Dennis J Amoroso and Gerde J Amoroso

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
DENNIS and GERDE AMOROSO, No. 04-11303
Debtor(s).
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Memorandum on Objection to Compensation
_________________
In late July, 2004, the debtors in possession applied to this court for an order authorizing them to
employ The Miller Lw Firm, PC, to represent them “in matters pertaining to the Debtors’ potential
personal liability in the case pending in The United States District Court for the Northern District of
California . . . .” On August 5, 2004, the court denied the application, entering the following order:
This application is denied, without prejudice, as there is no explanation
as to why the litigation described in the application is not stayed or why it is in
the best interests of the estate to incur legal expenses related to it.
In December, 2004, the debtors filed an amended application to employ The Miller Firm. In this
amended application they pointed out, “This Court has now granted relief to Travelers to proceed in the
District Court . . .” Based on the changed circumstances, the court entered an order approving The
Miller Firm’s employment on December 15, 2004.
The Miller Firm has now applied for $561,527.50 in fees and $15,981.84 in expenses dating all
the way back to the commencement of the case in May, 2004. The court temporarily allowed payment of
$145,459.75 on top of The Miller Firm’s retainer of $200,000.00, so the firm has received payment on
Entered on Docket
June 15, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 04-11303 Doc# 464 Filed: 06/14/06 Entered: 06/15/06 09:19:17 Page 1 of
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account of $345,459.75, pending a final hearing on its fees. The court ruled that it could not award
further fees until and unless the debtors obtained a nunc pro tunc order approving retroactive
employment of The Miller Firm. That application is now before the court. Creditor Traveler’s
Insurance Company objects.
The court begins by noting that the term “nunc pro tunc” is usually not properly applicable to an
application for a retroactive order of employment, but may be more or less applicable in this case. In
most “nunc pro tunc” cases, an application to employ was overlooked so there is no “tunc” order for a
“nunc” order to relate back to. In this case, there was a prior order entered on August 5, 2004, so the
court could modify that order retroactively if there was cause. See Collier, Compensation,
Employment and Appointment of Trustees and Professionals in Bankruptcy Cases, ¶ 1.06, p.1-
43n1.
Unfortunately, the court sees no cause whatsoever to modify its first order. That order was not
made by mistake, and was in no way improvident. The debtors wanted the court to authorize the use of
estate funds to pay a lawyer in a case that was stayed, which made no sense to the court. When the court
un-stayed the case, a lawyer was necessary and employment was approved. Failing a showing that the
original order was in any way improvident, there is no justification for its modification nunc pro tunc.
Likewise, there is no basis for the granting retroactive employment authorization as there are no
exceptional circumstances and no satisfactory explanation for the failure to receive prior approval. A
showing of both is necessary before retroactive employment authorization is appropriate. In re THC
Fin. Corp., 837 F.2d 389, 392. (9th Cir. 1988).
For the foregoing reasons, the motion for retroactive employment authorization or modification
of the court’s order of August 5, 2004, nunc pro tunc, will be denied. Counsel for Traveler’s shall
submit an appropriate form of order.
If The Miller Firm and Traveler’s agree that the fees The Miller Firm has received to date are
sufficient and proper to compensate it for services incurred after December 15, 2004, they shall submit a
stipulation for a final fee award so stating. If The Miller Firm believes that the fees it has received to
Case: 04-11303 Doc# 464 Filed: 06/14/06 Entered: 06/15/06 09:19:17 Page 2 of
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date are insufficient to compensate it for work done after December 15, 2004, or Traveler’s believes the
Miller Firm has been overpaid for work done after December 15, 2004, then The Miller Firm shall file
an amended fee application showing only services performed after that date and Travelers shall within
20 days thereafter file any objection thereto.
Dated: June 14, 2006
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 04-11303 Doc# 464 Filed: 06/14/06 Entered: 06/15/06 09:19:17 Page 3 of
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