Menu    1 ABR 510 

HERBERT A. ROSS
U.S. Bankruptcy Judge


UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA
605 West 4th Avenue, Room 138, Anchorage, AK 99501-2296


_______________________________x

In re Case No. 5-84-00009-HAR

In Chapter 7

RAYMOND L. OLSEN and GLADYS M.
OLSEN,

Debtor(s)                                 

_______________________________x

FIRST BANK, on its own behalf
in the name of the United
States of America as to the
third party bond claim,

Plaintiff(s),                                 

                      v.

 Adv. No. 5-84-00009-001-HAR

RAYMOND L. OLSEN and GLADYS M. OLSEN and GORDON ZERBETZ,

Defendant(s).                                 

                      v.

JAMES M. DODSON, JR. and STATE

FARM FIRE AND CASUALTY COMPANY,

 ORDER DENYING WITHOUT PREJUDICE
MOTION FOR AWARD OF ATTORNEY

Third-Party                                 

FEES AS ADMINISTRATIVE EXPENSES

Defendants.                                 

AGAINST THE ESTATE BY FIRST BANK

________________________________x

        First Bank filed a motion on March 27, 1991 (Docket No. 77) asking for attorney fees in this case to be awarded as administrative expenses against the estate. First Bank filed this adversary proceeding as a stakeholder of funds that were on deposit in its bank which were claimed by the chapter 7 trustee to be estate funds and by the debtors to be debtors' individual funds. Debtors filed a counterclaim against First Bank alleging many kinds
TOP    1 ABR 511  of malfeasance. Summary judgment was entered in favor of First Bank against the debtors under Rule 54(b).

        The trustee has opposed charging these fees as an administrative expense of the estate. It may be that a nominal attorney fees and costs award to First Bank out of the funds interpleaded would be justified for its filing this stakeholder's action. Cf. In re Northeast Dairy Co-op. Fed., Inc., 72 B.R. 663, 686 (Bankr.N.D.N.Y. 1987) and In re Jones, 61 B.R. 48, 53-54 (Bankr.N.D.Tex. 1986) (which denied the fees because the interpleading plaintiff was a bank), cited by First Bank. However, the vast majority of the litigation which First Bank has been involved with in this adversary proceeding is as a result of the counterclaim by debtors against First Bank. The estate should not have to pay for this.

        Secondly, I cannot find in the motion itself or in the memorandum (except by tedious reference to the billing statement attached to the moving papers which include some poor copies and summaries which I have difficulty following) a precise figure that is being claimed for attorney fees or an allocation of attorney fees amongst the various aspects of the case. Cf. In re Puget Sound Plywood, Inc., 924 F.2d 955, 960-61 (9th Cir. 1991)

        Thirdly, this matter has only been noticed up to a limited group of parties and not the matrix of creditors in the main case as required by Bankruptcy Rule 2002(a)(7) since First Bank is not only asking to be reimbursed from the funds it
TOP    1 ABR 512  interpled, but apparently as an administrative claimant to be paid out of other estate proceeds. Therefore,

        IT IS HEREBY ORDERED that the motion for attorney fees to be designated as administrative expense is DENIED WITHOUT PREJUDICE to First Bank filing a motion allocating attorney fees and costs to the various facets of the adversary proceeding and against the proper parties. Also, the motion must be served on all interested parties.

       DATED:     May 2, 1991.

                  HERBERT A. ROSS
                  Bankruptcy Judge

    Serve:

    Joseph Moran, Esq., Attorney for
    Bernd Guetschow, Esq., for Zerbetz
    Greg Motyka, Esq., for State Farm
    James Dodson,
    Raymond and Gladys Olsen, Pro Se, s
    U.S. Trustee