Thrifty Oil Co. v. Bank of America National Trust and Savings Association

ORDER AND AMENDED OPINION

The opinion filed November 19, 2002, is hereby amended to include the following:

Bank of America (“BofA”) seeks an award of attorney’s fees incurred in connection with this appeal. Thrifty disputes BofA’s eligibility for attorney’s fees, arguing that BofA waived its right to fees in a settlement agreement entered into during proceedings in the bankruptcy court. Thrifty also argues that even if BofA did not waive its right to attorney’s fees, fees should not be awarded because the primary issues on appeal were based on federal, rather than state, law.

Thrifty contends that BofA waived its right to seek attorney’s fees when it entered into a settlement agreement that provided, inter alia, “[i]n full satisfaction of any and all post-Petition Date claims against the Debtors ... the Debtors shall have no liability for post-Petition Date [attorney’s fee] expenditures.” However, the Swap Claim is a pre-Petition claim and is not subject to this waiver. See In re Healthco Int’l, Inc., 272 B.R. 510, 512 (1st Cir. B.A.P.2002) (“[C]laims founded on executed prepetition contracts are prepetition claims.”). Accordingly, we reject Thrifty’s waiver argument and…