NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ERIK J. SUNDQUIST; RENEE 

SUNDQUIST, 

Debtors, 

------------------------------

DENNISE HENDERSON; LAW OFFICE 

OF DENNISE HENDERSON, 

Appellants, 

 v. 

ERIK J. SUNDQUIST; RENEE 

SUNDQUIST, 

Appellees.

No. 19-60016 

BAP No. 17-1347 

MEMORANDUM*

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Lafferty III, Brand, and Spraker, Bankruptcy Judges, Presiding

Submitted October 23, 2020**

San Francisco, California

Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without 

oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 27 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Dennise Henderson (“Henderson”), who represented debtors in the underlying 

bankruptcy proceeding, appeals the decision of the Bankruptcy Appellate Panel 

(“BAP”) affirming the Bankruptcy Court’s order expunging an attorneys’ fee lien 

Henderson had filed against the debtors. We review the bankruptcy court’s decision 

independently, Beaupied v. Chang (In re Chang), 163 F.3d 1138, 1140 (9th Cir. 

1998), and we affirm.

Henderson represented the debtors in a very successful adversary proceeding 

stemming from violation of the automatic stay. Under 11 U.S.C. § 362(k), her 

attorney’s fees are part of the damage award. Although Henderson initially 

attempted to seek at 30% contingent fee award, she later agreed before the court to 

“only seek the lesser of the contingency fee agreement or the reasonable hourly rate 

times the number of hours expended consistent with the Lodestar method.” The 

bankruptcy court canceled the contingent fee agreement pursuant to 11 U.S.C. § 329, 

which permits the court to cancel any agreement that “exceeds the reasonable value 

of any such services,” and awarded instead the full number of hours worked times 

an hourly rate of $300. Nonetheless, Henderson later filed an attorneys’ fee lien 

against the debtors, apparently seeking some higher fee based on the “extraordinary 

result” in this case, which necessitated debtors’ current action to expunge the lien.1

1

 We note that Henderson’s notice of appeal designated only the November 2017 

order expunging her lien and not the initial March 2017 decision which canceled the 

contingency fee agreement and awarded lodestar fees. See Fed. R. App. P. 
3 

The bankruptcy court acted well within its discretion in canceling 

Henderson’s contingency fee agreement, awarding her lodestar fees instead, and 

expunging the lien. First, counsel expressly agreed to accept the lodestar calculation 

as a reasonable fee. Second, the bankruptcy court has broad discretion in 

determining the amount of fees that are reasonable, especially considering the 

court’s unique position to observe the attorney’s performance during the course of 

the bankruptcy proceedings. See America’s Serv. Co. v. Schwartz-Tallard (In re 

Schwartz-Tallard), 803 F.3d 1095, 1101 (9th Cir. 2015) (explaining how bankruptcy 

judges retain the discretion to eliminate unnecessary or plainly excessive fees under 

§ 362(k)). The bankruptcy court described in great detail the poor performance of 

counsel, including its opinion that the damages proven might have been even higher 

with a better presentation. It expressed doubt that Henderson’s services were worth 

$300 an hour, but ultimately decided this figure was fair because of the risk of 

3(c)(1)(B). “When a party seeks to argue the merits of an order that does not appear 

on the face of the notice of appeal, we consider (1) whether the intent to appeal a 

specific judgment can be fairly inferred and (2) whether the appellee was prejudiced 

by the mistake.” Le v. Astrue, 558 F.3d 1019, 1022–23 (9th Cir. 2009) (internal 

quotations and citations omitted). Here, the subject matter of the two orders are 

necessarily intertwined, as the November order refers back to and expands on the 

reasoning of the earlier order. In addition, much of the briefing before the 

bankruptcy court, BAP, and this court addresses the propriety of the original March 

2017 order. We thus conclude that we have jurisdiction to address the merits of both 

orders. See One Indus., LLC v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1159 (9th 

Cir. 2009). 
4 

nonpayment counsel had assumed.2 Counsel was thus fully compensated for her 

time and services by this award, and had no basis for filing the lien against debtors.3

AFFIRMED.

2 Henderson also argues she was entitled to a bonus or enhancement for her clients’ 

“extraordinary result.” In denying this request, the bankruptcy court did not err. 

Though “declin[ing] to consider the bonus requested by the appellant” has 

constituted legal error, see Burgess v. Kelnske (In re Manoa Fin. Co.), 853 F.2d 687, 

691–92 (9th Cir. 1988), the bankruptcy court here considered Henderson’s 

enhancement arguments, ultimately exercising its discretion to deny that request 

based on Henderson’s performance. See Sundquist v. Bank of America, N.A. (In re 

Sundquist), 576 B.R. 858, 876–77 (Bankr. E.D. Cal. 2017) (noting the bankruptcy 

court “accepted [Henderson’s claimed rate, reasoning that it included an implicit 

enhancement (perhaps 50 percent) above normal lodestar for an attorney of her 

caliber of performance that could be justified as accommodating the risk of 

nonpayment”).

3 The motion filed by Appellants for an extension of time to file a reply brief [Dkt. 

Entry No. 53] is granted. The reply brief filed on July 29, 2020, is deemed filed.