Robbins v. Jennings (In re Brown)
Robbins v. Jennings (In re Brown)
Opinion of the Court
MEMORANDUM DECISION
The matter before the Court is the United States Trustee’s “Motion for Entry of an Order Pursuant to 11 U.S.C. §§ 105, 110, 526, and 527 Requiring the Disgorgement of Fees Received, Payment of Damages to the Debtor, and Imposition of Fines”
(i) requiring Mark Jennings and/or Financial Associates Enterprise Marketing, Inc. (the “BPP”) to disgorge the fees received from the above-referenced Debtor; (ii) requiring the BPP to pay the Debtor damages of not less than $2,000.00; and (in) imposing fines of $500.00 against the BPP for each and every violation of § 110(b), (c), (e), and/or (h) of the Bankruptcy Code.
In support of the Motion the United States Trustee has offered twenty-two exhibits, all of which have been admitted into evidence over the Respondent’s objection for reasons stated on the record at the hearing upon the Motion. In addition counsel for the United States Trustee has requested that the Court take judicial notice of all of the filings in Ms. Brown’s cases filed with the Court, which the Court has agreed to do. Mr. Jennings denies that he has operated as a bankruptcy petition preparer or that he has done anything wrong. On the basis of the findings of fact and conclusions of law made below, the Court will partially grant the Motion.
FINDINGS OF FACT
From the evidence and filings in this case it appears that Mr. Jennings is the owner and president of Financial Associates Enterprise Marketing, Inc. (“Financial Associates”). There appears to be no meaningful distinction between them, and Mr. Jennings has not made any contention to the contrary. Financial Associates holds itself out in the Retainer Agreement signed by Ms. Brown to be a provider of various kinds of financial services, such as payment of bills, “credit repair,” “administrative processing of home loans,” and “asset management.”
During the time that Mr. Jennings has been working with Ms. Brown, she has filed three bankruptcy petitions under Chapter 13 of the Bankruptcy Code in this Court: Case No. 11-72524 filed on December 16, 2011; Case No. 12-71971 on October 31, 2012; and the present case filed on March 7, 2013. In none of these cases did Ms. Brown file her bankruptcy schedules, statement of financial affairs or a Chapter 13 Plan, nor did she pay the filing fee. In only one of these cases, the first, has her required “Statement of Debtor as to Assistance by Non-Attorney in Regards to Preparing and Filing Petition” indicated that she has received any assistance in preparing her petition. In that case her statement indicated that she had received assistance from “Financial Associates Enterprise” but that she had paid nothing for such assistance.
In reaction to the Debtor’s deficient filing history, on March 12, 2013 the United States Trustee filed a Motion for Sanctions (the “Sanctions Motion”) seeking this case’s dismissal as constituting an abusive filing and an order barring the Debtor from filing any new case in this Court for a period of one year. At the initial scheduled hearing on that motion on April 8, 2013, the Debtor did not appear but Mr. Jennings did appear, identified himself to be Ms. Brown’s “asset manager,” advised the Court that the Debtor was ill and requested a continuance. A continuance was granted to April 22, 2013. The Chapter 13 Trustee subpoenaed Mr. Jennings as a witness for such hearing. Upon his request for a new continuance due to another scheduled court appearance, the Sanctions Motion was continued again to May 13, 2013 and then yet again to May 28, 2013. At the continued hearing both
1. Upon resolution of all matters pending in this case, that this case be dismissed. Notwithstanding the deferral of entry of the Court’s standard dismissal order pending resolution of any pending matters in this case, the automatic stay shall terminate as to any creditor action against the Debtor, property of the Debtor or property of the bankruptcy estate upon entry of this order.
2. That the debtor be prohibited from filing any pro se bankruptcy petition subsequent to the entry of this order and continuing for a period of 365 days from the date of the Order dismissing this case. Should the debtor retain counsel who is properly admitted to practice law to assist her with her bankruptcy filing, this bar does not apply,
(emphasis in original removed showing Court’s additions to proposed order tendered by counsel for the United States Trustee).
At that July 22nd hearing both the Debtor and Mr. Jennings testified. Ms. Brown, in response to questions from counsel for the United States Trustee, testified that Mr. Jennings had prepared the document filed with the Court in this case listing her mortgage lender as her sole creditor. Similar documents were filed with the petitions in the first two cases. Although the mortgage lender was the only creditor listed, the Debtor also testified that at the time she filed she also had a car loan and a credit card debt but that she was handling these obligations satisfactorily. The Court finds on the basis of this testimony that, at a minimum, Mr. Jennings prepared the creditor disclosure for the purpose of filing with the petition initiating this case with the intention that the mortgage lender’s foreclosure effort then underway would be aborted. That finding is sufficient to resolve the basic issue before the Court and there is no need for it to make an assessment of other evidence in the nature of comparison of handwritten lettering on the Debtor’s petition in this case with printing contained in other documents, including the pro se petition which Mr. Jennings filed on his own behalf in this Court [Exhibit no. 12], shown to have been prepared by Mr. Jennings.
THE COURT: All right, Mr. Jennings, I’m going to ask you a couple questions just about this particular case. From the testimony that Ms. Brown gave just before you got here, it’s obvious that she relies a lot on your help to deal with her financial problems. Of course, you are aware that she filed this case in this court. She testified before you got here when she was asked — she answered the question that she filed a Chapter 13 based on the advice that you gave her. Would you agree with that or not?
THE WITNESS: Yes, sir.
Hr’g Tr. 57:7-18, May 28, 2013. While this exchange occurred in a hearing upon the Sanctions Motion against the Debtor and prior to the filing of the Motion now under consideration by the Court, it will be utilized in deciding the present matter as constituting an admission by Mr. Jennings.
Exhibit 15 offered by the United States Trustee, consisting of twelve pages of Financial Associates account statements rendered to the Debtor, indicates that Ms. Brown paid to Financial Associates a minimum of $875, but probably $250 more, during the twelve month period preceding the filing of this case on March 7, 2013. It further shows that she made three additional payments to that company in the months of March, April and May after the filing of this case and as of June 15, 2013 had an indicated account balance of $125 still owing. These amounts were paid pursuant to the Retainer Agreement entered into between the Debtor and Financial Associates on January 15, 2012. U.S. Trustee Exhibit 19. There was no apparent allocation of the fixed amounts payable monthly under the terms of that agreement between the services related to the efforts to obtain a modification of the mortgage loan and those related to the two bankruptcy petition filings which occurred during the time that such agreement remained in effect. It is clear, though, that Mr. Jennings did what he did with respect to the Debtor’s two most recent bankruptcy filings because he was compensated for general services which included as a critical element the filing of those two petitions. Ms. Brown has testified before the Court that she has been satisfied with the services provided by Mr. Jennings and
CONCLUSIONS OF LAW
This Court has jurisdiction of this matter by virtue of the provisions of 28 U.S.C. §§ 1334(a) and 157(a) and the delegation made to this Court by Order from the District Court on July 24, 1984 and Rule 3 of the Local Rules of the United States District Court for the Western District of Virginia. The Court further concludes that determination of the Motion constitutes a “core” bankruptcy proceeding within the meaning of 28 U.S.C. § 157(b)(2) because any court has the inherent authority to regulate the conduct of cases filed in such court and the activities of those representing a party in such ease as an attorney or otherwise assisting a party in a quasi-legal capacity, particularly with respect to pleadings filed in that court. Furthermore the Bankruptcy Code explicitly imposes restrictions upon the activities of such service providers in §§ 110 (bankruptcy petition preparers) and 526, 527 and 528 (debt relief agencies).
Section 110(a)(1) of the Code defines a “bankruptcy petition preparer” to be “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” in a bankruptcy case. Other subsections of § 110 impose various requirements upon bankruptcy petition preparers and the documents they prepare for filing and provide for significant sanctions if such requirements are not observed. One of those sanctions is a requirement that the court, upon a finding that a bankruptcy petition preparer has violated § 110 or committed “any act ... [determined to be] fraudulent, unfair or deceptive,” to order the bankruptcy petition preparer to pay to the debtor—
(A) the debtor’s actual damages;
(B) the greater of—
(i) $2,000, or
(ii) twice the amount paid by the debtor to the bankruptcy petition preparer for the preparer’s services; and
(C) reasonable attorneys’ fees and costs in moving for damages under this subsection.
§ 110GX1).
The United States Trustee, as a part of the relief sought in her Motion, seeks an order “imposing fines of $500.00 against the BPP for each and every violation of § 110(b), (c), (e), and/or (h) of the Bankruptcy Code.” Subsection (b) requires, in general terms, that the bankruptcy petition preparer sign the document prepared for filing and print on it the preparer’s name and address, and that before any document is prepared for filing the preparer shall “provide to the debtor a written notice which shall be on an official form prescribed by the Judicial Conference of the United States in accordance with rule 9009 of the Federal Rules of Bankruptcy Procedure,” which is intended to assure that the bankruptcy debtor understands that the preparer is not an attorney and may not give legal advice. Such form must be signed by both the preparer and the debtor and filed with the document prepared for filing. Subsection (c) requires the preparer to place on the document prepared for filing the Social Security account number of the preparer, or if the preparer is not an individual, the Social Security account number of the “responsible person” of the preparer. Subsection (e) prohibits a preparer from executing a document on behalf of a debtor
The term “debt relief agency” is defined in § 101(12A) of the Code to mean “any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110,”
to an assisted person in the amount of any fees or charges in connection with providing bankruptcy assistance to such person that such debt relief agency has received, for actual damages, and for reasonable attorneys’ fees and costs[.]
The United States Trustee has requested that the Court take judicial notice of its dockets in the three cases filed by Ms. Brown and the Court has agreed to do so. The Court concludes that the facts
DISCUSSION
There appear to be few, if any, reported decisions dealing with disputed allegations that some individual or entity has acted as an unacknowledged bankruptcy petition preparer within the meaning of the Code. This particular case is made even more unusual by the fact that the Debtor has filed three petitions in this Court in as many years in which she acknowledged only in the first case that Financial Associates had assisted her in the preparation of her petition, which acknowledgment was confirmed at the time by Mr. Jennings. In the second case and in this one Ms. Brown has filed documents with the Court asserting that she has received no assistance with her filings. The United States Trustee believes otherwise. From the evidence before the Court in this case, it appears that neither Mr. Jennings nor his corporate business entity has any intention of generally assisting consumer debtors whose principal motivation is to file not just a petition but also the various schedules and other documents which go along with it for the purpose of obtaining a discharge of indebtedness. In fact, there seems to be no indication that the Debtor ever had any intention in any of her cases even to file schedules and a Chapter 13 plan, much less actually to fulfill the obligations under a confirmed plan and obtain a discharge. The only creditor noted in any of them was her residential mortgage lender. The real business of Financial Associates and/or Mr. Jennings, at least as it concerns the Debtor in her cases, rather appears to have been to assist Ms. Brown to obtain a modification of her mortgage loan and that the filing of multiple bankruptcy petitions for the purpose of frustrating the lender’s efforts to foreclose and keep the client in possession of her home until the loan modification efforts were either successful or exhausted was simply one part of that overall purpose. Whether that overall purpose, that is to help desperate home borrowers obtain a modification of their mortgage loans, is an appro
DECISION
On the basis of the determinations noted above with respect to the activities of Mr. Jennings in the present case, the Motion must be granted, at least in part, because Mr. Jennings has functioned as an undisclosed bankruptcy petition preparer. No evidence has been offered that this Court has previously made such a finding with respect to Mr. Jennings in any other proceeding, so he will be treated as a “first offender.”
Determining a fine pursuant to § 110(i)(l) and (2) for the violations of § 110(b) — (h) which have occurred in this case presents questions of both discretionary and mandatory requirements. The Court “may” fine the bankruptcy petition preparer for each violation of subsections (b)-(h), but it “shall triple” any fine so determined upon a finding that, as most clearly presented here, the preparer “pre
Because the compensation paid by the Debtor was to Financial Associates and the Court has determined that such entity and Mr. Jennings are in effect one and the same, the liability for both the statutory damage award payable to Ms. Brown and the civil fine imposed pursuant to § 110(Z) shall be joint and several against Financial Associates and Mark Jennings personally. An order to such effect shall be entered contemporaneously herewith.
. Filed in this case on July 25, 2013 as docket entry no. 57.
. See U.S. Trustee’s Exhibit 19 bearing the date of January 15, 2012.
. U.S. Trustee’s Exhibit 13.
. Numerous continuances were granted following the July 22nd hearing to permit resolution of discovery issues and to provide an opportunity for Mr. Jennings to secure legal counsel, which he proved either unwilling or unable to obtain at any time during the pen-dency of the Motion.
. Section 101(3) of the Code defines the term "assisted person” to mean "any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $175,750.”
. The Court acknowledges that this may not be the only reasonably possible interpretation of the definition of "debt relief agency,” particularly in light of the fact that § 526(c) setting forth the remedy against a debt relief agency ties back to liability "to an assisted person,” which would seem to suggest that a bankruptcy petition preparer can only be liable under § 526 to a debtor who is an "assisted person.” In this case the United States Trustee has established that the Debtor is an "assisted person” and therefore the intriguing question whether a “debt relief agency” which qualifies as such solely by reason of having been determined to be a bankruptcy petition preparer could be liable to a client who does not meet the definition of an "assisted person” is not before the Court.
. The Court is aware that there is another similar motion pending against Mr. Jennings in a separate case, In re Oliphant, Case No. 12-70668, but such motion is yet to be determined and will not be taken into account in fixing the remedy which will be fashioned here.
Reference
- Full Case Name
- In re Jane BROWN, Debtor. Judy A. Robbins, United States Trustee for Region Four, Movant v. Mark Jennings
- Status
- Published