creditor bones inc built the house for the debtor was very when the debtor filed bankruptcy with about roughly a million and a half of assets after a trial that determined mones was entitle to this court and the district court term and that the court has no discretion over what amount a fee should be awarded to the bankruptcy trustee i think actually the decision was that the court has limited discretion not no discretion i that that is true you're out of the but the there with the way it worked out in this case is it in the bankruptcy court it was extraordinary compensation but you really didn't identify this district court really didn't identify any of those circumstances but where we know you think the twenty eight thousand dollars from six cents is that that's correct what do you think it should  i think it should be in the neighborhood of eight thousand dollars it thousand dollars yet and you arrive at that if you look at the i mean i think most of the twenty thousand is an absolute windfall  there was simply an exchange of money for the security but the exact figure is eighteen thousand five hundred forty nine dollars and eighty three cents you know and i calculate it because it is based on five percent of the secured debt which was three hundred seventy thousand nine hundred fifty four to be exact and that's the part of the debt for which the security is adequate so that was what happened was when the house was sold there was a first and second mortgage against the house you know when they closed the title cut the had to pay off those two mortgages before very to turning over to the bankruptcy trustee and that check in the amount of approximately fifty one thousand dollars you know from the sale and yes that that amount was then but the trustee in his calculation reference to the part of the secured claim for which the security is an adequate no no i don't think the security was inadequate in this case use me i don't think that the security the secured creditors ver perfectly secured by the house there's enough of a surplus in the sale of the house to turn money back to the bankruptcy estate well to have following me you can have a secured claim which is secure in the sense that the the value of the security is at least as great as the as the dead right credit and i thought your argument was that for that for that part of the debt the part that it's securely secured the trigger the trustee doesn't doesn't do any  what i think that i think with a conclusion there is correct the trustee didn't really do anything to the pay of the crime is all done by the title caught in the if you come down to this but i thought you were saying that if the security is legal argument i'm trying to make with respect to how the court has discretion over the trustees fee but what i but i think is this is that if you're going to that is all part of some upper threshold that's set forth in the statute that the court has discretion to reduce and here the court like in philips like in  the central illinois bankruptcy case they say if this comes to the trustee is kind of not not to any efforts the court can look at the upper threshold but it should have the discretion to reduce  please the court barry levinson him on behalf of mr lance or the trustee let me just start out by pointing out section three twenty six and specifies that the percentage schedule it sets forth is to be applied on all monies disbursed or turned over in the case by the trustee to the parties and interest excluding the debtor but including holders of secured claims and if you look to what i would want to the extent the security is bankruptcy but he he had to manage the whole estate he had to ultimately he had he was set down in the middle of that if i had to do anything about the secured claims well he had to supervise the sale of the house to to get the money and to pay off the secured claims in congress doesn't say here or anything about not paying when the secured claims are really secured i mean there's no distinction for that the point is that this these percentages are specifically on all monies dispersed ironically my client fought very hard to decided it was more important to to litigate to push this to sale and so that incurred an awful lot of work for my client litigating and then administer ing the sale and there's nothing that suggests the size of the security claims doesn't affect how much there is no i don't think it does right and why should why should his compensation vary with the size of the security and i'm  two and goes to a secured credit or whether the trustee is performed services now you may say that's not what happened here but i'm interested in an abstract answer to an abstract legal question what do you think about that yes absolutely the trustee perform service and what services are performed an asset passes through the estate without action and then goes to a secured credit the asset passed through the estate by dint of the trustees work on the estate administering the state organizing the same litigating the issues through the estate by operation of war trustee could bodies at against the wall and the same thing would happen on a fully secured cla through we get that down then we can ask what happens if it's sole ok i believe if it passes through the statute contemplates it being in included in the calculus there's nothing that says it isn't and it does why is it a bankruptcy trustee doesn't do anything with regard to the security that are put differently if the secured claim were two hundred thousand dollars instead of one hundred th would be a bankruptcy judge bankruptcy trustee be entitled to a higher commission the bankruptcy judge would be entitled under the statute to the percentage however the total estate laid out but you can see how you are divorcing his compensation from his services when you talk about when one talks about a commission secured how does the size affect the working as well now i'm getting a little bit of a pillar to post here what happened is that to recognize this he h with regard to the unsecured claims and the bankruptcy judge has to allocate that among the creditors and then the larger the amount of money to be allocated the more work it has to do so  percentage commission recognize the fact he's doing more work not clear that he does any more work with regard to security claims depending on the size of the security but that's not a very i mean what happened in that case is that he had to work a great deal in the bankruptcy try to get his mount of his work depend on the size of the secured claims that's the issue whether he can get a percentage of those secured claims regard less of whether the size of the climb affected the amount of his work my answer is that the statute contemplate is not  within the court's discretion in terms of what to award the court looking at the ensemble of services that were provided exactly services so what's the evidence that the size of the claim affected the amount well it seems to me that there is nothing in the statute that says that to you take this out it's within the core it was within the bankruptcy judges discretion i think this court regularly defers on fee determinations the bankruptcy judge oversaw this very difficult litigation and the bankruptcy judge said in ruling that if the court had allowed except if the statute had allowed exceptional circumstances to vary a applies the percentage commission against all monies are or to all monies disbursed or turned over in the case by the trustee to parties an interest excluding the debtor but including holders of secured claims so it doesn't appear to parse the total service by service to determine whether the try to actually did anything with respect to particular items of property that passed through came into the estate it looks to the this is not a commission on the sale of the house this is a this is the commission on the overall administration of the state right because he's trustees essentially service officers of the class and this was a very long and they're publicly compensated that's true absolutely and in the bankruptcy judge felt after walk after administering this and the whole fight about the house right and you had earned the standard fee set right and the statutory scheme used to provide for essentially the lodestar method of compensating which would know the trustee as an attorney's fees shifting statutes and congress changed that by adopting th commission based system which applies these flat percentages to whatever amount the trustee ultimately disperses to parties in interest including secured creditors so to the extent there is a windfall that's just a the things the court because the concerns of the court is when you look at three twenty six it's an upper limit it's not a guaranteed amount for the trustee and it just to analogize one other case in l was a chapter eleven case that was converted to a chapter seven million bucks just dropped into the lap of a trustee or you could ending of the trustee failed eczema as the proceeds from the sale of those i it's evidentiary hearing give an opportunity for bones to present its case it would have never there been no basis for giving the trustee the maximum commission allowable under three twenty six there's just too many other