Page 1 of 2
UNOFFICIAL TRANSCRIPTION OF AUDIO TAPED HEARINGS
April 5, 2005
09:30:00 - 09:33:01
Ct: You guys are in the more than $200 per hour fee – would
like to get more than $200 per hour fee -- category?
Davis: [recording unintelligible]
Ct: Did you read the, have you gotten to see, Union Homes
decision that we’ve entered yet? We just, we just published it
last week, I think.
Davis: I read something about us being in the over 200
category in the future having to do that survey of the market
and provide all that additional information that you talked to
Giddens about....
Court: Look at this decision. It’s 05, 04-15755.
Davis: Is that going to tell me that I’ve got to do a lot of
paperwork to get my over-200 fees approved?
Court: Actually, it saves you an enormous amount of work.
[Laughter.]
Davis: Excellent.
Court: Well, you need to look at the....
Davis: Is this your decision, sir?
Court: Yes. Yes. It...you need to look at the attachment.
It’s about fifteen pages of what everybody’s gotten in all the
chapter eleven cases since the beginning of 2002...
Davis: Oh, great...
Court: So....
Davis: ...great.
Court: ...as well as a recitation of what I personally think
is the relevant law.
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 43 of 49

Page 2 of 2
Davis: So it basically brings the history of all that forward,
solves a lot of that uncertainty and at least tells us what we
have to do.
Court: Well, yeah, you still will have to go out and get
affidavits attesting to your brilliance.
[Laughter; record otherwise unintelligible.]
Court: I’m sure those flooded in... [unintelligible].
Court: It’s just that that issue is coming up more and more.
Davis: Well, we are at the lowest ever if its at below $200 an
hour that I can find around the country. But I’m sure you
have heard that before.
Court: I’m sure. Well, I thought we could actually save the
argument for when your case comes up.
Davis: That would be good, because my retirement plan was
terminated a couple weeks ago in the Escala case, so now
I’ll...I’ll be working for an extra couple years. So, It’ll
be good; I’ll have time to learn that.
Court: Judge Rose used to call that the “widows and orphans”
argument.
[Record unintelligible]
Court: It would always be, “Mr. Starzynski, don’t give me the
widows and orphans argument”.
Davis: I don’t know, maybe we need a new chapter in the
bankruptcy code about that.
Court: Yeah, right; let’s not say anything about that. OK,
are we all through on Loraca or Loraca-related stuff?
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 44 of 49

6. I did not even change Rfiling datek ap shown in the electronic

4
versions of the Motion and the Notice for va reason.

FURTHER AFFIANT SAITH wor, Sell
le ZA Z/, Wo

MMI WILLIAMS RAWLS

Subscribed and sworn to before me on £
Tammi Williams Rawls.

wllanyyg

My commigsiog expires:

Cas H-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:2G; Vi 245.
aus das aM

Rew

i75%- Union Home and Industrial, Inc. https://wew.nmcourt.fed_us/ace/ele?request=multiparticaasypo-*

United States Bankruptcy Court - District of Electronic Document Submission

New Mexico Confirmation
Home | Links | Help Tuesday, March 8, 2005
Document(s) Jennie Deden Behles

Submitted By:

Transaction Tuesday, March 08, 2005, 04:38:51:PM MST

Timestamp:

Confirmation 41C8A96A-18C9-SBB5-1813-F8B4B7B50F32

Number:

Case Title: Union Home and Industrial, Inc.

Case Number: 04-15755

Lead Document Type: Notice of

Document Notice of Filing of third motion to extend exclusivity period and deadline for
Description: objections thereto
Fee: N/A
Document Submissions
Document Status Comments
File: noticeoffilingofmotion030805.pdf Received
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Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 46 of 49

03/08/2005 4:07 PM

United States Bankruptcy Court - District
of New Mexico

Home | Links | Help
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Electronic Document Submission

Confirmation
Wednesday, March 9, 2005

Ss. nic ioSiheion.. ,

Document(s) Submitted Jennie Deden Behles or & she. ~ eld fv ( f
By: jt atton<s (6 f SSULC
Transaction Wednesday, March 09, 2005, 12:18:41:PM MST {Ha 1. Wt fi led CC cuy]
Timestamp: te Cay g “f revit “LS
Confirmation Number: 60C53564-00A8-D081-D7EC- 69DF442F5567 +; cot to) Sy 4 t +} Ag
,) fF
Case Title: Union Home and Industrial, Inc. {; vst ar t rt th ? t ye TA
Case Number: 04.15755 ) ue MOS OF ES
Lead Document Type: Notice of

Document Description:
objections thereto

Notice of filing of motion to extend exclusivity period and deadline for

Fee: N/A

Document Submissions

Document Status |Comments
File: £\WPDOCS\Union HI Received

BR\Plead\3NotFilingMotExtendFilingDate030805wpd.pdf

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Wednesday, March 9, 2005
ACE 2-3-7

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Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 47 of 49

ittps://www.nmcourt.fed.us/ace/ef; ile? request=multipartlead&type=efileleadGte...

03/09/2005

Docket: 04-15755 - Union Home and Industrial, Inc. http://laguna.nmcourt.fed.us/usbcace?request=sob&type=dock...
1 of 2 02/01/2006 3:44 PM
United States Bankruptcy Court - District of New Mexico Docket Report
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Mailing List, Motions, Related Cases Start << < 71 72 73 74 75 76 77 78 79 80 > >> End
Total Entries: 244 Entries Per Page: 1 Page 76 of 244
Case Title: Union Home and Industrial, Inc.
Case Number: 04-15755
Chapter : 11 , Voluntary , Asset
Judge Code: SR
Assigned to: Judge James S. Starzynski
First Meeting Location: Roswell
Reference Number: 11 - 04-15755 - SR
Custom Codes: PAPER sr
File Date
Entered
On Docket Document Description Reference
03/09/2005 03/09/2005 71 Third Motion By Debtor Union Home
and Industrial, Inc. To extend exclusive
period for filing a plan of reorganization
to until 4/1/05 . [13k] [3 pages]
RE: [72] Notice of
Deadline to
File
Objections...
[10k] [1 page]
RE: [83] Order Denying
[71-1] Motion
To extend...
[10k] [2 pages]
RE: [93] Second
Affidavit of
Tammi
Williams...
[10k] [2 pages]
Document
Verification
Event code:
Motion to
Extend/Shorten
Time
Entered by:
jack
Key:
Symbol Description
File Date Date the document was filed with the clerk
Entered On Docket Date the document was "entered on the docket" by the clerk's office
Document Number assigned to the document by the clerk's office
Description Title of the document and "docket entry" describing the document
Reference Document Verification and other information
Case 04-15755-s11 Doc 243 Filed 02/09/06 Entered 02/09/06 12:20:00 Page 48 of 49

Docket: 04-15755 - Union Home and Industrial, Inc. http://laguna.nmcourt.fed.us/usbcace?request=sob&type=dock...
2 of 2 02/01/2006 3:44 PM
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