Trina Sterling

1 The show cause hearing was necessitated by the Debtor’s statement at a hearing at
which Harris sent a surrogate to represent the Debtor, that she had paid Harris $4000 for his
services. Scrutiny of the docket in the 05 Case reflected no fee application filed.
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 13
:
TRINA S. STERLING, 	: 	Bankruptcy No. 07-12656DWS
:
Debtor. 	:
In re 	: 	Chapter 13
:
TRINA S. STERLING, 	: 	Bankruptcy No. 05-39423DWS
:
Debtor. 	:
ORDER
AND NOW, this 24 th day of January 2008, upon consideration of the Applications
for Compensation filed by Jermaine Harris (“Harris”) in connection with his services in
case numbers 05-39423 (“05 Case” and “05 Application”) and 07-12656 (“07 Case” and
“07 Application”);
And after a hearing on July 31, 20071 at which I found the following: 	(1) Harris
received a $2,200 payment in the 05 Case which was filed on December 4, 2005 and
dismissed on April 5, 2007 on a Trustee’s motion for failure to make plan payments;
(2) Harris failed to file a fee application in that case; (3) Harris was ordered to file a fee
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2 As Harris erroneously filed the 05 Application in the 07 Case (apparently
misunderstanding my advice that he did not have to reopen that case to file the application), it
lay dormant as the Clerk believed it to be the application for the 07 Case that would not be
reviewed until confirmation. Upon confirmation, it was sent to me, and I asked the Clerk to
check for and send to me any 07 Application which was done. I am docketing this Order in both
cases.
3 I shall take judicial notice of the docket entries in these cases. Fed.R.Evid. 201,
incorporated in these proceedings by Fed.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v.
United Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991). While a court may not take judicial
notice sua sponte of facts contained in the debtor’s file that are disputed, In re Augenbaugh, 125
F.2d 887 (3d Cir. 1942), it may take judicial notice of adjudicative facts “not subject to
reasonable dispute ... [and] so long as it is not unfair to a party to do so and does not undermine
the trial court’s factfinding authority.” In re Indian Palms Assoc., 61 F.3d 197, 205 (3d Cir.
1995)(citing Fed.R.Evid. 201(f) advisory committee note (1972 proposed rules).
4 In the 07 Case Harris did not attempt to quantify the time he spent on any specific
service, treating the $2000 request as an application under Local Rule 2016-2 (short form
application) . However, the back-to-back nature of the cases suggests that many of the services
might take less time. Indeed they did since it appears Harris merely took documents from the
last case and refiled them. His Schedules are the same documents filed in the 05 Case with the
exception of Schedules I and J. He failed to disclose the 05 Case on the petition, most likely
because he used the same petition as filed in the 05 Case. Each other Schedule is identical to
same one filed in the prior case. As evidenced by ¶1 (no 2006 information), ¶4 (information not
within one year) and ¶9 (omission of the 2007 retainer), the Statement of Financial Affairs is the
same document as filed in the 2005 Case. These answers should have changed with the passage
(continued...)
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application in connection with the 05 Case and did so on August 3, 2007;2 (4) Harris
received a $2,000 payment in the 07 Case which was filed on May 4, 2007; (5)) the Chapter
13 plan in the 07 Case has been confirmed and Harris seeks approval of another $2000 fee
for which he has already been paid;
And the Court advising Harris that he would not be penalized this time for failing to
file the 05 Application but each application would be reviewed on its merits;
And the Court having reviewed the files3 in the 05 and 07 Cases to determine whether
total compensation of $4000 for these back-to-back cases is reasonable and concluding that
the fee is excessive for the services provided;4
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4(...continued)
of time. The Form B22 merely copies the same gross income as used in the 2005 Case even
though the Debtor lost her job in February 2007 and began a new job at a different salary in
April 2007. Finally the quality of his efforts for Debtor were less than stellar. As noted at the
July 31, 2007 hearing, Harris had to file an expedited hearing in Case 07 to consider the Debtor’s
motion to extend the automatic stay because he had subordinated his client’s interests to his own.
5 After giving Harris a pass on his failure to file an Application to cover the $2000 he
charged Debtor in the 05 Case, one would have thought the 2007 Application would have been
done correctly. Since he was paid up front the full two fees and his compensation is being
approved after the payment, the disclosure of the amount paid is more than a clerical error. It
bears on the disgorgement that I will order.
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And the Court also finding that the Application misstates the amount Debtor paid for
the 2007 Case as $1500 when the Debtor and the Rule 2016 disclosure state she paid $2000;5
It is hereby ORDERED that Harris will be awarded a total fee of $3500 for the 05
and 07 Cases. As he has been paid $4000 (exclusive of filing fees), he will disgorge $500
to the Debtor by February 6, 2008. Upon payment, he will file (with a copy to Chambers)
a certification attaching a copy of the payment advice evidencing compliance with this
Order.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
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