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#2090

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

IN RE:

CHARLES LOUIS WINTER

DEBTOR

CASE NO. 91-41933-7

CHAPTER 7

ORDER ON TRUSTEE AND ACCOUNTANT FEE

This proceeding is before the Court on an objection to the trustee's application for fees for himself and his accountant. The objection arises out of the Trustee's Motion to Approve Compromise and Settlement.

In this proceeding, it appears that litigation has been ongoing in state courts for a period of years both before and after this proceeding was filed. As a result of part of that litigation, this bankruptcy was filed and as a result of another part of that litigation, an asset was realized for this estate. It also appears that the trustee knew little of the developments occurring in the state court litigation until they were published or until settlements were reached. In other words, the trustee did not participate in generating the estate asset but is benefiting from others toil in the vineyards. They now object to the application of the statutory maximum to the funds which should flow through this estate and seek to at least reduce if not eliminate the fee allowed by 11 U.S.C. §326. The beneficiaries who are also the only creditors of this estate are persons who lost funds through fiduciary defalcation.

The trustee, when he discovered the estate was to receive funds, hired an accountant to ascertain the tax ramifications to the estate of their receipt. The accountant has submitted an itemized bill of $700 to the estate for his services. There is no specific objection to the reasonableness of this bill.

The Court finds that under the circumstances, the accountant performed services to the estate which were necessary and absent specific line item objections is entitled to his fee. The Court further finds that the trustee is entitled to a fee, even though the funds are only constructively passing through the estate as a convenience to the ultimate beneficiaries of those funds and to the trustee. The Court also finds that §326 establishes not a minimum but maximum fee. See Collier on Bankruptcy 15th Ed. §326.01, 326-6. In this case, the trustee admits in his pleading that the recovery constitutes a windfall of which he was unaware until the settlement was reached by counsel whom he hired and who apparently is not being paid through this estate. Further, there is little evidence that the trustee expended a substantial amount

of time in this recovery. Therefore, the Court finds that the §326 fee in this case should be $700.00.

IT IS SO ORDERED.

Dated at Topeka, Kansas this 18th day of November, 1994.









________________________________________

THE HONORABLE JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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