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Aug. 08, 2006
Copyright © Las Vegas Review-Journal


Fees for USA Capital case $550,800 a week

By JOHN G. EDWARDS
REVIEW-JOURNAL

The 6,500 investors who entrusted USA Capital with $962 million in assets know some of that money is gone, but half a million dollars is going out the door every week to lawyers and other professionals in the USA Capital bankruptcy case.

Attorneys, interim managers at USA Capital and other professionals are running up bills of about $550,800 each week, according to a court document.

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By the end of July, professional fees totaled about $7.2 million, according to the document.

Fees will total $500,000 weekly until October, when the burn rate drops to $462,000 weekly, according to Sierra Consulting Group.

"It reinforces comments that we have made since day one that this case has the potential to experience extraordinarily high professional fees," said Mark Olson, USA Capital chief operating officer. Bankruptcy Judge Linda Riegle has not approved the fees yet, Olson said.

Mesirow Financial, the company hired to turn around USA Capital, has used as many as 15 workers to complete work quickly and start making payments to investors, but the pace of work and total fees will decline in the months ahead, Olson said. The interim managers have been working with 115 loans and 6,800 investor accounts. Olson compared the work to reconstructing sometimes unreliable entries in a checkbook over the last two years.

USA Capital's attorneys have been dealing with more than 1,100 motions that were filed in the bankruptcy case, he said.

Donna Congelosi, an investor who attends many of the USA Capital hearings, is disgusted.

"It's a feeding frenzy on the people," Congelosi said. "This is like gang rape. We have all these attorneys circling at huge fees."

Bankruptcy law professors, however, provided another perspective.

"Currently, it is not totally beyond what we would expect," said Stephen Lubben, associate professor of law at Seton Hall University of New Jersey. "As a rough estimate, fees usually run 2.5 percent of assets."

Lubben said that would be a total of $24 million for professional fees for the entire case.

The 2.5 percent figure is for a typical case, he said, adding, "It can really vary widely, depending on the facts of the case and depending on how complicated the case is."

Lynn LoPucki, the Security Pacific Bank professor of law at UCLA, and statistician Joseph Doherty have prepared an online calculator to determine an average amount of fees for a bankruptcy. Their calculator indicates fees are getting high for USA Capital although it's not clear whether they are truly excessive, given the unanswered question of how long the bankruptcy case will last.

LoPucki and Doherty also use variables -- the number of professional firms that will be paid out of the debtors' assets and whether the bankruptcy is filed in Delaware -- to project the typical range of fees.

It appears, however, that the USA Capital bankruptcies may be more expensive than typical business bankruptcies, which are about $10 million, according to LoPucki, because fees for USA Capital already total $7.2 million.

If the bankruptcy lasts a year and professional fees cost an average of $500,000 a week, the case could run up $13 million in professional fees.

The USA Capital fees sound "a tad excessive to me," said Martin Lobel, former legislative aide to the late Sen. William Proxmire and an attorney in Washington.

"The bankruptcy law is such an esoteric field most lawyers won't even touch it. Bankruptcy lawyers usually have pretty high fees," Lobel said. "The only restraint (on excessive fees) is that the bankruptcy judge has to approve the fees."

Edward Burr of the corporate restructuring firm Sierra Consulting Group disclosed the $550,8800 weekly expense in a declaration he filed with the bankruptcy court, but the numbers came from projections provided by USA Capital's interim management team, Olson said.

USA Capital, a so-called private or hard-money lender, raised money from individuals and used the money to make short-term mortgage loans to developers. Individual investors were attracted by the double-digit interest rates they could earn on trust deeds.

Before filing for bankruptcy in April, USA reported that all of its loans were performing although many borrowers had stopped making payments.

Thomas Allison, a senior executive with Mesirow Financial, a Chicago-based turnaround firm, took over USA Capital when the company filed for Chapter 11 bankruptcy, which allows the company to continue operations. Allison has served as chief restructuring officer at USA Capital since the bankruptcy petition filing.

Mesirow's fees total about $140,000 weekly, according to the court filing. In addition, the five USA Capital companies are incurring $75,000 weekly in fees from law firm Ray Quinney & Nebeker of Salt Lake City and $25,000 weekly from law firm Schwartzer & McPherson of Las Vegas. The public relations firm Purdue Marion & Associates is expected to receive $800 weekly.

Other professionals assist four committees that the U.S. Trustee's office created to represent groups of creditors with varying and sometimes conflicting interests in the bankruptcy.

Lewis and Roca, the law firm representing the unsecured creditors committee, is charging $25,000 weekly in fees. Sierra Consulting, which provides financial assistance to the committee, is charging $25,000 a week in fees for the unsecured creditors.

Representing USA Capital First Trust Deed Fund are Stutman Treister & Glatt of Los Angeles and Shea & Carlyon of La Vegas. Legal fees run about $60,000 weekly for First Trust. In addition, the financial and real estate advisory firm of Alvarez & Marshal was hired for $30,000 weekly.

Representing USA Capital Diversified Trust Deed Fund are Orrick Herrington & Sutcliffe of Sacramento and Beckley Singleton of Las Vegas. Their fees run $60,000 weekly. FTI Consulting is billing for $50,000 a week on behalf of the Diversified fund.

Gordon & Silver represents the direct lenders committee, which includes investors who purchased fractional interests in trust deeds, rather than investing indirectly through one of the two funds. Gordon & Silver's fees run $60,000 weekly. Burr said the total for Gordon & Silver's fees will be $540,000 for the period ending in July, but Olson said Gordon & Silver's direct lenders committee represents investors who own more than $700 million in assets -- much more than the other committees.


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