Avonelle Kirwan-Gadsby

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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MEMORANDUM RE: FEE APPLICATION
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	Case No. 07-43462 EDJ
AVONELLE KIRWAN-GADSBY, 	Chapter 7
Debtor./
MEMORANDUM RE: FEE APPLICATION
The court has reviewed the objection by Creditor Roger L.
Miller Retirement Trust (“Creditor”) to the fees requested by R.
Kenneth Bauer, counsel for the above debtor (“Bauer”). 	Although the
objection raises several minor points, the most serious objection is
that Bauer knew or should have known that this case should not have
been filed as a chapter 11, and that the debtor, with Bauer’s
assistance, filed it solely for purposes of delay.
The court has considered the objection, the comments of counsel
at oral argument, and the files in this case. 	The court will
overrule the objection.
The debtor’s Schedule A (Real Property) filed at the outset of
Signed: August 11, 2008

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
August 13, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 07-43462 Doc# 166 Filed: 08/11/08 Entered: 08/13/08 11:19:36 Page 1 of
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UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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1See letter to the court dated August 7, 2008 from
Creditor’s counsel, Marlene Weinstein, and Bauer.
2	MEMORANDUM RE: FEE APPLICATION
the case listed five parcels of real property, four of which showed
a scheduled equity. 	The debtor scheduled one parcel as having an
equity of $350,000. 	Thus, according to the debtor’s schedules, the
debtor did appear to have reasonable prospects for a successful
chapter 11.
This is borne out by the fact that, according to the Creditor
and Bauer, 1 Lois Brady, trustee in bankruptcy, has a sale pending
that may bring $300,000 into the estate in addition to the $32,000
she already holds.
The test for determining the allowability of fees is not the a
strict “benefit to the estate” test, based on hindsight. 	Rather,
the test is whether the fees appeared reasonable and necessary at
the time that they were incurred. 	See, e.g., In re Auto Parts Club,
211 B.R. 29, 34-35 (9th Cir. BAP 1997). 	See also In re Mednet, 251
B.R. 103 (9th Cir. BAP 2000). 	Thus, even though the sale by the
chapter 7 trustee has not closed (or even if it fails to close for
some reason), the court believes that Bauer’s filing of the chapter
11 case was reasonable and necessary based on the facts then known
to him.
The Creditor also argues that Bauer expended too much time
performing certain tasks, especially the preparation of the debtor’s
schedules. 	Bauer, however, has explained to the court’s
satisfaction why the time he expended was needed.
Case: 07-43462 Doc# 166 Filed: 08/11/08 Entered: 08/13/08 11:19:36 Page 2 of
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UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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3	MEMORANDUM RE: FEE APPLICATION
The court will therefore issue its order overruling the
objection and allowing Bauer’s fees and costs as requested.
** END OF DOCUMENT **
Case: 07-43462 Doc# 166 Filed: 08/11/08 Entered: 08/13/08 11:19:36 Page 3 of
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UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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4	MEMORANDUM RE: FEE APPLICATION
COURT SERVICE LIST
Kenneth Bauer
Law Offices of Kenneth Bauer
500 Ygnacio Valley Rd. #300
Walnut Creek, CA 94596
Marlene Weinstein
1111 Civic Drive, Suite 380
Walnut Creek, CA 94596
Lois Brady
P.O. Box 12754
Oakland, CA 94604
Matthew Kretzer
Office of the U.S. Trustee
1301 Clay St. #690N
Oakland, CA 94612-5217
Case: 07-43462 Doc# 166 Filed: 08/11/08 Entered: 08/13/08 11:19:36 Page 4 of
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