On September 23, 1991, debtors filed an application for an order approving employment of Cox & Associates as accountants for the debtors (Docket No. 193). This application is denied without prejudice for the following reasons:

(1)     There is no indication that it was noticed to anybody. Bankruptcy Rule 2014 (Supp. 1991) requires that at least the U.S. Trustee be given notice.

(2)     Cox & Associates is a creditor of the debtors. This raises questions as to whether the firm should be employed because it is not "disinterested." See     2 ABR 163  §§ 101(14), 327, and 1107(b) of the Bankruptcy Code (Supp. 1991). The local practice is to require that notice of this be given to other creditors so that they may object, and if there is a large matrix, to a reduced number of significantly involved creditors. If there is an objection, the court conducts a hearing to see if there is a conflict in fact. While I have not been as strict as other courts in interpretation of the degree of "disinterestedness" required to allow employment of a creditor professional, I have not completely disregarded the problem altogether. Compare In re Best Western Heritage Inn Partnership, 79 B.R. 736 (Bankr.M.D.Tenn. 1987) which more liberally allowed a creditor attorney to be employed for a debtor-in-possession with In re Pierce, 809 F.2d 1356, 1362 (8th Cir. 1987), which took a strict approach. Best Western Inn may no longer be good law in the Middle District of Tennessee due to the 6th Cir. ruling in In re Middleton Arms, Ltd. Partnership, 934 F.2d 723 (6th Cir. 1991), but other courts follow the liberal Best Western Inn approach. Cf. In re Indian River Homes, Inc., 108 B.R. 46, 51 (D.Del. 1989).

(3)     The debtors have not indicated why there has been a delay in making this application. The U.S. Trustee has repeatedly reminded debtors' attorney that he was delinquent in filing an application for his own     2 ABR 164  employment as well as other professionals. On June 25, 1991, an order was entered in this case (Docket No. 152) providing for some interim fees, but indicating that Robert Noreen would have to justify the nunc pro tunc appointment of him as debtors' attorney. See In re Crook, 79 B.R. 475 (9th Cir. BAP 1987) (court has authority to issue retroactive order of employment of professional; these should not routinely be granted; if reasonable objections are raised, burden is on applicant for employment to show objection does not warrant denial of application; where lateness is result of inexcusable or unexplained negligence, retroactive effect should not be given to the order authorizing employment). See also In re Kroeger Properties, 57 B.R. 821 (9th Cir. BAP, 1986) and In re Crest Mirror & Door, 57 B.R. 830 (9th Cir. BAP, 1986), adopting the tests in In re Twinton Properties Partnership, 27 B.R. 817, 819-820 (Bankr. M.D. Tenn. 1983); and In re THC Finance Corp., 837 F.2d 389 (9th Cir. 1988), an Old Act case, but applicable to Code.

     Therefore, IT IS ORDERED that the application to employ Cox & Associates as accountants is DENIED WITHOUT PREJUDICE. Debtor must properly notice this to the U.S. Trustee and the master mailing matrix in this case indicating, in a meaningful notice, the fact that a nunc pro tunc order authorizing employment is being sought, and the reason that the order was not sought before, the fact that Cox & Associates is a creditor of the debtor, the amount of the pre-petition debt, and any other information that would be required by due process.