Charles Michael Collins

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
CHARLES MICHAEL COLLINS,
Debtor.
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Case No. 05-33530 TEC
Chapter 7
MEMORANDUM RE PAUL A. VANDER WAERDT’S MOTION TO REOPEN AND FOR
EXAMINATION OF FEES UNDER 11 U.S.C. § 329(B)
On October 6, 2008, Paul A. Vander Waerdt filed a motion to
reopen the above-captioned bankruptcy case (Case), and a motion
under section 329(b) and Bankruptcy Rule 2017 to review attorney
fees allegedly paid by Debtor to Howard Melamed during the Case.
Upon due consideration, and for the reasons set forth in this
memorandum, (1) the motion to reopen is granted for the purpose of
deciding the motion for examination of fees, and (2) the motion for
examination of fees under section 329(b) is denied. 	Each of the
reasons stated below constitutes an independent and wholly
sufficient ground for denying the motion to examine fees.
First, the motion to examine fees should be denied because
there is no evidence that Mr. Melamed, the counsel Debtor employed
Signed and Filed: November 05, 2008
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
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Entered on Docket
November 06, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 05-33530 Doc# 37 Filed: 11/05/08 Entered: 11/06/08 10:05:34 Page 1 of 4

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postpetition for the limited purpose of representing him in
connection with a Rule 2004 examination, received any payment for
services provided in connection with the Case. 	Mr. Vander Waerdt’s
declarations in support of the motion do not state that Debtor or
anyone else paid Mr. Melamed a fee in conjunction with the Case.
Nor did Mr. Vander Waerdt submit any invoices or other documentary
evidence that Mr. Melamed billed Debtor for services provided in
connection with the case, or that Debtor paid any sum for such
services. 	In addition, Mr. Melamed’s sworn declaration in
opposition to the motion provides that the 2004 examination was
canceled, that he provided no services to Debtor during the
bankruptcy case, that he did not charge Debtor any fee in
connection with the Rule 2004 examination, and that Debtor did not
incur or pay any fees to Mr. Melamed in connection with the Rule
2004 examination.
Second, even assuming that Debtor paid Mr. Melamed for
postpetition services, Mr. Vander Waerdt is not the proper party to
bring a motion to review such fees under section 329(b). 	Federal
Rule of Bankruptcy Procedure 2017(b) provides that a motion to
review fees may be brought by Debtor, the United States Trustee, or
on the court’s own initiative.
Third, the basis for the Rule 329(b) motion appears to be that
Mr. Melamed, who was scheduled in the Case as a creditor, should
not have been employed in the Case because he was not a
“disinterested person” under Bankruptcy Code section 101(14). 	The
Bankruptcy Code does not require counsel who is representing a
chapter 7 debtor solely in connection with a Rule 2004 examination
Case: 05-33530 Doc# 37 Filed: 11/05/08 Entered: 11/06/08 10:05:34 Page 2 of 4

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to be a disinterested person, or to be appointed by the court.
11 U.S.C. §327(a), (e).
**END OF MEMORANDUM**
Case: 05-33530 Doc# 37 Filed: 11/05/08 Entered: 11/06/08 10:05:34 Page 3 of 4

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Court Service List
Charles Michael Collins, Esq.
P.O. Box 14792
San Francisco, CA 94114
Paul A. Vander Waerdt
15932 Rock Crystal Drive
Parker, CO 80134
Case: 05-33530 Doc# 37 Filed: 11/05/08 Entered: 11/06/08 10:05:34 Page 4 of 4