Edyta and Wali Mailatyar
11 E. Venado Drive
New River, AZ 85087
Telephone: (480) 495-1829
Facsimile: (480) 323-2440
E-Mail: kamaila_is@yahoo.com
Debtors
| In re:
WALI MAILATYAR and EDYTA KAMILA MAILATYAR,
Debtors.
TIMOTHY R. WRIGHT, an individual,
Plaintiff,
vs.
WALI MAILATYAR and EDYTA KAMILA MAILATYAR, Husband and wife; John Does 1-10;
Defendants. |
In Proceeding Under Chapter 7
Case No.2:17-bk-13538-DPC
Adversary No. 2:18-ap-00259-DPC
DEFENDANT’S RESPONSE AND OPPOSITION TO PLAINTIFF’S REPLY IN SUPPORT OF WRIGHT’S APPLICATION FOR AWARD OF ATTORNEY’S FEES
|
IN THE united states bankruptcy COURT
for the district of ARIZONA
Defendants Pandora Holdings, LLC, Wali Mailatyar, and Edyta Mailatyar (“Defendants”) do hereby respond and object to Plaintiff’s Reply in Support of Wright’s Application for Award of Attorney’s fees and costs of the litigation herein. Plaintiff’s Reply was filed in response to Defendant’s Response and Opposition to Plaintiff’s Application for Award of Attorney’s Fees and Costs.
Defendants’ Objection is premised on the ground that it would be improper and unreasonable to award attorneys’ fees and costs to Plaintiff given the circumstances of this case. This Response and Opposition is supported by the accompanying Memorandum of Points and Authorities and the entire record before the Court, which shall be incorporated by reference.
WHEREFORE Defendants respectfully request this Court to deny Plaintiff’s Application for Award of Attorney’s fees and costs in its entirety.
Respectfully submitted.
Dated 30th day of July 2019
By:______________________ By:______________________
AHMAD WALI MAILATYAR EDYTA KAMILA MAILATYAR
MEMORANDUM OF POINTS AND AUTHORITIES
- INTRODUCTION
On May 23, 2019, this Court granted Plaintiff’s Motion for Summary Judgment against Defendants. Wright’s Motion for Summary Judgment, thereby allowing Plaintiff’s discharge ability claim under 11 U.S.C. §727(a)(3) set forth in the Complaint.
Plaintiff later moved the Court for an award of Attorneys’ fees and costs of the suit on the basis that he “is the prevailing party and should be awarded his attorneys’ fees and costs incurred in prosecuting the Summary Judgment Motion pursuant to Bankruptcy Code § 105(a).” Plaintiff’s Application urges this Court to award him all “his fees and costs incurred in the underlying administrative case as a sanction [against Defendants].”
In response to this Application, Defendant filed a Response and Opposition to Plaintiff’s Application for Award of Attorney’s Fees and Costs. The Response and Opposition argues that the Plaintiff’s Application is an unreasonable and an unfair abuse of the Court process. This Response and Opposition was supported by well-founded legal principles.
Plaintiff has now responded to this Response and Opposition with their Reply in Support of Wright’s Application for Award of Attorney’s Fees. The Reply argues that Plaintiff’s requested fees and costs are reasonable and that this Court should enter an award of attorney’s fees and expenses in favor of Wright against Defendants as in the Application.
- PLAINTIFFS HAVE FAILED TO MEET THE LEGAL STANDARD FOR AWARD OF ATTORNEYS’ FEES
The purpose of Bankruptcy Code § 105 is to “enforce or implement court orders or rules, or to prevent an abuse of process.” Defendants have cited Associated Indem. Corp. v. Warner, 143 Ariz. 567 (1985) 694 P.2d 1181 as an authoritative source for the factors to consider in awarding Attorney’s fees and costs. Plaintiffs concurred with this citation. However, Plaintiff failed to make a compelling argument that this Court should rule in their favor after considering these factors. Defendant argues that instead, a consideration of these factors would support a ruling in favor of Defendants. These factors and considerations from Associated Indem. Corp. v. Warner, 143 Ariz. 567 (1985) 694 P.2d 1181 include the following:
“1. The merits of the claim or defense presented by the unsuccessful party.
- The litigation could have been avoided or settled and the successful party’s efforts were completely superfluous in achieving the result.
- Assessing fees against the unsuccessful party would cause an extreme hardship.
- The successful party did not prevail with respect to all of the relief sought.”
The above considerations are all meant to ensure that no party to litigation takes advantage or abuses the Court’s powers to award Attorneys’ fees and that such awards are made in a fair and reasonable manner. Defendant particularly draws the courts attention to the Second consideration since litigation could have been avoided or settled and Plaintiff’s efforts were completely superfluous in achieving the result. Defendant argues that this matter should not have been litigated since the parties involved could have agreed to settle the dispute out of court. However, despite being fully aware of the financial difficulties that Defendant was facing, Plaintiff was unreasonably adamant on taking this matter to court without affording Defendants reasonable time to discuss a settlement. Defendant wanted this dispute to be settled amicably out of court. Instead, Defendant has been dragged into an expensive trial that they did not want to escalate.
Furthermore, Defendant also argues that this court should rule against the Plaintiff’s application due to the Third consideration because assessing fees against Defendant would cause extreme hardship. As Defendant has argued, not only was this litigation avoidable, it was also expensive. Defendant argues that it would cause extreme hardship on them to rule in favor of Plaintiff since they are unable afford it. Plaintiff have quoted attorney’s fees in the
amount of $156,493.50 and costs in the amount of $14,494.32. Defendants argue that these fees and costs are unreasonable and excessive and would cause Defendants extreme hardship if awarded. As well, Plaintiff’s counter argument for this position in their Reply is unfounded and has not been supported with any legal authority.
Accordingly, if this Court considers these factors, they would support Defendant’s opposition and objection to Plaintiff’s Application.
- THIS COURT HAS THE DISCRETION TO NOT AWARD ATTORNEYS’ FEES AND COSTS
As Defendant previously argued, it is trite law that Attorneys’ fees and costs are awarded at the discretion of the Court, having full regard to the financial position of both parties, the circumstances surrounding the litigation, among other factors. Farrar v. Hobby, 113 S.Ct. 566, 574, 121 L.Ed.2d 494 (1992).
Therefore, Defendant reiterates that Plaintiff is not automatically entitled to the grant of fees and costs. Plaintiff’s Reply has failed to address this argument and failed to demonstrate why this Court should exercise its discretion to award attorney’s fees and costs. Furthermore, Plaintiff has failed to demonstrate any bad faith from the Defendants, which is central to their Application. This is because, as Defendant’s Opposition argued, this matter did not go to a full trial and there was no viva voce evidence adduced to demonstrate any bad faith or unreasonableness by Defendant. Plaintiff’s Reply has notably failed to address.
Consequently, Defendants urge this Honorable Court to decline to exercise its discretion in favor of Plaintiff as there is no sufficient basis for the exercise of such discretion.
- PLAINTIFF’S ATTORNEYS’ FEES AND COSTS ARE UNREASONABLE AND EXCESSIVE
Plaintiff makes a weak argument against Defendant’s assertion that the Attorney’s Fees and Costs in this matter are unreasonable. Plaintiff describes this assertion as “vague” while claiming that Defendants have not met their burden of demonstrating that any of Plaintiff’s fees or costs are unreasonable. However, Defendant’s counter this with the case of Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (Ariz. App., 1969), where an Arizona Court emphasized that the burden of proving the type, quality and extent of services offered to a claimant, lay with that claimant. Defendant argues that Plaintiff failed to provide a sufficient explanation of their breakdown of fees and costs. Defendant argues that the grounds for establishing unreasonableness include: (i) inadequate documentation; (ii) overstaffing and duplication of effort by plaintiffs’ counsel; and (iii) hours that were unproductive or otherwise unreasonable. Chalmers v City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986); Role Models America, Inc. v. Brownlee, 353 F.3d 962, 971-73 (D.C. Cir. 2004). Under these circumstances, there is no sufficient evidence on record to prove the number of hours spent in Plaintiff’s matter and whether in fact these numbers were necessary.
Consequently, Defendant respectfully submits that Plaintiff’s explanation and the totality of Plaintiff’s Application does not meet the required standard of proof in law. Therefore, this Honorable Court should find and hold that the fees and costs sought are unreasonable and excessive and decline to allow the Application.
- CONCLUSION
For the foregoing reasons, plaintiffs’ motion for attorney fees should be denied. To order RESPONSE AND OPPOSITION TO PLAINTIFF’S REPLY click here
Respectfully submitted
Dated:30th day of July 2019
By:______________________ By:______________________
AHMAD WALI MAILATYAR EDYTA KAMILA MAILATYAR
CERTIFICATE OF SERVICE
Defendants hereby certify that on July 30, 2019, they served a true and correct copy of the defendant’s response and opposition to plaintiff’s reply in support of Wright’s application for award of attorney’s Fees and Costs upon the counsel of record as indicated:
Quarles & Brady LLP Firm
Renaissance One Two North Central Avenue
Phoenix, Arizona 85004-2391
TELEPHONE 602.229.5200
Office of the U.S. Trustee
230 N. First Avenue, Suite 204
Phoenix, AZ 85003
Email: ustpregion14.px.ecf@usdoj.gov
Dated: 30th day of July 2019
By: ______________________ By: ______________________
WALI MAILATYAR EDYTA KAMILA MAILATYAR