IN RE JORDAN

TERRY L. MYERS, United States Bankruptcy Judge.

BACKGROUND

On March 24, this Court issued its Memorandum of Decision and its Order (the "Decision") determining the reasonable amount of compensation allowable to G. W. Haight ("Counsel") as attorney for the chapter 13 debtors, Brian and Heather Jordan ("Debtors") in this dismissed case. Promptly thereafter, the chapter 13 trustee, Barry Zimmerman ("Trustee") filed his final report and the case was closed.

After closing, on April 3, Counsel filed a "Motion to Reconsider Amount of Attorney Fees" (the "Motion"). The Motion asks the Court to reconsider the Decision "as and to the extent such denial [of compensation] was based upon unsworn and heresay [sic, hearsay] statements." Counsel requests an evidentiary hearing.

In the Decision, this Court concluded that Counsel had failed to sustain his burden of establishing that his request for $5,828.00 was reasonable, appropriate and adequately supported under applicable law. The request was reduced in the following regards:

(1) $824.20 representing an amount equal to one-half of the legal fees and costs incurred regarding litigation with creditor Belwood Furniture ("Belwood");

(2) $232.50 representing inadequately described or supported paralegal services;

(3) $105.00 for time entries in which Counsel's services were lumped and reflected non-legal tasks;

(4) $210.00 for services rendered on January 13, 2000;

(5) $137.00 in fax costs.

The resulting amount, after these deductions, was further reduced by $1,000.00 due to an improper and undisclosed post-petition payment Counsel received from the Debtors, and his failure to comply with the duty of supplementary Rule 2016(b) disclosure. Given amounts previously received by Counsel, the Trustee was ordered to distribute $2,129.30 to Counsel under § 1326(a)(2) on his allowed administrative expense.

DISCUSSION

"Motions to reconsider" are not available simply to reargue matters already submitted, or to attempt to cure defects in a prior submission found to be inadequate. See, Hale v. United States Trustee (In re Basham), 208 B.R. 926, 934-35 (9th Cir. BAP 1997); In re American West Airlines, Inc., 240 B.R. 34, 38 (Bankr.D.Ariz. 1999). Thus, Counsel would not be entitled to a new hearing, evidentiary or otherwise, to address further the standards of § 330 or the problems the Court found in his Application and submissions in support of the requested fees and costs.

The Motion, however, asks for such a hearing "to the extent" the Court's denial of compensation was premised upon "unsworn and hearsay statements." In the context of this record, Counsel can only be referring to the statements Brian Jordan made at the hearing held on March 7, 2000. The nature of Mr. Jordan's comments was set forth in the Decision, and will not be restated here.

Counsel did not, on March 7, object to Mr. Jordan's comments or the Court's consideration of them, nor ask for an opportunity to respond to them via an evidentiary hearing or otherwise. He thus could be viewed as having waived any right to now complain about them. Nevertheless, the Court has considered the Motion.

It is true that Mr. Jordan's statements were unsworn, and he was not cross-examined by Counsel. However, the Court recalls nothing in those comments that appeared to be hearsay. See Fed.R.Evid. 801. Rather Mr. Jordan spoke of events within his personal knowledge or conversations in which he took part. That Counsel might disagree with Mr. Jordan does not mean that hearsay is involved.

In order to deal with the contention raised by the Motion, each component of the Decision which reduced or disallowed fees or costs will be separately reviewed.

Belwood litigation

The Court reduced the compensation sought by Counsel by $824.20 which amount represented one-half of the fees and costs incurred in the Belwood litigation. Decision at 8 — 9. The "unsworn statements" of Mr. Jordan regarding Belwood and the scheduled value of the furniture were referenced in order to explain the nature of the Debtors' objection to Counsel's fees. However, those statements did not form the basis for the Court's ruling:

Yet while this allegation regarding Counsel's conduct is serious, the Court determines that, for the purposes of the present fee application, there is no need for an evidentiary inquiry and final resolution of the charge in favor of either the Debtors or Counsel. The record is sufficient, even in the absence of that inquiry, for the Court to conclude that Counsel's actions in regard to the Belwood issue were not justified. The litigation itself established that there was no good faith basis for the de minimis value urged. Counsel should not have pursued that line of attack in the absence of a defensible valuation, regardless of who first proposed the $1,575.00 figure. Cf., Fed.R.Bankr.P. 9011(b)(3).

Decision at 9.

The Decision reduced the application because the services rendered in regard to the Belwood cramdown could not be reasonable or necessary in the absence of a legitimate evidentiary basis for the suggested value. The Debtors and Counsel could not show such a basis. Counsel is aware of the factual and legal standards applicable to valuation disputes in bankruptcy. The Court determined that he bears a share of the responsibility for that litigation, and that this impacts the reasonable compensation he should be allowed.

The Court did not premise the reduction upon Mr. Jordan's allegations as to who first came up with the $1,575 value. In fact, it expressly held to the contrary, and ruled based upon other aspects of the record. Thus, Counsel's concerns over the "unsworn and hearsay statements" do not require reconsideration of this ruling.

Services not rendered

It is true that Mr. Jordan asked for a reduction of fees for services he alleged, in his unsworn March 7 statements, were not actually rendered. However, the Court made no reductions on this ground. Decision at 10. Counsel's Motion is therefore not implicated in this regard.

Inadequately described or supported charges

The Court reduced the requested fees by $103.50 for phone calls where the description of the services in the Application were unacceptably terse or failed to reflect that paralegal services were rendered. It also reduced the request by $129.00 for other paralegal time entries which failed to establish that professional services, rather than clerical ones, were provided. It also reduced the Application by $105.00 for Counsel's own inadequate time descriptions. Decision at 10 — 12.

These rulings were premised on the submissions of Counsel in support of the fees and costs sought, and the inadequacy of that record under applicable precedent. They were not based on any of Mr. Jordan's assertions or statements. Whether unsworn or hearsay, those statements were irrelevant to the reduction on these charges.

January 13 services

The Court reduced the request by $210.00 which was the amount shown for services rendered on January 13, 2000. Decision at 13 — 14. It was the chronological context of those services, rather than Mr. Jordan's comments, which led to the reduction.

The entry for January 13, 2000 in Counsel's Application stated, "Work on amended worksheet, budget and fee application."

On January 11, Counsel appeared at hearing on the Trustee's motion to dismiss and asked the Court for ten days within which to convert the case or amend the plan. Decision at 3. Counsel has taken the position that the Debtors, having been fully informed and advised, consented to the dismissal of the case on the Trustee's motion. The Application at Exhibit A indicates that discussions were held between Counsel and the Debtors on January 6 and again on January 11, apparently subsequent to the hearing held that day. No discussions occurred after January 11 according to the Application. If the Debtors agreed to dismissal and advised Counsel of that decision, that necessarily occurred in the discussion on January 11 after the hearing.

Counsel has submitted nothing, in the original Application or this Motion, that would indicate that the Debtors reached their decision to dismiss after January 13. A better argument for allowance of the January 13 services could be made if, on that date, the Debtors and Counsel were still trying to salvage the Chapter 13, and the services were rendered toward that end.

Thus, by January 13, there was no need for further work on the worksheet or budget. Also by virtue of the Debtors' decision, preparation of the fee application, though earlier relevant, was no longer required for the confirmation of the plan or consummation of the chapter 13 reorganization.

As in the case of the Belwood issue, Mr. Jordan's statements were not necessary to, or used to support, this ruling:

Again the Court finds that it need not conclusively resolve the apparent disagreement. Assuming that Counsel is correct when he asserts that dismissal was the mutually agreed result, then the January 13 entry does not reflect reasonable and necessary services. The budget issues were made irrelevant by dismissal, and the fee application was then solely in Counsel's interest, not the Debtors.

Decision at 14. For that reason, the Motion is not well taken.

Fax charges

No statements of Mr. Jordan related to the Court's reduction for unsubstantiated fax charges. The contentions in the Motion are irrelevant to this reduction.

Failure to disclose payment

A reduction of $1,000 was made in connection with Counsel's failure to comply with Rule 2016(b) and disclose his receipt of a post-petition payment from the Debtors. No comments of Mr. Jordan related to this issue, and the Motion does not affect this ruling.

CONCLUSION AND ORDER

The Court was aware, as the Decision made evident, that there were disagreements between Counsel and the Debtors. And the Court was also aware that no evidentiary hearing had been held to resolve those disagreements.

But while the nature of the allegations made by Mr. Jordan concerned the Court, the reductions made in the Decision were premised not on those statements but, rather, on the entirety of the record properly before the Court. In particular, this record included Counsel's own Application and the statements Counsel made in support thereof, and the litigation that had occurred in the case. Even in the absence of any objection by the Jordans, this record would have been evaluated in the Court's exercise of its independent duty to review fee requests. In re Schwandt, 95 I.B.C.R. 268, 268-69 (Bankr.D.Idaho 1995).

For the foregoing reasons, the Motion for Reconsideration is not well taken. The same shall be, and hereby is, DENIED.