### NOT FOR PU BLICA TION

U NIT E D ST A T E S BA NK RU PT CYA PPE L L A T E PA N E L

OF T HE NINT H CIRCU IT In re: ERI KJ. SU N DQ U I ST and R EN EE SU N DQ U IST, Deb to rs. DEN N ISE HEN DER SO N ; LA WO FFIC E O F DEN N ISE HEN DER S O N,

A p pellants,

v. ERI KJ. SU N DQ U I ST; R EN EE SU N DQ U IST, A p pellees. BA P N o . EC -17-1347-LBS Bk. N o . 2:10-b k-35624 A dv. N o . 2:14-ap-2278

M E M ORA ND U M *

A rgued and Sub m itted o n January 24, 2019 at Sac ram ento , C alifo rnia Filed – Feb ruary 27, 2019 A ppeal fro m the United States Bankruptcy C o urt 

# FIL ED
FEB 27 2019 S USAN M . SPRAUL, CLERK U. S. BKCY

. APP. PANEL O F T HE NI NT H CI R C UI T

* Thi s di sposi ti on i s not appr opr i ate for publi c ati on. Although i t may be ci ted for whatev er per suasiv e v alue i t may hav e, seeFed. R. App. P. 32.1, i t has no pr ecedenti al v alue, see9th Ci r . BAP Rule 8024-1.fo rthe Eastern Distric t o f C alifo rnia

Ho no rab le C hristo pher M. Klein, Bankruptcy Judge, Presiding

A ppearanc es: Richard Lawrenc e A nto gnini argued fo r A ppellants;

Mark E. Ellis o f Ellis Law Gro up, LLP, argued fo r A p pellees.
Befo r e: LA FFERTY, BRA N D, and SPRA K ER , Bankruptcy Judges.

INT ROD U CT I ON Dennise Henderso n and the Law O ffic e o f Dennise Henderso n 1
challenge the b ankruptcy c o urt’s o rder expunging an atto rney’s lien asserted against the pro c eeds o f a po st-judgm ent settlem ent o f litigatio n b etween their fo rm er c lients, deb to rs Erik and Renée Sundquist, and Bank
o f A m eric a, N .A . (“BA N A ”). Sub s t antively, ho w ever, the c hallenge is to the b ankruptcy c o urt’s underlying ruling c anc eling the c o ntingenc y fee agreem ent b etween Ms. Henderso n and the Sundquists and limiting Ms. Henderso n’s c o m pensatio n to $70,000 as the reasonab le value o f her servic es. N either the b ankruptcy c o urt no r the parties fo cu sed o n the atto rney’s lien issue itself. Ms. Henderso n has no t dem o nstrated that the b a nkruptc y c o urt

1 Appellants her eafter ar e r efer r ed to collecti v ely as “Ms. Hender son.” 2ab used its disc retio n either in c anc eling the c o ntingenc y fee agreem ent o r

in lim iting her c o m pensatio n to $70,000 and thus o rdering the atto rney’s lien expunged. A c c o rdingly, we A FFIRM. F A C T U A L BA CK GROU N D Ms. Henderso n represented the Sundquists in their chapter 13 2 c ase filed June 14, 2010. During the b ankruptcy c ase, BA N A, the secu red lender
o n the Sundquists’ ho m e, to o k num ero us ac tio ns in vio latio n o f the auto m aticstay, inc luding fo rec lo sure and pro secutio n o f an unlawful detainer ac t io n. 3 A s a result, the Sundquists gave up their effo rt to use a chapter 13 plan tocure a b a nk-induc ed default while they attem pted to nego tiate a m o rtgage m o dific atio n. They vo luntarily dism issed the
chapter 13 c ase o n Septemb er 20, 2010, and Ms. Henderson c eased to represent them
. Ms. Henderso n apparently to o k no steps tofo rc e BA N Ato sto p its stay vio latio ns during the b ankruptcy c ase, and, after the c ase was dism issed, BA N Aexac erb ated the c o nsequenc es o f its prio r stay vio latio ns.

2 Unless specifi ed other wi s e, all chapterand secti on r efer ences ar e to the Bankr uptcy Code, 11 U.S
. C. §§ 101-1532, all “Rule” r efer ences ar e to the Feder a l Rules of Bankr uptcy Pr ocedur e, and all “Ci v i l Rule” r efer ences ar e to the Feder al Rules of Ci v i l Pr ocedur e.

3 A detai led r eci tati on of Bank of Amer i ca’s egr egi ous conduct i s found in the bankr uptcy cour t’s opi ni on on the mer i ts of the stay v i olati on li ti gati on. Sundquist v. Bank of America (In re Sundquist) , 566 B.R. 563 (Bankr . E.D. Cal. 2017) ( “Sundquist I” ), vacated in part by Sundquist v. Bank of America (In re Sundquist) , 580 B.R. 536 (Bankr . E.D. Cal. 2018). 3S ee S undquist I , 566 B.R . at 579-582. In 2011, the Sundquists, represented b y a different atto rney, sued BA N Ain state c o u r t o n several gro unds, inc luding wro ngful fo rec lo sure. The c o m plaint was dism issed b y the state trial c o u rt. On appeal, the C alifo rnia Third Distric t C o urt o f A ppeal reversed the dism issal. The C alifo rnia appellate c o urt alsoruled that § 362(k)(1) preem pts state law
wro ngful fo rec lo sure c laim s that are b ased so lely o n alleged vio latio ns o f the auto m aticstay, sothat if the Sundquists desired relief o n ac c o unt o f the b ankruptcy auto m aticstay vio latio ns, they wo uld have to return to federal
c o u rt. Thereafter, the Sundquists re-em plo yed Ms. Henderso n to pro secute their § 362(k)(1) c ause o f ac tio n in federal c o urt. Ms. Henderso n filed a
c o m p laint in the distric t c o urt, which referred the ac tio n to the b ankruptcy c o u rt as a c o re pro c eeding. The b ankruptcy c o urt held a b ench trial in May 2016 and to o k the m atter under advisem ent. While the m atter was under advisem ent, the b ankruptcy c o u rt issued
an o rder rem inding Ms. Henderso n that she had no t tim ely filed under Rule 2016(b ) the statem ent required b y § 329 disclo sing the c o m pensatio n agreed to b e paid to her b y the Sundquists fo r representing them in the adversary pro c eeding. Ms. Henderso n filed a respo nse and a supplem ental statem ent stating that fees were to b e b ased o n an unspec ified c o ntingenc y rate. The b ankruptcy c o urt then o rdered Ms. Henderso n to file a c o py o f
4the c o ntingenc y fee agreem ent. The o rder required that she justify the

agreed c o ntingenc y fee arrangem ent as representing the reaso nab le value
o f servic es within the m eaning o f § 329(b ) and that she explain ho w the
c o ntingenc y fee c o m po rted with the atto rneys’ fee struc ture set fo rth in § 362(k)(1). Ms. Henderso n filed a c o py o f a c o ntingenc y fee agreem ent dated O c t ob er 22, 2014. That fee agreem ent was ac tually two different do cum ents pasted to gether with no n-c o nsecutive paragraphs. The first two pages ended in the m iddle o f paragraph no . 3; the third page, in a distinc tly different typefac e, b egan with paragraph no . 11. Ms. Henderson c o nc eded that the agreem ent was a 2016 do cum ent b ac kdated to 2014 and apo lo gized fo r filing an inac curate c o py o f the fee agreem ent, b u t she never filed a
c o r rec ted c o py. 4 Ms. Henderso n c o nc u rrently filed “Supplem ental Briefing R egarding A tto rneys’ Fees,” in which she urged that § 329(b ) reaso nab le
c o m p ensatio n b e determ ined c o nsistent with § 330(a)(3). She stated, “I will file a tim e b illing with the ac tual tim e expended and will o nly seek the lesser o f the c o ntingenc y agreem ent o r the reaso nab le ho urly rate tim es the

4 Ms. Hender son’s counsel laterr epr esented to the bankr uptcy cour t that the or i gi nal contingency fee agr eement had been lost. 5numb er o f ho urs expended c o nsistent with the Lo destar 5 m etho d.” O ther

than a naked assertio n that custo m ary c o m pensatio n c an inc lude a
c o ntingenc y fee, she o ffered no justific atio n fo r the c o ntingenc y fee agreem ent. Afew days later, Ms. Henderson filed a dec laratio n do cum enting 207.56 ho urs spent o n the § 362(k)(1) adversary pro c eeding at a rate o f $300.00 per ho ur ($62,268), to gether with c o sts fo r depo sitio ns, transc ripts, and trial b inders o f $6,606.55 fo r a to tal o f $68,874.55. Ms. Henderson did
no t seek an enhanc em ent ab o ve her lo destar c o m pensatio n, no r did she pro ffer spec ificevidenc e to reb ut the presum ptio n against a b o nus. A c c o rdingly, the b ankruptcy c o urt fixed the atto rneys’ fee c o m po nent o f § 362(k)(1) ac tual dam ages at $70,000, slightly m o re than the lo destar
am o u nt that Ms. Henderso n stated she was requesting. Despite the fac t that Ms. Henderso n never pro vided a c o rrec ted c o py o f the c o ntingenc y fee agreem ent, the b ankruptcy c o urt treated the agreem ent at “fac e value.” S undquist II , 576 B.R . at 867-68. The c o u rt c o nc luded that the c o ntingenc y fee that wo uld result in this m atter exc eeded the reaso nab le value o f servic es within the m eaning o f § 329(b )

5 The lodestar r ate i s a r easonable hour ly r ate multi p li ed by the number of hour s actually and r easonably expended, and i s pr esumptiv ely a r easonable fee in a bankr uptcy case. Sundquist v. Bank of America, N.A. (In re Sundquist) , 576 B.R. 858, 876 (Bankr
. E.D. Cal. 2017) ( Sundquist II) (ci ti ng Burgess v. Klenske (In re Manoa Finance Co., Inc.) , 853 F.2d 687, 691–92 (9th Ci r . 1988)). 6and c anc eled it. S undquist I , 566 B.R . at 597. In March 2017, the c o urt issued a written o pinio n and entered a judgm ent awarding the Sundquists $1,074,581.50 in ac tual dam ages and $5,000,000.00 in punitive dam ages, a to tal o f $6,074,581.50. Id. at 563. A dditio nal punitive dam ages o f $45,000,000.00 were allo c ated b y m andato ry injunc tio n to the N atio nal C o nsum er Law C enter, N atio nal C o nsum er Bankruptcy C enter, and five pub liclaw scho o ls. Id. at 618-19. The Sundquists were alsoenjo ined, b y m a ndato ry injunc tio n, to deliver $70,000.00 to Ms. Henderso n as § 329(b ) “reaso nab le” c o m pensatio n. Id. at 618. Sho rtly thereafter, the Sundquists hired new c o unsel to replac e Ms. Henderso n. She then filed a N o tic e o f Lien “b y virtue o f a written fee agreem ent with [the Sundquists] dated O c tob er 22, 2014,” on any judgm ent o r settlem ent paid to secure the paym ent fo r legal servic es rendered and
c o s ts and expenses “in ac c o rdanc e with the term s o f the afo rem entio ned fee agreem ent.” A c c o rding to the b ankruptcy c o urt, the lien was filed “to
c reate ‘ho ld-up’ value b y im peding settlem ent effo r ts b y plaintiffs and defendant in o rder to extrac t a fee ‘far higher’ than what this c o u rt autho r ized as ‘reasonab le’ c o m pensatio n under § 329(b ).” S undquist II , 576 B.R . at 865. The Sundquists and BAN Aeventually reached a settlem ent. A c c o rdingly, in A ugust 2017, the Sundquists, through their new c o unsel,
7filed three m o tio ns: a m o t io n to expunge Ms. Henderso n’s atto rney’s lien

(“Mo t io n to Expunge”), a m o tio n to vac ate the March 2017 judgm ent, and a
m o tio n to dism iss the adversary pro c eeding. In their Mo tio n to Expunge, the Sundquists asserted that: (1) under § 329 the b ankruptcy c o urt had the autho r ity to determ ine the
reaso nab leness o f atto rney’s fees and had anc illary jurisdic t io n to do so ; (2) the atto rney’s lien sho uld b e expunged b ec a use Ms. Henderson had failed to c o m ply with Ru le 3-300 o f the C alifo rnia Ru les o f Pro fessio nal C o nduc t, which pro hib its an atto rney fro mob taining a pec uniary interest adverse to a c lient unless c ertain requirem ents are satisfied; (3) the fee agreem ent had b een vo ided b y the Sundquists due to Ms. Henderso n’s failure to c o m ply with C alifo rnia Business &Pro fessio ns C o de § 6147, which requires a rec itatio n that the fee is nego tiab le, and § 6148, which requires fo r an ho urly fee arrangem ent that there b e a written c o ntrac t setting fo rth the term s o f c o m pensatio n, inc luding ho urly rates; (4) the fee agreem ent was unc o nsc io nab le as exo rb itant and dispro po rtio nate to the servic es perfo rm ed; (5) the c o urt pro perly ruled o n the reaso nab leness o f the fees pursuant toC ivil Rule 54, applic ab le via Ru le 7054; and (6) Ms. Henderso n was esto p ped b y her representatio n that she wo uld ac c ept the am o u nt awarded b y the c o u rt. The Sundquists c o m plained that the lien “effec tively b lo c ks the Sundquists fro mrec eiving the entire am o unt o f the appro xim a tely $6,000,000 awarded tothem, no t just the $70,000 awarded
8fo r fees and c o s ts.”

Ms. Henderso n filed an o ppo sitio n, arguing that: (1) the b ankruptcy c o u rt lac ked jurisdic tio n to rule o n the validity o f the lien b ec ause the b ankruptcy c ase had b een adm inistered and c lo sed, thus there was no b ankruptcy estate to pro t ec t; (2) even if the c o urt had anc illary jurisdic tio n, it sho uld perm it the m atter to b e litigated in state c o urt; (3) Rule 3-300 o f the C alifo rnia Rules o f Pro fessio nal C o nduc t do es no t apply to c o ntingenc y fee arrangem ents; (4) altho ugh Ms. Henderso n adm ittedly had failed to
c o m p ly with C alifo rnia Business &Pro fessio ns C o d e § 6147 and thus the Sundquists c o uld vo id the fee agreem ent, under C alifo rnia law an atto rney still m a intains a lien o n the c lient’s rec o very; (5) the reaso nab le value o f Ms. Henderso n’s servic es far exc eeded $70,000, and the b a nkruptc y c o urt (I) did no t perm it an adequate o p po rtunity fo r Ms. Henderso n to present evidenc e o n the appro priate fee, no r(ii) did it c o nsider the appro priate fac t o rs, i.e., the risks invo lved, prec lusio n o f o ther em plo ym ent, no velty o f the c ase, and results achieved; (6) the c o ntingenc y fee was no t unc o nsc io nab le; and (7) there was no fraud o n the c o urt and no b a sis fo r esto ppel. Ms. Henderso n c o nc u rrently filed a dec laratio n in which she stated that when she stated in her Septemb er 2016 supplem ental b rief that she
wo uld seek the lesser o f the am o unt due under the c o ntingenc y fee agreem ent o r the am o u nt c alculated b y the lo d estar m etho d, she did no t
9understand that the c o urt was c o nsidering invalidating the c o ntingenc y fee

agreem ent and lim iting her c o m pensatio n to her ho urly rate and ac tual
c o s ts. She stated that she assumed the c o urt wo uld use the info rm a tio n to c alculate the am o unt o f fees to award the Sundquists as co m pensato ry dam ages b ut no t use it tolim it the am o unt o f fees she c o uld c o llec tfro m the Sundquists. A fter a hearing, the b ankruptcy c o urt to o k the m atter under advisem ent. In N o vemb er 2017, it issued a written o pinio n, an o r der granting the Mo tio n to Expunge, and a final judgm ent regarding Ms. Henderso n’s fees, which pro vided that the c o ntingenc y fee agreem ent was c anc eled and that the reaso nab le c o m pensatio n fo r Ms. Henderso n’s servic es under § 329 was $70,000. Ms. Henderso n tim ely appealed. 6 JU RISD ICT ION The b ankruptcy c o urt had jurisdic tio n pursuant to28 U .S.C . §§ 1334 and 157(b )(2)(A ) and (O ). Subjec t to the discussio n b elo w, we have jurisdic tio n under 28 U
. S.C
. § 158.

6 By publi shed deci s i on i ssued in January 2018, the bankr uptcy cour t deni ed the S undqui sts’ moti on to di s mi ss the adv er sar y pr oceeding but gr anted the moti on to v acate in par t, v acating only the damages component of the j udgment. Sundquist v. Bank of America (In re Sundquist) , 580 B.R. 536 (Bankr . E.D. Cal. 2018). The cour t’s opi ni on pr ov i ded that the j udgment canceling Ms. Hender son’s fee contr act pur suant to § 329(b) would r emain ineffect. Id. at 556. 10ISSU E S

Do es this Panel have jurisdic tio n o ver the issues o n appeal? Did the b ankruptcy c o urt ab use its disc r etio n in c anc eling the
c o ntingenc y fee agreem ent? Did the b ankrupt c o urt ab use its disc retio n in lim iting the am o unt o f Ms. Henderso n’s atto rney’s fees to $70,000 and expunging her atto rney’s lien? ST A ND A RD OF RE V I E W W e review a b ankruptcy c o urt’s award o f atto rney’s fees as a
c o m p o nent o f § 362(k) dam ages fo r ab use o f disc retio n. S ee Esk a no s &Adler, P.C . v. R o m a n (In re R o m a n) , 283 B.R
. 1, 7 (9th C ir. BA P 2002). S ee a lso Am erica ’s S ervicing C

o . v. S chwa rtz -Ta l la rd (In re S chwa rtz -Ta lla rd) , 803 F.3d 1095, 1101 (9th C ir. 2015) (c o urts awarding fees under § 362(k) retain the disc retio n to elim inate unnec essary o r plainly exc essive fees). To determ ine whether the b ankruptcy c o u rt ab used its disc retio n, we c o nduc t a two -step inquiry: (1) we review de no vo whether the b ankruptcy c o u rt “identified the c o rrec t legal rule to apply to the relief requested” and (2) if it did, whether the b a nkruptc y c o u rt’s applic atio n o f the legal standard was illo gic al, im plausib le, o r “witho ut suppo r t in inferenc es that
m ay b e drawn fro mthe fac t s in the rec o rd.” United S ta tes v. Hinkso n , 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en b a nc ).

11D ISCU SSION

A . T his Panel hasjuris dic tion ov e r the is s ues rais ed by M s . Henders on. The Sundquists c o ntend that we lac k jurisdic tio n o ver the issues o f the c anc ellatio n o f the c o ntingenc y fee agreem ent and the fixing o f Ms. Henderso n’s fees at $70,000, whic h were initially determ ined in the b ankruptcy c o urt’s March 2017 judgm ent. Ms. Henderso n tim ely filed a
no tic e o f appeal o f that judgm ent, b ut that appeal (BA P N o . 17-1103) was dism issed fo r lac k o f pro secutio n. The appeal perio d fo r the March 2017 judgm ent was to lled b y BA N A ’s tim ely filing o f a m o tio n under C ivil Ru le 59 (applic ab le via Rule 9023) fo r am ended findings. See Rule 8002(b ); S co tt v. Y o unger , 739 F.2d 1464, 1467 (9th C ir. 1984) (tim ely Rule 59(e) m o tio n to lls the running o f the tim e lim itatio ns fo r filing the no tic e o f appeal until the trial c o urt rules o n the m o tio n). The b ankruptcy c o u rt never ruled o n that m o tio n, and it was
m o o ted b y the parties’ sub sequent settlem ent and request tovac ate the judgm ent and dism iss the adversary pro c eeding, whic h the b ankruptcy c o u rt dispo s ed o f in January 2018. The b ankruptcy c o urt issued the o rder
o n appeal o n N o vemb er 15, 2017. Ms. Henderson tim ely filed a no tic e o f appeal o n N o vemb er 28, 2017. The b ankruptcy c o urt issued a judgment regarding her atto rney’s fees o n N o vemb er 30, 2017, thus m aking its determ inatio ns final.

12In sho rt, b ec ause o f the pending to lling m o t io n, the appeal perio d did

no t b egin to run until the b ankruptcy c o urt entered its o rder to expunge the lien. Thus Ms. Henderson’s no tic e o f appeal was tim ely, and we have jurisdic tio n o ver Ms. Henderso n’s appeal o f the o rder granting the Mo tio n to Expunge and all o f the issues dec ided in the c o urt’s underlying o p inio n. B. T he Bankruptcy Court’s Ruling s In its March 2017 o pinio n, the b ankruptcy c o urt stated that it wo uld
c anc el the c o ntingent fee c o ntrac t under § 329(b ) 7b ec a use it c alled fo r exc essive c o m pensatio n. The c o urt determ ined that under the lo destar analysis, the reaso nab le value o f the legal servic es pro vided b y Ms. Henderso n was $70,000. S undquist I , 566 B.R
. at 597. The c o urt c ited two independent b a s es fo r these c o nc lusio ns. First, a “c o ntingenc y fee agreem ent in a situatio n in which atto rney’s fees are an elem ent o f dam ages leads toc o ntingenc y fees o n c o ntingenc y fees, which wo u ld set up a repetitive lo o p in which fees wo u ld inc rease to infinity.” Id. Sec o nd, in vario us c o m m ents thro ugho ut the o pinio n, the b ankruptcy c o urt c ited Ms. Henderso n’s lac k o f c o m petenc e in her trial presentatio n. In its N o vemb er 2017 o pinio n o n the Mo t io n to Expunge, the c o urt rejec ted Ms. Henderso n’s argum ents that it lac ked jurisdic tio n o ver the

7 That subsecti on pr ov i des, in r elev ant par t, “[i ] f such compensati on exceeds the r easonable v alue of any such ser v i ces, the cour t may cancel any such agr eement, or or d er the r etur n of any such payment, to the extent excessi ve . . . .” 13atto rney’s lien issue o r, alternatively, that it sho uld ab stain fro mhearing

the m atter. The c o urt ruled that the Mo tio n to Expunge invo lved issues that were b o th “arising in” and “related to ” the b ankruptcy c ase and, b ec ause the underlying fees were fixed pursuant to § 329(b ), the c o urt had jurisdic tio n under 28 U
. S.C
. §§ 1334 and 1367 torule o n it despite the fac t that the b ankruptcy estate had c eased to exist when the b ankruptcy c ase was dism issed and c lo sed. S undquist II , 576 B.R . at 871-74. The b ankruptcy c o u rt ruled that neither m andato ry no r perm issive ab stentio n were appro priate given that there was no parallel ac tio n pending in state c o urt (a requirem ent fo r m andato ry ab stentio n) and b ec ause there were no fac to rs weighing in favo r o f perm issive ab stentio n. Id. at 874. The c o urt alsoruled that quantumm eruit princ iples c o uld no trescue Ms. Henderso n fro mc anc ellatio n o f the c o ntingenc y fee c o ntrac t o rentitle her to c o m pensatio n ab o ve the am o unt do cu m ented in her dec laratio n b ec ause she lacked c lean hands, and even under quantumm eruit princ iples, the reaso nab le fee wo uld b e $70,000. Id. at 881. In this appeal, Ms. Henderson has no t challenged the jurisdic tio n, ab stentio n, o rquantum m eruit rulings. Her challenge is to the b ankruptcy c o u rt’s reaffirm anc e o f its ruling o n the c anc ellatio n o f the c o ntingenc y fee agreem ent and lim itatio n o f c o m p ensatio n (and the resulting expungem ent o f her atto rney’s lien). The b ankruptcy c o urt elab o rated o n the fee ruling in its o pinio n o n the Mo tio n to Expunge.
14Spec ific ally, the b ankruptcy c o urt ruled that under § 329, it had the

autho r ity to c a nc el fee agreem ents and to o rder the return o f paym ents to the extent they exc eed the reaso nab le value o f servic es pro vided. A lternatively, it po inted o u t that under S ch wa rtz -Ta lla rd, the b ankruptcy c o u rt has the “disc retio n to elim inate unnec essary o r plainly exc essive fees” in awarding dam ages under § 362(k). 803 F.3d at 1101. The co u rt no ted that it had perfo r m ed the lo destar analysis in reaching its c o nc lusio n that $70,000 was the reasonab le value o f Ms. Henderso n’s servic es, no ting that Ms. Henderso n had never explained ho w the c o ntingenc y fee agreem ent represented the reaso nab le value o f her servic es under § 329(b ) and
c o m p o rted with the atto rney’s fee struc ture o f § 362(k)(1). 8 A nd, b ased o n Ms. Henderso n’s prio rrepresentatio n that she wo uld seek o nly the lesser o f the c o ntingenc y fee agreem ent o r the lo d estar am o unt, the c o urt fo und that she had “waived and reno unc ed her right to c laim additio nal
c o m p ensatio n o n quantumm eruit o r any o ther theo ry.” S undquist II , 576 B.R . at 880. The c o urt alsopo inted o ut that, given Ms. Henderso n’s failure to
c o m p ly with the disc lo sure requirem ents o f Rules 2016 and 2017, it had the disc retio n to d isallo w all fees, c iting N eben &S ta rrett, Inc. v. C ha rtwell F in. Co rp. (In re Pa rk-H

elena Co rp.) , 63 F.3d 877, 882 (9th Cir. 1995). But it

8 At or al ar gument, Ms. Hender son’s counsel asser ted that she had r equested a bonus in heropposi ti on to the Moti on to Expunge. We hav e found no such r equest. 15dec lined to do so b ec ause, altho ugh Ms. Henderso n’s litigatio n

presentatio n was b arely adequate, it had enab led the c o u rt to disc ern a just result. A c c o rdingly, the c o urt ruled that it wo uld c o nfirmits o riginal ruling lim iting Ms. Henderso n’s c o m pensatio n to $70,000. O n appeal, Ms. Henderso n c o ntends that the b ankruptcy c o urt ab used its disc retio n in: (1) c anc eling the c o ntingenc y fee agreem ent o n the gro unds that (I) such an agreem ent c o ntradic ts the struc ture o f § 362(k)(1); and (ii) Ms. Henderso n failed to c o m ply with Ru le 2016; and (2) ruling that the $70,000 fee award was reasonab le and that Ms. Henderso n was no t entitled to an enhanc ed fee. She do es no t dispute the b ankruptcy c o urt’s
rec itatio n o f the law o r its fac tual findings, b ut takes issue with ho w the b ankruptcy c o urt exerc ised its disc retio n. C. T he bankruptcy c ourt did not abus e its dis c retion in c anc elingthe c onting enc y fee agreem ent. 1. T he bankruptcy c ourt did not err in finding that the c onting enc y fee agreem ent at is s ue in this c as e was inc om patible with § 362(k)(1). Ms. Henderso n po ints o ut that, as rec o gnized b y the b a nkruptc y c o u rt, c o ntingenc y fees are (in princ iple) perm issib le in b ankruptcy c ases. S undquist I

, 566 B.R . at 597 (c iting § 328(a)). She c ites M cPro ud v. S iller (In re C W S Enters., Inc.) , 870 F.3d 1106 (9th Cir. 2017), as suppo rt fo r the pro po sitio n that the b ankruptcy c o urt erred in c anc eling the c o ntingenc y fee agreem ent. In C W

S , the N inth C ircuit reversed the b ankruptcy c o urt’s

16determ inatio n, in the c o ntext o f an obj ec tio n to c laim, that c o ntingent fees

awarded in pre-petitio n arb itratio n and c o nfirm ed in a C alifo rnia judgm ent were no t reaso nab le under § 502(b )(4). The N inth C ircuit c o nc luded that the arb itratio n award was entitled toissue prec lusive effec tin the b ankruptcy c ase, and that, under the fac ts presented, the b ankruptcy c o urt erred in perfo rm ing an independent analysis o f the reaso nab leness o f the fees despite the language o f § 502(b )(4) that perm its the c o urt to lim it a
c laimfo r atto rney’s fees to the reaso nab le value o f the servic es. S ee id. at 1116. The c o urt c o nc luded that “a c o ntingent fee m ay b e reaso nab le where it reflec ts the risk o f no nrec o very assum ed in ac c epting a c ase. In this c ase, a lo destar fee wo uld b e unreaso nab le and c o uld no t, fo r that reaso n, serve as a c ap under sec tio n 502(b )(4).” Id. at 1120. But C W S has little, if any, relevanc e to this c ase, where the applic ab le statute pro vides that the atto rney’s fees them s elves are a c o m po nent o f dam ages. Ms. Henderso n do es no t address ho w the c o ntingenc y fee arrangem ent wo uld wo rk in the c o ntext o f awarding § 362(k) dam ages, and she po ints to no autho r ity (no r have we fo und any) addressing the issue. A s the b ankruptcy c o urt stated, [c ]o ntingenc y fees fo rdeb to r’s c o unsel in § 362(k)(1) stay vio latio n disputes . . . present lo gic al diffic ulties. A tto rneys’ fees are an elem ent o f § 362(k)(1) dam ages. Asim ple c o ntingenc y fee agreem ent in a situatio n in which atto rneys’ fees are an elem ent o f dam ages leads to c o ntingenc y fees o n c o ntingenc y fees, which wo u ld set up a repetitive lo o p in which fees wo uld 17inc rease to infinity.

While it m a y b e po ssib le to draft a deb to rs’ c o unsel c o ntingenc y fee agreem ent that m ight so lve the pro b lemdesc rib ed here, the spec ificc o ntingenc y fee agreem ent in this c ase do es no t do so . S undquist I

, 566 B.R . at 597. In o ther wo r ds, the b ankruptcy c o urt fo und that the spec ific
c o ntingenc y fee agreem ent in this c ase was inc o m patib le with § 362(k). The
c o u rt did no t rule that c o ntingenc y fee agreem ents c o u ld never b e perm issib le in the c o ntext o f § 362(k), no r did the parties seek a ruling o n that issue. 9 A s no ted b y the b ankruptcy c o urt, there m ight b e a sc enario where the “lo gic al diffic ulties” c o uld b e rem edied. But, as discussed b elo w, the c o urt’s prim a ry c o nc ern was that applying a c o ntingenc y rate to the
rec o very in this c ase wo uld result in a c o m pensatio n award that wo uld b e gro ssly dispro po rtio nate to the quality o f servic es pro vided. The b ankruptcy c o urt thus did no t ab use its disc retio n in c anc eling the
c o ntingenc y fee agreem ent. 2. T he bankruptcy c ourt did not err in ruling that it c ould c anc el the c onting enc y fee agreem ent bec aus e M s . Henders on failed to c om p ly with Rule 2016. Ms. Henderso n ac kno wledges that under P a rk-H elena, the b ankruptcy

9 At or al ar gument, counsel forboth par ti es confi r med that they wer e not seeki ng a r uling on whether a contingency fee agr eement could ev er be appli ed in the § 362(k) context. 18c o u rt has disc retio n to c anc el a fee agreem ent fo r vio latio ns o f Rule 2016,

which requires tim ely and full disc lo sure o f c o m pensatio n paid o r pro m ised to b e paid. But she argues that the circu m stanc es o f this c ase are m uch less egregio us than tho se in which o ther c o urts have c anc eled fee agreem ents fo r failure to c o m ply with Rule 2016. Fo r exam ple, she po ints
o ut that the c ases c ited b y the N inth C ircu it in Pa rk-H elenainvo lved
c o m p lete failures to p r o vide the fee agreem ent o r m isrepresentatio ns as to the so urc e o f c o m pensatio n. She po ints o u t that even tho ugh she m ade her Rule 2016 disclo sures late, the b ankruptcy c o urt was no t “prejudic ed” b y the late disc lo sures b ec ause it still had ample tim e to c o nsider it b efo re m aking its fee award. A dditio nally, Ms. Henderso n argues that she did no t m isrepresent her c o m pensatio n b ec a u se she always intended toenfo rc e the full
c o ntingenc y fee against the Sundquists, and the b ankruptcy c o urt ac kno wledged that b y c o nsidering the agreem ent in awarding fees. But the b ankruptcy c o urt’s c o nsideratio n o f the agreem ent was lim ited to explaining why it did no t wo rk and c anc eling it. S ee S undquist I , 566 B.R
. at 597. Ms. Henderso n has no t dem o nstrated that the b a nkruptc y c o urt ab used its disc retio n in c anc eling the c o ntingenc y fee agreem ent fo r failure to pro vide Rule 2016 disclo sures. Ms. Henderson did no t state in her disc lo sure that she intended to enfo rc e the full c o ntingenc y am o unt against
19the Sundquists. Thus the disclo s ure to the c o u rt was m aterially defec tive

b ec ause it did no t disc lo se full relevant info rm atio n. A nd even if the failure to disc lo se was negligent o r inadvertent, the c o urt still had the disc retio n to c anc el the agreem ent and deny all requested fees. S ee In re Pa rk –H elena, 63 F.3d at 882. A s stated b y the c o urt: The rec o rd adm its o f two po ssib ilities, each o f which wo uld, in the c o urt’s disc retio n, justify c o m plete denial o f atto rneys’ fees. If the undisc lo sed intentio n to enfo rc e the full c o ntingenc y is no t a rec ent fab r ic atio n, then there was a failure to disc lo se full relevant info rm atio n fo r which all fees m ay b e denied. If the undisc lo sed intentio n is a rec ent fab ric atio n, then c o u nsel has lied to the c o u rt in a dec laratio n and papers filed in o ppo s itio n to this m o tio n fo r which sanc tio ns are appro priate o n a variety o f theo ries. Either way, this c o urt has the disc retio n to deny all fees. S undquist II

, 576 B.R
. at 880. Ms. Henderson sim ply disagrees with ho w the
c o u rt exerc ised its disc retio n; she has no t sho wn that the b ankruptcy c o urt applied the wro ng legal standard o r m ade illo gic a l, im plausib le, o r unsuppo rted fac tual findings. W e find no ab use o f disc retio n in the b ankruptcy c o urt’s c a nc ellatio n o f the c o ntingenc y fee agreem ent b ased o n Ms. Henderso n’s failure toc o m ply with Rule 2016. D . T he bankruptcy c ourt did not abus e its dis c retion in determ ining that the $70,000 fee award was reas onable. In lim iting Ms. Henderso n’s fees, the c o urt desc rib ed in detail the defic ienc ies in Ms. Henderso n’s legal servic es:

20Ms. Henderso n's perfo rm anc e in this adversary pro c eeding was

. . . am o ng the ten weakest perfo rm anc es b y c o unsel fo r deb to rs that [the c o urt] has had the m isfo rtune to ob serve. It was as if she was in deep water, flailing with b eginner stro kes. Ms. Henderso n did no t prepare a trial b rief. Her trial presentatio n was diso rganized. Her no teb o o k o f plaintiffs’ exhib its was slo venly assemb led. She dem o nstrated no pro fic ient kno wledge o f the Federal Rules o f Evidenc e o ro f the Federal Rules o f Bankruptcy Pro c edure and the Federal Rules o f C ivil Pro c edure inc o rpo rated therein. The pretrial dec laratio ns o f the Sundquists m andated b y Lo c al Bankruptcy Rule 9017–1 were c rude and c o nc luso ry in c o ntent. She m ade no attem pt to intro duc e the R enée Sundquist diary into evidenc e, which, iro nic ally, was intro duc ed b y way o f Bank o f A m eric a's m arked exhib its and wo und up putting im p o rtant flesh o n the b o nes. Her questio ns were am a teurish. She sho wed no ab ility to lay a fo undatio n fo r intro duc ing evidenc e; fo rtunately, m o st o f her pro ffered exhib its were adm itted witho ut objec tio n to fo undatio n. Her dem o nstratio n o f the fac ts was disjo inted and diffic ult to dec ipher. She had no c o herent theo ry o f dam a ges. Her c lo sing argum ent did no t c o nnec t any helpful do ts. What saved the c ase fo rthe plaintiffs was that, while po o r ly prepared to testify, they were so c r edib le that the c o u r t c o uld no tin go o d c o nsc ienc e let the po o rperfo rm a nc e b y c o u nsel stand in the way o f justic e. O ne reaso n this c o urt’s dec isio n to o k so m e m o nths to prepare was that Ms. Henderson had b een o f no help regarding the c o m plex fac ts and legal theo ries. The pro c ess o f wading thro ugh all the exhib its in the c o ntext o f the testim o ny c o nsum ed tim e, required reflec tio n, and entailed c o nsiderab le research into intric ac ies o f the law o f ac tual and punitive dam ages. 21. . . . Far fro mb eing the result o f Ms. Henderso n's

perfo rm anc e, the judgm ent was entered despite her wo rk. Hereto fo r e, the c o urt has expressed its frustration ob liquely and intended to keep it that way, b ut her sub sequent ac t ivity has fo rc ed the c o urt to b e explic it so that no appellate trib unal will b e c o nfused. S undquist II

, 576 B.R
. at 868-69. Ms. Henderso n argues that despite these flaws in her trial preparatio n, the c o urt still awarded $45 millio n in punitive dam ages. She po ints o u tthat the b ankruptcy c o urt ac kno wledged that these defic ienc ies “m erely hindered its preparatio n o f an o pinio n” b ut did no t c ause the c o urt to reduc e the am o unt awarded. A c c o rdingly, she c o ntends that there was
no reaso nab le b asis fo rthe b ankruptcy c o u rt to c o nc lude that her perfo rm anc e at trial was inadequate. She also c o m plains that the c o urt did
no t say ho w mu ch it wo uld have inc reased the award had it b een given
m o re prec ise evidenc e. But this argum ent is no nsensic al b ec ause, witho ut additio nal evidenc e, the b ankruptcy c o u rt c o uld have no b a s is to kno w b y ho w much the dam ages award m ay have inc reased. Finally, Ms. Henderso n argues that even if she is no t entitled to the
c o ntingenc y fee, she is entitled to a b o nus b ec ause o f the risk she assum ed in handling the c ase and b ec ause she ob tained an extrao rdinary result. She asserts that the b ankruptcy c o urt erred as a m atter o f law b y failing to
c o nsider a b o nus.
22But the b ankruptcy c o urt did c o nsider whether Ms. Henderso n was

entitled to a fee enhanc em ent and, in fac t, gave her o ne. Despite the fac t that Ms. Henderso n had neither so ught an enhanc em ent ab o ve her lo destar
c o m p ensatio n no r pro ffered spec ificevidenc e to reb ut the presum ptio n against a b o nus, the c o urt ac c epted Ms. Henderso n’s $300 hourly rate. It did sodespite the fac t that it did no t b elieve the quality o f her servic es was wo rth $300 per ho ur; it ac c epted the rate as an im plic it enhanc em ent ab o ve no rm al lo destar toac c o m m o date the risk o f no npaym ent. S undquist II , 576 B.R . at 876. Ms. Henderso n also presents two argum ents that she did no tm ake to the b ankruptcy c o urt. First, she argues that she was precluded fro m explaining her dec isio ns regarding trial strategy b ec ause do ing so wo uld have fo r c ed her to disc lo se privileged atto rney-c lient c o m munic atio ns. Sec o nd, she c o m plains that the c o urt did no t invalidate the c o ntingenc y fee agreem ent b etween the Sundquists and their suc c esso r c o unsel. W e need
no t c o nsider these argum ents. S ee O ’R o urke v. S ea bo a rd S urety Co . (In re E.R
. Fegert, Inc.) , 887 F.2d 955, 957 (9th Cir. 1989) (appellate c o urt need no t c o nsider argum ents o n appeal that were no t raised suffic iently fo r the trial
c o u rt to rule o n them ). 1 0

1 0 In Appellees’ r esponsiv e br i ef and Appellants’ r eply br i ef, the par ti es ar gued other i ssues r ai s ed in the or i gi nal moti on and r esponsiv e paper s –the v ali di ty and/or v oi dabi li ty of the fee agr eement in li ght of fai lur es to comply wi th Cali for n i a law, and (continued...) 23CONCL U SION

The N inth C ircuit C o urt o f A ppeals has rec o gnized the po tential fo r ab use where atto rney’s fees are a m andato ry elem ent o f dam ages b ut c o nc luded that the b ankruptcy c o urt’s sound exerc ise o f disc retio n to “elim inate unnec essary o r plainly exc essive fees” wo uld “pro vide a suffic ient chec k o n any ab uses that m ight o therwise arise.” In re S chwa r tz -Ta lla r d, 803 F.3d at 1101. The b ankruptcy c o urt has b ro a d disc retio n in determ ining what fees are reaso nab le under the
c ircu m stanc es. S ee Ga tes v. D eukm ejia n , 987 F.2d 1392, 1398 (9th Cir. 1992) (“The distric t c o urt has a great deal o f disc retio n in determ ining the
reaso nab leness o f the fee and, as a general rule, we defer to its determ inatio n . . . .”). This Panel affo rds “c o nsiderab le deferenc e to the b ankruptcy c o urt’s reasonab leness assessm ent b ec a use o f its first-hand experienc e with the atto rney’s servic es and perfo rm anc e during the c o urse o f the b ankruptcy pro c eedings.” O ria n v. Asa f (In re O ria n) , N o . C C -18-1092- SFL, 2018 WL 6187784, at *8 (9th Cir. BA P N o v. 27, 2018) (citatio ns o m itted). Under this standard, Ms. Henderson c arried a heavy b urden to persuade us that the b ankruptcy c o urt ab used its disc retio n in c a nc eling the c o ntingenc y fee agreem ent, lim iting fees, and expunging her atto rney’s

1 0 (...continued) unconsci onabi li ty. The bankr uptcy cour t di d not r ule on those i ssues, nordi d Ms. Hender son i denti fy them as i ssues on appeal. Ther efor e, we declin e to addr ess them. 24lien. She has no t do ne so . Therefo re, we A FFIRM.

25