Rus, Miliband & Smith v. Yoo (In Re Dick Cepek, Inc.)

MARLAR, Bankruptcy Judge,

dissenting.

I must respectfully dissent.

The majority’s premise is that an insolvent chapter 11 debtor’s counsel’s security retainer is tenable under the Code in the first place. It is with this fundamental view that I disagree.

Congress did not intend for chapter 11 professionals (especially the debtor’s counsel) to favor themselves over other professionals by obtaining employment as a “secured” creditor and thereby bootstrapping an alleged superpriority for themselves.

One of the Code’s fundamental concepts is “equitable distribution.” “Bankruptcy law accomplishes…