Won Song v. Howard Ehrenberg , 359 Fed. Appx. 817 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 14 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In the Matter of: WON HO SONG; EUN No. 08-60011
JA SONG,
BAP Nos. CC-07-1137-DMoPa
Debtors. CC-07-1160-DMoPa
WON HO SONG; et al., MEMORANDUM *
Appellants,
v.
HOWARD EHRENBERG, Chapter 7
Trustee; et al.,
Appellees.
In the Matter of: WON HO SONG; EUN No. 08-60013
JA SONG,
BAP Nos. CC-07-1137-DMoPa
Debtors. CC-07-1160-DMoPa
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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HOWARD EHRENBERG, Chapter 7
Trustee; et al.,
Appellants,
v.
WON HO SONG; et al.,
Appellees.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Dunn, Montali, and Pappas, Bankruptcy Judges, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
In these consolidated appeals, Won Ho Song and Eun Ja Song appeal pro se
from the judgment of the Bankruptcy Appellate Panel (“BAP”) affirming the
bankruptcy court’s order approving $2.5 million in attorney’s fees for services
rendered by Sung Bae Park and Shapero, Shapero & Hurst (collectively, “special
counsel”) to the chapter 7 trustee. Special counsel cross-appeals from the
judgment of the BAP reversing the bankruptcy court’s award of costs. We have
jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the BAP’s
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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judgment, Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir. 1999),
and we affirm the BAP judgment.
Appeal No. 08-60011
The bankruptcy court did not abuse its discretion by awarding compensation
to special counsel because Sung Bae Park’s representation of the trustee was not in
violation of bankruptcy law or state professional conduct rules. See Pitrat v.
Reimers (In re Reimers), 972 F.2d 1127, 1128 (9th Cir. 1992) (“This court will not
disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court
abused its discretion or erroneously applied the law.”) (internal citation and
quotation marks omitted).
The Songs’ remaining contentions lack merit.
Special counsel’s motion to strike portions of the excerpts of record is
granted. See Graves v. Myrvang (In re Myrvang), 232 F.3d 1116, 1119 n.1 (9th
Cir. 2000) (granting a motion to strike evidence that was not part of the record
before the bankruptcy court).
Appeal No. 08-60013
We agree with the BAP that the bankruptcy court abused its discretion by
awarding costs to special counsel because costs were excluded under the terms of
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the employment agreement between the trustee and special counsel, and the
bankruptcy court had found that the agreement was not improvident. In re
Reimers, 972 F.2d at 1128 (“Under section 328, where the bankruptcy court has
previously approved the terms for compensation of a professional, when the
professional ultimately applies for payment, the court cannot alter those terms
unless it finds the original terms to have been improvident . . . .” ) (internal citation
and quotation marks omitted).
AFFIRMED.
Appeal No. 08-60011: AFFIRMED.
Appeal No. 08-60013: AFFIRMED.
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