                                                           FILED
                                                            DEC 19 2013
 1
                                                        SUSAN M. SPRAUL, CLERK
 2                                                        U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No.   CC-12-1516-DKiTa
                                   )
 6   SEYED SHAHRAM HOSSEINI,       )      Bk. No.    10-16228
                                   )
 7                   Debtor.       )       Adv. No. 10-01385
     ______________________________)
 8                                 )
     SEYED SHAHRAM HOSSEINI,       )
 9                                 )
                     Appellant,    )
10                                 )
     v.                            )       M E M O R A N D U M1
11                                 )
     KEY BANK, N.A.,               )
12                                 )
                     Appellee.     )
13   ______________________________)
14                  Argued and Submitted on November 21, 2013
                             at Pasadena, California
15
                            Filed - December 19, 2013
16
              Appeal from the United States Bankruptcy Court
17                for the Central District of California
18     Honorable William V. Altenberger, Bankruptcy Judge, Presiding
19
     Appearances:     Denise M. Fitzpatrick, Esq. for Appellant, Seyed
20                    Shahram Hosseini; Holly Jo Nolan, Esq. of Solomon,
                      Grindle, Silverman & Wintringer, APC for Appellee,
21                    Key Bank, N.A.
22
     Before: DUNN, KIRSCHER and TAYLOR, Bankruptcy Judges.
23
24
25
26        1
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1           The debtor, Seyed Shahram Hosseini, appeals the bankruptcy
 2   court’s order 1) denying his motion for attorney’s fees and
 3   2) allowing only costs for service of process requested in his
 4   bill of costs.2      We AFFIRM.
 5                                      FACTS
 6           Prepetition, the debtor obtained a total of $280,046.34 in
 7   student loans (“student loan debt”) from Key Bank, N.A. (“Key
 8   Bank”) to fund his medical school education.      Despite several
 9   attempts, he was unable to pass the medical licensing exam.         The
10   debtor did not become a physician, as he had hoped, but instead
11   became a night security guard earning only $13.50 per hour.         He
12   also was beset with various physical and mental ailments,
13   including diabetes and depression.
14           The debtor filed a chapter 7 bankruptcy petition on May 24,
15   2010.       He initiated an adversary proceeding to discharge the
16   student loan debt under § 523(a)(8).       Two years after Key Bank
17   filed its answer in the adversary proceeding, the bankruptcy
18   court held a trial.      It granted judgment in the debtor’s favor,
19   discharging his entire student loan debt to Key Bank (“Discharge
20   Order”).
21           Shortly after the bankruptcy court entered the Discharge
22   Order, the debtor filed a bill of costs (“Cost Bill”) seeking a
23
             2
            Unless otherwise indicated, all chapter and section
24
     references are to the federal Bankruptcy Code, 11 U.S.C.
25   §§ 101-1532, and all “Rule” references are to the Federal Rules
     of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of
26   Civil Procedure are referred to as “Civil Rules.”
27        The Local Bankruptcy Rules for the United States Bankruptcy
     Court for the Central District of California are referred to as
28   “LBR.”

                                          2
 1   total of $4,960.39 in expenses incurred by his attorney, Denise
 2   Fitzpatrick, in the adversary proceeding.3    Along with the Cost
 3   Bill, he submitted a declaration by Ms. Fitzpatrick (“Cost Bill
 4   Declaration”), which included an itemization of each cost sought
 5   to be recovered by him (“Cost Bill Itemization”).
 6        According to the Cost Bill Itemization, the debtor sought
 7   $101.20 for copying and printing (mostly for documents served
 8   electronically), $20.90 for faxing (all for evidentiary documents
 9   from the debtor to Ms. Fitzpatrick), $107.74 for “service of
10   process” (postage for service of summons, status reports and
11   other documents mailed by Ms. Fitzpatrick), and $4,730.55 for
12   miscellaneous costs (consisting of messenger service fees, online
13   software purchases, exhibit preparation costs, transportation
14   costs for Ms. Fitzpatrick’s meetings with co-counsel and/or the
15   debtor, “research and document retrieval” costs, phone charges
16   for a status conference through Court Call, a $2,500 “consultant
17   fee” to Charles Murray4 (“Murray consultation fee”), and a $500
18   fee to Hector Vega for “[consultation] and appearance – necessary
19
20
21        3
              The debtor initially sought $6,210.39 in costs.
22
          4
            Ms. Fitzpatrick employed Mr. Murray as a “consultant” to
23   help her during trial. She filed a notice of association of
     counsel on July 17, 2012, indicating that Mr. Murrary was
24
     co-counsel in the adversary proceeding. According to
25   Ms. Fitzpatrick, Mr. Murray “did the oral arguments” at trial.
          The bankruptcy court determined that Mr. Murray was not a
26   consultant but an attorney as he “[had] tried the case.” Tr. of
27   September 10, 2012 hr’g, 29:4. The bankruptcy court therefore
     found that the $2,500 “consultant fee” for Mr. Murray actually
28   was an attorney’s fee to be included in the Attorney Fee Motion.

                                       3
 1   to obtain trial continuance and prevent dismissal.”5
 2        The debtor also filed a motion for allowance of attorney’s
 3   fees (“Attorney Fee Motion”), seeking a total of $110,701.50 “for
 4   reasonable and necessary fees incurred [by Ms. Fitzpatrick] in
 5   [the adversary proceeding].”6
 6        In support of the Attorney Fee Motion, the debtor relied on
 7   a provision (“fee provision”) in the promissory note for the
 8   student loans (“promissory note”), which he claimed authorized
 9   him to seek attorney’s fees as the prevailing party in the
10   adversary proceeding.7   The fee provision stated:
11      When and as permitted by applicable law, I [the
        borrower] agree to pay your [the lender] reasonable
12      amounts, including reasonable attorney’s fees for any
13
          5
14          Ms. Fitzpatrick failed to appear at the trial set for
     April 25, 2012. She had Mr. Vega specially appear to represent
15   the debtor in her stead. It seems that the $500 fee to Mr. Vega
16   was for his special appearance at the April 25, 2012 hearing.
          6
17          In her declaration filed in support of the Attorney Fee
     Motion (“Attorney Fee Declaration”), Ms. Fitzpatrick claimed that
18   she spent a total of 316.29 hours litigating the adversary
19   proceeding. She attached to her declaration an “attorney time
     log” that described the various tasks she performed, the time
20   spent on each task and the amount due.
21        7
            The debtor also referenced LBR 7054-1(g)(1), which allows
22   a prevailing party to file a motion for an award of attorney’s
     fees where such fees may be awarded, within 30 days after entry
23   of judgment.
          LBR 7054-1(g) provides:
24
          (1) If not previously determined at trial or other hearing,
25             a party seeking an award of attorneys’ fees where such
               fees may be awarded must file and serve a motion not
26             later than 30 days after the entry of judgment or other
27             final order, unless otherwise ordered by the court.
          (2) The requirements of LBR 9013-1 through LBR 9013-4 apply
28             to a motion for attorneys’ fees under this rule.

                                     4
 1      attorney who is not your regularly salaried employee and
        court and other collection costs, that you incur in
 2      enforcing the terms of the [promissory] Note if I am in
        default.
 3
 4        He further relied on California Civil Code (“Civil Code”)
 5   § 1717, arguing that Civil Code § 1717 reinforced the fee
 6   provision through reciprocity.8    According to the debtor, Civil
 7   Code § 1717 “require[d] payment of attorney fees to prevailing
 8   parties when attorney fees are afforded to any contracting
 9   party.”
10        Key Bank opposed the Cost Bill, contending that the debtor
11
          8
12             Civil Code § 1717 provides, in relevant part:
13        (a) In any action on a contract, where the contract
14        specifically provides that attorney’s fees and costs,
          which are incurred to enforce that contract, shall be
15        awarded either to one of the parties or to the
          prevailing party, then the party who is determined to
16
          be the party prevailing on the contract, whether he or
17        she is the party specified in the contract or not,
          shall be entitled to reasonable attorney’s fees in
18        addition to other costs.
19
          Where a contract provides for attorney’s fees, as set
20        forth above, that provision shall be construed as
          applying to the entire contract, unless each party was
21        represented by counsel in the negotiation and execution
22        of the contract, and the fact of that representation is
          specified in the contract.
23
          Reasonable attorney’s fees shall be fixed by the court,
24
          and shall be an element of the costs of suit.
25
          Attorney’s fees provided for by this section shall not
26        be subject to waiver by the parties to any contract
27        which is entered into after the effective date of this
          section. Any provision in any such contract which
28        provides for a waiver of attorney’s fees is void.

                                       5
 1   could not recover certain costs because they were not allowed
 2   under LBR 7054-1.   Specifically, it opposed the debtor’s request
 3   for recovery of costs for every copy ever made in the adversary
 4   proceeding because LBR 7054-1 allowed recovery of costs of copies
 5   of documents admitted into evidence only if the original
 6   documents were not available.   It further opposed recovery for
 7   postage, Court Call charges, fax charges, messenger and delivery
 8   charges, software costs, transportation costs, PACER research
 9   charges and the Murray consultation fee because LBR 7054-1 did
10   not include such expenses as recoverable costs.
11        Key Bank also opposed the Attorney Fee Motion, arguing that
12   there was no statutory basis for an award of attorney’s fees
13   under § 523(a)(8) as required under the American Rule.
14        Key Bank also contended that the fee provision only applied
15   to actions seeking to enforce the terms of the promissory note.
16   Here, the debtor had initiated the adversary proceeding to
17   discharge his student loan debt under § 523(a)(8), not to enforce
18   the promissory note’s terms.    The debtor therefore could not seek
19   attorney’s fees because he prevailed on a claim to relieve
20   himself from his debts under federal law, not on a Key Bank claim
21   to recover following a default under the promissory note.
22        Key Bank further asserted that Civil Code § 1717 did not
23   apply because the promissory note contained a provision stating
24   that Ohio law, not California law, governed the prevailing
25   party’s recovery of attorney’s fees (“governing law provision”).
26         Specifically, the governing law provision stated:
27        I understand and agree that (i) you are located in
          Ohio, (ii) that this Note will be entered into in Ohio
28        and (iii) that your decision on whether to lend me

                                       6
 1        money will be made in Ohio. CONSEQUENTLY, THE
          PROVISIONS OF THIS NOTE WILL BE GOVERNED BY FEDERAL
 2        LAWS AND THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD
          TO CONFLICT OF LAW RULES. I agree that any suit I
 3        bring against you (or against any subsequent holder of
          this Note) must be brought in a court of competent
 4        jurisdiction in the county in which you maintain your
          (or the county in which the subsequent holder maintains
 5        its) principal place of business.
 6        On September 10, 2012, the bankruptcy court held a hearing
 7   on the Cost Bill and the Attorney Fee Motion.
 8        After hearing extensive argument from counsel, the
 9   bankruptcy court first addressed the Cost Bill.   The bankruptcy
10   court agreed with Key Bank that LBR 7054-1 allowed for the
11   recovery of filing fees and certain of the service of process
12   fees, but not for the other fees requested by the debtor.
13        The bankruptcy court then turned to the Attorney Fee Motion.
14   It began by recognizing that, under the American Rule, a
15   prevailing party may not recover attorney’s fees unless there was
16   a statute or a contract authorizing such recovery.   The
17   bankruptcy court acknowledged that the fee provision allowed Key
18   Bank to recover any attorney’s fees incurred in enforcing the
19   terms of the promissory note if the debtor defaulted.   It also
20   acknowledged that Civil Code § 1717 provided that, in any action
21   on a contract where the contract specifically provided for the
22   recovery of attorney’s fees incurred by the prevailing party to
23   enforce the contract, the prevailing party was entitled to
24   recover reasonable attorney’s fees.   The bankruptcy court noted
25   that Key Bank did not dispute that if it could recover attorney’s
26   fees as the prevailing party, the debtor also could recover
27
28

                                     7
 1   attorney’s fees if he were the prevailing party.9
 2        The bankruptcy court ultimately decided that the debtor was
 3   not entitled to recover attorney’s fees under the American Rule.
 4   In making its determination, the bankruptcy court focused on the
 5   purpose of the adversary proceeding.     It emphasized that the
 6   debtor initiated the adversary proceeding to discharge his
 7   student loan debt to Key Bank, not to enforce the terms of the
 8   promissory note or contest the amount of the debt to Key Bank.
 9   Because the sole legal basis for recovery of attorney’s fees did
10   not apply – i.e., the fee provision – the bankruptcy court denied
11   the Attorney Fee Motion.
12        On September 26, 2012, the bankruptcy court entered an order
13   on both the Cost Bill and the Attorney Fee Motion (“Cost and Fee
14   Order”).     In the Cost and Fee Order, the bankruptcy court allowed
15   the debtor $10.82 in costs for service of process but denied all
16   other costs.10    It denied the Attorney Fee Motion in its
17
18        9
               The bankruptcy court also observed:
19
               No matter how you look at this or how you cut it,
20        [the amount was] way too much in the way of attorney’s
          fees in a case for hardship, to have his student loans
21
          declared to be a hardship, and therefore,
22        dischargeable.
               It’s either a case of over-lawyering, or a case
23        where the lawyer was not familiar with bankruptcy law
24        or bankruptcy trials, because there’s no way that a
          two-hour trial or three-hour trial, should require
25        preparation time and trial time that totals $125,000.
26   Tr. of September 10, 2012 hr’g, 30:23-25, 31:1-6.
27        10
               Although it allowed the debtor to recover filing fees and
28                                                         (continued...)

                                        8
 1   entirety.
 2        The debtor timely appealed the Cost and Fee Order.
 3                                JURISDICTION
 4        The bankruptcy court had jurisdiction under 28 U.S.C.
 5   §§ 1334 and 157(b)(2)(I).    We have jurisdiction under 28 U.S.C.
 6   § 158.
 7                                   ISSUES
 8        (1)    Did the bankruptcy court abuse its discretion in
 9   allowing $10.82 in costs for service of process only?
10        (2)    Did the bankruptcy court abuse its discretion in
11   denying the Attorney Fee Motion in its entirety?
12                             STANDARDS OF REVIEW
13        We review a bankruptcy court’s refusal to award attorney’s
14   fees for an abuse of discretion.       Renfrow v. Draper, 232 F.3d
15   688, 693 (9th Cir. 2000); Dinan v. Fry (In re Dinan), 448 B.R.
16   775, 782 (9th Cir. BAP 2011).    We also review a bankruptcy
17   court’s allowance or disallowance of costs for abuse of
18   discretion.   Young v. Aviva Gelato, Inc. (In re Aviva Gelato,
19   Inc.), 94 B.R. 622, 624 (9th Cir. BAP 1988), aff’d, 930 F.2d 26
20   (9th Cir. 1991)(table).
21        We apply a two-part test to determine objectively whether
22   the bankruptcy court abused its discretion.      United States v.
23   Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc).      First,
24
25
          10
           (...continued)
26   costs for service of process, the bankruptcy court noted that the
27   debtor was not required to pay the filing fee for the adversary
     proceeding. It therefore determined the amount for filing fees
28   to be zero.

                                        9
 1   we “determine de novo whether the bankruptcy court identified the
 2   correct legal rule to apply to the relief requested.”      Id.
 3   Second, we examine the bankruptcy court’s factual findings under
 4   the clearly erroneous standard.    Id. at 1262 & n.20.     A
 5   bankruptcy court abuses its discretion if it applied the wrong
 6   legal standard or its factual findings were illogical,
 7   implausible or without support in the record.      TrafficSchool.com
 8   v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
 9        We review de novo the bankruptcy court’s decision to deny
10   attorney’s fees under state law.       See Dinan, 448 B.R. at 783
11   (citing Bertola v. N. Wis. Produce Co., Inc. (In re Bertola),
12   317 B.R. 95, 99 (9th Cir. BAP 2004)).
13        We may affirm on any ground supported by the record.        Shanks
14   v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
15                               DISCUSSION
16   A.   Cost Bill
17        Rule 7054(b) provides in relevant part: “The court may allow
18   costs to the prevailing party except when a statute of the United
19   States or these rules otherwise provides.”      Rule 7054(b) arises
20   from Civil Rule 54(d)(1), which provides in relevant part:
21   “Unless a federal statute, these rules, or a court order provides
22   otherwise, costs – other than attorney’s fees – should be allowed
23   to the prevailing party.”
24        Civil Rule 54(d)(1) appears mandatory in nature, as it
25   states that costs “should be allowed,” unless it or federal
26   statute or rule otherwise directs.      See 10 Collier on Bankruptcy
27   ¶ 7054.05 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. rev.
28   2013)(“[A]lthough ultimately leaving the question of costs to the

                                       10
 1   discretion of the court, [Civil Rule 54(d)] provides that the
 2   court ‘should’ allow costs to the prevailing party unless it, a
 3   federal statute or a Civil Rule otherwise directs.”)(hereinafter
 4   referred to as “Collier on Bankruptcy”).     Nonetheless, Civil
 5   Rule 54(d)(1) generally grants a federal court discretion to
 6   refuse to tax costs in the prevailing party’s favor.    Crawford
 7   Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).
 8           On the other hand, Rule 7054(b) is permissive in nature, as
 9   it states that the bankruptcy court “may allow costs.”     See
10   In re Aviva Gelato, Inc., 94 B.R. at 624 (“Although [Civil]
11   Rule 54(d) appears to be more mandatory in nature than
12   [Rule] 7054(b), the Ninth Circuit has consistently recognized
13   that the trial court has discretion as to what costs to allow.”)
14   (citation omitted).    See also 10 Collier on Bankruptcy ¶ 7054.05.
15   Although it has broad discretion in determining whether to deny
16   costs, the bankruptcy court must state its reasons for denying
17   them.    In re Aviva Gelato, Inc., 94 B.R. at 624.
18           The debtor contends that the bankruptcy court erred in
19   limiting recoverable costs to those listed in the Court Manual
20   pursuant to LBR 7054-1(d).    Instead, according to the debtor, the
21   bankruptcy court should have referenced 28 U.S.C. § 1920, which
22   permits recovery of reasonable out-of-pocket expenses typically
23   charged to clients by their attorneys.
24           We decline to consider the debtor’s argument regarding
25   28 U.S.C. § 1920, as he did not raise it before the bankruptcy
26   court.    See Enewally v. Wash. Mut. Bank (In re Enewally),
27   368 F.3d 1165, 1173 (9th Cir. 2004)(“As a general rule, issues
28   not presented to the trial court cannot generally be raised for

                                       11
 1   the first time on appeal,” unless one of the four recognized
 2   exceptions apply.)(quoting United States v. Flores-Payon,
 3   942 F.2d 556, 558 (9th Cir. 1991)(internal quotation marks
 4   omitted)).
 5        As for the bankruptcy court’s reliance on LBR 7054-1, we
 6   conclude there was no error.   The general rule is that the
 7   bankruptcy court’s authority to tax a cost must come from “a
 8   federal statute or rule of court, or in the custom, practice and
 9   usage applicable in a particular district, and in some instances
10   by the exercise of the court’s general equitable discretion.”
11   10 Collier on Bankruptcy ¶ 7054.05.   According to
12   LBR 1001-1(b)(2), the Local Bankruptcy Rules “apply to all
13   bankruptcy cases and proceedings . . . pending in the United
14   States Bankruptcy Court for the Central District of California.”
15        Here, the bankruptcy court’s authority to allow or deny
16   costs arose from the local rules of its district.    It therefore
17   could allow such costs within the parameters of the local rules –
18   specifically, those costs listed in the Court Manual pursuant to
19   LBR 7054-1(d).
20        LBR 7054-1 provides, in relevant part:
21        i.   Who May Be Awarded Costs. When costs are allowed
               by the FRBP or other applicable law, the court may
22             award costs to the prevailing party. No costs
               will be allowed unless a party qualifies as, or is
23             determined by the court to be, the prevailing
               party under this rule. Counsel are advised to
24             review 28 U.S.C. § 1927 regarding counsel’s
               liability for excessive costs.
25        . . . .
26        iv.  Items Taxable as Costs. A list of the items
               taxable as costs is contained in the Court Manual
27             available from the clerk and on the court’s
               website.
28        . . . .

                                     12
 1        Section 2.8 of the Court Manual for the United States
 2   Bankruptcy Court for the Central District of California provides,
 3   in relevant part:
 4        2.8     Miscellaneous
 5        . . .
 6                (d)   Bill of Costs [LBR 7054-1].
 7                      A bill of costs filed electronically or non-
                        electronically must comply with LBR 7054-1.
 8                      The prevailing party who is awarded costs
                        must file and serve a bill of costs not later
 9                      than 30 days after entry of judgment. Each
                        item claimed must be set forth separately in
10                      the bill of costs.
                  (e)   Items Taxable as Costs. Pursuant to LBR
11                      7054-1, the following items are taxable as
                        costs:
12                      (1) Filing Fees. The clerk’s filing fees;
                        (2) Fees for Service of Process. Fees for
13                           service of process (whether served by
                             the United States Marshal or in any
14                           other manner authorized by FRBP 7004);
                        (3) United States Marshal’s Fees. Fees of
15                           the United States Marshal collected and
                             taxed as costs pursuant to 28 U.S.C.
16                           § 1921;
                        (4) Clerk’s Fees. Fees for certification of
17                           documents necessary for preparation for
                             a hearing or trial; and
18                      (5) Transcripts and Digital Recordings. The
                             costs of the original and one copy of
19                           all or any part of a trial transcript,
                             daily transcript, or a transcript of
20                           matters occurring before or after trial,
                             if requested by the court or prepared
21                           pursuant to stipulation. The cost of a
                             digital recording, if requested by the
22                           court or obtained pursuant to
                             stipulation.
23                      (6) Depositions. Costs incurred in
                             connection with taking depositions,
24                           including:
                             . . .
25                      (7) Witness Fees. Fees paid to witnesses
                             . . .
26                      (8) Interpreter’s and Translator’s Fees.
                             Fees paid to interpreters and
27                           translators . . .
                        (9) Docket Fees. Docket fees as provided by
28                           28 U.S.C. § 1923.

                                        13
 1                  (10) Certification, Exemplication, and
                         Reproduction of Documents. Document
 2                       preparation costs, including:
                         (A) The cost of copies of an exhibit
 3                            attached to a document necessarily
                              filed and served;
 4                       (B) The cost of copies of a document
                              admitted into evidence when the
 5                            original is not available or the
                              copy is substituted for the
 6                            original at the request of an
                              opposing party;
 7                       (C) Fees for an official certification
                              of proof respecting the non-
 8                            existence of a document or record;
                         (D) Patent Office charges for the
 9                            patent file wrappers and prior art
                              patents necessary to the
10                                  prosecution or defense of a
                                    proceeding involving a patent;
11                       (E) Notary fees incurred in notarizing
                              a document when the cost of the
12                            document is taxable; and
                         (F) Fees for necessary certification or
13                            exemplication of any document.
                              . . .
14                  (12) Other Costs. Upon order of the court,
                         additional items, including the
15                       following, may be taxed as costs:
                         (A) Summaries, computations, polls,
16                            surveys, statistical comparisons,
                              maps, charts, diagrams, and other
17                            visual aids reasonably necessary to
                              assist the court or jury in
18                            understanding the issues at the
                              trial;
19                       (B) Photographs, if admitted in
                              evidence or attached to documents
20                            necessarily filed and served upon
                              the opposing party; and
21                       (C) The cost of models if ordered by
                              the court in advance of or during
22                            trial.
                    . . . .
23
          Reviewing the Cost Bill Itemization, we conclude that only
24
     one of the requested costs – the certified mail postage for
25
     service of the alias summons and notice of the status conference
26
     – was recoverable under LBR 7054-1(d).
27
          Ms. Fitzpatrick listed costs for printing status reports,
28

                                    14
 1   summons, orders, notices, responses to interrogatories,
 2   stipulations, briefs, declarations and exhibit lists, none of
 3   which qualify as document preparation costs under
 4   Section 2.8(e)(10) of the Court Manual.   She also listed costs
 5   for numerous faxes from the debtor, explaining that these faxes
 6   were “evidentiary documents.”   Ms. Fitzpatrick failed to specify
 7   these “evidentiary documents” and to explain their purpose.
 8   Given her lack of explanation, we only can assume that she
 9   printed documents and had documents faxed to her for her
10   convenience or her records.   See, e.g., Fressell v. AT&T Tech.,
11   Inc., 103 F.R.D. 111, 115 (N.D. Ga. 1984)(denying successful
12   defendant’s request for photocopying charges “for the
13   convenience, preparation, research, or records of counsel” under
14   28 U.S.C. § 1920).
15        She also listed postage for the service of various
16   documents.   Section 2.8(e)(2) of the Court Manual allows for the
17   recovery of postage fees for documents served in the manner
18   required by Rule 7004.   Ms. Fitzpatrick included postage, not
19   only for the alias summons, but for scheduling orders, responses
20   to interrogatories, status reports, trial briefs and
21   stipulations.   Rule 7004 only requires a particular manner of
22   service for the summons and complaints.   See 10 Collier on
23   Bankruptcy ¶ 7004.01.    The other postage costs are not covered
24   under Section 2.8(e)(2) of the Court Manual.
25        Ms. Fitzpatrick further listed various miscellaneous costs,
26   such as telephone charges, messenger services, transportation,
27   online software purchases, research and document retrieval
28   charges and fees for two attorneys.   Again, none of these costs

                                      15
 1   are listed in Section 2.8(e) of the Court Manual.
 2        Based on the foregoing, we conclude that the bankruptcy
 3   court did not abuse its discretion in denying all but the service
 4   costs requested in the Cost Bill.
 5   B.   Attorney’s Fee Motion11
 6        On appeal, the debtor mainly contends that the bankruptcy
 7
 8        11
            The debtor challenges the bankruptcy court’s ruling on
 9   several grounds, which we’ve distilled down to two.
          First, he argues that the bankruptcy court unfairly and
10   erroneously relied on Krasinski v. Goldstein (In re Goldstein),
11   2011 WL 3608243 (Bankr. D. Ariz. 2011), an unpublished decision.
     According to the debtor, the bankruptcy court denied the Attorney
12   Fee Motion based on the reasoning set forth in the Goldstein
     decision. The debtor claims that he could not effectively refute
13   the reasoning in the Goldstein decision because he could not
14   obtain a copy of the Goldstein decision. He further asserts that
     Goldstein was legally and factually distinguishable from the
15   underlying matter.
          Contrary to the debtor’s assertion, the bankruptcy court did
16
     not rely on the Goldstein decision in denying the Attorney Fee
17   Motion. Because Key Bank cited the Goldstein decision, the
     bankruptcy court believed it “[was] going to have to read this
18   Goldstein opinion.” Tr. of September 10, 2012 hr’g, 27:16-17.
19   Upon reading it, the bankruptcy court acknowledged that “in this
     case, we have a little slightly different situation [than that in
20   the Goldstein decision].” Tr. of September 10, 2012 hr’g,
     34:1-2. The bankruptcy court took care to distinguish the
21   instant matter from Goldstein, stressing that Key Bank did not
22   “sue [the debtor]. It was [the debtor] who sought to have the
     debt declared [dischargeable]. There was no dispute under the
23   contract as to whether he owed any sums or not. The dispute was
     whether this should be discharged as a hardship debt or not.”
24
     Tr. of September 10, 2012 hr’g, 34:3-8.
25        Second, the debtor contends that the bankruptcy court should
     have allowed his attorney’s fees in full unless Key Bank
26   demonstrated, through evidence, that they were unreasonable.
27   However, the bankruptcy court would not get to reasonableness,
     unless it first determined that there was a statutory or
28   contractual basis for an award of fees.

                                    16
 1   court erred in denying the Attorney Fee Motion by ignoring Civil
 2   Code § 1717.12   He insists that Civil Code § 1717 applies.13
 3        We disagree.   There simply is no statutory or contractual
 4   basis allowing the debtor to recover his attorney’s fees here.
 5
 6
          12
            The debtor also relies on Civil Code § 1021 in support of
 7   his argument. Because the debtor did not raise Civil Code § 1021
 8   as an issue before the bankruptcy court, we decline to address it
     here. See Enewally, 368 F.3d at 1173.
 9
          13
             The debtor also claims that the bankruptcy court
10   acknowledged the applicability of Civil Code § 1717 but
11   misapplied it.
           At the hearing, the bankruptcy court mentioned that the
12   debtor relied on Civil Code § 1717. It also stated that it had
     “the California statute that says, okay, what’s good for the
13   goose is good for the gander, so to speak.” Tr. of September 12,
14   2012 hr’g, 32:18-20.
           Given the bankruptcy court’s reasoning as stated on the
15   record at the hearing, we do not believe that the bankruptcy
     court applied Civil Code § 1717 at all. The bankruptcy court
16
     denied the Attorney Fee Motion because the legal basis for
17   recovery of attorney’s fees, the fee provision, did not apply as
     the adversary proceeding arose from a federal claim (i.e.,
18   § 523(a)(8)), not a contract claim.
19         Moreover, California courts uniformly have ruled that Civil
     Code § 1717 is to be narrowly applied, and is available to a
20   party only if the dispute involves litigation of a contract
     claim. Santisas v. Goodin, 951 P.2d 399, 409 (Cal. 1998)
21   (“[S]ection 1717 applies only to attorney fees incurred to
22   litigate contract claims.”). The BAP previously has relied upon
     Santisas on this specific issue. Redwood Theaters, Inc. v.
23   Davison (In re Davison), 289 B.R. 716, 723 (9th Cir. BAP 2003)
     (“[W]e will follow [the Santisas] holding and narrowly apply
24
     [Civil Code] § 1717 and approve attorney’s fees only if the
25   action involves a contract claim.”). Based on California
     controlling law and BAP authority, we have held that Civil Code
26   § 1717 only can be applied to attorney’s fees disputes based on
27   contract claims. Hamilton v. Charalambous (In re Charalambous),
     2013 WL 3369299 at 5 (9th Cir. BAP 2013). We follow that holding
28   here.

                                      17
 1   Ordinarily, under the American Rule, a prevailing party may not
 2   recover attorney’s fees except as provided for by contract or by
 3   statute.    Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec.,
 4   Co., 549 U.S. 443, 448 (2007); Dinan, 448 B.R. at 784.
 5        No general right to recover attorney’s fees exists under the
 6   Bankruptcy Code.    Dinan, 448 B.R. at 784.   Also, nothing in
 7   § 523(a)(8) authorizes a debtor to recover attorney’s fees when
 8   he or she prevails in discharging his or her student loan debt.14
 9        Interestingly, Ohio law has established that a contractual
10   provision allowing for the recovery of attorney’s fees to enforce
11   a defaulted debt obligation is unenforceable as against public
12   policy.15    See Simons v. Higher Educ. Assistance Found., 119 B.R.
13
          14
14             In contrast, § 523(d) provides:
15        If a creditor requests a determination of
16        dischargeability of a consumer debt under subsection
          [523(a)(2)], and such debt is discharged, the court
17        shall grant judgment in favor of the debtor for the
          costs of, and a reasonable attorney’s fee for, the
18        proceeding if the court finds that the position of the
19        creditor was not substantially justified, except that
          the court shall not award such costs and fees if
20        special circumstances would make the award unjust.
21
          Accordingly, it appears that Congress considered when it
22   would be appropriate to award costs and attorney’s fees to a
     prevailing debtor in dischargeability litigation and did not
23   expressly allow for an award of fees to the prevailing debtor in
24   § 523(a)(8) adversary proceedings.
          15
25          According to the Ohio Supreme Court, although Ohio
     generally follows the American Rule, attorney’s fees “may be
26   awarded when a statute or an enforceable contract specifically
27   provides for the losing party to pay the prevailing party’s
     attorney fees . . . or when the prevailing party demonstrates bad
28                                                      (continued...)

                                       18
 1   589, 593-94 (Bankr. S.D. Ohio 1990)(denying a student loan
 2   lender’s request for attorney’s fees incurred in litigating a
 3   debtor’s § 523(a)(8) claim because, in Ohio, “stipulations in
 4   promissory notes providing for the payment of attorney’s fees,
 5   arising in connection with the failure to pay the principal and
 6   interest balance at maturity, are contrary to public policy and
 7   are void,” and “[n]o provision exists for the granting of
 8   attorneys’ fees in proceedings brought pursuant to 11 U.S.C.
 9   § 523(a)(8)(B).”)(citation omitted).   See also McLeod v.
10   Diversified Collection Servs. (In re McLeod), 176 B.R. 455, 458
11   (Bankr. N.D. Ohio 1994)(quoting Simons, 119 B.R. at 593-94).
12        Moreover, as the bankruptcy court pointed out, the fee
13   provision did not come into play here.   The fee provision
14   specifically states that Key Bank has the right to recover
15
          15
           (...continued)
16
     faith on the part of the unsuccessful litigant . . . .” Wilborn
17   v. Bank One Corp., 121 Ohio St. 3d 546, 548 (Ohio 2009)(citations
     omitted). Contracts providing for payment of attorney’s fees
18   “are generally enforceable and not void as against public
19   policy,” so long as the parties to the contract entered into it
     freely (i.e., equal bargaining power was present and no indicia
20   of compulsion or duress were present) and the fees awarded were
     fair, just and reasonable. Id. at 548-49.
21        However, “contracts for the payment of attorney fees upon
22   the default of a debt obligation are void and unenforceable.”
     Id. at 549. “‘It is the settled law of this state that
23   stipulations incorporated in promissory notes for the payment of
     attorney fees, if the principal and interest be not paid at
24
     maturity, are contrary to public policy and void.’” Id. (quoting
25   Leavans v. Ohio Nat’l Bank, 50 Ohio St. 591 (Ohio 1893)
     (addressing foreclosure actions)). That is, “a provision in a
26   mortgage or promissory note that awards attorney fees upon the
27   enforcement of the lender’s rights when the borrower defaults,
     such as a foreclosure action that has proceeded to judgment, is
28   unenforceable.” Id. at 550.

                                    19
 1   attorney’s fees incurred in enforcing the promissory note’s
 2   terms.   However, the debtor had initiated the adversary
 3   proceeding under § 523(a)(8) to discharge the student loan debt,
 4   not to contest its terms or amount.   As the bankruptcy court
 5   explained, the adversary proceeding was not “a contract dispute
 6   arising out of the borrowing on the [promissory] note,” but “an
 7   action brought by the Debtor to have the debt declared
 8   [discharged].”   Tr. of September 10, 2012 hr’g, 34:12-13,
 9   34:11-12.
10        Neither federal nor Ohio or California law authorizes the
11   debtor to recover the attorney’s fees he incurred in discharging
12   his student loan debt under § 523(a)(8).   Moreover, the fee
13   provision did not come into effect as the thrust of the adversary
14   proceeding was to discharge a student loan debt, not to enforce
15   the promissory note’s terms.   Because the debtor has no statutory
16   or contractual basis on which to recover attorney’s fees, the
17   bankruptcy court did not abuse its discretion in denying the
18   Attorney Fee Motion.
19                               CONCLUSION
20        For the foregoing reasons, we conclude that the bankruptcy
21   court did not abuse its discretion in allowing recovery of only
22   the debtor’s service costs and in denying recovery of the
23   debtor’s attorney’s fees.   We AFFIRM.
24
25
26
27
28

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