1 

### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: STEVEN RAYM OND BANGHART and BECKY JUNE BANGHART , Debtor s

. BAP No. AZ

- 2 3

- 104 9

- L CF

Bk. No. 0 : 1 7

- bk

- 13527

- SHG

MEMOR AN DUM * JIM D. SMITH , Ap pell ant , v. UST

- U NITE D STATES TRUSTEE , PHOENIX , Appellee

. Appe al from the United States Bankruptc y Court for the District of Arizona Scott H. Gan, Bankru ptcy Judge, Pres i d i ng

Be fore : LAFFER T Y, CORBIT , and FARIS , Ban krup tcy Judg es.

I N T R O DU CT ION Jim D. Sm ith, tr ust ee of the chapter 7 1 estate of Steven and Becky Banghar t , was employed at the outset of the case to serve as at torney for

* Th is d i s p o s it i on is n ot a p pro p r i a t e f or pu blic at ion

. Al t h o u g h i t m a y be ci ted fo r wh a t ever pe r s u as i v e val u e it ma y h a ve, se e F e d . R

. A p p

. P. 3 2

. 1, i t has n o p recedent ial

v al ue , see 9t h C ir. BA P R u l e 8 0 24

- 1

. 1 Unless specified o therwise, all chapter and section references are to the Bankr uptcy Code, 11 U .S.C. § § 101

– 1532, “Rule” references are to the Federal R ul es of Bankruptcy Pr oc edure , and “ Civil Ru le” r eferen ces are to the Federal Rules of Civil 

# FILED

DEC 19 2023
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT2 the estate with the approval of the bankruptcy court

. Smith filed a fee application seeki ng $ 1,530 in att orne y ’ s fees whi c h was app roved as no objections were filed

. Smith subsequently filed a n application for trustee ’ s
commission for $847.80 to which the U.S. Trustee ( “ UST ” ) objected on the
basis that Smith was “ double

- dipping , ” i. e., seeking payment for the same
tasks or a c tiviti es t wice

. After an ev identiary hearing, the bankruptcy court reduced the previously approved attorney ’ s fees to $210 but allowed the

trustee ’ s commission in full. Smith appealed the r ulings . S ee ing no error,
we AFF IR M. 2
FAC T S 3
A. T he bankruptcy case a nd Smi th ’ s activities Steven and Becky Banghart filed their chapter 7 petition on November 14, 201 7

. Smith was appointed trustee. On December 27, 201 7,
Smith filed a two

- page application to have himself appointed a ttorney f or
t he estate. C oncurrent wi th t he appl ica tion, S mith filed a one

- page declaration which simply stated that he is a sole pra cti tioner an d ha d no conflicts. There being no objections, the application was approved.

Procedure.

2 This appeal was c oncurrently heard with t hree others: (1) Smith v. UST (In re Rivera ) , BAP No. AZ

- 2 3

- 1 04 7

- LCF ; (2) Smith v. UST (In re Figuero a ) , BA P No. AZ

- 2 3

- 1 04 8

- LCF ; and (3) Smith v. UST (In re Ear l e ’ s Custom W ines, Inc. ) , BAP No. AZ

- 2 3

- 1 0 50

- LCF . These co mpanion appeals are the subject of their own sepa rate writt en decisions.

3 We e xerc i se our dis c ret ion to take judicial notice of docume nts electronically filed in the underlying b ankruptcy case and adversary proceeding. See Atw ood v. Chase M anhattan Mort g. Co. (In re Atwood) , 293 B.R. 227, 233 n.9 (9th Cir. B AP 20 03).3 The same day , Smith file d a one
- page Trustee ’ s Objection to Exempt Proper ty

. The ob jection stated that the Debtors ’ exemption o n their 2007 Dodge Ram 3500 improperly exceeded the allowed amount of $12,000. The Debtors did not respond and the obj ec tion was sust ained. Approximately a month later, Smith filed a Notice to Deliv er N on
- Exem pt Asset requesting
that the Debtors turn over their 2 003 BMW 325C i.
Thereafter , Smith settled with the Debtors , resolving the issues over both ve hicl es for a payment of $2,500 paid over one year

. Smith ’s application for approval of the settlement was ap pr o ved without objection

. The court clerk filed and served a Notice of Bar Date , and ultimately
six proofs of cla im were f iled total ing $ 9,447.66

. B. The f ee application
On January 15, 2019, Smith filed a six

- page Application for
Allowance of Administrative E x p ense

– and

– R ule 201 6 Disclosure (the

“ Trustee ’ s Fee Application ” )

. The Trustee ’ s Fee Application s ought fees o f $ 1,53 0

. 00 fo r 5.1 hours of work at $ 300 per hour. The services were categorized as : 4.1 hours for the settlement negotiations and
documentat ion with the Debtor s ; and 1.0 hours for preparation of the
Trustee ’ s F ee A pplication

. S mith included a cursory expla nation of the

wor k but no de claration to support the application. As there were no objections, the Trustee ’ s F ee A pplication was appr oved

.4 C. The Trustee Fina l Repor t
On J une 5, 2019, Smith filed his T rust ee Fina l Report ( “ TFR ” ) and separately filed a n Appl ication for Com pen sation [and] Reimbursement of Expenses ( the “ Trustee ’ s Com mission Request ” )

. The TFR disclosed that
Smith had received D ebtors ’ tax refunds of app roximately $9 50 fro m the
IRS , and that , a t the time of filing the TFR , Smi th held $3,311.21 in his trust

account. The Trustee ’ s Com mission Request proposed that Smith pay
himself $847. 80 for trustee ’ s commission, $30 f or trustee ’ s expens es , and $1,530 for hi s prev iously awarded attorne y ’ s fees. That left $903.41 for
creditors.
T he bankruptcy court docket indicates that the UST reviewed the
TFR and Trustee ’ s Com mission Request and had no objections. But a few
weeks later , the UST filed an o bjecti on to the Trus tee ’ s Com miss io n Request. The objection asserted that s ince Smith “ has already compensated
himself as an attorney for the bankruptcy estate for perf orming chapter 7 trustee duties, ” further compensation should be den ied. The objection

not ed t hat the UST wa s not aware that the fee application had been filed
bec ause its office was c losed at that time. The objection also noted that it did not dispute that Smith had the right to the commission requested but argued that he was “ double

- dip pin g ” beca use he was goi ng to be paid attorney ’ s fees for doing the same work

. Smith did not respond to the objections.5 O n July 1, 2020, and again on August 26, 2021, the bankruptcy c lerk
filed a preprinted Memorandum to Case Trustee noting that ther e had bee n no activity in the case for more than one year and that “ it is unc lear as to
whe t her this case is continuing to b e administered or whether an appropri ate final repo rt should be filed and the case closed. ”
D. T he hearings on Smi th ’s TFR
N either Smit h nor th e UST t imely r espond ed to either of the case

me morand a ; rather nine months after the second one was issue d , the UST
fil ed a “ [r] eque st for status hearing regarding Memorandum to Case
Trustee and United States Truste e ’ s Objection t o Trus tee ’ s A pp lication for
Co mpen sa tion and Reimbursement of E x p enses

. ” The request noted that there was no activity in th is case and the TFR was pending. T hereafter , the bankruptcy cou rt set a stat us hearing which was h ear d on August 4, 20 22. 4
At the hea ring , Smith suggest ed that the ban k rup tcy co urt simply
rule on th e pleadings to date witho ut further hear i ngs , and the UST agreed

. The court invited Smith to file a response to the UST ’ s objection , but Smith
demurred

. The court th en stated on the record th at the matter was
submitte d.
On September 8 , 2022, th e bank r uptcy court entered its order

re qui ring simultaneous further response s from Smith and the UST and

sett ing a further hearing

. In its order , the court made tentati ve findings

4 Th is was a co mbin ed hear ing for all four of the cases for which the Panel heard argument on September 28, 202 3

.6 including that one si ngle entr y in the f ee application for “ limited legal

r esearch ” “ may be compensable f or a ttorney ’ s fees , provided there is
fu r ther explanation from Mr. Smith [ ,] ” suggesting that the remainder of the
time would be disallowed. ( Emphasis ad ded )

. The court invi ted Smit h to respond to the UST objections as well as its tentative findin gs. As to the UST, t he c ourt ordered th e U ST to f ile a r eply “ describi ng
its p rocedure f or identifying such violations when it reviews fee applications and wh eth er it uses the same procedure and scrutiny to review fee applications by independent counsel as it does to review those by trustees also servin g as attorneys for the estat e. ”
Smith ’ s response repeated his p o sition that all of his billed tim e w as for services “ routinely perfor med ” by a ttorneys employed by c hapter 7

t rustees

. The response further complained that the UST was not objectin g
to t he fees requested by truste e La w r en ce Warfi eld ’ s 5 atto rney who “ was paid over $800,0 00 in the Year 2021 . . . for representing Chapter 7 Ca se
Trustees in cases w h ere issues similar to this Case were made and litigated. ” Smith noted that his fee applica tion had bee n approved by the

cou rt on Feb ruary 12 , 2 019 , i.e., more than three years ago.
The UST ’ s re sponse summarized its process for revi ewin g chapter 7 fee applicati ons. On November 1, 2022, the bankruptcy court conducted a second hearing and advised the pa r ties that its rev iew of th e s up plemen tal

5 Apparently , the only other chapter 7 trustee in the Yuma , Ari zona area.7 responses left it with questions and further concerns directed at b oth
p arties. Aft e r len gthy colloquy between the court and the parties, the court invited the parties t o file further s uppl eme ntal pleadings regardi n g its specific concerns

. T he court re que sted “case law ” from the parties that
differentiate d a trustee ’s efforts as trustee and th ose of trustee ’s counsel.
The court stated that it wished to better understand the UST ’s position on that iss ue so t hat it c ould “more clearly s et a s tan dard . . . to apply across the board. ” As to Smith , the co urt ask ed hi m to “take a ha rd look ” a t his
ti me entries as some appeared to be administrative overhead expense.
Over Smith ’s object ion , the court s et an evidenti ary hea r ing in Dec em ber.
Su bseque ntl y , the UST filed a further memorand um which essentially re p ea ted its earlier recitation of its procedur es regarding fee applications

. It attached num erous exhibits con tai ning turnover motions filed by trustees without c ounsel , arg uing that th is typ e of tu rno ver action is routinely done by tru stees without counsel.
Smith filed a “ N otice of Filing ‘ De

- Lump ’ Time Entries as Required by 9/8/2022 Court Order. ” He also filed a list of thirty

- four “ recent ” cases purporting to establish that “ the Atto rney fo r the Chapter 7 Truste e was

c omp ensated (without obje ction) for s erv ices whi ch the U.S. Trus tee now
claims a re services that must be p rovided by the Chapter 7 Trustee, not an
At tor ney

. ” The list contained some details about each case and a

“ [d]escri p t ion o f t he work ” but contai ned no ana lysis or statement by8 S mith establishing a direct relationship between th ose cases and his case

nor showing any relevance t o the tasks Smith performed.
On December 2 0, 2022, the ban kruptcy court conducted an

ev iden tiary h e aring at which Smith t estifi ed and was cros s
- exam ined.
Smi th t estified tha t his request for fees was reason able because , amon g other reasons, he limited hi s r equest to the sett lement with the Debtors , and s pecifically to time spent negotiating the settlem e nt and preparation of
the se ttl ement documents. On cr oss
- examination, Smith stat ed that in his opinion, dra fting a settlement agreem ent and related pleadings is “attorney
work. ” The bank ruptcy court inquired: “ But again, you agree that you
could ha ve in your Trustee ca pacity filed tha t motion to approve settlement, correct? ” Smith res ponded: “ Absolutely, I coul d have d one it. ”
S m i t h s t a t e d i n r e s p o n s e t o a nother q u e s t i o n b y t h e c o u r t : “ Judge, I submit you understand the case. You can just do wh at you w ant. ”
T he UST argue d that a fe e application remain s “ open ” until the TFR is approved , also suggesting that th e fees were approved on an interim
basis and thus could be revisi ted but offered no authority for either proposition

. The UST stated that it obje c ted to the Trus tee ’ s Co m missio n Re quest rather than the fee award only because it was more expedient to
do that rather th an object t o the Trustee ’ s Fee Application

. E. The bankruptcy court ’ s ruling s
T he bankruptcy court issued its Rulin g on Un i ted State s Trus tee ’ s Ob jection to Ji m Smith ’ s Trustee ’ s Application on February 21, 2023 (the9 “ Mem ora ndum ” ). Th e bankruptcy court first add ressed the Tr ust ee ’ s Com mission Request ruling that it was not appropriate to deny the commission provi ded to t he trustee unde r § 326( a ) on t he b asis that “Smith previously received attorney ’ s fee s. ” It next addressed the proced ural

concern that the fees in the Trustee ’ s Fee Application had already been approved . The court stated that under Civil Rule 60(b), it woul d grant th e UST re lief f rom tha t ap proval because “ closure of the UST ’ s of fic e during
the time Mr. Smith filed his A ttorney A pp lication is ‘ excusable neglect ’ within [Civil ] Rule 60(b)(1). ” 6 As to the merits, t he court disallowed a ll the attorney fe e ti me e xcept
for an entry in t he amou nt of .7 hours which was attribu tab le to the
prep aration of the fee application itsel f

. As to each of the disallowed entries, the court stated that “ [ t ] h i s t i m e e n t r y i s n o t c om pensable for

att orney ’s fee s. Objection s ustaine d , ” or “ negotiating a s ettlem ent
reg ardin g turnover is a trust ee du ty. ” Further , on most of the entries , it
noted th a t Smith did not “ show what legal issues or services were
involved. ”
T he bankruptcy court c oncluded that the disallowed “ services wer e neith e r reasonable nor necessar y. ” It stat ed , “ Smith . . . failed to
demo nst rate h o w any of th ose services performed invo l ved legal expertise beyon d the duties routinely performed by trustee s without counsel

6 As to the Civil Rule 60 ( c) (1) requirement t hat the request be made with in o ne yea r, the court note d that the UST filed its ob jection a few months after entry of the order approving the Trustee ’ s Fee Application which was within the one

- year li mit

.10 assi stance. ” It further noted that the reducti on “ is w arranted b ased on [the

court ’ s] rev i ew fo r reaso nablen ess and necessity and the anticipated return
to creditors in t his case. ” It reduced the attorney ’ s fees previously allowed from $1,530 to $210. It al lowed the fu ll amount of the T rustee’s
Com mis sion Re q uest of $847.80 and expenses of $30.
Sm ith t imely a pp ealed. J U RIS D ICTI ON
T he ba nkru p tcy co urt h a d ju r is dict i o n un d e r 2 8 U.S.C. § § 13 3 4 a nd
15 7 (b ) (2)(A)

. W e h a ve j u r is d i c tio n u nder 28 U .S

. C

. § 15 8

. I S SUE
D id the bank ruptc y cour t abuse its d iscret i on in r educing the

trustee ’ s attorne y ’ s fee requ est f rom $1 , 53 0 in fees to $ 210 ?
S T A N DARD S OF R EV IE W
We review for ab use o f discretion a bankruptcy court’s order awarding compensation to an estate professional under § 330

. Hopkins v. Asset Acceptance LLC (In re S a lgado

- Nava), 473 B

. R. 911, 9 15 (9th Cir. BAP 2012). We will not disturb a bankruptcy court ’ s award of attorney ’ s f e es

“ absent an abus e of discretion or an erroneous application of the law. ” In re
Nuco rp Energy, Inc., 764 F.2d 655, 657 (9th Cir. 1985) ; see a lso Daws on v.
W ash. Mut

. Bank F.A. (In re Dawson ), 390 F. 3d 1139, 1145 (9th C ir. 2004). Factual findings made i n the course of awarding compen sation are
not dist urbed unless clearly erroneous. See Fried man Enters. v. B .U.M . Int'l , Inc . (In re B.U.M. Int'l, Inc.), 229 F.3 d 824, 830 (9th Cir. 2000)

. A f inding is11 not “clearly erroneous” unless, based on the entire evi d ence, the reviewing
court is left with the definite and firm conviction that a m istake has bee n

com mitted. Unite d States v. U.S. Gypsum Co., 333 U.S . 364, 3 95 (1948).
We review for abuse of discretion decisions on r elief fro m judgment
under Civil Rul e 60( b )

. Fl ores v. Rosen, 984 F.3d 720, 731 (9th Cir. 2020)

. We m ay affirm on any basis sup por ted by the record. Black v. Bonnie Springs Family Ltd . P'shi p (In re B lack) , 487 B. R. 202, 21 1 (9th Cir. BAP 2013).

D ISC USS I O N In his opening brief, S mith cites two sp e cific issues to be resolved in this appeal: was the bankruptcy court “ legally correct ” in 1) vacat ing the approval of the attorney ’ s fees ap plicati on ; and 2) “ summa rily r edu c ing the preciously allow ed Attorney ’ s fees to $210? ” 7
T here are r easons why a co u rt of appeals defers to the trial court , especially when reviewing attorney ’s fee applications

. Fun damenta l ly , the Bankruptcy Code and cases i nterpre ting § 3 30 make c lear t hat the trial
court has a n independent obligation , whether a party object s o r not , t o
review , critique , and reduce the fees requested if necessary , using the given
standa r ds ; s ee In re Crown O rthodontic Dental Gr p

. , 159 B.R. 307 , 309 ( Bankr.
C. D. Cal. 1993). See al so Law Offices of David A. Boone v. Derham

- Burk (In re

7 Smith does not argue for rev ersal on the basis t hat t he UST targ eted him by objec ti ng to his fee appli ca tion while at the same time not objecting to similar fee applications by other truste es. That issue is therefore waived an d not discussed herein. Maloney v. T3Med ia, Inc., 853 F.3d 1004, 1019 (9th Cir . 201 7) (iss ue n ot argued in brie fs is wai ved).12 Eliapo) , 298 B.R. 3 9 2 , 399 ( 9th Cir. BAP 2003) ( stating that the court has

“ wide discretion in determi ning re asonable and necessary f ees un d e r § 330( a) [.] ” ) , aff’d in part, rev’d in part and remanded by 468 F. 3d 592 (9th Cir. 2006)

. 8
T he basis for the extremely deferential s tandard is t hat t he
ban k ruptcy court is un iquely in the best position to assess the amount of

8 Se ct ion 330 (a) states in relevant part: (a) (1) [ T he bankrup tcy court may awa rd]

– (A) reasonable compensation for actual, necessary services rendered by the . . . attorney . . . employed by [the trustee];

. . . (2) T he court may . . . a ward compensation t hat is less than the amount of compensa tion th at is requ ested. (3) In dete rmining the amount of reasonable compensation to be awarded . . . the court shall consider the nature, the extent, and the value of such services, taking into acco unt all relevant fa ctors, including

— (A) the time spent on such s ervices; ( B) the rates charg ed for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the comp letion of, a case u nder th is title; (D) whether the servic es were performed within a reasonab le amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whe ther the person is board c ertified or otherwise has demons trated skill and experie nce in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other tha n cases under this title. (4)(A) . . . the court shall not allow compensati on for

— (i) unnece ssary duplication of services; or (ii) services that were not

— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case.13 work d one, its contrib ution to the administration of the estate , and i ts
benefit to the stakeholder s ; and thus , to determine the appropriate amount
of fees. See Ph illips v. Gilman (In re Gilman), CC

- 18

- 1101

- STaL, 2019 WL 3074607, at *4 (9th Cir. BAP July 12, 2019) (“It is uniquely the province of the bankruptcy court to determine the level of review and the basis for critique in fee review, and a reviewing cou rt s ho uld defer as thoroughly to that decision by the bankruptcy court as it would to any other dec ision concerning reasonableness of fees[.]”) (citations omitted), aff'd, 836 F. App’x 511 (9th Cir. 2020). The ski ll req u i site to achieve those results may be mu ch
more obvious in mid

- size or larger ca se s of some complexity than they may
be i n cases such a s the on e before this P anel wher e there is very lit tle activity and the court simply does not have the same o pportun ity to a ssess the nature of the work or wheth er it was actually n ecessar y

. These cases represent exactly that dilemma. While we do not sugge st
that in every small case the court should schedule a hear ing to probe t he necessity of employing counsel, neithe r do we accept the proposition that
the court m ust rely on the general assertion by the trustee in the employment application regarding the need for attorn ey assistance as
establi shing that any particu lar services a ctually rendered required the expertise o f couns el.
Th e Bankruptcy Code requires the tr ustee to do his or her own work; this requirement sometimes creates a tension in smal l cases like these
between the w ork that should be don e by the trust ee and that which14 genuinely requires the assist ance of an attorney. Therefore, it is not surprising t ha t the only meaningful review of the fees in small cases occurs
at the end of the case , and m ay frequently be predicat ed on an objection, o r the court’s independent concern , that the services for wh ich comp ensation is requested do not rise to the level of t asks for which the expertise of an attorney was required.
A. T he b ankruptcy c our t did n ot abuse its discretion in g ranting Civil R ule 60( b) relief to the U ST.
Civil Rul e 60 ( b) , mad e applic able to thi s matter by Rule 9024, permits

a court t o “ relieve a party . . . from a f inal judgment, order or procee ding
f or [ among ot her rea sons]

. . . ( 1) mistake, inad vertence, surpr ise, or excusable neglect ;
. . . or ( 6) an y other re ason that j us tifies relief. ”
The bankruptcy court specifically found ex cusable neglect justifying
relief under Civil Rule 60 ( b )( 1 ) because “ closure of t he UST ’ s office during
the time Mr. S mith filed his Attorne y Application i s ‘ excusable neglect ’
within Rule 60(b)(1 ). ” Th e court ’ s ruling und er these circumstances w as not
i ll ogical, impla usible, or without support in inferen ces t hat may be drawn
from t he facts i n the record.
B. T he b ankru ptcy c ourt d id not abuse its discretion in disallowing the requested compen s ation.
1. The re w as in sufficient evide nce to permit the bankruptc y co urt to find that the services were reasonable and necessary. Section 330 requires that an applicant establish t hat the fees incurred were reasonable and necessary as the bankruptcy court correctly ruled.15 Smith’s application simply does not demonstrate ad he rence to that
standard.
Smith ’ s fe e applicat ion con tained no sep arate d eclara tion ascribed under penalty of perjury supporting the proposition that the fees he incurred were reasonable and necessary under § 330

. His sole e xplanation
in the Trustee ’ s Fe e App li cation for the work is: “ 1) [ t ] h is C ase likely w ould
ha ve bee n a ‘ No Asset ’ case if t he legal services had not been rendered

. 2 ) L egal work to negotiate an d ob tai n C ourt approval of a settlement to
resolve the B ankruptcy E state ’ s interest in a 2007 Do ge [ sic ] Ram 3500 Pickup and a 2003 BMW 325 CI. ”
Sm i th ’ s r espons e to the UST objection c ontained his short declaration
which simply concluded that “ in [his] legal opinion, ” the services performed were “ not duties wh ich are required to be p erfo rmed by a

c hapter 7 Trustee , and that the se settlements are norm ally ha ndled by an Attorney fo r the B ankruptcy Estate. ” His testimony at the evidentiary hearing was no m ore tha n that ; a few conclusory comments about the work
he di d and his belief that he should be pa id for i t

. In his opening brief, S mith set fort h fifteen time e ntries that are

“ s pecific exam ples of disallowance where the findings and conclusions are illogic al , impl ausible and without supp ort i n the record. ” Fo r these entries , Sm ith offers a cursor y explanation that t he tasks were a “ comp on ent of the required document a ti on

. . . . ” That conclusory statement is woefully short

o f the s ort of f actual support necessary to establish that the requ ested fees16 were reasonable and necessary. And identifying a t ask as related to a
settlement do es not rem ove it from the trustee ’ s oblig ations.
The bankruptcy court ’ s ruling does not leave us with a defin ite and
firm c onviction that a mistake has been committed

. 2. The re was in sufficient evidence to p ermit the b ankrup t c y court to find that the disallowed services required spe cial expertise. The UST ’s main objection to the Trustee ’ s Fee Application was that
the services pe rformed by Smith purportedly as the tr ustee ’s attorney were
servi ces which the trustee woul d gene ra l ly under take. Section 328(b) 9 unambiguously re quires that the fees awarded to an attorney representing a trustee in a bankruptcy case mu st no t include an y t ime for “ performance of any of the tru stee’s du ties that are generally performed by a tru ste e
wit ho u t the as sistance of an attorney . . . for th e estate. ”
Section 704 sets forth the trustee ’ s duties which include collecting and reducing to m oney the prop er ty of t he estate, investigating the
fi nancial affairs of the debtor, examining the proofs of clai m w ith a vi ew toward objecting to allowance, and preparing the trustee ’ s final account. The role of counsel for the trustee is to perform t hose tasks that re qu ire

9 Section 32 8(b) st ates in relevant part: (b) If t he cour t has auth orized a trustee t o serve as an attorney . . . for the estate under section 327(d) of this title, the court may allow compensation for the trustee’s services as such attorney . . . only to the extent that th e trustee performed services as attorne y . . . fo r the est ate and n ot for performance of any of the trustee’s duties that are generally performed by a trustee without the assistance of an attorney . . . for the estate.17 spe cial exp ertise beyond that expe cted of an ordinary trustee. “Only when unique difficu lties a r ise may compensation be provided for services which
coincide or ove rlap with the trustee’s duties and only to the extent of matters requ iring lega l expert is e.” See Fe rrette & Slater v. U

. S. Tr. ( In re
Garcia ) , 335 B.R. 717, 725 (9th Ci r. BAP 2005) (quot at ion marks and citation omitted)

. A ttorneys must t herefore present sufficient evidence including billing reco rds with enough detail to establish that the services rendered went beyond the s co pe of the trustee ’ s st atutory du ti es and involve uniqu e difficul ti es

. Id. at 727

. The crypti c de scri ptions in the billing statements provoked the court ’s concern about S mith ’ s dual role in this case

. Even the bankruptcy court ’ s entreatie s to Sm ith be fore the evident iary heari ng did not prompt S mith to adequately explai n why the ta sks required attorney

ex pertise . Smith ’ s fa ilure to do so prevented the court from making the required fi ndings in Smith ’ s favor

. There is nothing in the record that would support a find ing tha t the
time en tr ies disallowed by the ba nkruptcy court required expertise beyond

t hat expec ted of an ordin ary tr ustee. It is not clea r error to fi nd that these
and sim ilar ent ries a re efforts Congress intended to be undert ake n by the trustee and comp ensat ed under § 326( a)

.18 3. Section 330 implicitly requires counsel to exercise billing discretion ; therefore , the bankruptcy c ourt properly considered the anticipated r eturn to credito rs stand ard wh e n disallowing the time and fees. Beyond the literal language that the service s must be reasonable and necessary to be compensable , “ [p] rofessionals have an ob li gation to

exe rcise billing judgment. ” L obel & Opera v. U.S. Tr. ( In re Auto Part s Club,
Inc. ) , 211 B.R. 29, 33 ( 9 th Cir. BAP 1 997). Having an attorney per form a task
does no t compel a finding that the fees were n ecessary per se , and we implicitly rely on the trustee to exercise appropriate discretion befor e burdening the estate , and in particular a small estate , with att or n ey ’ s f ees where the task might wel l have been perform ed by the trustee.
The “act ual and n eces sa ry ” prong of § 330( a) (1) r equires the truste e to consider the potential for recovery a nd bala nce the effort required against the results that might b e achi e ved. See U nsec

. Credi tors' Comm

. v. Puget Sound Plywo od , Inc. (In re Puget Sound Plywoo d , Inc.) , 924 F.2d 955, 9 61 (9th Cir. 1991) ( “ Absent unusual circumstances, an attor ney must scale his
or her fee at least to the reasonabl y expected recovery

. ” )

. Smith offered no explanatio n as t o w hy having an attorney do the paperwork for a set tlement was req u ired to monetize what was obviously going to be a simple and nominal recovery for the e state. Smith offered no
evidence that he consi dered the potent ial for recovery and did any balancing asse ssme nt bef ore incurring attorney ’ s fees

. That was his bu rden , and we cann ot second guess the bankruptcy court ’ s finding that the19 expertise of an attorney was not necessary

. Smith ’ s blind insisten ce that it was compensable professional tim e be cause he s ai d so is not suffi ci en t to
sati sfy the req uirem ents of the Bankruptcy Code.
C O N C L US ION
For these reasons set f ort h above, w e AF FIRM

.