IN RE: WIND AND WAVE; NORTH SPORTS v. KNUPFER
The Ninth Circuit Court of Appeals today released an order and opinion in IN RE: WIND AND WAVE; NORTH SPORTS v. KNUPFER, No. 05-56254, a bankruptcy appeal. The panel consisted of Cynthia Holcomb Hall and Consuelo M. Callahan, Circuit Judges, and Lyle E. Strom, Senior District Judge.
HALL, Circuit Judge:
Pursuant to Bankruptcy Code Section 503(b)(4), Appellant creditors petitioned the bankruptcy court to recover legal fees incurred in connection with filing an involuntary Chapter 7 petition against the debtor. The bankruptcy court denied the fees, but the Bankruptcy Appellate Panel of the Ninth Circuit (”BAP”) reversed, ruling that the creditors’ attorneys were eligible under Section 503(b)(4) for compensation for their services in connection with the involuntary petition. The trustee’s appeal of that decision was voluntarily dismissed. The instant appeal is from the BAP’s subsequent order denying the creditors’ motion for fees on appeal. The creditors argue that Section 503(b)(4) entitles them to attorney’s fees for the successful appeal of the lower court’s decision. We agree, and hold that it was error for the BAP to deny the fee motion without explaining that the denial was without prejudice to filing the appropriate Section 503(b)(4) fee request in the bankruptcy court. 28 U.S.C. § 158(d) grants us jurisdiction to hear this appeal. We VACATE the BAP’s denial of the fee award and. . .
The opinion filed November 1, 2007, is hereby superseded by the amended opinion below. OPINION HALL, Circuit Judge:
Pursuant to Bankruptcy Code Section 503(b)(4), Appellant creditors petitioned the bankruptcy court to recover legal fees incurred in connection with filing an involuntary Chapter 7 petition against the debtor. The bankruptcy court denied the fees, but the Bankruptcy Appellate Panel of the Ninth Circuit (”BAP”) reversed, ruling that the creditors’ attorneys were eligible under Section 503(b)(4) for compensation for their services in connection with the involuntary petition. The trustee’s appeal of that decision was voluntarily dismissed. The instant appeal is from the BAP’s subsequent order denying the creditors’ motion for fees on appeal. The creditors argue that Section 503(b)(4) entitles them to attorney’s fees for the successful appeal of the lower court’s decision. We agree, and hold that it was error for the BAP to deny the fee motion without explaining that the denial was without prejudice to filing the appropriate Section 503(b)(4) fee request in the bankruptcy court. 28 U.S.C. § 158(d) grants us jurisdiction to hear this appeal. We VACATE the BAP’s denial of the fee award and. . .