FILED

U.S. Bankruptcy Appellate Panel

of the Tenth Circuit

November 30, 2017

Blaine F. Bates

PUBLISH Clerk

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE JOHN THOMAS BIRD, 

Debtor.

BAP No. UT-16-039

BAP No. UT-16-040

(Consolidated)

GARY E. JUBBER, former Chapter 7

Trustee and FABIAN VANCOTT, Counsel

to the former Chapter 7 Trustee,

Appellants,

Bankr. No. 12-17345

Chapter 13

v. OPINION

JOHN THOMAS BIRD,

Appellee.

IN RE BRENT DAVID CHRISTENSEN and

JO-ANN HALL CHRISTENSEN,

Debtors.

GARY E. JUBBER, former Chapter 7

Trustee and FABIAN VANCOTT, Counsel

to the former Chapter 7 Trustee,

Appellants,

Bankr. No. 15-29773

Chapter 13

v.
BRENT DAVID CHRISTENSEN and 

JO-ANN HALL CHRISTENSEN,

Appellees.

National Consumer Bankruptcy Rights

Center and the National Association of

Consumer Bankruptcy Attorneys,

Amici Curiae.

Appeal from the United States Bankruptcy Court

for the District of Utah

Douglas J. Payne of Fabian VanCott (David P. Billings with him on the briefs), Salt Lake

City, Utah for Appellants Gary E. Jubber and Fabian VanCott.

Paul J. Toscano of Salt Lake City, Utah for Appellees John Thomas Bird, Brent David

Christensen and Jo-Ann Hall Christensen.

Before MICHAEL, ROMERO, and HALL, Bankruptcy Judges.

HALL, Bankruptcy Judge.

The former Chapter 7 trustee and his counsel appeal the bankruptcy court’s

Memorandum Decision and related orders (together, the “Order”) entered in two separate 1 2

cases on the same legal issue with respect to analogous facts. The cases were consolidated

Appellants’ App. at 477. 1

See Order Denying Applications for Compensation, in Appellants’ App. at 514, 2

558. 

-2-
on appeal for purposes of briefing and oral argument. The Order denies fee applications 3

(“Fee Applications”) submitted by the trustee and his counsel for fees and expenses

incurred in connection with litigation of claimed homestead exemptions prior to conversion

of the cases to Chapter 13. Although the ultimate issue in these cases relates to 4

professional compensation, the underlying facts give rise to more difficult fundamental

concerns such as the tension between the bankruptcy system’s fresh start policy and

payment of unsecured creditors. Moreover, these cases concern the role of a Chapter 7

trustee in finding the balance between those competing interests through objective

performance of the duties and responsibilities assigned to him under the Bankruptcy Code. 

Finding no error in the bankruptcy court’s analysis or ruling, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY5

John Bird (“Bird”) filed a voluntary petition for relief under Chapter 7 of the

The Court entered its Order Joining Appeals on January 19, 2017, pursuant to 3

motion of the Appellants. BAP ECF No. 14 in BAP No. UT-16-39; BAP ECF No. 13 in

BAP No. UT-16-40. 

The Order denied the Former Chapter 7 Trustee’s Application for Allowance of 4

Administrative Expense and for Compensation and Reimbursement of Expenses filed in

each case. See Appellants’ App. at 363, 1067. The Order also denied the Verified

Application for Allowance of Compensation and Reimbursement of Expenses by Fabian

VanCott, Counsel for Former Chapter 7 Trustee and Request for Allowance and Payment

of Administrative Claim filed in each case. See Appellants’ App. at 374, 1078.

This factual background is substantially drawn from the Order, in Appellants’ 5

App. at 477, which is published at In re Christensen, 561 B.R. 195 (Bankr. D. Utah

2016).

-3-
Bankruptcy Code on October 19, 2015. On the same day, Brent and Jo-Ann Christensen 6

(the “Christensens”) filed their voluntary petition for Chapter 7 relief (Bird and the

Christensens collectively, “Debtors”). Debtors are represented by the same bankruptcy

counsel, and Gary E. Jubber, an attorney and shareholder in the firm of Fabian VanCott,

was appointed Chapter 7 trustee (“Trustee”) in both cases. Trustee filed applications to

employ attorney Douglas J. Payne and the firm of Fabian VanCott as counsel (“Counsel”)

in both cases, which were approved by the bankruptcy court. 

On Schedule A, Bird listed his residence located at 122 Manilla Drive, Draper, Utah

(the “Bird Homestead”), and the Christensens listed their residence located at 6358

Jamestown Ct., Murray, Utah (the “Christensen Homestead”) (collectively, the

“Homesteads”). Both Homesteads were subject to mortgages and liens well in excess of

their scheduled value. The Bird Homestead was scheduled with a value of $240,400, but

was encumbered by the following liens: (i) a first mortgage of $133,275.17; (ii) a second

mortgage of $20,550.05; (iii) a tax lien in favor of the Internal Revenue Service (the

“IRS”) of $147,661.33; and (iv) judgment liens totaling $5,383.93. The Christensen

Homestead was scheduled with a value of $351,000, but was encumbered by the following

liens: (i) a mortgage of $300,000; (ii) a tax lien in favor of the IRS of $115,531.85; (iii) and

a tax lien in favor of the Utah State Tax Commission of $1,962.99. On Schedule C, Bird

claimed a homestead exemption of $30,000; similarly, the Christensens claimed a

All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code, 6

Title 11 of the United States Code, unless otherwise indicated.

-4-
homestead exemption of $51,000.

In December 2015, Trustee objected to Debtors’ homestead exemptions, arguing

there was no equity in the Homesteads to which the claimed exemptions could attach (the

“Homestead Objections”). Trustee did not, however, set the matters for hearing.

Notwithstanding that the Homestead Objections were based on lack of equity, after

Debtors received their Chapter 7 discharges on January 20, 2016, Trustee filed applications

to employ a real estate agent to sell the Homesteads. Debtors filed objections thereto, as

well as responses to the Homestead Objections. Additionally, Debtors filed motions

seeking an order forcing abandonment of the Homesteads by Trustee (the “Motions to

Abandon”), arguing that (i) they were of inconsequential value and burdensome to the

estates, and (ii) a sale would not be in the interest of creditors or Debtors. All of these

matters were then set for a hearing before the bankruptcy court on February 24, 2016. 

Just days before the scheduled hearing, Trustee filed stipulations pursuant to

§ 506(c) that he had entered into with the IRS (the “Stipulations”) and motions to approve 7

the Stipulations (the “Motions to Approve Stipulation”). The Stipulations indicated the 8

IRS’ consent to sale of the Homesteads pursuant to § 363(f), and further provided the IRS

would, pursuant to § 506(c), “carve-out” $10,000 of the proceeds from sale of each of the

Homesteads subject to the IRS’ liens “for the benefit of the bankruptcy estate to be

Stipulation Pursuant to 11 U.S.C. § 506(c), in Appellants’ App. at 131, 842. 7

Motions to Approve Stipulation, in Appellants’ App. at 160, 865. 8

-5-
distributed in accordance with the priorities of the Bankruptcy Code” (the “Carve-Outs”).9

Additionally, each Stipulation provided that:

The IRS hereby subordinates any lien or claim it may have to the

[Homestead] and the proceeds from the sale of the [Homestead] to the extent

of the Carve-Out and hereby waives and releases any and all claims it may

have to the Carve-Out other than those claims it may have as a general

unsecured creditor of the estate.10

 

At the February 24, 2016 hearing, the bankruptcy court overruled the Homestead

Objections, allowing Debtors’ claimed exemptions. After written orders were subsequently

entered on March 1, 2016, Trustee then appealed the orders to the United States District

Court for the District of Utah (the “District Court”). In the meantime, the bankruptcy court

set the Motions to Abandon for evidentiary hearing on March 23, 2016. 

On the same day he appealed the bankruptcy court’s orders overruling his

Homestead Objections to the District Court, Trustee filed motions to sell the Homesteads

(the “Motions to Sell”), soon followed by notices to take Debtors’ depositions and

applications to employ an appraiser. The Motions to Approve Stipulation and Motions to

Sell were scheduled for hearing about a month after the hearing on the Motions to

The term “carve-out” is frequently used but not often defined. Generally speaking, 9

a “carve-out agreement,” is “an agreement by a party secured by all or some of the assets

of the estate to allow some portion of its lien proceeds to be paid to others, i.e., to carve

out of its lien position.”’ In re Robotic Vision Sys., Inc., 367 B.R. 232, 240 n.23 (1st Cir.

BAP 2007) (quoting In re U.S. Flow Corp., 332 B.R. 792, 796 (Bankr. W.D. Mich.

2005)).

Stipulations at 4, in Appellants’ App. at 131, 845. The Stipulation in Bird’s case 10

includes the language “11 U.S.C. § 724(b) and” following “to the extent of.” Stipulation

at 6, in Appellants’ App. at 158, 872.

-6-
Abandon. The Motions to Sell were premised on sales contracts with a $322,000 purchase

price for the Bird Homestead, and a $425,000 purchase price for the Christensen

Homestead. Although the sales contract prices for the Homesteads were quite a bit higher

than Debtors’ scheduled values, they still only exceeded the total encumbrances by a

minimum amount – $4,129.52 in Bird’s case and $7,505.16 in the Christensens’ case.11

Moreover, the proceeds from sale of the Homesteads would be subject to payment of

Trustee’s and Counsel’s fees and expenses, and additional administrative expenses for the

six percent realtor commission and one percent closing costs provided for in the sales

contract.12

Immediately prior to the bankruptcy court’s scheduled March 23, 2016 evidentiary

hearing on the Motions to Abandon, Debtors filed objections to the Motions to Sell on

basically the same grounds as they did with respect to the Motions to Approve

Stipulations. Debtors contended any sale of the Homesteads would leave nothing for their 13

homestead exemptions. At the same time, Debtors filed motions to vacate their Chapter 7

discharges and convert their cases to Chapter 13 (the “Motions to Convert”). Essentially,

Debtors were seeking to avoid both Trustee’s liquidation of their Homesteads without any

payment of their homestead exemptions, and growing legal fees that continued to be

incurred in connection with Trustee’s appeal of the bankruptcy court’s orders overruling

Order at 7, in Appellants’ App. at 483. 11

Appellants’ Br. 43. 12

Order at 6, in Appellants’ App. at 482; Debtor’s Objection to Trustee’s Motion to 13

Approve Sale of Real Property Free and Clear of Liens, in Appellants’ App. at 289, 967.

-7-
the Homestead Objections. The Motions to Convert were set for hearing with the Motions

to Approve Stipulations and Motions to Sell on April 20, 2016, and the other matters were

continued to that date. Debtors also amended their respective Schedules C to remove the

claimed homestead exemptions.14

At the April 20, 2016 hearing, the bankruptcy court granted the Motions to Convert,

and subsequently entered written orders (the “Conversion”). The bankruptcy court’s orders

granting the Conversion mooted the numerous other pending motions filed by Trustee and

Debtors. Trustee’s appeals to the District Court of the bankruptcy court’s orders overruling

his Homestead Objections were also rendered moot when the Motions to Convert were

granted and Debtors amended their Schedules C.15

About two months following the Conversion, Trustee and Counsel filed their Fee

Applications, requesting that such professional compensation be allowed as administrative

expenses claims under § 503(c) entitled to priority under § 507, meaning they would be

required to be paid in full under Debtors’ Chapter 13 plans pursuant to § 1322(a)(2). In 16

Bird’s case, Trustee sought fees of $3,634, and Counsel sought fees and costs of

$31,110.97, for total compensation of $34,744.97. In the Christensens’ case, Trustee

sought fees of $2,765, and Counsel sought fees and costs of $28,998.63, for total

Order at 7, in Appellants’ App. at 483. 14

The District Court ultimately dismissed the appeals in both cases as moot due to 15

the Conversion and Debtors’ amendments to their Schedules C to remove the homestead

exemptions. 

Order at 8, in Appellants’ App. at 484. 16

-8-
compensation of $31,763.63. The exhibits attached to the Fee Applications readily indicate

that Trustee performed about seventy percent of Counsel’s work in both cases. 

17

Debtors objected to the Fee Applications, and on August 16, 2016, the bankruptcy

court conducted a hearing. The bankruptcy court denied the Fee Applications in their

entirety on the basis that, under § 330(a)(4)(A)(ii), the fees and costs sought were for

services neither necessary to administration of the cases nor reasonably likely to benefit

Debtors’ estates. In determining Trustee and Counsel’s services were unnecessary, the

bankruptcy court found that, here where the Homesteads had no equity value in excess of

liens but were subject to valid homestead exemptions, Trustee had “no obligation to seek

carve-outs from secured creditors or sell encumbered property subject to such

agreements.” 

18

For several reasons, the bankruptcy court also concluded the services provided were

not reasonably likely to benefit Debtors’ estates, i.e., result in a meaningful distribution to

unsecured creditors. First, the bankruptcy court determined the proposed sales of the

Homesteads were not authorized by any subsection of § 363(f). Specifically, the homestead

exemptions were not subject to a bona fide dispute under § 363(f)(4), and Debtors could

not be compelled to accept a money satisfaction under § 363(f)(5). Second, the bankruptcy

Exhibit “A” to Verified Application for Allowance of Compensation and 17

Reimbursement of Expenses by Fabian VanCott, Counsel for Former Chapter 7 Trustee

and Request for Allowance and Payment of Administrative Claim, in Appellants’ App. at

383, 1087.

Order at 14, in Appellants’ App. at 490. 18

-9-
court reasoned that even if the sales were permitted, Debtors–and not unsecured

creditors–would be entitled to the proceeds of the Carve-Outs as payment of their

homestead exemptions. 

In reaching this result, the bankruptcy court disagreed with Trustee’s interpretation

of §§ 724 and 522(c)(2)(B), that would permit him, pursuant to a carve-out agreement with

a tax lien claimant, to “liquidate the [Homesteads] in order to satisfy the tax liens to the

detriment of the Debtors’ homestead exemptions,” and that the Carve-Outs constituted a 19

valid § 506(c) surcharge. Finally, the bankruptcy court explained that the Bankruptcy

Code’s fresh start policy objectives did not support approval of the proposed sale of the

Homesteads. In other words, Trustee’s proposal would impermissibly subordinate the

homestead exemptions because the sale proceeds would go to pay large, unnecessary

bankruptcy administrative fees, leaving Debtors with nondischargeable tax claims, no

home, and no homestead exemption. 

Trustee and Counsel (collectively, “Appellants”) now appeal the bankruptcy court’s

Order.

II. STANDARD OF REVIEW

Appellants contend the bankruptcy court erred as a matter of law in denying the Fee

Applications under § 330, based on its incorrect interpretations of §§ 522(c)(2)(B), 724(b),

363(f) and the Utah homestead exemption statute. A bankruptcy court’s decision to

Order at 28, in Appellants’ App. at 504. 19

-10-
disallow compensation under § 330 is reviewed for abuse of discretion. We apply a 20

clearly erroneous standard to its factual findings regarding whether services rendered were

necessary to administration of the estate or reasonably likely to benefit the estate.21

However, we review “any statutory interpretation or other legal analysis underlying the

[bankruptcy court’s] decision concerning attorney fees de novo.” Additionally, a 22

bankruptcy court’s interpretation of a state statute is reviewed de novo.

23

III. DISCUSSION

The professional compensation at issue in these cases arises in a somewhat unusual

posture. Although the fees and expenses stem from fairly typical bankruptcy litigation

matters, i.e., the Homestead Objections, the Motions to Sell, and the Motions to Abandon,

the typicalness is complicated by the following. First, there are questions regarding whether

it was appropriate, on the facts presented, for Trustee to attempt to administer the

In re Commercial Fin. Servs., Inc., 298 B.R. 733, 747 (10th Cir. BAP 2003) (citing 20

In re Miniscribe Corp., 309 F.3d 1234, 1244 (10th Cir. 2002)).

In re Schupbach Invs., LLC, Nos. KS-13-077, KS-13-78, 2014 WL 6680122, at *5 21

(10th Cir. BAP Nov. 25, 2014) (citing In re Lederman Enters., Inc., 997 F.2d 1321, 1323

(10th Cir. 1993) and In re Abraham, 221 B.R. 782, 785 (10th Cir. BAP 1998).

Octagon Res., Inc. v. Bonnett Res. Corp. (In re Meridian Reserve, Inc.), 87 F.3d 22

406, 409 (10th Cir. 1996) (citing Daleske v. Fairfield Communities, Inc., 17 F.3d 321,

323 (10th Cir. 1994)); see also In re Lederman Enters., Inc., 997 F.2d 1321, 1323-24

(10th Cir. 1993).

In re Carlson, 303 B.R. 478, 481 (10th Cir. BAP 2004). See also Secs. Inv’r Prot. 23

Corp. v. Stellatos (In re Blinder, Robinson & Co.), 124 F.3d 1238, 1243 (10th Cir. 1997);

Sloan v. Zions First Nat’l Bank (In re Castletons, Inc.), 990 F.2d 551, 557 (10th Cir.

1993) (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991) (rejecting the view

an appellate court should defer to the “local” federal court’s interpretation of its state

law)).

-11-
Homesteads as property of the estate, and for whose benefit such efforts were being made.

Second, Debtors have now converted their Chapter 7 cases to Chapter 13 and withdrawn

their homestead exemptions. Therefore, if the Fee Applications were approved, Debtors

would be required to pay one hundred percent of Trustee’s and Counsel’s fees and

expenses ($34,744.97 total in Bird’s case, and $31,762.98 total in the Christensens’ case)

through their Chapter 13 plans. 

These complicating factors necessarily give rise to the competing interests of

bankruptcy’s fresh start policy for honest but unfortunate debtors and payment of a

dividend to unsecured creditors. But more importantly, these cases draw attention to

Trustee’s critical role in performing the bankruptcy system’s required balancing act. We

begin with a brief general discussion of compensation for bankruptcy professionals before

evaluating the bankruptcy court’s determination that the services provided by Trustee and

Counsel were neither necessary to administration of the estate nor likely to provide a

benefit.

Trustees and other bankruptcy professionals are entitled to compensation for

services rendered to the estate, subject to the limitations of §§ 326, 327, and 328. When a

professional submits an application for compensation, § 330 requires a bankruptcy court to

independently review the requested fees and expenses, regardless of whether any objection

has been made to the application. The purpose of the independent review is to ensure that

the services provided were necessary, reasonable, and justified. In other words, a

bankruptcy court has an obligation to see that bankruptcy estates are administered

-12-
efficiently and economically for the benefit of creditors. 

24

The bankruptcy court’s scrutiny of professional fee applications is particularly

important when, as is the case here, a trustee and/or his firm has been authorized to serve

as an attorney or accountant for the estate. Section 327(d) permits this “dual capacity”

25

status. But in light of the fact this recognized conflict of interest provides an opportunity

for self-dealing, a trustee may be authorized to serve as counsel only if it “is in the best 26

interests of the estate.” Further, because various trustee duties should be performed 27

without the assistance of an attorney or accountant, a bankruptcy court’s careful review of 28

applications for fees and expenses is critical in a dual capacity situation. 

A bankruptcy court’s award of professional compensation is governed by § 330. In

general, that section provides:

(a)(1) After notice to the parties in interest and the United States Trustee and

a hearing, and subject to section 326, 328, and 329, the court may award to a

trustee . . . or a professional person employed under section 327 or 1103– 

(A) reasonable compensation for actual, necessary services

In re Peterson, 566 B.R. 179, 188 (Bankr. M.D. Tenn. 2017). 24

Again, the Fee Applications indicate that Trustee personally performed 25

approximately seventy percent of the services rendered by Counsel.

In re SonicBlue Inc., No. C-07-03482-RMW, 2007 WL 3342662, at *6 (N.D. Cal. 26

Nov. 9, 2007 ).

11 U.S.C. § 327(d). “Best interests of the estate” usually involve the opportunity 27

for substantial savings and efficiencies. See SonicBlue, 2007 WL 3342662, at * 6; In re

Marsh, No. 12-60195-7, 2013 WL 4501424, at *5 (Bankr. D. Mont. Aug. 21, 2013).

11 U.S.C. § 328(b). See also In re King, 546 B.R. 682 (Bankr. S.D. Tex. 2016); In 28

re Kusler, 224 B.R. 180 (Bankr. N.D. Okla. 1998).

-13-
rendered by the trustee . . . ; and

(B) reimbursement for actual, necessary expenses.29

However, § 330(a)(4) provides that bankruptcy courts shall not allow compensation for

services that were not “reasonably likely to benefit the debtor’s estate” nor “necessary to 30

the administration of the case.” After reviewing the Fee Applications, the bankruptcy 31

court concluded § 330(a)(4) prevented approval of Trustee’s and Counsel’s fees and

expenses. 

On appeal, Appellants contend their services were, in fact, necessary and beneficial

to administration of Debtors’ estates. The Court would note that the distinction between the

statutory requirements that the services be “necessary to administration of the estate”32

versus “reasonably likely to benefit the estate” is not always clear. For example, 33

according to the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”),

“[a]n element of whether the services were ‘necessary’ is whether they benefitted the

bankruptcy estate.” Nevertheless, we address them separately and in the same order as 34

11 U.S.C. § 330(a)(1) (emphasis added). 29

11 U.S.C. § 330(a)(4). 30

Id. 31

Id. 32

Id. 33

In re Lederman Enters., Inc., 997 F.2d 1321, 1323 (10th Cir. 1993). See also In re 34

Universal Factoring Co., Inc., 329 B.R. 62, 78-79 (Bankr. N.D. Okla. 2005) (explaining

that § 330(a)(4) was added to the statute subsequent to the Tenth Circuit’s Lederman

decision, but that “[u]nless the court determines that a service was reasonably likely to

(continued...)

-14-
discussed by the bankruptcy court, and agree with its conclusions. 

Additionally, Appellants argue the bankruptcy court’s conclusions regarding the

necessity and benefit of their services were premised on erroneous interpretation of certain

statutory provisions, and therefore its rulings cannot stand. We ultimately conclude,

however, that the bankruptcy court’s determinations regarding necessity and benefit to the

estate of the services are well supported and that, even if its statutory interpretations were

incorrect, denial of the Fee Applications is not reversible error. Further, Appellants

complain that the bankruptcy court’s denial of the Fee Applications in their entirety is error

and they are entitled to some compensation. We disagree.

 A. The Bankruptcy Court Did Not Err in Concluding the Services 

Were Not Necessary to the Administration of Debtors’ Estates.

Underscoring the bankruptcy court’s conclusion that the services provided by

Trustee and Counsel were not necessary to the administration of the Debtors’ estates is a

recognition that, on the facts of these cases, abandonment of the Homesteads would have

better comported with a Chapter 7 trustee’s ultimate duties and responsibilities. The

Bankruptcy Code, an abundance of case law, and express language in the Handbook for

Chapter 7 Trustees prepared by the Office of the United States Trustee (“Trustee 

(...continued) 34

confer a benefit upon the estate, the inquiry goes no further, and the fees are not

compensable.”).

-15-
Handbook”) all emphatically support the bankruptcy court’s decision. 35

“A chapter 7 trustee is a fiduciary of the estate whose principal duty is to administer

estate property so as to maximize distribution to unsecured creditors, whether priority or

general unsecured.” Section 704, which prescribes the duties of a Chapter 7 trustee, 36

directs a trustee to “collect and reduce to money the property of the estate for which such

trustee serves, and close such estate as expeditiously as is compatible with the best interests

of parties in interest.” To make this possible, § 363 authorizes a trustee, after notice and a 37

hearing, to sell property of the estate “other than in the ordinary course of business.” The 38

purpose of liquidating the estate’s assets is so that the proceeds may be distributed to the

debtor’s creditors. But a trustee’s duty to liquidate property of the estate is not without its 39

limits. In certain situations, such as when liquidation will result in little to no payment to

Executive Office for U.S. Trustees, U.S. Department of Justice, Handbook for 35

Chapter 7 Trustees (Oct. 1, 2012), available at

https://www.justice.gov/ust/private-trustee-handbooks-reference-materials/chapter-7-hand

books-reference-materials (last visited Oct. 27, 2017). The Trustee Handbook, although

not entitled to deference, serves as guidance for how Chapter 7 trustees should fulfill their

duties. In re Nave, No. 13-72140, 2016 WL 1254688, at *7 (Bankr. C.D. Ill. Mar. 30,

2016).

In re All Island Truck Leasing Corp., 546 B.R. 522, 532 (Bankr. E.D.N.Y. 2016). 36

11 U.S.C. § 704(a)(1). 37

11 U.S.C. § 363(b). Further, pursuant to § 363(f), if certain requirements are met, a 38

trustee may sell the estate’s property free and clear of any interests or liens therein. See

infra Section B(2).

See Harris v. Viegelahn, 135 S.Ct. 1829, 1835 (2015) (citing 11 U.S.C. § 726). 39

-16-
the unsecured creditors, the proper course of action is for a trustee to abandon the property

pursuant to § 554.40

Although the concept of abandonment was not expressly provided for in the early

Bankruptcy Acts, it has been long recognized that bankruptcy courts should not administer

encumbered property and authorize its sale “unless it is made to appear that there is a fair

prospect of the property being sold for substantially more than enough to discharge the lien

or liens upon it.” Instead, the possession and control of fully or over-encumbered property 41

should be released and surrendered.42

As the bankruptcy court explained, even in the face of court rulings condemning

such practices, Congress noticed that “some trustees took burdensome or valueless

property into the estate and sold it in order to increase their commissions.” Congress 43

In re Schultz, 509 B.R. 190, 201 (Bankr. N.D. Ind. 2014) (quoting Mele v. First 40

Colony Life Ins. Co., 127 B.R. 82, 85-86 (D.D.C. 1991) (“[A]bandonment provisions are

designed to allow the trustee to relinquish assets that would be a financial drain on the

estate, or relieve the trustee of the financial burden of administering inconsequential

assets that would cost more than they are worth to the estate.”).

Hoehn v. McIntosh, 110 F.2d 199, 202 (6th Cir. 1940). 41

Id. 42

Morgan v. K.C. Machine & Tool Co. (In re K.C. Machine & Tool Co.), 816 F.2d 43

238, 246 (6th Cir. 1987) (noting some “early cases condemned this particular practice in

no uncertain terms, and decried the practice of selling burdensome or valueless property

simply to obtain a fund for their own administrative expenses.”).

-17-
responded by adding abandonment provisions to the Bankruptcy Act of 1978, which are

now codified in § 554. Section 554 provides in pertinent part: 44

(a) After notice and a hearing, the trustee may abandon any property of the

estate that is burdensome to the estate or that is of inconsequential value and

benefit to the estate.

(b) On request of a party in interest and after notice and a hearing, the court

may order the trustee to abandon any property of the estate that is

burdensome to the estate or that is of inconsequential value and benefit to the

estate.45

Thus, if property is burdensome or of no benefit to the estate, a trustee has the discretion to

abandon such property; and if a trustee does not abandon valueless property, a party in

interest may ask the bankruptcy court to order a trustee to abandon such property. 

The Trustee Handbook amplifies the directions from Congress to trustees that are

embodied in §§ 704 and 554. It is a valuable source of guidance because it is prepared by

the Executive Office of the U.S. Trustee Program, which was created “to promote the

integrity and efficiency of the bankruptcy system for the benefit of all stakeholders –

debtors, creditors, and the public.” In its introduction to a Chapter 7 trustee’s duties, the 46

Trustee Handbook admonishes:

A chapter 7 case must be administered to maximize and expedite dividends

to creditors. A trustee shall not administer an estate or an asset in an estate

where the proceeds of liquidation will primarily benefit the trustee or the

Id. 44

11 U.S.C. § 554(a), (b) (amending 11 U.S.C. § 554 (1984). See Pub. L. 98-353, 45

Title III, § 468, July 10, 1984, 98 Stat. 380).

See United States Trustee Program Strategic Plan & Mission, available at 46

https://www.justice.gov/ust/strategic-plan-mission (last visited Oct. 27, 2017). 

-18-
professionals, or unduly delay the resolution of the case. The trustee must be

guided by this fundamental principle when acting as trustee. Accordingly,

the trustee must consider whether sufficient funds will be generated to make

a meaningful distribution to unsecured creditors, including unsecured priority

creditors, before administering a case as an asset case. 28 U.S.C. § 586.47

The Trustee Handbook further provides that “a trustee should not sell property subject to a

security interest unless the sale generates funds for the benefit of unsecured creditors. A

secured creditor can protect its own interests in the collateral subject to the security

interest.” That guidance is underscored by another of the Trustee Handbook’s directives: 48

In asset cases, when the property is fully encumbered and of nominal value to

the estate, the trustee must immediately abandon the asset and contact the

secured creditor immediately so that the secured creditor can obtain

insurance or otherwise protect its own interest in the property. 11 U.S.C.

§§ 554, 704.49

A multitude of reported cases reinforces these principles. In fact, as one bankruptcy

appellate panel put it, “[i]t is universally recognized, [ ] that the sale of a fully encumbered

asset is generally prohibited.”50

Nevertheless, Appellants contend the Homesteads could have, and should have,

been sold because the Carve-Outs negotiated with IRS would result in a benefit to the

Trustee Handbook at 4-1 (emphasis added). 47

Id. See also In re Traverse, 753 F.3d 19, 25 (1st Cir. 2014). 48

Trustee Handbook at 4-7. 49

In re KVN Corp., Inc., 514 B.R. 1, 5 (9th Cir. BAP 2016) (citing in part, Carey v. 50

Paulene (In re Paulene), 119 B.R. 727, 728 (9th Cir. BAP 1990); In re Scimeca Found.,

Inc., 497 B.R. 753, 781 (Bankr. E.D. Pa. 2013)).

-19-
unsecured creditors. As support for their argument, Appellants cite several cases, as 51 52

well as certain language in the Trustee Handbook. While, the Court does not deny 53

Appellants’ cited authorities stand for the proposition that the sale of fully encumbered

properties may be warranted in some circumstances, it strongly disagrees that those type of

circumstances are presented here.54

As Appellants point out, the Trustee Handbook acknowledges exceptions to the

general rule preventing the sale of fully encumbered assets. Specifically, it states:

In certain limited circumstances, however, a trustee may properly sell

encumbered property that would generate no proceeds for the benefit of

unsecured creditors (“fully encumbered property”). For example, a trustee

may be able to satisfy in full a blanket security interest on multiple units of

property by selling only one unit. Similarly, a trustee may be able to obtain a

higher price from an aggregate sale of assets than from selling the assets

individually. In a case with other funds available for unsecured creditors, a

trustee also may sell fully encumbered property to eliminate a deficiency, if

Appellant’s Br. 45-48. 51

In re Reeves, 546 Fed. Appx. 235 (4th Cir. 2013); In re Buerge, No. KS-13-23-25, 52

2014 WL 13096941, at *2 (10th Cir. BAP Apr. 2, 2014). 

Trustee Handbook at 4-16. 53

For example, the Reeves decision cited by Appellants is based on North Carolina 54

homestead exemption law rather than Utah law, and it also appears the carve out the

trustee negotiated with the IRS was significantly higher than the Carve-Outs here (30% of

the net proceeds of the sale of debtors’ residence otherwise subject to the IRS’ lien, which

may have been as much as $38,850 ($325,000 fair market value less mortgage of

$195,000 x 30%). Buerge involved nonexempt stock of closely-held bank holding

companies as opposed to a debtor’s homestead, and further, the BAP determined only

that, in absence of valuation of the property, the bankruptcy court should not have

compelled abandonment. Buerge, 2014 WL 13096941, at *19.

-20-
the secured creditor agrees to waive any unsecured claim for a deficiency in

the event the sale does not fully satisfy the security interest.55

Clearly, however, while secured creditor carve-outs may be appropriate in certain

circumstances, such circumstances are not present in these cases. 56

Again, we agree with Appellants that the Trustee Handbook does not prohibit carve

out agreements with a secured creditor as per se improper, and directs that when

administering fully encumbered property, a trustee should obtain an agreement from a

secured creditor to recover costs of sale from the collateral pursuant to § 506(c).57

However, it does make it clear that a carve out negotiation should be undertaken only in

appropriate circumstances: 

A trustee may sell assets only if the sale will result in a meaningful

distribution to creditors. In evaluating whether an asset has equity, the trustee

must determine whether there are valid liens against the asset and whether

the value of the asset exceeds the liens. The trustee may seek a “carve-out”

from a secured creditor and sell the property at issue if the “carve-out” will

result in a meaningful distribution to creditors. The trustee must also consider

whether the cost of administration or tax consequences of any sale would

significantly erode or exhaust the estate’s equity interest in the asset. If the

sale will not result in a meaningful distribution to creditors, the trustee must

abandon the asset.58

Trustee Handbook at 4-16. 55

The Trustee Handbook does not provide an exclusive set examples of exceptions 56

to the general rule that a Chapter 7 trustee should not sell fully encumbered assets. Its

examples should not be viewed as exclusive circumstances for permissible sales of fully

encumbered assets. 

Trustee Handbook at 4-16. 57

Trustee Handbook at 4-14. 58

-21-
Thus, carve out agreements are only permitted if they result in meaningful distributions to

creditors. And the definition of meaningful depends on the totality of circumstances. 

As explained by the First Circuit, “bankruptcy courts have defined the equity that

justifies a sale of property, consistently and explicitly, in one way: the value remaining for

unsecured creditors above any secured claims and the debtor’s exemption.” This “equity 59

for unsecured creditors” is what authorizes a trustee to exercise his powers of sale under § 60

363 in the first place, because liquidation should not be for the benefit of the estate’s

secured creditors. Therefore, a trustee’s negotiation of a carve out with a secured creditor

as a means of creating the equity necessary to justify the sale of fully encumbered estate

property is suspect and presents opportunities for collusion. Here, Trustee and Counsel 61

fees, together with realtor commissions and closing costs, would have totaled at least

$57,284.97 in the Bird case ($34,744.97 + $22,540), and $61,513.63 in the Christensens’

case ($31,763.63 + $29,750). Unsecured creditors, on the other hand, would have 62

received only $10,000 in each case. Trustee’s steps in obtaining the Carve- 63

In re Traverse, 753 F.3d 19, 29 (1st Cir. 2014). 59

Id. 60

In re Tobin, 202 B.R. 339, 340 (Bankr. D.R.I. 1996) (“approval of [ ] token ‘carve 61

outs’ for sole purpose of creating a Trustee’s commission for administering secured assets

that should have been abandoned [ ] is a practice neither contemplated by nor provided

for in the Bankruptcy Code”).

Order at 7-8, in Appellant’s App. at 483-84. 62

$10,000 is a de minimus amount compared to the total unsecured nonprority debt 63

(continued...)

-22-
Outs here in order to sell the Homesteads would shift estate assets away from the IRS to

professionals, harming Debtors in the process.64

On these facts, sale of the Homesteads undoubtedly violates the Trustee Handbook’s

directive that estate property should not be sold “where the proceeds of liquidation will

primarily benefit the trustee or the professionals, or unduly delay the resolution of the

case.” Further, Trustee’s attempted sale is in derogation of courts’ universal recognition 64

that “the sale of a fully encumbered asset is generally prohibited.” We see no need to 65

(...continued) 63

listed by the Debtors on their Schedules. The Christensens listed $1,641,585.98 and Bird

listed $539,042.52 in unsecured nonpriority debt. Appellants’ App. at 38, 749.

We also agree with Appellants’ position that the Supreme Court’s recent decision 64

in Czyzewski v. Jevic Holding Corp., 137 S.Ct. 973 (2017), which reversed a bankruptcy

court’s approval of a structured dismissal in a Chapter 11 case, does not prohibit all carve

out agreements. But Appellants miss the larger point applicable here: Jevic stands for the

proposition that neither the parties, nor the courts, are free to circumvent the Bankruptcy

Code’s rules and policies regarding priorities and distributions through manipulation of

substantive and procedural protections. Jevic, 137 S.Ct. at 986-87.

Trustee Handbook at 4-1. 64

In re KVN Corp., Inc., 514 B.R. 1, 5 (9th Cir. BAP 2016) (citing in part, In re 65

Covington, 368 B.R. 38, 41 (Bankr. E.D. Cal. 2006) (“[W]hen an asset is fully

encumbered by a lien, it is considered improper for a chapter 7 trustee to liquidate the

asset.”); In re Feinstein Family P’ship, 247 B.R. 502, 507 (Bankr. M.D. Fla. 2000)

(“Clearly, the Code never contemplated that a Chapter 7 trustee should act as a liquidating

agent for secured creditors who should liquidate their own collateral.”); In re Preston

Lumber Corp., 199 B.R. 415, 417 (Bankr. N.D. Cal. 1996) (“[A]ctual conflicts of interest

[arise] when the trustee sees he can make more money for himself by liquidating

collateral for a secured creditor than he can by asserting a claim against the secured

creditor on behalf of the estate”). 

-23-
deviate from these firmly entrenched rules here. The numbers in these cases more than

adequately support the bankruptcy court’s belief that

the sale of fully-encumbered property typically benefits two parties: the

trustee, who can administer the property and receive a commission on the

disbursed proceeds, and the secured party, which has its collateral liquidated

without having to undertake the toil and labor of foreclosure proceedings.66

As a result, we conclude the bankruptcy court did not err in determining Trustee’s and

Counsel’s services, for which the Fee Applications sought compensation, were not

necessary to the administration of Debtors’ estates.

B. The Bankruptcy Court Did Not Err in Concluding the Services

Were Not Reasonably Likely to Benefit the Estates.

Appellants also contend the bankruptcy court erred in determining the proposed

sales of the Homesteads were not reasonably likely to benefit the estates. On appeal,

Appellants primarily argue the bankruptcy court’s conclusion as to the non-beneficial

nature of their services was founded on several erroneous legal determinations: (1) Debtors

were entitled to homestead exemptions even though there was no equity in the

Homesteads; (2) sale of the Homesteads was not authorized by § 363(f); and (3) §§ 724(b)

and 522 do not create exceptions to the homestead exemption. We address these assertions

briefly, but ultimately conclude the bankruptcy court’s determination that Appellants’

services were not likely to benefit the estates was not reversible error, regardless of

whether its legal determinations were correct or incorrect. 

Order at 13, in Appellants’ App. at 489. 66

-24-
Our conclusion is based on the totality of applicable statutes and case law and the

way in which they relate to one another. Looking at these authorities in combination, three

principles stand out. First, exemptions are extremely important to the Bankruptcy Code’s

fresh start policy, and of these exemptions, the homestead exemption is paramount.

Second, a Chapter 7 trustee is duty bound to administer the estate solely for the benefit of

creditors. And third, the Bankruptcy Code’s objective and priorities control and are not

subject to being rearranged by the actions of a Chapter 7 trustee. 

The bottom line is that, in light of these principles, we take no issue with the

bankruptcy court’s conclusion that these Homesteads should have been abandoned by the

Trustee, and therefore, find no error in its ruling that Appellants’ services were not

beneficial to the estate. While sale of the Homesteads might admittedly have benefitted the

estates’ unsecured creditors to a minimum extent, the proceeds would primarily benefit

Appellants and other bankruptcy professionals, to the considerable detriment of Debtors

and the exemptions to which they are entitled. As a result, Appellants’ services do not meet

the compensation criteria of § 330(a)(4)(ii).

1. Debtors Were Entitled to Claim Homestead Exemptions

under Utah Law

Appellants contend the bankruptcy court’s decision denying the Fee Applications is

reversible because it erroneously interpreted the Utah exemption statute. Instead, they

argue that Utah homestead exemptions, which are denominated as specific amounts, are

-25-
based on value in the property and not the property itself, and therefore not available to

Debtors absent equity in the Homesteads. We disagree. 67

The Utah Constitution commands that the legislature shall provide for a homestead

exemption consisting of “lands, together with the appurtenances and improvements

thereon.” As a result, the Utah Exemption Act provides in relevant part: 68 69

(2) (a) An individual is entitled to a homestead exemption consisting 

of property in this state in an amount not exceeding:

 . . . 

(ii) $30,000 in value if the property claimed is the

primary personal residence of the individual.

(b) If the property claimed as exempt is jointly owned, each

joint owner is entitled to a homestead exemption; however

 . . . 

(ii) for property exempt under Subsection

(2)(a)(ii), the maximum exemption may not

exceed $60,000 per household.

(c) A person may claim a homestead exemption in either or

both of the following:

(i)one or more parcels of real property together

with appurtenances and improvements; or

Appellants’ Br. 19. In support of this proposition, the Trustee cites the Utah 67

Exemption Act, which provides “[a]n individual is entitled to a homestead exemption

consisting of property in this state” not to exceed a certain value. Utah Code § 78B-5-

503(2). Order at 20, in Appellants’ App. at 496.

Utah Const. art. XXII, § 1 (“The Legislature shall provide by statute an exemption 68

of a homestead, which may consist of one or more parcels of lands, together with

appurtenances and improvements thereon, from sale on execution.”).

 Utah Code Ann. § 78B-5-501 (2008). 69

-26-
(ii)a mobile home in which the claimant resides. .

. . 

(3) A homestead is exempt from judicial lien and from levy, execution, or

forced sale except for: 

(a) statutory liens for property taxes and assessments on the

property; 

(b) security interests in the property and judicial liens for debts

created for the purchase price of the property; 

(c) judicial liens obtained on debts created by failure to provide

support or maintenance for dependent children; and 

(d) consensual liens obtained on debts created by mutual contract.70

For purposes of the homestead exemption, property is defined as “(i) a primary personal

residence; (ii) real property; or (iii) an equitable interest in real property awarded to a

person in a divorce decree by a court.” 

71

When a federal court interprets state law, it is required to look to the rulings of the

highest state court, and therefore we must initially turn to Utah law. As the Utah Supreme 72

Court has explained, citizens have been granted the right to a homestead exemption “to

protect ‘the dependent and helpless’ and to insure such persons shelter and support free

Utah Code Ann. § 78B-5-503 (2008). 70

Utah Code Ann. § 78B-5-503(1)(d) (2008). 71

Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002) (“When the federal courts 72

are called upon to interpret state law, the federal court must look to the rulings of the

highest state court, and, if no such rulings exist, must endeavor to predict how that high

court would rule.”).

-27-
from fear of forced sale.” In light of that policy, in Panagopulos v. Manning, the Utah 73 74

Supreme Court held that the statutory right to a homestead exemption is predicated on two

bases or interests in real property– title and possession, and further that the exemption

“protect[s] the physical thing as a whole from lien or sale so long as the exemption

continues.” It has further opined that courts “cannot whittle down the exemption by 75

undermining and cutting at its roots.”76

On appeal, Appellants argue that when exemptions are limited in amount, only an

interest in the property up to the specified amount is exempted, and not the property itself. 

To support their contention, Appellants rely heavily on the Supreme Court’s decision in

Schwab v. Reilly. In Schwab, the Supreme Court ruled value may be recovered for the 77

estate in an exempt asset beyond the value debtor expressly declared exempt

notwithstanding that interested parties did not file objections. We do not find Schwab

applicable, or even particularly helpful, on the facts presented here for numerous reasons.

In re Carlson, 303 B.R. 478, 482 (quoting Sanders v. Cassity, 586 P.2d 423, 425 73

(Utah 1978)); see also P.I.E. Emps. Fed. Credit Union v. Bass, 759 P.2d 1144, 1145

(Utah 1988) (“purpose of a homestead exemption is to protect citizens and their families

from the miseries of destitution”).

69 P.2d 614 (Utah 1937). 74

Panagopulos, 69 P.2d at 620. See also Stucki v. Ellis, 201 P.2d 486, 489-90 (Utah 75

1949) (holding that other equitable interest in the property may be sufficient to claim a

homestead exemption in proceeds of sale of the property).

Panagopulos, 69 P.2d at 620. 76

560 U.S. 770, 782 (2010). 77

-28-
First, the issue in Schwab, as framed by the Supreme Court, was

whether an interested party must object to a claimed exemption where, as

here, the Code defines the property the debtor is authorized to exempt as an

interest, the value of which may not exceed a certain dollar amount, in a

particular type of asset, and the debtor’s schedule of exempt property

accurately describes the asset and declares the “value of [the] claimed

exemption” in that asset to be an amount within the limits that the Code

prescribes.78

Thus the Supreme Court was ruling on a procedural issue in a much different context.

Second, in Schwab, the exemption at issue was claimed for business equipment as tools of

the debtor’s trade, not a homestead exemption. Third, the property claimed as exempt in

Schwab was not subject to any liens or encumbrances. And fourth, the Schwab debtor

claimed an exemption for the property pursuant to § 522(d)(5)-(6), and thus the Supreme

Court was interpreting the Bankruptcy Code, and not Utah law. Accordingly, the Supreme

Court’s determination in Schwab that § 522(d) exemptions are for a debtor’s interest in the

asset, up to a specified dollar amount, and not the asset itself, does not control the result 79

here.80

Id. at 774. 78

Id. at 782. 79

Appellants’ citations to numerous other cases, including Rousey v. Jacoway, 544 80

U.S. 320 (2005), In re Sanders, 39 F.3d 258 (10th Cir. 1994), and In re Brown, 851 F.3d

619 (6th Cir. 2017), to support their position regarding the bankruptcy court’s

misinterpretation of the Utah homestead exemption are also misplaced. Although these

cases may contain statements in dicta that tangentially relate to the facts here, they all

presented significantly different issues to the courts for decision. In Rousey, the Supreme

Court ruled that funds in an IRA, up to a certain amount, are exempt within the definition

in § 522(d)(10)(E). In Sanders, the Tenth Circuit ruled that under § 522(f), the amount of

(continued...)

-29-
Under both Utah and federal law, exemption laws must be liberally construed in

favor of the claimant of an exemption to effect their humanitarian purposes. The Utah 81

Supreme Court long ago held that the statutory homestead exemption is predicated on title

and possession of real property and “protect[s] the physical thing as a whole from lien or

sale so long as the exemption continues.” It has further opined that courts “cannot whittle 82

down the exemption by undermining and cutting at its roots.” Although the Utah 83

homestead exemption is expressed in terms of a limited dollar amount, there is nothing to

suggest that the Utah Supreme Court’s decision in Panagopulos is not good law.

Therefore, possession and title allow Debtors to claim valid homestead exemptions,

notwithstanding a lack of equity in the Homesteads.

2. Utah Exemption Statutes and § 363(f) Protect Debtors 

from a Forced Sale of their Homesteads by Trustee

(...continued) 80

a homestead exemption determines the extent to which it is impaired by a lien. And in

Brown, after a debtor surrendered homestead property rather than claiming it as exempt,

the Sixth Circuit ruled that § 522 will not support an exemption on the basis of state-law

redemption rights in a piece of property if the proceeds from the sale of that property are

“insufficient to satisfy the prior obligations owed to the secured creditors.” Brown, 851

F.3d at 625. These cases are of little value to our analysis here.

In re Carlson, 303 B.R. 478, 482 (10th Cir. BAP 2004) (citing Lampe v. 81

Williamson (In re Lampe), 331 F.3d 750, 754 (10th Cir. 2003); Carbaugh v. Carbaugh (In

re Carbaugh), 278 B.R. 512, 522 (10th Cir. BAP 2002); Homeside Lending, Inc. v.

Miller, 31 P.3d 607, 613-14 (Utah Ct. App. 2001)). 

Panagopulos, 69 P.2d at 619-20. 82

Id. at 620. 83

-30-
Appellants argue the bankruptcy court erred in denying their Fee Applications

because Trustee should have been allowed to sell Debtors’ Homesteads free and clear

under § 363(f) so that payments could be made to unsecured creditors as result of the

Stipulations and Carve-Outs with the IRS. We disagree. 84

Pursuant to § 363, 

(f) The trustee may sell property under subsection (b) or (c) of this section

free and clear of any interest in such property of an entity other than the

estate, only if--

(1) applicable nonbankruptcy law permits sale of such property

free and clear of such interest;

(2) such entity consents;

(3) such interest is a lien and the price at which such property is

to be sold is greater than the aggregate value of all liens on

such property;

(4) such interest is in bona fide dispute; or

(5) such entity could be compelled, in a legal or equitable

proceeding, to accept a money satisfaction of such interest.85

Appellants contend the bankruptcy court erred in determining that none of the five options

for sale free and clear under § 363(f) were met. Specifically, Appellants take issue with the

bankruptcy court’s conclusions that: (1) the Homesteads were not subject to a bona fide

Appellants’ Reply Br. 19. 84

11 U.S.C. § 363(f). 85

-31-
dispute for purposes of § 363(f)(4); and (2) Debtors could not be compelled to accept a 86

money satisfaction in an amount less that the full amount of Utah’s homestead exemption

for purposes of § 363(f)(5). We see no flaw in the bankruptcy court’s analysis on these 87

points.

Trustee objected to Debtors’ claimed exemptions in their Homesteads based on a

lack of equity. Subsequent events, however, undercut Trustee’s Homestead Objections and

resolved the disputes: (1) Trustee received offers for the Homesteads and negotiated the

Carve-Outs with the IRS creating equity; (2) the bankruptcy court allowed the Homestead

Exemptions; and (3) Debtors’ converted their cases to Chapter 13 and amended their 88

Schedules C to remove the claimed exemptions. Thus, no bona fide dispute existed for

purposes of § 363(f)(4) that would permit Trustee to sell the Homesteads in absence of

Debtors’ consent.89

Order at 21, in Appellants’ App. at 497. 86

Order at 22, in Appellants’ App. at 498. 87

Trustee appealed the bankruptcy court’s orders allowing the Homestead 88

Exemptions to the District Court, but the appeals were mooted. Order at 5 n.10, in

Appellants’ App. at 481.

The purpose of § 363(f)(4) is to permit sale of estate property free and clear of 89

interests that are disputed by the representative of the estate in order to avoid delays in

liquidation of the estate’s assets while such disputes are being litigated. In re Clark, 266

B.R. 163, 171 (9th Cir. BAP 2001) (citing 3 Lawrence P. King, Collier on Bankruptcy

¶ 363.06 (15th ed. rev. 1998)). In other words, a party whose interest is too controversial

to warrant protection should not be able to interfere in an otherwise legitimate sale. But

here, Trustee should not be permitted to sell free and clear when it is Trustee that created

the “§ 363(f)(4) dispute” by objecting to the Homestead Exemptions on the basis of lack

(continued...)

-32-
The bankruptcy court’s conclusion that the condition stated in § 363(f)(5) is not met

is supported by the Utah statutes. As the bankruptcy court explained, Utah’s exemption

statute provides that “[a] homestead is exempt from judicial lien and from levy, execution,

or forced sale except” in very limited situations. The statute only permits a forced sale of 90

a homestead for purchase-money mortgages, statutory liens for property taxes, judicial

liens obtained for failure to pay child support, or consensual liens obtained on debts created

by mutual contract. The sales proposed here contained Carve-Outs with the IRS to pay 91

the unsecured creditors a minimum amount. Neither the IRS nor the estate’s unsecured

creditors are the type of creditor the Utah statute permits to force sell a homestead. 

In addition, another Utah exemption statute provides that “[p]roperty that includes a

homestead may not be sold at execution if there is no bid which exceeds the amount of the

declared homestead exemption.” Trustee’s sale of the Homesteads would not have 92

generated enough funds to pay Debtors’ exemptions, the mortgages, administrative

expenses, and tax liens. When read in conjunction with the applicable Utah exemption

statutes, § 363(f)(5) does not authorize Trustee to sell Debtors’ Homesteads without

satisfying their exemption claims.

(...continued) 89

of equity, and then subsequently created equity by negotiating the Carve-Outs with the

IRS.

Utah Code Ann. § 78B-5-503(3). 90

Id. 91

Utah Code Ann. § 78B-5-504(5). 92

-33-
3. Sections 724 and 522 Do Not Give Trustee Additional Rights

Appellants argue Debtors’ homestead exemptions do not trump §§ 522 or 724.93

According to Appellants, “debt secured by ‘a tax lien, notice of which is properly filed’ is

not subject to exemption.” While it is true that property exempt from the bankruptcy 94

estate remains subject to a tax lien perfected before the petition date pursuant to

§ 522(c)(2)(B), that does not mean Debtors are not entitled to a claim the homestead

exemption in the first place, or that the Trustee is entitled to administer and sell exempt

property to satisfy such debt or to create a fund for paying administrative expenses.95

Appellants also assert “[s]ection 724(b) makes it possible to sell property

encumbered with tax liens in a chapter 7 because the IRS ‘pays’ the estates’ administrative

fees out of its claims, not the Debtors’ or the lower priority creditors’s [sic] claims.”96

Appellants overstate the effect of § 724.

Section 724, entitled “Treatment of Certain Liens,” provides in part as follows:

(b) Property in which the estate has an interest and that is subject to a lien

that is not avoidable under this title (other than to the extent that there is a

properly perfected unavoidable tax lien arising in connection with an ad

valorem tax on real or personal property of the estate) and that secures an

allowed claim for a tax, or proceeds of such property, shall be distributed--

Appellants’ Br. 25. 93

Id. 94

See In re Quezada, 368 B.R. 44, 48 (Bankr. S.D. Fla. 2007) (stating § 704(a)(1) 95

only permits a trustee to “collect and reduce to money the property of the estate” not

exempt property).

Appellants’ Reply Br. 20. 96

-34-
(1) first, to any holder of an allowed claim secured by a lien on

such property that is not avoidable under this title and that is

senior to such tax lien;

(2) second, to any holder of a claim of a kind specified in

section 507(a)(1)(C) or 507(a)(2) (except that such expenses

under each such section, other than claims for wages, salaries,

or commissions that arise after the date of the filing of the

petition, shall be limited to expenses incurred under this

chapter and shall not include expenses incurred under chapter

11 of this title), 507(a)(1)(A), 507(a)(1)(B), 507(a)(3),

507(a)(4), 507(a)(5), 507(a)(6), or 507(a)(7) of this title, to the

extent of the amount of such allowed tax claim that is secured

by such tax lien;

(3) third, to the holder of such tax lien, to any extent that such

holder’s allowed tax claim that is secured by such tax lien

exceeds any amount distributed under paragraph (2) of this

subsection;

(4) fourth, to any holder of an allowed claim secured by a lien

on such property that is not avoidable under this title and that is

junior to such tax lien;

(5) fifth, to the holder of such tax lien, to the extent that such

holder’s allowed claim secured by such tax lien is not paid

under paragraph (3) of this subsection; and

(6) sixth, to the estate.97

Appellants interpret this provision to mean that a homestead exemption does not take

precedence over tax liens, and therefore Trustee was entirely justified in seeking to

11 U.S.C. § 724(b). 97

-35-
liquidate the Homesteads, “particularly where, as here, the IRS actively supported a sale

and had agreed to a carve-out that would directly benefit general unsecured creditors.”98

Such an interpretation ignores the safeguard provisions of § 363(f).

Section 724 indeed permits subordination of tax liens to the extent of administrative

expenses. As is patently obvious, however, the plain language of § 724 does not separately

authorize sale of estate property. Instead, it sets forth a mandatory distribution scheme after

an otherwise already authorized sale has been conducted. Section 363 is the only basis for

authorizing Trustee to sell estate property. Appellants’ attempt to use § 724 to effect a 99

“cram down scheme” with regard to Debtors’ homestead exemptions should not be

allowed. 

100

Appellants’ Br. 27. 98

In re Feinstein Family P’ship, 247 B.R. 502, 508 (Bankr. M.D. Fla. 2000); see 99

also Wolters Vill., Ltd. v. Vill. Props., Ltd. (In re Vill. Props., Ltd.), 723 F.2d 441, 444

(5th Cir. 1984) (“Section 363 defines the rights and powers of the trustee regarding the

use, sale or lease of estate property and the rights of third parties with interests in the

subject property.”).

Perhaps Trustee took his cue from this play book: The IRS Is Your Friend: How 100

Trustees Can Use Tax Liens To Weave Straw Into Gold, 29 Cal. Bankr. J. 191 (2007). In

that article, the author advocates that “because of the existence of federal tax liens, estates

that appear to have no value in fact do have value because the trustee can use the tax liens

to trump the debtors’ exemptions and create value for the estate.” Id. The article does not,

of course, point out that this procedure also creates a commission for a Chapter 7 trustee

under § 326. For support, the author cites to Grochocinski v. Laredo (In re Laredo), 334

B.R. 401 (Bankr. N.D. Ill. 2005), and In re Bolden, 327 B.R. 657 (Bankr. C.D. Cal.

2005). Appellants rely on these cases as well. While such cram down procedures may

have been allowed in those cases, the decisions of other bankruptcy courts are not binding

on the Utah bankruptcy court. Further, we do not find such schemes to be in keeping with

the Bankruptcy Code’s fresh start policy for debtors, or the Chapter 7 trustee’s obligation

(continued...)

-36-
The Supreme Court’s ruling in Law v. Siegel that exemptions can be denied only 101

on statutory bases enumerated in the Bankruptcy Code underscores the sacrosanct nature of

homestead exemptions. In Siegel, the Supreme Court ruled that because § 522(k) prohibits

exempt property from being liable for payment of ordinary administrative expenses, even a

debtor’s fraud was not grounds to “surcharge” his homestead exemption to defray

attorney’s fees the trustee incurred in overcoming debtor’s fraudulent misrepresentations.102

Similarly, in Scrivner v. Mashburn (In re Scrivner), the Tenth Circuit held that a exempt 103

retirement funds could not be surcharged to prevent a debtor who ignored a bankruptcy

court’s order to turnover nonexempt distributions from undeservedly benefitting to the

detriment of the estate and creditors. Though Trustee’s attempt to sell the Homesteads 104

here is not strictly analogous to the facts in Siegel or Scrivner, it would nonetheless have

the same effect—to deprive Debtors of their homestead exemptions on a basis other than

one enumerated in the Code. Moreover, Debtors in these cases do not stand accused of any

fraudulent or contemptuous behavior. Trustee’s scheme to sell the Homesteads by

negotiating Carve-Outs with the IRS is nothing more than an attempt to do indirectly what

(...continued) 100

to administer the estate solely for the benefit of creditors.

134 S.Ct. 1188 (2014). 101

Id. at 1195. 102

535 F.3d 1258 (10th Cir. 2008). 103

Id. at 1265.

104

-37-
the Bankruptcy Code and Utah exemption statutes prevent him from doing directly.

105

Accordingly, §§ 522 and 724 do not give Trustee powers enabling him to avoid the §

363(f) requirements for sale free and clear of the Homesteads.

C. The Bankruptcy Court Did Not Err in Denying the Fee Applications in Their

Entirety

Appellants contend denial of the Fee Applications in their entirety was error because

the bankruptcy court did not evaluate “Appellants’ actions prior to or apart from the

Appellants take issue with the bankruptcy court’s conclusion that § 506(c) 105

provides no basis for the Carve-Outs, stating:

The bankruptcy court asserts that “§ 506(c) is the chosen statutory vehicle

for the [Former] Trustee to receive the Carve-Outs” and that the Former

“Trustee and the IRS are attempting to shoehorn their arrangement into

§ 506(c), but it does not quite fit.” Opinion, 561 B.R. 195, 215 (Bankr. D.

Utah 2016). This vastly overstates the proposed role § 506(c) was to play. It

is § 724(b) that allows administrative expenses to be paid before the IRS’s

tax liens, not § 506(c). More importantly, neither the IRS nor the Former

Trustee ever pointed to § 506(c) as authority to pay the general unsecured

creditors $10,000 in each case. Rather, the proceeds were subject to the

IRS’s lien; therefore, the IRS was free to have $10,000 of the proceeds

distributed to general unsecured creditors if they wished. 

Appellants’ Br. 47 n.14. The Court is perplexed by Appellants’ statement in this regard. 

The Stipulations filed with the bankruptcy court are titled “Stipulation Pursuant to 11

U.S.C. § 506(c),” and specifically recite “the parties wish to stipulate to a carve-out of a

portion of the sales proceeds from the [Homestead], pursuant to 11 U.S.C. § 506(c), in

order to facilitate a sale of the [Homestead] by the Trustee and also provide

unencumbered funds to the bankruptcy estate for distribution to unsecured creditors of the

bankruptcy estate.” Stipulations at 3, 5, in Appellants’ App. at 844, 135. Only after the

bankruptcy court pointed out that Siegel and Scrivner clearly prevent any type of

surcharge of exempt assets do Appellants now claim no true surcharge is in play. 

-38-
proposed sales.” Appellants thoroughly brief this issue by again reviewing the 106

compensation statutes and citing to numerous cases. They do not, however, point out 

specific services and associated time entries in the Fee Applications they believe are

compensable, or otherwise provide any details that would assist the Court in making such a

determination. In absence thereof, even a cursory review of the Fee Applications reveals

that, from the very beginning, almost all the services for which Trustee and Counsel seek

compensation were in furtherance of Trustee’s inappropriate scheme to sell the

Homesteads, and thus neither reasonable nor necessary under § 330(a)(1). Further, 107 108

although fees and expenses that are “unavoidably incurred,” are sometimes deemed 109

necessary and compensable, nothing suggests that is the case with respect to the fees and

expenses here. 

While receiving no compensation at all might seem a harsh result, the Court would

point out that such a result is not uncommon. Compensation of a Chapter 7 trustee under

Appellants’ Br. 38. 106

In fact, Trustee’s very first time entry on the Fee Applications, made in both cases 107

about a week prior to the § 341 meeting, indicates a call to the realtor he eventually

sought to employ and analysis of legal issues and sale under § 724. Fee Applications, in

Appellants’ App. at 372, 1076.

After all, pursuant to § 330, courts can only award an attorney employed under § 108

327 reasonable compensation for “actual, necessary services rendered.” In re Schupbach

Invs., LLC, Nos. KS-13-77, KS-13-78, 2014 WL 6680122, at *8 (10th Cir. BAP Nov., 25

2014).

In re Ricci Inv. Co., Inc., 217 B.R. 901, 907 (D. Utah 1998) (concluding even if 109

fees are for services that do not benefit the estate, they may be compensable if they were

unavoidably incurred).

-39-
§ 330(a) is limited by § 326(a) to a certain dollar amount calculated as a percentage of the

moneys disbursed or turned over in the case to parties in interest. Courts have often 110

observed that being a Chapter 7 trustee is a “risky business,” since in the absence of 111

assets to liquidate and distribute, the $60 portion of the statutory filing fee set aside for the

trustee may be the only remuneration available. Moreover, several courts have held that 112

the limitations in § 326 must be strictly construed, resulting in no compensation for a

Chapter 7 trustee when the case is converted to Chapter 13, even if assets will be

distributed under a Chapter 13 plan. Compensation of a Chapter 7 trustee’s attorney,

113

however, is not subject to the limitations of § 326, and thus it may seem particularly

inequitable that Counsel’s fees are being denied in their entirety as well, given Counsel

Pursuant to § 326(a), the bankruptcy court may allow a Chapter 7 trustee 110

reasonable compensation under § 330 “not to exceed 25 percent on the first $5,000 or

less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent

on any amount in excess of $50,000 but not in excess of $1,000,000, and reasonable

compensation not to exceed 3 percent of such moneys in excess of $1,000,000, upon all

moneys disbursed or turned over in the case by the trustee to parties in interest, excluding

the debtor, but including holders of secured claims.” 11 U.S.C. § 326(a) (emphasis

added).

In re Mingledorff, No. 12–41543–EJC, 2015 WL 3897374, at *6 (Bankr. S.D. Ga. 111

June 23 2015) (citing In re Fischer, 210 B.R. 467, 469 (Bankr. D. Minn. 1997) (noting

trustees are only profitable when they achieve efficiencies by way of volume and make a

substantial fee in an occasional case)).

11 U.S.C. §330(b). 112

Mingledorff, 2015 WL 3897374, at *7 (“Here, the perceived unfairness of 113

allowing the Chapter 7 Trustee to go uncompensated for work done prior to the

conversion is not a determinative factor.”); In re Silvus, 329 B.R. 193, 207-21(Bankr.

E.D. Va. 2005) (noting only Congress may decide whether a different measure of Chapter

7 trustee compensation is appropriate when a case is converted to Chapter 13).

-40-
acted at Trustee’s direction. But, it bears reiteration that, notwithstanding Trustee’s

employment of Douglas J. Payne of his law firm, Fabian VanCott, the Fee Applications

indicate it was Trustee who performed over seventy percent of the legal services for which

Counsel seeks compensation. In our view, this significantly mitigates fairness concerns. 

The obvious dictate here is that it makes no sense whatsoever to sell the Homesteads

and incur administrative expenses of $57,284.97 in the Bird case, and $61,513.63 in the 114

Christensens’ case, in order to get only $10,000 to unsecured creditors and at the same 115

time deny Debtors their Homesteads. Even bankruptcy professionals performing services

for an oversecured creditor, whose compensation will be paid from that creditor’s own

collateral, must exercise some restraint with respect to incurring fees and expenses. In 116

other words, all bankruptcy professionals to be compensated from the estate must exercise

billing judgment, so that only “reasonable compensation for actual, necessary 117

services” is sought. In these cases, the actions of Trustee and Counsel fall woefully short 118

of this standard.

Again, this total represents $34,744.97 for services of Trustee and Counsel, and 114

$22,540 for realtor commissions and closing costs.

Again, this total represents $31,763.63 for services of Trustee and Counsel, and 115

$29,750 realtor commissions and closing costs. 

In re Fansteel, Inc., No. 16–01823, 2017 WL 1929489, at *6 (Bankr. S.D. Iowa 116

May 9, 2017).

Id. at *5 (fees must be “sensibly” incurred); In re Latshaw Drilling, LLC, 481 B.R. 117

765, 799 (Bankr. N.D. Okla. 2012) (counsel must act fairly, prudently, and efficiently).

11 U.S.C. § 330(a)(1). 118

-41-
IV. CONCLUSION

The bankruptcy court did not err in concluding Appellants’ services were neither

necessary nor beneficial to the estate. Trustee’s plan of action from the minute he was

assigned these Chapter 7 cases was abundantly clear: he sought to manufacture equity

through the Stipulations and Carve-Outs with the IRS in order to sell the Homesteads and

generate funds that would primarily benefit Trustee, Counsel, and other bankruptcy

professionals, while only minimally benefitting unsecured creditors. Almost all of the

services for which Appellants seek compensation are in furtherance of that inappropriate

plan. Therefore, the Order denying the Fee Applications in their entirety is not reversible

error, and is hereby AFFIRMED.

-42-