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On August 23, 2019, Clifford J. White III, Director of the United States Trustee Program in Washington D.C., commended the analysis in a recent $0-down Chapter 7 case that approved bifurcation and collection of post-petition fees stating that the four-part analysis in the case is instructive to local US Trustee Programs and practicing attorneys.
In In re Hazlett, 2019 WL 1567751 (Bankr. D. Utah April 10, 2019), the local UST objected to an attorney's use of bifurcation to offer $0-down and post-petition payment of fees and costs. The Court disagreed and approved the bifurcation and collection of $2,400 in post-petition fees and costs. Now, the Director of the UST Program in Washington D.C. has adopted the analysis in Hazlett and stated it is "instructive to the [US Trustee Program] and should be instructive to the bar as well." From the US Department of Justice website:
"In the District of Utah, the bankruptcy court handed down a decision in In re Hazlett, 2019 WL 1567751 (Bankr. D. Utah April 10, 2019). I commend that opinion to your attention because the careful reasoning of the court actually highlights the factors we look for and which are almost always absent in the cases we bring.
In the Hazlett case, the court upheld the bifurcated fee because it found that four essential elements were present: (1) the lawyer's dealings with the client were based on the client's best interests; (2) all fees charged for post-petition services were reasonable and did not include fees for pre-petition services; (3) the arrangement was fully disclosed in the lawyer's Rule 2016(b) statement; and (4) the lawyer complied with local rules governing substitution or withdrawal. Moreover, in the context of factoring, the court found that the fees charged to the client were reasonable on a lodestar basis and did not reflect a markup to offset the premium charged to the lawyer by the financing company.
Although one may argue over the findings of fact made by the judge, or the propriety of debtors' lawyers contracting with a factoring agency under any circumstances, the court's opinion provides an important four-part analysis in assessing bifurcation practices. It is instructive to the USTP and should be instructive to the bar as well."
Clifford J. White, Director of the US Trustee Program, Washington D.C. 2019 Annual Conference of the National Association of Bankruptcy Trustees Denver, CO - Friday, August 23, 2019 https://www.justice.gov/ust/speech/remarks-director-cliff-white-2019-annual-conference-nationalassociation-bankruptcy