IN RE SKIPPER

JAMES R. GRUBE, UNITED STATES BANKRUPTCY JUDGE.

I. INTRODUCTION

On April 4, 2001, applicant filed a fee application with the Court. Following a hearing on July 12, 2001, the application was denied without prejudice. The Court's July 12th order raised a number of questions and indicated that the application was not sufficiently supported. The application had been noticed and there were no objections. As such, applicant was authorized to address the questions raised through a supplemental pleading submitted on an ex parte basis. Applicant thereafter filed an Ex Parte Response which contained a request for reconsideration of the original application.

A review of the debtors' statement of affairs and schedules indicates: The debtors have a home valued at $285,000 with a mortgage of $205,441.43. They have $3,542.00 in mortgage arrearages. In connection with the home they also owe $6,435.21 in delinquent property taxes. They have no priority creditors. They have eight unsecured creditors totaling $56,997.41. Mr. Skipper is employed by Sun Microsystems and has a net monthly income of $4,353.60. Mrs. Skipper is employed by Hewlett-Packard and has a net monthly income of $2,550.70.

A. The Original Fee Proposed.

The fee originally requested for the case was $1,900. This request is in line with the Court's fee schedule for a case of this nature. The Court maintains a fee schedule at the request of the bar for Chapter 13 cases. This schedule does not control fees but rather provides that if an attorney charges in accordance with the schedule, and no objections are raised, the requested fees will be approve at the time of confirmation of the plan without the filing of a fee application. The fee determined by the Court's guidelines is, in the normal case, sufficient to resolve a case for a debtor owning a home. Addition fees may be requested by application. Applicant now seeks additional fees in the amount of $3,000.50.

B. The Requested Additional Fees.

1. The Debtors' Bad Faith.

The debtors filed their plan with the petition. It immediately drew an objection from Chrysler Financial Corporation. Chrysler had financed the debtors' purchase of a new vehicle. Applicant first met with the debtors on March 10, 1998. Three days later, on March 13, 1998, they purchased the new car. Six days after the purchase, March 19, 1998, the debtors filed Chapter 13.

Despite the fact that the Skippers had never made a payment under the Chrysler contract the debtors' plan proposed to reduce the monthly payment and the interest rate. Chrysler's argument of bad faith was well taken. A Chapter 13 plan can only be confirmed if it has been "proposed in good faith and not by any means forbidden by law." 11 U.S.C. § 1325(a)(3). The existence of good faith or bad faith is determined by a "totality of the circumstances test." Downey Savings Loan Assoc. v. Metz (In re Metz), 820 F.2d 1495, 1498 (9th Cir. 1987);Goeb v. Heid (In re Goeb), 675 F.2d 1386, 1391 (9th Cir. 1982); In re Eisen, 14 F.3d at 470. The court should ask whether the debtor "misrepresented facts in his [petition or] Plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] Plan in an inequitable manner." In re Goeb 675 F.2d at 1390. Five months later the debtors stipulated to honor the terms of the original contract. The car the Skippers purchased is paid for, in part, from money that otherwise would have gone to their unsecured creditors. The plan applicant filed was filed in bad faith as to Chrysler. The requested compensation will be reduced $750.

2. Inappropriate Billing Practices.

Following the filing, applicant billed .6 hour to send a notice of the bankruptcy to three creditors. This is a form letter. If it is not a form, it should be. This should normally involve no more than an instruction from the attorney to a secretary to send the usual letter. During the course of the case it was necessary for the debtors to refinance their home. There was no objection to the motion. Applicant billed .7 hour for preparing the request for an order by default. This is a 22 line form pleading that requires only the debtors' names and date of service of the motion to be inserted. Another .5 hour was billed for preparing the 1½ page order. Clerical services are overhead expenses and are not compensable under § 330(a). Sousa v. Miguel (In re United States Trustee), 32 F.3d 1370, 1374 (9th Cir. 1994).

For the § 341 hearing applicant billed 1.3 hours. The amount seems high since Guideline 34 of the Guidelines For Compensation indicate that travel time of one hour or less is not compensable. Applicant's office is within a mile or two of the Courthouse.

Chapter 13 practice is generally thought to be a volume operation. As such, an attorney may have a number of cases on the Trustee's § 341 calendar or on the Court's regular monthly Chapter 13 calendar. Review of the Trustee's records indicates that counsel had 4 other cases on the same calendar. The Court believes these cases would be grouped on the Trustee' calendar.

The Court has reviewed many fee applications submitted by applicant. It has been applicant's practice to bill between 1 and 1½ hours for each § 341 hearing. One this day it appears applicant billed 6.5 hours for the § 341 hearings in five cases. Professionals seeking compensation must prorate court time and other similar items among all of their cases which are benefitted by the item for which compensation is sought. When an attorney makes a court appearance, court waiting time must be apportioned among all of the cases for which that attorney appeared in court on that date. Matter of Navis Realty, Inc., 126 B.R. 137, 144-145 (Bankr.E.D.N.Y. 1991). See also In re Carter, 101 B.R. 170, 173 (Bankr.D.S.D. 1989). The requested compensation will be reduced $250.

According to applicant's time records it took 8.2 hours, at a cost of $1,089.50, to prepare the debtors' Statement of Financial Affairs, Schedules and Chapter 13 Plan. To get this case through confirmation it took applicant 21 hours at a billed cost of $3,457.50. It is hard to believe it could take competent counsel this much time and there was no explanation in the original application to as to why it took applicant this long. In denying the application the Court pointed out that there was insufficient information in the application to allow the Court to make an informed decision.

Applicant's Response focuses on the two objections filed by the Trustee. A number of issues were raised concerning the debtors' income and monthly expenses. Expense issues are not always easy to resolve. In many cases the debtor should be able to provide the documentation to support the expenditure. These debtors could not do so without considerable guidance. Applicant indicates that it had to reconstruct the true expenses by going through their check register. There were then several unusual expenses resulting from the asthma condition of Mrs. Skipper and her son. Verifications had to be obtained. After reviewing the additional information provided the Court will not make any further reduction.

For the reasons stated the application is approved in part and additional compensation is awarded in the amount of $2,000.50.