In re Falck

503 B.R. 904, 24 Fla. L. Weekly Fed. B 281, 2014 WL 322522, 2014 Bankr. LEXIS 372
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedJanuary 29, 2014
DocketCase No. 12-24855-JKO
StatusPublished

This text of 503 B.R. 904 (In re Falck) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Falck, 503 B.R. 904, 24 Fla. L. Weekly Fed. B 281, 2014 WL 322522, 2014 Bankr. LEXIS 372 (Fla. 2014).

Opinion

Chapter 13

ORDER IMPOSING SANCTIONS, PENALTIES, AND AN INJUNCTION AGAINST ANTONIO DIAZ, NICOLE DIAZ, SAYING HOMES, INC., AND BANKCREDIT MORTGAGE USA PURSUANT TO ORDER TO SHOW CAUSE [ECF 40]

John K. Olson, United States Bankruptcy Judge

THIS CASE came before the Court on November 14, 2013, upon the final eviden-tiary hearing on the Order to Show Cause (“OSC”) [ECF 40] originally entered November 19, 2012, as modified. After hearing the representations and arguments of counsel for the Debtor, the United States Trustee, and from Antonio and Nicole Diaz, both appearing pro se, after reviewing the evidence presented at the eviden-tiary hearing and at the prior hearings on the OSC and after considering the entire record in this case and reviewing applicable law, the Court makes the following findings of fact and conclusions of law, and imposes sanctions, penalties and a permanent injunction against Antonio Diaz, Nicole Diaz, and entities owned and controlled by Antonio Diaz, including Saving Homes, Inc., and BankCredit Mortgage USA.

FINDINGS OF FACT

On June 19, 2012, a skeleton petition for relief under Chapter 13 of the Bankruptcy Code (“Petition”) [ECF 1] was filed on behalf of the Debtor, Hans Juergen Falck, then pro se. Concurrently with the Petition, a Statement of Social Security Number [ECF 3], a Declaration and Signature of Non-Attorney Bankruptcy Petition Preparer (“Declaration”) [ECF 4], and a Disclosure of Compensation of Bankruptcy Petition Preparer (“Disclosure”) [ECF 5] were filed. The documents filed were signed by the Debtor and by Nicole Diaz as a non-attorney bankruptcy petition preparer. The Disclosure indicated that zero dollars had been accepted, zero dollars were received and zero dollars were due from the Debtor for non-attorney bankruptcy preparation services.

As required by Local Rule 1002-1(B)(1)(d), documentary proof of the Debt- or’s identity was provided together with a copy of the proof of identity of Nicole Diaz, the individual who brought the Petition to the Clerk’s Office on behalf of the Debtor, with an attached power of attorney. These three documents are filed at ECF 2. In addition to the documents filed, Nicole Diaz filed an application for the Debtor to pay the filing fee in installments (“Applica[908]*908tion”) [ECF 6] and paid $50 [ECF 7] at the time of the filing of the Petition.

On July 3, 2012, Payment Advices [ECF 12], a Statement of Current Monthly Income and Disposable Income Calculation [ECF 13], the Debtor’s Certificate of Budget and Credit Counseling [ECF 14], the Schedules [ECF 15], and a Chapter 13 Plan [ECF 16], were filed on behalf of the Debtor. The Debtor did not prepare or file these documents with the Court; however, it is unclear as to whether these documents were filed directly by Nicole Diaz, Antonio Diaz or someone else.

On July 25, 2012, this Court entered an Order [ECF 23] dismissing the case with 180 days prejudice period for failure of the Debtor to pay the filing fee installment of $77 due on July 19, 2012. Following the closing of the case on August 30, 2012 [ECF 30], a Motion to Vacate Order of Dismissal and to Reopen Case [ECF 31, 32] was filed on behalf of the Debtor. A hearing on the motion was conducted on November 5, 2012. At the hearing, the Debtor explained that he had paid significant funds to Saving Homes, Inc., and Antonio Diaz, for bankruptcy petition preparation services. This Court continued the hearing upon the motions and directed that the matter be investigated.

The subsequent investigation revealed that over $7,000 had been paid by the Debtor to Saving Homes, Inc. and Antonio Diaz. That evidence contradicted the Disclosure filed by Nicole Diaz at ECF 5, which asserted that zero dollars had been paid. Pursuant to 11 U.S.C. § 110, the failure of a non-attorney bankruptcy petition preparer (“BPP”) to disclose fees charged and paid by the Debtor, as well as the payment of excessive and/or unreasonable fees charged for document preparation services is subject to sanctions, penalties and appropriate injunctive relief. This Court directed further investigation and on November 19, 2012, entered the OSC [ECF 40], which ordered both Antonio and Nicole Diaz to appear before the Court and explain what amounts the Debtor paid for their bankruptcy petition preparation services and to show cause why sanctions should not be imposed if fees were charged and not disclosed, or if the fees charged were excessive, all of which constitutes a violation of § 110.

Hearings on the OSC continued for almost an entire year, involving discovery, litigation, and arguments from the Debt- or’s counsel, the United States Trustee, and from Antonio and Nicole Diaz. The docket reflects each of these disputes and hearings. Antonio Diaz, Nicole Diaz, Saving Homes, Inc., and BankCredit Mortgage USA had numerous opportunities to present evidence in their favor and to seek representation of counsel. Although they were initially represented by counsel, Antonio and Nicole Diaz appeared pro se at the time of the final evidentiary hearing on the OSC. No attorney appeared on behalf of Saving Homes Inc., and BankCredit Mortgage USA. The Court finds that Antonio Diaz and Nicole Diaz understood the gravity of the issues presented by the OSC and had full opportunity to defend themselves.

VIOLATIONS OF 11 U.S.C. § 110

11 U.S.C. § 110 of the Bankruptcy Code regulates the activity of non-attorney BPPs. Violations of § 110 can result in penalties, sanctions, and injunctive relief if a BPP has prepared bankruptcy petitions on behalf of a debtor negligently, fraudulently, or in violation of § 110.

The Debtor utilized the services of Saving Homes, Inc., and Antonio Diaz to assist him in mortgage foreclosure defense and in the preparation and filing of his Petition. Saving Homes, Inc., is an active Florida corporation. Antonio Diaz is its [909]*909sole owner and director. The Court finds that Nicole Diaz assisted Antonio Diaz (her father) in this and in many other similar cases over a period of several years. Nicole Diaz was the non-attorney BPP who prepared the Debtor’s Petition, Disclosure, and Declaration. She did so as an agent of Saving Homes, Inc., and under the supervision of Antonio Diaz.

Antonio Diaz, Nicole Diaz, Saving Homes, Inc., and BankCredit Mortgage USA, and/or its agents, assigns, directors, and employees (“Defendants”), have provided their services for mortgage foreclosure defense and as BPPs to numerous other debtors. Defendants filed a fourteen page customer list [ECF 119] which identifies hundreds of clients and case files handled by the Defendants in the last three years. The evidence presented over the months of show cause hearings establishes that the Defendants violated many provisions of § 110, that they did so in each and every case reviewed by the Court in which they provided services as BPPs, and that they have consistently engaged in fraudulent, unfair, and deceptive practices. None of the Defendants is licensed to practice law in the State of Florida or in any other jurisdiction and, at all times material to the facts and issues underlying this case, none of them was operating as a paralegal under the supervision or control of a licensed attorney.

Pursuant to 11 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Kaitangian
218 B.R. 102 (S.D. California, 1998)
In Re Moffett
263 B.R. 805 (W.D. Kentucky, 2001)
In Re Jones
227 B.R. 704 (S.D. Indiana, 1998)
In Re Bachmann
113 B.R. 769 (S.D. Florida, 1990)
In Re Dunkle
272 B.R. 450 (W.D. Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
503 B.R. 904, 24 Fla. L. Weekly Fed. B 281, 2014 WL 322522, 2014 Bankr. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-falck-flsb-2014.