SB BUILDING ASSOCIATES LTD PARTNERSHIP v. IRON MOUNTAIN INFORMATION MGMT., LLC

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________________

IN RE 388 ROUTE 22 READINGTON

Case No. 18-30155 (KCF)

HOLDINGS, LLC,

Chapter 7 Bankruptcy

Debtor.

SB BUILDING ASSOCIATES LIMITED

PARTNERSHIP,

Appellant,

Civil Action No. 3:20-cv-02954-FLW

v.

OPINION

IRON MOUNTAIN INFORMATION

MGMT., LLC

Appellee.

WOLFSON, Chief Judge:

This matter arises out of a dispute over attorneys’ fees. In the proceedings below, the

Bankruptcy Court awarded Iron Mountain Management, LLC (“Appellee” or “Iron Mountain”),

the former secured creditor of SB Building Associates Limited Partnership (“Appellant” or “SB”),

$2,375,288.01, after SB obtained $3,200,000 in an auction sale of 388 Route 22 Readington (“the

Property”) conducted by its trustee, Bunce D. Atkinson (“Trustee” or “Atkinson”). The award

represents Iron Mountain’s full secured claim plus interest, costs, and attorneys’ fees related to

various actions against SB to recover the value of its mortgage on the Property. SB appeals the

award on the grounds that the Bankruptcy Court’s decision is contrary to In re A & P Diversified

Technologies Realty, Inc., 467 F.3d 337, 341 (3d Cir. 2006), which stands for the proposition that

a foreclosure judgment terminates a mortgage, and even if it does not, Iron Mountain’s request for

attorneys’ fees is unreasonable. SB also argues that the Bankruptcy Court improperly charged fees

related to a sheriff’s sale to SB rather than Iron Mountain. For the reasons set forth below, I find

that the parties entered into an agreement for attorneys’ fees after the entry of the foreclosure

judgment, but remand for further proceedings as to the reasonableness of Iron Mountain’s request

for the paralegal fees, and who must bear the cost of the sheriff’s fee. Accordingly, the Bankruptcy

Court’s decision is AFFIRMED in part and VACATED in part. The matter is remanded for

further proceedings consistent with this Opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Iron Mountain is the former secured creditor of SB. In 2007, Iron Mountain sold SB the

Property, located at 388 Route 22 Readington, in exchange for a purchase money mortgage. SB

defaulted on that mortgage in 2009, giving rise to the present dispute. On July 7, 2009, to collect

on its mortgage, Iron Mountain initiated a foreclosure proceeding in New Jersey Superior Court,

which resulted in a foreclosure judgment against SB for $1,658,021.90, entered on January 28,

2011. The Superior Court increased the judgment to $1,722,027.81 on March 16, 2011. Iron

Mountain then scheduled a sheriff’s sale for July 31, 2013. On the day of the sale, however, SB

filed for Chapter 11 Bankruptcy, automatically staying the foreclosure. SB submitted a

reorganization proposal on October 29, 2013.

After considerable negotiation, on October 7, 2015, Iron Mountain and SB agreed to a

repayment plan (the “Plan”), the terms of which the Bankruptcy Court set forth in the Order

Confirming Second Modified Plan of Reorganization (“Confirmation Order”). The Pan provided

for $2,200,000 in total payments to Iron Mountain for its secured claim, including a $1,325,000

lump sum payment due before January 15, 2016. The Plan also provided that, if SB failed to make

such a payment, then it must make a balloon payment before January 1, 2018, for all outstanding

principal and interest.

SB did not make either the lump sum or the balloon payment. According to the

Confirmation Order, in the event of default, “(i) . . . all obligations owing to [Iron Mountain],

including principal and all accrued and unpaid interest, fees, costs, charges and attorney’s fees,

shall accelerate and become immediately due and payable; and (ii) the holder of the Class 1 Claim

shall be permitted (a) to proceed with any and all legal rights and remedies in accordance with the

Judgments, the secured lien, the Plan and the law.”1 See Confirmation Order. Iron Mountain filed

to amend the state court judgment against SB to reflect the $2,200,000 balance due, which the state

court granted. Iron Mountain then scheduled another sheriff’s sale for October 10, 2018. Yet,

again, just before the sale, SB filed for Chapter 11.

Under the 2015 Confirmation Order, in the event of a future insolvency proceeding, all

parties agreed to suspend any automatic stay imposed under 11 U.S.C. § 362. To that end, Iron

Mountain filed a motion for relief, which the Bankruptcy Court granted. The order prohibited Iron

Mountain from executing a foreclosure sale prior to January 19, 2019, so that the Trustee could

attempt to sell the Property at a higher value than Iron Mountain might obtain otherwise. A

subsequent order extended the stay through September 30, 2019. When the Trustee failed to sell

the Property before that date, Iron Mountain scheduled a third sheriff’s sale for October 2, 2019.

That sale, too, was postponed to October 30, 2019, then to November 20, 2019, and ultimately to

January 8, 2020, to give the Trustee more time to market the Property. The Trustee secured a buyer

at auction on December 17, 2019, for $3,200,000.

1 The “Class 1 Claim” refers to Iron Mountain’s secured claim for $2,200,000 in connection with its

extinguished mortgage.

On January 13, 2020, Iron Mountain filed a motion to compel the Trustee to pay from the

proceeds of the auction sale, Iron Mountain’s full secured claim, plus interests, attorneys’ fees,

and costs, totaling $2,375,288.01. In the same motion, Iron Mountain argued SB should pay the

sheriff’s fee of $46,791.91 for the foreclosure sale, which the auction obviated. After various cross-

motions, the Bankruptcy Court approved the sale price on January 28, 2020, but did not decide

Iron Mountain’s motion for fees and costs, instead directing the Trustee to hold them in escrow

pending a hearing.

On March 3, 2020, after a hearing, the Bankruptcy Court granted Iron Mountain’s motion

for fees and costs, and determined that SB must pay the sheriff’s fee. The Bankruptcy Court rested

its decision on three grounds. First, 11 U.S.C. § 506(b), rather than New Jersey Rule 4:42-9,

governs the amount of attorneys’ fees, because “a natural reading of [§] 506(b)” reveals “no

reference to State law,” the mortgage note survived the foreclosure judgment, and the merger

doctrine does not “trump 506(b).” Second, the fees requested by Iron Mountain are “eminently

reasonable,” because SB has “chosen to make this . . . an expensive case” and “cannot now

complain” about the costs undertaken by Iron Mountain in response. Third, it is “fair[]” to charge

SB with the sheriff’s fee because, if Iron Mountain had not decided to forego the sheriff’s sale,

then there would not be any money left for creditors besides Iron Mountain. See IM 163, at 17:17-

25, 18:2-5, 18:2-25. The Bankruptcy Court accordingly entered an order directing the Trustee to

pay Iron Mountain $2,375,288.01.

On March 16, 2020, SB appealed that order, which is presently before this Court. The

parties’ dispute boils down to three issues: whether they have an agreement for attorneys’ fees

under 11 U.S.C. § 506(b); if so, whether the attorneys’ fees are reasonable; and whether, in any

event, the Bankruptcy Court erred in directing the Trustee rather than Iron Mountain to pay the

sheriff’s fee.

II. LEGAL STANDARD

This Court has jurisdiction to hear this appeal under 28 U.S.C. § 158(a). See also In re

Walsh Trucking Co., 838 F.2d 698, 701 (3d Cir. 1988) (“We believe that the considerations that

led this court to adopt the more flexible standards of finality in reviewing bankruptcy proceedings

are equally applicable in the context of appeals of orders of the bankruptcy court to the district

court.”). The Court may “affirm, modify, or reverse a bankruptcy judge’s judgment, order, or

decree or remand with instructions for further proceedings.” Fed. R. Bankr. P. 8013.

The Court reviews the Bankruptcy Court’s findings of fact under a clearly erroneous

standard and legal conclusions under a de novo standard. See id.; Donaldson v. Bernstein, 104

F.3d 547, 551 (3d Cir. 1997); Chemetron Corp. v. Jones, 72 F.3d 341, 345 (3d Cir. 1995). A factual

finding is clearly erroneous when “the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” In re CellNet Data Sys., Inc., 327

F.3d 242, 244 (3d Cir. 2003) (quoting United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948)). Where an issue presents mixed questions of law and fact, the Court applies the

relevant standard to each component of the issue. Chemetron, 72 F.3d at 345.

III. DISCUSSION

SB argues on appeal that 11 U.S.C. § 506(b), which permits an over-secured creditor to

recover reasonable attorneys’ fees from a debtor, is not applicable because there is no agreement

between the parties providing for attorneys’ fees. Even if there is an agreement for attorneys’ fees

under § 506(b), SB argues that the Bankruptcy Court failed to adequately determine whether Iron

Mountain’s fee request is reasonable. In any event, SB argues that the Bankruptcy Court should

charge Iron Mountain, not SB, with the sheriff’s fee. Iron Mountain disputes all three points. It

argues that it is eligible for attorneys’ fees under § 506(b) because the parties’ various court orders

constitute an agreement, that its fee request is reasonable because its actions in this litigation were

defensive, and that SB should pay the sheriff’s fee.

A. Agreement Under § 506(b) for Attorneys’ Fees

New Jersey courts follow the “American rule,” where parties bear their own litigation costs,

including attorneys’ fees. See, e.g., McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J.

546, 554-55 (1993); A&P, 467 F.3d at 341 (citing McKeown-Brand). Courts recognize two

exceptions to this rule: where statutory provisions exist providing for fees and where a contractual

provision allocates fees. See Travelers Casualty & Surety Co. v. Pacific Gas & Elect. Co., 549

U.S. 443, 448 (2007) (“[A]n otherwise enforceable contract allocating attorney’s fees (i.e., one

that is enforceable under substantive, nonbankruptcy law) is allowable in bankruptcy except where

the Bankruptcy Code provides otherwise.”); Smiriglio v. Hudson United Bank, 98 Fed. App’x.

914, 915 (3d Cir. 2004) (enforcing contractual provisions for attorneys’ fees “under [New Jersey]

common law principles as a deliberate bargain between private parties”); see also Regency Savings

Bank, F.S.B. v. Morristown Mews, L.P., 363 N.J. Super. 363, 366 (App. Div. 2003) (“[C]ontractual

fee-shifting agreements in the lender/borrower context are generally enforceable.”).

New Jersey law contains a statutory provision providing for attorneys’ fees in foreclosure

actions. Specifically, Rule 4:42-9(a)(4) states that a plaintiff may recover up to $7,500 in attorneys’

fees in a qualified foreclosure action. Federal law also contains a statutory fee provision, 11 U.S.C.

§ 506(b), which preempts state law where the value of a foreclosed property exceeds the value of

an allowed secured claim. Under § 506(b), the holder of an allowed secured claim is entitled to

“any reasonable fees, costs, or charges provided for under the agreement or State statute under

which such claim arose.” Id. A creditor must satisfy four elements to be eligible for attorneys’ fees

under § 506(b): it must have a secured claim, it must be over-secured, its attorneys’ fees must be

reasonable, and its attorneys’ fees must be provided for in an agreement. See In re Kord Enterprises

II, 139 F.3d 684, 689 (9th Cir. 1998) (cited in A&P); see also Ryker v. Current, 338 B.R. 642, 648

(D.N.J. 2006) (“In general, for attorneys’ fees and costs to be part of an allowed secured claim

under this section, a creditor must be oversecured and the charges must be: (1) provided for under

the agreement under which such claim arose; and (2) reasonable.”). Here, since SB seeks review

of the Bankruptcy Court’s legal conclusion applying § 506(b), I review the issue de novo. See

Brown v. Pennsylvania State Employees Credit Union, 851 F.2d 81, 84 (3d Cir. 1988); In re

Morissey, 717 F.2d 100, 104 (3d Cir. 1983); accord Sheehan v. Dobin, No. 10-6288, 2011 WL

3625586, at *2 (D.N.J. Aug. 15, 2011).

There is no dispute that Iron Mountain has a secured claim, since it had a lien on, and

obtained a foreclosure judgment against, the property in which it has an interest. See United States

v. Ron Pair Enterprises, Inc., 489 U.S. 235, 239 (1988) (defining a secured claim as a claim “by

creditors against the estate that [is] secured by a lien on property in which the estate has an interest

. . . to the extent of the value of the property on which the lien is fixed”). Iron Mountain is also

clearly over-secured, since the property in which it has an interest sold at auction for $3,200,000,

or $1,000,000 more than the amount SB owed to satisfy its claim. See id. (defining an over-secured

claim as “any claim that is for an amount less than the value of the property securing it”). The

parties’ primary dispute centers on whether they have an agreement providing for attorneys’ fees.

The Bankruptcy Court found Iron Mountain to be entitled to attorneys’ fees under § 506(b) for two

reasons: § 506(b) does not “contain [any] reference to State law” and there continues to be a

binding “Mortgage Note which is the agreement under which such claim arose.”2 See IM 163, at

17:17-25, 18:2-5, 18:2-23.

SB argues that the Bankruptcy Court erred as matter of law by holding that the Mortgage

Note survived the foreclosure judgment. According to SB, because its mortgage with Iron

Mountain merged with the Superior Court’s foreclosure judgment, it cannot constitute an

“agreement” for attorneys’ fees under § 506(b). Under the merger doctrine, contracts are deemed

to merge with judgments, which prohibits a plaintiff from asserting a post-judgment claim based

on the terms of a contract. See In re Roach, 824 F.2d 1370, 1377 (3d Cir. 1987) (“In New Jersey,

as in many states, the mortgage is merged into the final judgment of foreclosure and the mortgage

contract is extinguished.”); see also A&P, 467 F.3d at 341-42 (citing Roach). Here, the New Jersey

Superior Court entered a foreclosure judgment against SB, which extinguished SB’s mortgage

with Iron Mountain. The mortgage along with its fee provision ceased to govern the parties’

obligations at that time. See In re Stendardo, 991 F.2d 1089, 1094-95 (3d Cir. 1993) (“[I]t is

elementary that judgment settles everything involved in the right to recover, not only all matters

that were raised, but those which might have been raised. The cause of action is merged in the

judgment which then evidences a new obligation.”) (quoting Lance v. Mann, 360 Pa. 26, 28

(1948)). Without explanation, the Bankruptcy Court found the merger doctrine to be inapplicable

and the Mortgage Note to survive the foreclosure judgment.3 I cannot find any legal basis for that

determination.

2 The Mortgage Note contains a provision providing for attorneys’ fees.

3 Specifically, based on a general citation to In re McCormick, 894 F.3d 953, 957 (8th Cir. 2018), the

Bankruptcy Court rejected that “the Merger Doctrine trumps [§] 506(b).” IM, 18:24-19:1. However, the Eighth Circuit

in McCormick awarded attorneys’ fees under § 506(b), because “an agreement in the confirmed bankruptcy plan

provided for the payment of attorneys [sic] fees,” not because the merger doctrine was in some way inapplicable in §

506(b) cases. 894 F.3d at 957. Indeed, in that case, the parties’ bankruptcy plan, which was “created . . . well after the

judgment liens were entered,” along with “many agreements in which [the debtor] agreed to pay [the creditor’s]

attorney fees,” constituted “the instruments under which [the creditor’s] ‘claim arose’” under § 506(b). Id.at 957-58.

The Third Circuit recognizes an exception to the merger doctrine. A provision in a

mortgage can survive merger if “the mortgage clearly evidences [an] intent to preserve the

effectiveness of that provision post-judgment.” In re Stendardo, 991 F.2d at 1094. This is true even

if the mortgage otherwise terminates. While acknowledging this exception, SB argues that it does

not apply here. In its view, because its mortgage with Iron Mountain lacks an anti-merger

provision, the Note does not establish any intent to preserve Iron Mountain’s claim for attorneys’

fees post-judgment. Iron Mountain fails to point to any other language in the mortgage suggesting

a different result. Id. at 1095 (“No language appears in the Mortgage at issue here that indicates

the parties’ intent to preserve the Debtors’ obligation . . . beyond the date of the Judgment.”).

Critically, Iron Mountain, as the mortgagee, could have protected its claim for attorneys’ fees in

the event of default by drafting language to that effect, and it assumed the risks associated with

not doing so. See id. at 1096 (“The parties could have easily included such a provision in the

Mortgage had this been their intent.”). I, therefore, find that the mortgage merged with the

foreclosure judgment, the exception to the merger doctrine does not apply, and the Bankruptcy

Court incorrectly based Iron Mountain’s entitlement for attorneys’ fees under § 506(b) on the

Mortgage Note.4

In fact, in discussing the merger doctrine, the McCormick Court stated only that it need not “parse[] into each of the

documents that provided for fees,” such as the original mortgage note or the foreclosure judgment itself, because “[i]n

the final agreement between the parties, the McCormicks again agreed to pay reasonable attorney fees in the

[confirmed bankruptcy plan].” Id. at 958. Thus, while the court in McCormick awarded fees under § 506(b), see infra,

it does not do so for the reason the Bankruptcy Court found.

4 Iron Mountain also argues that the merger doctrine should not apply because “[o]ther courts . . . have

examined the merger issue under New Jersey law and have found recovery of post-judgment legal fees to be

appropriate.” It cites In Martino v. EverHome Mortg., 411 Fed. App’x. 508, 511-12 (3d Cir. 2010), for the proposition

that “an exception to the Merger Doctrine applies when bankruptcy proceedings take place after a foreclosure

judgement, but before the occurrence of a foreclosure sale,” as here. While the Bankruptcy Court declined to “even

enter that fray,” IM, at 18:11-12, this Court does not read Martino as creating any such exception. Martino held that,

when a foreclosure sale takes place after a foreclosure judgment, and a creditor already obtained attorneys’ fees as

part of the judgment based on a fee provision in its mortgage, “one would expect [the creditor] to incur expenses that

were not included in the [] judgment,” and A&P itself is not a bar to further recovery in such a case, nor does New

Jersey Rule 4:42-9 “limit all fees a lender may recover while any foreclosure is pending.” Id. The facts are far less

Notwithstanding the mortgage, Iron Mountain argues on appeal that either the

Confirmation Order, the order instituting a stay against a foreclosure sale, or the order approving

the auction sale establishes an agreement for attorneys’ fees. See Opp. Br., at 29. Parties may

revive the terms of an extinguished mortgage by post-judgment agreement. See, e.g., In re

Stendardo, 991 F.2d at 1095 (“[T]he parties agreed to revive the mortgage and note by an

agreement . . . thereby reinstating the pre-existing terms and conditions.”). Parties may also impose

a new obligation for attorneys’ fees by post-judgment agreement, regardless of whether they

intended to revive a term in the extinguished mortgage. See Ryker, 338 B.R. at 649 (“This provision

[in a Forbearance Agreement] clearly expresses the parties’ intent to allow the [creditor] to pursue

all of their rights under the Forbearance Agreement, including the receipt of attorneys’ fees, should

[the debtor] default under the agreement and a foreclosure sale occur.”); In re Olick, 221 B.R. 146,

152 (Bankr. E.D. Pa. 1998) (“The allowance of attorneys’ fees in a proof of claim is governed by

section 506 of the Bankruptcy Code.”); supra, note 3 (discussing McCormick, 894 F.3d at 957);

see also Ron Pair Enterprises, 489 U.S. at 1030 (“The natural reading of the phrase [in § 506(b)]

. . . gives one having a secured claim created pursuant to an agreement the right to recover

reasonable fees, costs, and charges provided for in that agreement.”).

The Bankruptcy Court did not rely on any court order to determine that Iron Mountain and

SB have an agreement for attorneys’ fees under § 506(b), but it could have relied on the

Confirmation Order, which is designated as secured and asserts a total liability of $2,200,000 with

the Property as collateral. Notably, the parties bargained for the provisions in the Confirmation

Order, including the relevant fee agreement, by engaging in “considerable negotiation” as to the

terms of repayment. The Bankruptcy Court then approved the plan. SB does not dispute that the

complicated here. Iron Mountain has made a single claim for all of its attorneys’ fees post-judgment, and is barred by

the merger doctrine from obtaining fees based on the Mortgage Note itself.

Order was the product of the parties’ negotiated terms. Rather, SB claims that the Order is too

general or vague to constitute an agreement for attorneys’ fees in this context. That argument,

however, is belied by the language of the Order itself. Specifically, the Order states that Iron

Mountain is entitled to “all obligations . . . including . . . attorney’s fees” in the event of default.

See IM 100-1; IM 16-1; Ex. F; Opp. Br., at 32 (emphasis added). The Order also expresses the

parties’ intention to allow Iron Mountain to pursue recovery for the fees it incurs, stating that Iron

Mountain “shall be permitted (a) to proceed with any and all legal rights and remedies in

accordance with the Judgments, the secured lien, the Plan, and the law.” Id. On January 1, 2018,

SB defaulted on the Confirmation Order by failing to pay all outstanding principal and interest, a

balloon payment that was due, because it failed to make a lump sum payment before January 15,

2016. Iron Mountain promptly scheduled a foreclosure sale, which it delayed only after reaching

an agreement with the Trustee of SB’s estate. As in Ryker, “should [SB] default under the

agreement and a foreclosure sale occur,” the Confirmation Order unambiguously grants Iron

Mountain the right to recover attorneys’ fees. 338 B.R. at 649. As such, I find that the Confirmation

Order constitutes an agreement for attorneys’ fees under § 506(b), and that Iron Mountain is not

limited to the fees available under New Jersey Rule 4:42-9.

B. Reasonableness of the Attorneys’ Fees

Section 506(b) fees must also be reasonable. SB argues that the Bankruptcy Court made

two errors in connection with the reasonableness of Iron Mountain’s fee request. First, SB claims

that Iron Mountain acted unreasonably in litigating this matter, and thus, its legal fees are

unreasonable. Second, SB argues that the Bankruptcy Court failed to adequately assess the

reasonableness of $41,000 billed by a paralegal. See Reply Br., at 11; IM 163, at 13:1-14:7.

An over-secured creditor who has an agreement with a debtor for attorneys’ fees is entitled

to recover any reasonable fees. See 11 U.S.C. § 506(b). “Fee awards are reviewed for an abuse of

discretion, which can occur ‘if the judge fails to apply the proper legal standard or to follow proper

procedures in making the determination, or bases an award on findings of fact that are clearly

erroneous.’” Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 50 F.3d 253, 257 (3d Cir.

1995) (quoting Electro-Wire Prods., Inc. v. Sirote & Permutt, P.C. (In re Prince), 40 F.3d 356,

359 (11th Cir. 1994) (further citations omitted)).

A fee request is reasonable if both “the itemized fees themselves” and “the creditor’s

actions” in the litigation are reasonable. In re West Elec., Inc., 158 B.R. 37, 40 (Bankr. D.N.J.

1993). To determine the reasonableness of a creditor’s actions, a court considers “whether the

creditor took the kind of reasonable actions similarly situated creditors would have taken, and

whether such actions and fees were outside the range so as to be deemed unreasonable.” Id. While

attorneys’ fees will not be denied solely because a creditor’s legal actions were unsuccessful, the

creditor “must not impede the debtor’s reorganization by saddling the debtor with attorney’s fees

and expenses.” Id. at 41. To determine whether the fees themselves are reasonable, a court looks

to twelve factors: “(1) the time and labor required; (2) the novelty and difficulty of the questions;

(3) the skill required to perform the legal service properly; (4) the preclusion of other employment

by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or the circumstance; (8) the amount involved

and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the

undesirability of the case; (11) the nature and length of the professional relationship with the client;

and (12) awards in similar cases.” Id. at 42 (citing Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717–19 (5th Cir. 1974)).

In the proceeding below, the Bankruptcy Court determined that Iron Mountain’s fees are

reasonable because it undertook its actions in a “good faith attempt . . . to protect its claim during

these eleven years of litigation.”5 IM 163, at 19-20. Although the Bankruptcy Court could have

provided more in the way of analysis, its point is well-taken: virtually all of Iron Mountain’s

actions in this matter were defensive. Since 2011, Iron Mountain has defended an initial

foreclosure judgment in state court, a Chapter 11 bankruptcy, a reorganization plan, a default on

that plan, further state court litigation amending the foreclosure judgment and reorganization plan,

a second bankruptcy proceeding, three District Court appeals, an appeal to the Third Circuit, and

the present dispute. No doubt, Iron Mountain’s actions were mostly “the result of actions taken

by” SB, which a similarly situated creditor would reasonably undertake to protect its interests.

Ryker, 338 B.R. at 652; see also Mfr’s Nat’l Bank v. Auto Specialties Mfg. Co., 18 F.3d 358, 362

(6th Cir. 1994) (holding that a secured creditor may incur attorneys’ fees compensable under §

506(b) when it responds to litigation commenced by the debtor); In re Cummins Util., L.P., 279

B.R. 195, 205 (Bankr. N.D. Tex. 2002).6 The Bankruptcy Court certainly did not err in this respect.

The only conduct to which SB can point as potentially unnecessary, and unsuccessful, is

Iron Mountain’s decision to contest the Chapter 7 conversion. Even so, Iron Mountain did not

undertake that action with the goal of disrupting SB’s reorganization plan or saddling SB with fee-

related debt, but rather to protect its claim, which could have been diminished in a Chapter 7

5 The Bankruptcy Court’s full statement, entered into the record, is as follows: “As Iron Mountain extensively

outlines in its papers, this is a far from ordinary case. There have been two bankruptcy filings, several actions in the

State Court and several appeals up to and including to the Third Circuit. The equity holder has chosen to make this a

[contention] and, therefore, expensive case. So it cannot now complain about the amount of the fees which were all

undertaken in a good faith attempt by Iron Mountain to protect its claim during these 11 years of litigation.” See IM

163, at 19-20. Iron Mountain’s papers included a 104-page affidavit. See Opp. Br., at 41.

6 SB also apparently applied for a second mortgage on the Property, which it never disclosed in its first

bankruptcy proceeding, “in an effort to cloud title,” and challenged Iron Mountain’s motion for relief from the

automatic stay, a challenge which it waived in the Confirmation Order, both of which cost Iron Mountain

“considerable time.” See IM 163, at 5:12-25.

proceeding rather than repaid in a Chapter 11 proceeding. Iron Mountain then readily consented

to SB’s repayment plan and delayed four sheriff’s sales between 2018 and 2020, such that the

Trustee of SB’s estate could sell the Property for more profit, despite having no legal obligation to

do so. As the Bankruptcy Court noted, Iron Mountain’s actions in this regard resulted in a sale

price exceeding its secured claim by $1,000,000, which ensured a payout to SB’s unsecured

creditors as well as SB, and which satisfied all administrative costs. Accordingly, the Bankruptcy

Court did not err in its determination that Iron Mountain acted reasonably in light of the

circumstances created by SB. Like the Bankruptcy Court, I find no basis for penalizing Iron

Mountain for defending its interests.

SB further argues that the Bankruptcy Court’s reasonableness inquiry is inadequate,

because the Bankruptcy Court failed to address SB’s contention that “approximately $41,000” in

fees billed by a paralegal are unreasonable. See IM 163, at 13:1-14:7. According to SB, these fees

are unreasonable because they relate to administrative and clerical work, which is “law firm

overhead” not “legal services,” even if performed by a paraprofessional. Reply Br., at 12; Mot. to

Remand, at 28. Iron Mountain disagrees, arguing that expenses incurred by paralegals are

compensable (perhaps as a matter of law) because they conserve the debtor’s estate. See Opp. Br.,

at 42-43; IM, at 15:16-20.

In analyzing a similar provision in the Bankruptcy Code, the Third Circuit rejected the

categorical approach advanced by both parties here, where a court will “designate services as either

clerical or paraprofessional and [] allow or disallow compensation for those services on the basis

of such designation alone.” In re Busy Beaver Bldg. Centers, Inc., 19 F.3d 833, 848 (3d Cir. 1994).7

7 While the Third Circuit’s decision in In re Busy Beaver concerned a different, but related, bankruptcy

provision, 11 U.S.C. § 330, which compensates the trustees of bankruptcy estates, it is nevertheless instructive here.

See Missouri v. Jenkins, 491 U.S. 274, 283 (1989)(holding that “attorney’s fees awarded under [fee-shifting] statute[s]

are to be based on market rates for the services rendered.”)

Instead, the Third Circuit held, “the bankruptcy court should review fee applications not for

whether each particular service undertaken by a paralegal is clerical or paraprofessional by nature,

but for whether non-bankruptcy attorneys typically charge and collect from their clients fees for

that particular service when performed by a member of that profession, and the rates charged and

collected therefor.” Id. at 849. Because “the classification of services as clerical or non-clerical

does not decide the question of compensability,” id. at 851, and “clerical services may be

compensated in the proper context,” id., the parties’ dispute over whether the “expense of a

paralegal is independent from administrative and clerical services which are deemed ‘law firm

overhead,’” Opp. Br., at 42, is irrelevant, and the answer to that question is not dispositive of

whether the $41,000 paralegal fee in this matter constitutes a reasonable fee under § 506(b).8

In this matter, the Bankruptcy Court based its decision to grant Iron Mountain’s attorneys’

fees, including the $41,000 paralegal fee, on the fact that “this is a far from ordinary case.” See

supra, note 3. That arguably “distinguishes this case from those involving other secured creditors,”

Ryker, 338 B.R. at 653, and implicitly references several factors relevant in the reasonableness

inquiry, such as the time and labor required to prosecute this case, the novelty and difficulty of the

legal issues involved, the ability of the attorneys involved, and the undesirability of the case. But

that is the extent of the Bankruptcy Court’s analysis. There is no indication that the Bankruptcy

Court considered the compensability of the $41,000 paralegal fee based on whether attorneys in

the non-bankruptcy context generally charge their clients for that particular service, nor any

indication that the Bankruptcy Court weighed the twelve-factor test. See In re West, 158 B.R. at

8 Indeed, the goal of the reasonableness analysis in connection with such a fee is not “compensating

professionals or paraprofessionals solely for those services which just a professional or paraprofessional can provide,

but instead . . . retaining competent legal representation for the debtor” by applying the billing practices of

nonbankruptcy professionals. In re Beaver, 19 F.3d at 849-50.

42. Thus, despite the “substantial degree of discretion” granted to bankruptcy courts “in assessing

the reasonableness of claimed fees and costs,” id., the Bankruptcy Court, here, failed to apply the

proper legal standard or provide an adequate basis for reviewing the paralegal fee. See, e.g., Ryker,

338 B.R. at 652.

Even if I had a better record before me, determining the reasonableness of the $41,000 fee

is a factual inquiry, which this Court should not make on appeal. See Ins. Co. of N. America v.

Cohn (In re Cohn), 54 F.3d 1108, 1118 (3d Cir. 1995) (“The bankruptcy court failed to make

factual findings on these matters. We have consistently deferred to the fact-finding duties of the

bankruptcy court and have held that where sufficient facts have not been developed by that court,

the proper response is to remand.”); see also Wheeling-Pittsburgh Steel Corp. v. McCune, 836

F.2d 153, 163 (3d Cir. 1987); In re Abbotts Dairies of Pa., Inc., 788 F.2d 143, 150–51 (3d Cir.

1986). Accordingly, I remand for a determination of the reasonableness of the $41,000 paralegal

fee.9

In sum, I find that the Confirmation Order constitutes an agreement for attorneys’ fees

under § 506(b), but I remand for further proceedings regarding the $41,000 paralegal fee.

C. Sheriff’s fee

The final issue in this case is who should pay the sheriff’s fee of $46,791.91, for the

sheriff’s efforts to conduct a foreclosure sale, notwithstanding the fact that those efforts were

interrupted a number of times—when SB filed for bankruptcy initially, when it filed for bankruptcy

a second time, and four times while the Trustee marketed the Property—and ultimately obviated

9 As the Third Circuit has stated, however, the Bankruptcy Court need not “become enmeshed in a meticulous

analysis of every detailed facet of the professional representation. It . . . is not our intention that the inquiry into the

adequacy of the fee assume massive proportions, perhaps even dwarfing the case in chief.” Lindy Bros. Builders, Inc.

v. American Radiator & Std. Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (en banc). “Because its time is precious,

the reviewing court need only correct reasonably discernible abuses, not pin down to the nearest dollar the precise fee

to which the professional is ideally entitled.” In re Busy Beaver, 19 F.3d at 844-45.

when the Trustee satisfied the foreclosure judgment with proceeds from the auction. Iron Mountain

argues that the sheriff’s fee accrued when it scheduled the first sheriff’s sale in 2013 and that SB

must pay it. SB argues that the sheriff must look to the party who employed him to collect his fee,

i.e., Iron Mountain.

The Bankruptcy Court found that “under the circumstances of this case it is appropriate to

escrow the amount of a potential Sheriff’s fee because it cannot be overstated or stated too

frequently that if Iron Mountain had not decided to forgo the Sheriff Sale and allow the property

to be sold by the Trustee, . . . there would be no money for any [c]reditors of this [e]state or for the

equity holder other than for Iron Mountain.” IM, at 16-21. “So, fairness would dictate that the fees

for a cancelled Sheriff sale, if any, should not be borne by Iron Mountain.” Id. The Bankruptcy

Court cited no support in reaching its decision, nor any reason why fairness should be the deciding

factor.

N.J.S.A. 22A:4-8 governs sheriffs’ fees in foreclosure actions. In relevant part, it provides

that “[w]hen the execution is settled without actual sale and such settlement is made manifest to

the officer, the officer shall receive 1/2 of the amount of percentage allowed herein in case of sale.”

N.J.S.A. 22A:4-8. Courts have found that “[a]n auction or private sale performed by a chapter 7

trustee, subsequent to the scheduling of a foreclosure sale by a sheriff, constitutes a settlement

within the meaning of [the statute].” In re Smith, 599 B.R. 266, 271 (Bankr. D.N.J. 2019). That

finding is consistent with the well-settled principle that “payment or satisfaction of a mortgage”

and “anything . . . done between [the parties], by which a sale is rendered unnecessary, . . . must

be considered a settlement.” In re Jones, No. 06-16416, 2008 WL 3833425, at *3 (Bankr. D.N.J.

Aug. 13, 2008); Sturges v. Lackawanna & W.R. Co., 27 N.J.L. 424, 426 (1859) (“It is of no

consequence to the sheriff how the matter is arranged between the plaintiff and the defendant. If

anything is done between them, by which a sale is rendered unnecessary, that must be considered

a settlement within the meaning of the act.”). Where a foreclosure sale is scheduled but

subsequently obviated by settlement, then, “[t]he Sheriff is entitled to receive one-half of the

statutory commission pursuant to the plain language of the statute.” In re Smith, 599 B.R. at 271.

The parties here do not dispute that the auction sale constitutes a settlement, nor that the sheriff is

entitled to the statutory fee for his efforts.

The question is who should remit payment to the sheriff. N.J.S.A. 22A:4-8 does not provide

an answer, nor is there any controlling case law from the Third Circuit or the New Jersey Supreme

Court.10 The case law that exists tends to support SB. For example, in Howard Savings Bank v.

Sutton, 246 N.J. Super. 482, 587 (Ch. Div. 1990), the New Jersey Superior Court agreed that a

sheriff “is entitled to be paid for his services by the seller, based on the proceeds of the sale,”

because the sheriff is simply “a public auctioneer whose fees and charges are fixed by statute . . .

[and] deducted from the gross bid amount.” Id. at 1335-36 (“The auctioneer usually looks to the

seller for his compensation.”). In this regard, a sheriff conducting a foreclosure sale is an agent of

the foreclosing seller. See, e.g., In re Smith, 599 B.R. at 274 (“The purpose of a sheriff's sale is so

that a creditor can recoup money on a delinquent debt. During this process, the sheriff effectively

serves as an agent of the creditor.”). SB also finds support from In re Loehwing, 320 B.R. 281, 288

(Bankr. D.N.J. 2005). There, the bankruptcy court found that “where no money has been collected

by the sheriff he must look to the party who employed him for his compensation.”11 Id. New Jersey

10 My determination of this state law issue constitutes a prediction of how the New Jersey Supreme Court would

rule. See Nationwide Mutual Ins. Co. v. Buffetta, 230 F.3d 634 (3d Cir. 2000).

11 Iron Mountain contends that Loehwing supports rather than undermines its claim. See Opp. Br., at 47-48. It

points to seemingly contradictory language in Loehwing stating that “the amount necessary to satisfy the foreclosure

judgment may be increased by the sheriff’s fees.” 320 B.R. at 291. Iron Mountain interprets this language to mean

that SB’s estate must bear the sheriff’s fee on top of the amount of Iron Mountain’s secured claim. See Opp. Br., at

48. Iron Mountain’s interpretation takes Loehwing out of context. Immediately before the language that Iron Mountain

quotes, the court explained that “[t]he foreclosing mortgagee is liable for the sheriff’s commission.” Id. In view of that

state courts decisions interpreting N.J.S.A. 22A:4-8 further support SB’s position that a sheriff

must look to the mortgagee for the statutory fee. See, e.g., BTD-1996 NPC 1 L.L.C. v. 350 Warren

L.P., 170 N.J. 90, 94 (2001); Jacoby v. Eseo, 329 N.J. Super. 119 (App. Div. 2000); Resolution

Trust Corp. v. Lanzaro, 140 N.J. 244 (1995). In fact, a survey of New Jersey’s 21 sheriffs

conducted by a court-appointed expert in Loehwing found that 19 out of 21 sheriffs bill the

plaintiff’s attorney when asked “from whom do you seek payment?,” which is exactly what

happened in the present case: the sheriff sent its fee bill to Iron Mountain. Opp. Br., at 46. However,

because the Bankruptcy Court did not mention any case law in its decision, I cannot say whether

it overlooked this precedent, or found it inapplicable or unpersuasive for some other reason.

Although the case law supports SB as to who should pay the sheriff’s fee, the Bankruptcy

Court also did not consider whether an agreement between the parties requires a different

conclusion. For example, it is possible that the parties displaced the “seller pays” rule with their

Confirmation Order, which grants Iron Mountain a right to all “fees, costs, charges, and attorneys’

fees” in the event of default. IM 100-1; IM 16-1; Ex. F. That depends on whether the sheriff’s fee

constitutes a “cost” covered by the Confirmation Order. See, e.g., N.J.S.A. 22A:2-8 (“A party to

whom costs are awarded . . . is entitled to include in his bill of costs . . . Sheriff's fees for service

of process or other mandate or proceeding.”); In re Smith, 599 B.R. at n.3. The Bankruptcy Court

did not discuss the Confirmation Order in this context; as such, this Court has no basis to review

the decision, even under a deferential standard of review. Neither did the parties adequately brief

the issue such that I can independently make a decision on this appeal. Because the outcome of

this inquiry may involve factual findings, and because the issue should be resolved by the

holding, the only plausible reading of the quoted language is that a sheriff’s fee is included in the amount necessary

to satisfy the foreclosure judgment, effectively reducing the amount of the secured claim by the amount of the fee. See

id. at 290. The decision cannot be read to mean that the sheriff’s fee is added to the secured claim.

Bankruptcy Court in the first instance, I remand for further proceedings regarding who should pay

the sheriff’s fee based on the parties’ understanding of the Confirmation Order.

IV. CONCLUSION

For the aforementioned reasons, I find that the Confirmation Order constitutes an

agreement for attorneys’ fees under 11 U.S.C. § 506(b), but I remand for a determination of the

reasonableness of the $41,000 paralegal fee and who should pay the sheriff’s fee. Accordingly,

the Bankruptcy Court’s decision is AFFIRMED in part and VACATED in part.

Dated: November 16, 2020 /s/ Freda L. Wolfson

Hon. Freda L. Wolfson

Chief Judge