In re Monson
In re Monson
Opinion of the Court
MEMORANDUM DECISION
The matters before the Court are the motions filed by the United States Trustee to assess fines against Virgle F. Odekirk and to cause forfeiture of his fees for his alleged violations of 11 U.S.C. § 110,
1. JURISDICTION AND VENUE
The Court’s jurisdiction over these matters is properly invoked under 28 U.S.C. § 1384(b) and § 157(a) and (b). These matters constitute core proceedings under 28 U.S.C. § 157(b)(2)(A). Venue is appropriately laid in this District under 28 U.S.C. § 1409, and notice has been properly given in all respects.
II. FINDINGS OF FACT
Virgle Odekirk is not an attorney. After working in the construction business, he switched careers and became a bankruptcy petition preparer approximately five years ago. He first worked for six months under the tutelage of Gene Till, a bankruptcy petition preparer in Provo, Utah, then moved to St. George, Utah. Since that time, Mr. Odekirk has been operating a bankruptcy petition preparer business there with his wife Ruth called The Bankruptcy Guy, which is a dba. Mr. Odekirk attracts clients through advertisements on his car, advertisements placed in the Pioneer Shopper (a regional printed advertising periodical), and referrals.
When a person contacts Mr. Odekirk about filing for bankruptcy, he has that person fill out an intake form that was developed from the form used by Till’s bankruptcy petition preparer business. The intake form is a 12-page questionnaire that requests such information as prior bankruptcy filings, an itemized list of real and personal property, the existence of any co-debtors on a loan, income and expenses, and a page entitled “all debts that you want to file on not listed on your credit report.” On the third page, next to the heading for personal property, the intake form instructs clients to “put the YARD SALE VALUE for each of the items you have.” The intake form also requests that clients obtain a current credit report.
Once the client returns the intake form, either Ruth or Virgle uses it, along with the credit report and other information a client may provide, to fill out the documents that will be filed with the bankruptcy court.
The contract Mr. Odekirk executes with his clients provides that he charges $299 for his services. It also contains a notice
A. The Talbots
Stanley and Presha Talbot called Mr. Odekirk to inquire about filing for bankruptcy and subsequently met with him three times. The first meeting occurred at the Talbots’ home in November 2011, where Mr. Odekirk informed them about what services he provides, the manner in which he provides them, and what documentation the Talbots would need to deliver to him. The Talbots next met with Mr. Odekirk at a Subway restaurant in Cedar City, Utah, shortly before Christmas, at which time he had primarily all of the bankruptcy documentation prepared. The third meeting took place at Mr. Odekirk’s office, where he informed the Talbots that they had the option to pay the filing fee in installments. The Talbots did not know about that option before meeting with Mr. Odekirk.
After the Talbots had filled out the intake form, they discussed it with Mr. Ode-kirk. He asked them whether the values they had listed were what they thought they could get for their property at a yard sale. Based on that conversation, the Tal-bots changed some of the values on the intake form. Mr. Odekirk then prepared their schedules. Schedule B lists two vehicles — a 1999 Chevrolet Suburban valued at $2,465 and a 1995 Isuzu Rodeo valued at $1,510. Mr. Odekirk testified that he obtained those values from Kelley Blue Book.
The Talbots discussed other bankruptcy issues with Mr. Odekirk, including which chapter would be best for them. After describing their financial circumstances— which included medical debt, delinquent bills, and insufficient income to meet their debt obligations — to Mr. Odekirk, he advised them that Chapter 7 would be best for them. He counseled the Talbots to take the online credit counseling course and told them that due to his preparation of the requisite documents, they did not need an attorney. He also told the Tal-bots that it would be best if they did not have any money in their bank account; otherwise, it could be taken away in the bankruptcy.
At the second or third meeting with Mr. Odekirk, the Talbots told him that they would be receiving a tax refund and asked him whether they could spend it. Prefacing his reply with the disclaimer that he could not give legal advice, Mr. Odekirk informed the Talbots that if they spent it on necessities and kept their receipts, the trustee would not object to their use of the refund. Mr. Odekirk concluded the conversation by cautioning the Talbots that if they said that he had given them legal advice, he would deny it.
The Talbots received their tax refund post-petition and, in accordance with the information Mr. Odekirk provided, spent it on rent, bills, and food.
B. Alysse Monson
Alysse Monson met with Mr. Odekirk in June 2012 after seeing one of his advertisements in the Pioneer Shopper. At that meeting, Ms. Monson inquired of Mr. Ode-kirk whether filing a Chapter 7 bankruptcy would be best for her since she had some assets and she did not understand bankruptcy. Among her assets was a house located in La Verkin, Utah that her husband had given to her approximately a decade ago. She informed Mr. Odekirk that she was renting that property out and using the income to support her and her three children and that she did not want to file for bankruptcy if that would cause her to lose the property. Prefacing his reply with the disclaimer that he is not an attorney, Mr. Odekirk advised Ms. Monson that the rental property would be safe without offering an explanation for that conclusion.
Ms. Monson’s assets also included a “beat-up” 2007 Honda Pilot, which her mother had given to her upon her death. Ms. Monson brought the car up with Mr. Odekirk, stating that she did not know how much it was worth. Mr. Odekirk valued the Pilot at $2,000 due to the damage it had sustained, and this is the value of the Pilot listed on Ms. Monson’s Schedule B. When Ms. Monson questioned him about that figure, he told her not to worry about it. Ms. Monson also inquired whether she could lose the vehicle if she filed for bankruptcy, but Mr. Odekirk assured her that she would not have it taken from her.
Like the Talbots, Ms. Monson completed Mr. Odekirk’s intake form.
Ms. Monson filed a petition under Chapter 7 on September 14, 2012. At the § 341 meeting the trustee inquired into the rental property and the Pilot, informed Ms. Monson that he wanted to liquidate them for the benefit of creditors, and requested appraisals for both. In response, Ms. Monson considered hiring an attorney to address the issues presented by the trustee. She called Mr. Odekirk and told him that she was losing everything she wanted to keep and that she would need to hire an attorney. Mr. Odekirk replied that she did not need to hire an attorney and he reassured her that she would not lose her assets in bankruptcy. Ultimately, Ms. Monson did hire an attorney, who made an unsuccessful attempt to have her case dismissed.
After fighting for two years to save the rental property that she had used to support her family, Ms. Monson recently sold it. According to Ms. Monson, the property sold for approximately $99,000. Roughly $65,000 of the proceeds went to pay off the mortgage, $17,000 went to the Chapter 13 trustee to pay off her Chapter 13 plan, a portion went to pay off attorney’s fees, and she received $5,000.
III. DISCUSSION
Some of those who contemplate filing for bankruptcy are caught between a rock and a hard place. Unable to afford an attorney, yet lacking the knowledge to navigate the currents and eddies of a bankruptcy case alone, they turn hopefully to what appears to be a workable compromise. Bankruptcy petition preparers typically cost much less than an attorney, and although not attorneys, they seem to offer the helping hand that debtors so dearly want.
Bankruptcy petition preparers are limited to providing “typing, data entry and photocopying services to persons who have already decided to file bankruptcy.”
But the prohibition against giving legal advice is not the only rule by which bankruptcy petition preparers must abide. Section 110 contains a multitude of imperatives and restrictions with which every bankruptcy petition preparer should become familiar. That section “was enacted as part of the Bankruptcy Reform Act of 1994” with the aim of addressing “the proliferation of non-attorney bankruptcy petition preparers who are not working with or supervised by an attorney.”
*347 While it is permissible for a petition preparer to provide services solely limited to typing, far too many of them also attempt to provide legal advice and legal services to debtors. These preparers often lack the necessary legal training and ethics regulation to provide such services in [an] adequate and appropriate manner. These services may take unfair advantage of persons who are ignorant of their rights both inside and outside the bankruptcy system.21
Congress amended § 110 as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which added § 110(e)(2).
Congress’s intent is clear: bankruptcy petition preparers are forbidden from performing all but a select few tasks for potential debtors. While many bankruptcy petition preparers undoubtedly offer assistance beyond the bounds of § 110 because they genuinely want to help debtors rather than defraud them, that distinction is not relevant for purposes of § 110. The problem remains that many know only marginally more about bankruptcy than their clients, which often leads to the provision of “fragmented and incomplete legal assistance, the inadequacies of which are not readily apparent to debtors.”
A. Allegations Common to Both Cases
The United States Trustee has alleged that Mr. Odekirk committed 13 discrete violations of § 110 in each of Ms. Monson’s and the Talbots’ cases. In each of the cases, four of the alleged violations are related to Mr. Odekirk’s failure to disclose his identity on certain documents filed in the case, while nine involve providing legal advice. Owing to the factual similarity between the cases, many of the violations alleged in one case are likewise alleged in the other. To avoid needless repetition, the Court will consolidate its conclusions of law where the allegations are the same in both cases.
At the outset, the Court must determine if Mr. Odekirk meets the definition of a bankruptcy petition preparer under the Code. Section 110(a)(1) defines a bankruptcy petition preparer as “a person, other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney, who prepares for compensation a document for filing.” The Court concludes that Mr. Odekirk meets that definition. Moreover, in each case he signed the portion of the petition that provides, under penalty of perjury, that he is a bankruptcy petition preparer as defined in § 110.
Section 110(b)(1) requires that a bankruptcy petition preparer “who prepares a document for filing shall sign the document and print on the document the pre
The United States Trustee alleges that Mr. Odekirk failed to print his name and address on and sign the Statement of Social Security Number and Chapter 7 Statement of Current Monthly Income and Means-Test Calculation in Ms. Monson’s and the Talbots’ cases. Those two documents fall squarely within the definition of a document for filing, and the Court finds that in neither case did Mr. Odekirk place his name, address, or signature on them. Mr. Odekirk does not deny that he prepared them, but instead argues that he should not be fined because those documents, unlike other bankruptcy forms, do not provide designated lines for a bankruptcy petition preparer to enter the required information. This defense is unavailing. The plain language of the statute does not except documents from the mandate of § 110 because they lack a specific place for a bankruptcy petition preparer’s name, address, and signature.
Yet it is true that certain documents do not have a designated place for the information demanded by § 110. In those instances, a bankruptcy petition preparer can meet the disclosure requirements by filling out Form 19. That form provides spaces for a bankruptcy petition preparer’s name, address, signature, and Social Security number. It also provides spaces to list multiple documents that were prepared for filing. “Thus, when multiple documents are filed at one time, the preparer can comply with the disclosure and identification requirements by signing and identifying him or herself on just one Form 19 and listing there all the prepared documents.”
Section 110(c)(1) imposes a disclosure requirement similar to that in § 110(b)(1), prescribing that a bankruptcy petition preparer “who prepares a document for filing shall place on the document, after the preparer’s signature, an identifying number that identifies individuals who prepared the document.” Unless the exception of § 110(c)(2)(B) applies, the required number is “the Social Security account number of each individual who. prepared the document or assisted in its preparation.”
The United States Trustee has also alleged that Mr. Odekirk violated § 110(e)(2) by providing the following legal advice in both cases: (1) advising the debtors on the propriety and advisability of filing a Chapter 7 bankruptcy; (2) advising the debtors on selecting exemptions; (3) advising the debtors on the requirement to obtain a credit counseling certificate; (4) advising the debtors on the ability to pay the filing fee in installments or obtain a waiver of the filing fee altogether; (5), advising the debtors on the scope and effect of a discharge; (6) advising the debtors on how to characterize the nature of their debts; (7) advising the debtors on the valuation of their property; and (8) completing the means test.
Section 110(e)(2) states that “[a] bankruptcy petition preparer may not offer a potential bankruptcy debtor any legal advice, including any legal advice described in subparagraph (B).”
(i)whether—
(I) to file a petition under this title; or
(II) commencing a case under chapter 7,11,12, or 13 is appropriate;
(ii) whether the debtor’s debts will be discharged in a case under this title;
(iii) whether the debtor will be able to retain the debtor’s home, car, or other property after commencing a case under this title;
(iv) concerning—
(I) the tax consequences of a case brought under this title; or
(II) the dischargeability of tax claims;
(v) whether the debtor may or should promise to repay debts to a creditor or enter into a reaffirmation agreement with a creditor to reaffirm a debt;
(vi) concerning how to characterize the nature of the debtor’s interests in property or the debtor’s debts, or
(vii) concerning bankruptcy. procedures and rights.
The last clause — concerning bankruptcy procedures and rights — is a catchall provision with an extraordinarily wide reach.
Mr. Odekirk also violated § 110(e)(2) in both cases by advising the Talbots and Ms. Monson on which exemptions to select. In the Talbots’ case, Mr. Odekirk provided a list of Utah exemption statutes, which Mrs. Talbot used to complete Schedule C. In Ms. Monson’s case, Mr. Odekirk presented her with a completed Schedule C, which he had her initial after each claimed exemption. Mr. Odekirk is plainly aware that telling his clients which exemptions to select would constitute legal advice — he said as much on the stand during the evidentia-ry hearing. He appears to be under the impression, however, that he can avoid wrongdoing as long as the client writes down the exemptions on Schedule C from the list he has provided. This impression is incorrect for two reasons.
First, other courts have specifically rejected the suggestion that bankruptcy petition preparers are permitted to provide a list of exemption statutes to their clients and allow them to choose which exemptions apply.
The evidence further established that Mr. Odekirk did choose specific exemptions in both cases. Ms. Monson’s testimony — which was credible and unrefuted— was that Mr. Odekirk had given her a Schedule C with the column for the ex
The evidence also established that Mr. Odekirk violated § 110(e)(2) in both cases when he advised the Talbots and Ms. Mon-son to take the credit counseling course. This plainly constitutes legal advice on bankruptcy procedures and rights under § 110(e)(2)(B)(vii).
The United States Trustee has alleged a violation of § 110(e)(2) in both cases based on Mr. Odekirk’s advising the Talbots and Ms. Monson on the ability to pay the filing fee in installments or obtain a waiver of the filing fee altogether. Counseling debtors on whether to set up an installment plan or waive the filing fee concerns bankruptcy procedures and rights and constitutes legal advice under § 110(e)(2)(B)(vii). Mr. Odekirk admitted that he informs clients that he can set up installment payments for the filing fee. The Talbots’ testimony established that Mr. Odekirk gave such advice to them, and they filed an application to pay the filing fee in installments prepared by Mr. Odekirk. In Ms. Monson’s case, however, there was no testimony presented that Mr. Odekirk advised her about waiving the filing fee or paying it in installments. Ms. Monson did file an application to waive the filing fee, however, which Mr. Odekirk prepared.
The United States Trustee has alleged that Mr. Odekirk advised the Talbots and Ms. Monson on the scope and effect of a discharge. No evidence, however, was presented that Mr. Odekirk gave such advice. Accordingly, there are no violations of § 110(e)(2) based on this allegation.
The United States Trustee has also alleged that Mr. Odekirk violated § 110(e)(2) by advising the Talbots and Ms. Monson on how to characterize the nature of their debts. The evidence supports such allegations. Page 6 of Mr. Odekirk’s intake form contains a subheading entitled “Priority Debts.” Beneath that subheading, a client is asked five yes or no questions, including “Do you owe any taxes or other, debts to a government unit?” If a client answers “yes” to any of those questions,
Ms. Monson also completed the intake form, and she testified that she brought a list of her creditors to Mr'. Odekirk and obtained a credit report tallying her creditors. Yet Ms. Monson’s schedules divide her debts into secured and nonpriority unsecured claims. The Court concludes that Mr. Odekirk interpreted the intake form, list of creditors, and credit report to create Ms. Monson’s schedules, assigning the creditors into the categories provided by the schedules. In doing so, he violated § 110(e)(2).
Importantly, it is not merely the act of interpreting the information on the intake form and transferring it to the bankruptcy schedules that constitutes legal advice. Requesting that a debtor complete a questionnaire of the kind used by Mr. Odekirk also contravenes § 110(e)(2). As Judge Pappas explained in the case of In re Doser:
The U.S. Trustee points out that [the bankruptcy petition preparer] does not have her customers simply fill out blank copies of the bankruptcy schedules to return for processing, arid instead uses a form of questionnaire.... Attempts through a questionnaire to “simplify” the questions posed and information required in the official bankruptcy forms usually leads to the exercise of judgment by the [bankruptcy petition preparer] in how best to accomplish that result, which in turn inevitably crosses the line by giving potential debtors guidance and advice on how to fill out the forms. To the extent the questionnaire deviates in any way from the official forms, it likely constitutes unauthorized legal advice.41
Mr. Odekirk’s intake form differs in many respects from the schedules, Statement of Financial Affairs, and other bankruptcy documents. For example, the intake form asks clients to list the yard sale value of their personal property, but the schedules ask for the current value of the debtor’s interest in the property without any such qualifier. In addition, the intake form asks clients to list their adjusted gross income for the past two years, but Question 1 of the Statement of Financial Affairs asks for the debtor’s “gross amount of income.” The Court concludes that Mr. Odekirk’s use of the intake form itself constitutes legal advice under § 110(e)(2).
Moreover, the rationale that holds that the use of questionnaires violates the prohibition against legal advice “applies with equal force to the use of other sources, such as credit reports or ‘discussions’ with the client, to glean information used to prepare the debtor’s petition.”
Mr. Odekirk also violated § 110(e)(2) when he advised the Talbots and Ms. Mon-son on the valuation of their property. In the Talbots’ case, Mr. Odekirk used Kelley Blue Book to value their two vehicles. In Ms. Monson’s case, the evidence was inconclusive on whether he used Kelley Blue Book to value her 2007 Honda Pilot, but the evidence was clear that he alone placed a value of $2,000 on it. In addition, Mr. Odekirk requested, through his intake form, the yard sale value for various items of personal property.
The final allegation common to both cases is that Mr. Odekirk violated § 110(e)(2) when he completed the Means-Test Calculation in both cases.
B. Allegations Specific to Ms. Mon-son’s Case
The lone allegation specific to Ms. Mon-son’s case is that Mr. Odekirk violated § 110(e)(2) by advising her that she would not lose her rental property or car if she filed for bankruptcy. Ms. Monson’s unre-futed testimony shows that Mr. Odekirk gave her such advice, which is a specifically enumerated category of legal advice under § 110(e)(2)(B)(iii). Accordingly, Mr. Odekirk violated § 110(e)(2).
C. Allegations Specific to the Talbots’ Case
The sole allegation specific to the Tal-bots’ case is that Mr. Odekirk violated
D. Imposition of Fines
Under § 110(í)(l), a bankruptcy court may fíne a bankruptcy petition preparer who violates § 110(b) through (h) up to a maximum of $500 per violation. A court has discretion to award less than the maximum fine.
The Court determines that Mr. Odekirk committed 24 separate violations between Ms. Monson’s and the Talbots’ cases. The eight violations of § 110(b)(1) and (c)(1) deserve a lesser penalty than the $500 maximum. Mr. Odekirk dutifully disclosed his identity in compliance with those provisions on the other documents he prepared for filing in these cases, and he is now aware that he must comply with § 110(b)(1) and (c)(1) with regard to each document prepared for filing whether it has designated lines for the required information or not. Therefore, the Court elects to impose a fine of $10 per violation of § 110(b)(1) and (c)(1) for a total of $80 in fines.
The violations of § 110(e)(2) are more substantial and pervasive. Mr. Odekirk provided legal advice to Ms. Monson and the Talbots on numerous issues, and in each case the legal advice had disastrous consequences. He advised Ms. Monson to file a Chapter 7 case when she had an income-producing property with substantial equity that she was using to support her family. She has now lost that source of support. He advised the Talbots to spend their tax refund, erroneously believing that purchasing necessities and keeping receipts would insulate them from the trustee’s reach. As a result, the Talbots filed a Chapter 13 case to repay a debt that could have been avoided but for the advice Mr. Odekirk gave them.
Furthermore, the manner in which these violations occurred evince an insouciant attitude to the prohibition against giving legal advice. Not only did Mr. Odekirk give legal advice, he knew he was giving legal advice. He plainly told his clients that he could not offer them legal advice yet did so anyway, on certain occasions using his fingers to place quotation marks in the air around the words “legal advice” as he said them, as if that would transform the words that followed into something that would not constitute legal advice. Such an action is the equivalent of the deceitful schoolyard trick of crossing one’s fingers behind one’s back while professing to tell the truth.
Mr. Odekirk’s practices in this regard are not unique. In Briones-Coroy, the bankruptcy petition preparer told his clients “that he is not an attorney and that he can’t give legal advice” and, like Mr. Odekirk, he had his clients “sign a form to this effect.”
Mr. Odekirk implicitly argued that he is permitted to offer the services he provides, relying on a letter of understanding sent to him by the Unauthorized Practice of Law Committee of the Utah State Bar (“Committee”) on July 29, 2013, which he signed three days later.
The Court has already determined that Mr. Odekirk violated § 110(e)(2)’s prohibition against giving legal advice; the Court does not need to examine whether Mr. Odekirk engaged in the unauthorized practice of law as defined in Utah.
These cases demonstrate the harm that can result when a person without legal training offers legal advice. The Court elects to impose the maximum fine of $500 for each of the 16 violations of § 110(e)(2) for $8,000 in fines. In total, Mr. Odekirk must pay $8,080 in fines for his violations of § 110. The fines must be paid to the Office of the United States Trustee.
E. Damages and Forfeiture of Fees
In addition to fines, a bankruptcy petition preparer who violates § 110 or “commits any act that the court finds to be fraudulent, unfair, or deceptive” is required to compensate the debtor.
Offering legal advice to debtors can constitute a fraudulent, unfair or deceptive act within the context of § 110(f)(1).
The same reasoning applies in the Tal-bots’ case. The Talbots also incurred $4,681 in legal fees as a result of Mr. Odekirk’s erroneous legal advice concerning their tax refund. Therefore, actual damages of' $4,681 will be awarded to them. The Court will also award the Tal-bots $2,000 in statutory damages under § 110(f)(1)(B), for total damages of $6,681.
The Court has discretion to require a bankruptcy petition preparer to forfeit his fee if he violates § 110(b) through (h).
F. Injunctive Relief
The United States Trustee did not seek to enjoin Mr. Odekirk from acting as a bankruptcy petition preparer pursuant to § 1100(1), and this Court will not issue such an injunction sua sponte.
The Court is authorized as part of its contempt power to enjoin a bankruptcy petition preparer who fails to comply with an order issued under § 110.
IV. CONCLUSION
On the surface, bankruptcy petition preparers face an apparent dilemma. They can abide by the commands of the statute and refuse to answer the legal questions of beseeching clients, or they can answer those questions and offer advice at the cost of violating § 110. Yet the notion that
Mr. Odekirk has gone well beyond the bounds of the statute by providing legal advice to the Talbots and Ms. Monson. That alone is enough to violate § 110, but in these cases the legal advice Mr. Odekirk gave was grievously wrong. Ms. Monson has lost the very asset she wanted to keep, and the Talbots are repaying a debt that never should have existed.
In addition, Mr. Odekirk’s insistence that his clients do not need an attorney woefully underestimates the complexities of bankruptcy law and offers those clients a false sense of security. While it is true that some bankruptcy cases are successfully navigated without the aid of an attorney, those are the rare exceptions, not the rule. The Court recognizes that debtors will naturally have questions about a foreign and unfamiliar subject like bankruptcy. If debtors do seek out legal services in connection with their bankruptcy cases, those services require “legfal training and the assurance of comprehensive, competent representation that only a licensed attorney can provide.”
Pursuant to the Court’s findings of fact and conclusions of law, the Court requires Mr. Odekirk to pay a fine of $8,080 to the United States Trustee, to pay $6,681 in damages to the Talbots and $6,681 in damages to Ms. Monson, to disgorge his fee of $299 in each of the two cases, and to submit biannual disclosures as outlined in Section F, supra. A separate Order and Judgment will be issued in accordance with this Memorandum Decision.
. All subsequent statutory references are to title 11 of the United States Code unless otherwise indicated.
. Ruth performs this function about three-quarters of the time and Virgle the other quarter.
. In some cases, Mr. Odekirk e-mails the intake form to the client.
.It appears that Mr. Odekirk uses Kelley Blue Book to value most, if not all, of his clients’ vehicles. Page 5 of the intake form requests that clients provide the mileage for their vehicles. Mr. Odekirk testified that the mileage figure was necessary, despite not being requested by the bankruptcy schedules, because "Kelley Blue Book asks for mileage.”
. Mrs. Talbot did not fill out each entry entirely. All but one exemption on Schedule C begins with a typed “7” after which she hand-wrote the remainder of each chosen exemption statute.
. Mr. Odekirk testified that it was his past practice to claim money in debtors' bank accounts as exempt. After admonishments from trustees, he stopped that practice.
. The Talbots also paid their tax preparer’s fee using the refund.
. Mr. Odekirk testified that he destroyed Ms. Monson’s and the Talbots’ intake forms some time after they filed for bankruptcy.
. See Docket No. 23, Debtor's Motion to Dismiss Chapter 7, and Docket No. 41, Order Denying Debtor's Motion to Dismiss Chapter 7. These documents were not among the exhibits introduced into evidence, but the Court takes judicial notice of them. "[A] court may ... take judicial notice, whether requested or not, of its own records and files, and facts which are part of its public records.” St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979).
. See Docket No. 57, Order Granting Motion to Vacate Discharge Granted Pursuant to 11 U.S.C. § 727 and Motion to Convert Chapter 7 Case to Case Under Chapter 13. This document also was not among the exhibits introduced into evidence.
. The $5,000 figure represents Ms. Monson’s entitlement under Utah law to a homestead exemption in real property that was not her primary personal residence on the petition date. See Utah Code Ann. § 78B-5-503(2)(a)(i) (2014). Ms. Monson claimed the $5,000 exemption in the rental property in the Schedule C she filed after conversion.
. At least one court has suggested that the rise in the number of bankruptcy petition preparers has its roots in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which created new "Congres-sionally instituted hurdles,” which in turn led to higher attorney’s fees in order to surmount those hurdles. As a consequence, bankruptcy petition preparers grew to offer a "less expen
.Id. at 690; see also Jonak v. McDermott, 511 B.R. 586, 596 (D.Minn. 2014) ("[T]he case law makes it 'abundantly clear that providing anything more than typing services is prohibited under § 110.’ ”); In re Bernales, 345 B.R. 206, 216 (Bankr.C.D.Cal. 2006) ("The law is clear: '[T]he services of bankruptcy petition preparers are strictly limited to typing bankruptcy forms.' ”); In re Dunkle, 272 B.R. 450, 455 (Bankr.W.D.Pa. 2002) ("A petition preparer is only authorized to type information exactly as provided by potential debtors.”); In re Gomez, 259 B.R. 379, 385 (Bankr.D.Colo. 2001) ("Congress’ clear intent was that § 110 authorize bankruptcy petition preparers to provide only scrivener services, limited to clerical services such as copying and typing.”); In re Guttierez, 248 B.R. 287, 298 (Bankr.W.D.Tex. 2000) ("The only service that a bankruptcy petition preparer can safely offer and complete on behalf of a pro se debtor after the enactment of § 110 is the ‘transcription’ of dictated or handwritten notes prepared by the debtor prior to the debtor having sought out the petition preparer’s service.”).
. Briones-Coroy, 481 B.R. at 690.
. § 110(e)(2).
. U.S. Trustee v. McIntire (In re Sanchez), 446 B.R. 531, 538 (Bankr.D.N.M. 2011).
. In re Moffett, 263 B.R. 805, 811 (Bankr.W.D.Ky. 2001).
. Consumer Seven Corp. v. U.S. Trustee (In re Fraga), 210 B.R. 812, 818-19 (9th Cir. BAP 1997) (citations omitted).
. Ferm v. U.S. Tmstee (In re Crawford), 194 F.3d 954, 960 (9th Cir. 1999).
. Guttierez, 248 B.R. at 295. This concern came to the fore in Ms. Monson’s case. She testified that she understood that Mr. Odekirk was not an attorney but nonetheless believed that he had "great knowledge” about bankruptcy because he called himself The Bankruptcy Guy.
. H.R. Rep. No. 103-835, at 56 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3365.
. In re Hennerman, 351 B.R. 143, 150 (Bankr.D.Colo. 2006).
. Id.
. Gomez, 259 B.R. at 388.
. Guttierez, 248 B.R. at 297; see also In re Amezcua, No. BR 12-21370 JTM, 2013 WL 272809, at *1 (Bankr.D.Utah Jan. 18, 2013) ("[Bankruptcy petition preparers who] either willingly or inadvertently run afoul of § 110[ ] creat[e] problems for their clients (the debtors) and the courts.”).
. § 110(a)(2).
. U.S. Trustee v. Burton (In re Rosario), 493 B.R. 292, 346 (Bankr.D.Mass. 2013).
.§ 110(c)(2)(A).
. § 110(e)(2)(A).
. See Hennerman, 351 B.R. at 151-52.
. Id. at 152.
. See § 102(3). That subsection provides that the words " ‘includes’ and 'including' are not limiting.”
. Sanchez, 446 B.R. at 538 (footnote omitted).
. See Moffett, 263 B.R. at 814; McDow v. Skinner (In re Jay), 446 B.R. 227, 250-51 (Bankr.E.D.Va. 2010); see also Briones-Coroy, 481 B.R. at 737 ("[A] bankruptcy petition preparer is prohibited from many acts, including, but not necessarily limited to: .... (3) Providing debtors with a comprehensive list of available exemptions from which to choose.”).
. The Schedule C Utah Exemption is a simple, two-page document that lists various items of property along the left-hand side of the page and matches those items with the relevant statutory provision that exempts them under Utah law along the right-hand side. A few of the provisions are not correct matches for the listed items of property, while others misstate the law. For example, the Schedule C Utah Exemption lists "Wages” as property exempt under Utah Code Ann. § 70C-7-103, but that provision does not create an exemption in bankruptcy. Gladwell v. Reinhart (In re Reinhart), 291 P.3d 228, 231 (Utah 2012). Although the Talbots and Ms. Monson filed their cases before the Utah Supreme Court decided Reinhart, there was no indication that the Schedule C Utah Exemption was amended to reflect that decision.
.See Sanchez, 446 B.R. at 538 ("[M]aking the decision on behalf of the debtor to elect federal or state exemption statutes, constitutes impermissible legal advice under 11 U.S.C. § 110(e)(2).”).
.This typed “7,” which also appears on the Talbots’ Schedule C, is further proof, when viewed in conjunction with the Schedule C Utah Exemption, that Mr. Odekirk determined that Utah’s exemptions applied and chose that exemption scheme for the Talbots and Ms. Monson. An exemption claimed under the Utah Exemptions Act, which is codified at Utah Code Ann. § 78B-5-501 et seq., will naturally begin with the number "7.”
. If Mr. Odekirk had written the applicable exemption statute on Schedule C after Ms. Monson had chosen the exemption without any assistance or advice from Mr. Odekirk, including being given a list of exemptions, then Mr. Odekirk would be performing the task of a scrivener and would not violate § 110(e)(2). Those are not the facts of this case, however.
. Ex. 13.
. Many courts have held that using a questionnaire to gather a debtor’s financial information, which is then transferred to the bankruptcy schedules, violates the prohibition against legal advice under § 110(e)(2). See Briones-Coroy, 481 B.R. at 737 (collecting cases).
. In re Doser, 281 B.R. 292, 309 (Bankr.D.Idaho 2002); see also Rosario, 493 B.R. at 335 ("[B]ecause the completion of bankruptcy forms entails a number of legal decisions, courts have held that a bankruptcy petition preparer's completion of the forms using summarized or recharacterized data obtained from the debtor through written questionnaires or worksheets also constitutes the giving of legal advice and the unauthorized practice of law.”).
.Rosario, 493 B.R..at 336 (emphasis added).
. Counseling clients to use a yard sale value for their property has been found to constitute a violation of § 110. See Hannigan v. Marshall (In re Bonarrigo), 282 B.R. 101, 106 (D.Mass. 2002).
. See Rosario, 493 B.R. at 334-35.
. Gomez, 259 B.R. at 386.
. The Means-Test Calculation is a "screening mechanism to determine whether a Chapter 7 proceeding is appropriate.” Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 65 n.1, 131 S.Ct. 716, 722 n. 1, 178 L.Ed.2d 603 (2011). "If the debtor’s Chapter 7 petition discloses that his disposable income as calculated by the means test exceeds a certain threshold, the petition is presumptively abusive. If the debtor cannot rebut the presumption, the court may dismiss the case or, with the debt- or’s consent, convert it into a Chapter 13 proceeding.” Id. (citations omitted).
.See U.S. Trustee v. Brown (In re Martin), 424 B.R. 496, 508 (Bankr.D.N.M. 2010) (determining whether the presumption of abuse arises violates § 110(e)(2)); see also Rosario, 493 B.R. at 334 (completion of the means test requires "complex legal determinations”).
.Sanchez, 446 B.R. at 540; see also In re Hernandez, No. 10-41290 SBB, 2011 WL 5239238, at *12 (Bankr.D.Colo. Oct. 31, 2011).
. See Sanchez, 446 B.R. at 540.
. Briones-Coroy, 481 B.R. at 723.
. Id.
. This letter was received as Exhibit A.
. See Wynns v. Adams, 426 B.R. 457, 462-63 (E.D.N.Y. 2010) (distinguishing between legal advice and the practice of law).
. § 110(i)(l).
. Id.
. In re Rojero, 399 B.R. 913, 919 (Bankr.D.N.M. 2008) (collecting cases).
. § 110(h)(3)(B).
. See In re Sattiewhite, No. BK-S-08-20843BAM, 2009 WL 971597, at *3 (Bankr.D.Nev. Apr. 7, 2009) ("Injunctive relief is an extraordinary remedy and implicates a bankruptcy petition preparer's opportunity to operate a business, therefore, all the requirements of notice and due process are required before an injunction may be issued.”).
. See § 105(a) ("The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.”). In using its § 105(a) powers to order Mr. Odekirk to submit biannual disclosures to the United States Trustee, the Court is not "contravening] specific statutory provisions” of the Code. See Law v. Siegel, — U.S. -, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014).
. For six-month periods running from December 1 to May 31, the deadline to submit the disclosure will be June 30. For six-month periods running from June 1 to November 30, the deadline will be December 31.
. § 110(j)(3).
. Briones-Coroy, 481 B.R. at 694.
Reference
- Full Case Name
- In re Alysse Terry MONSON, Debtor. In re Stanley A. Talbot and Presha A. Talbot, Debtors
- Cited By
- 2 cases
- Status
- Published