In re Hager

510 B.R. 131, 2014 WL 1779436, 2014 Bankr. LEXIS 2052
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedMay 5, 2014
DocketNo. DK 09-14959
StatusPublished
Cited by4 cases

This text of 510 B.R. 131 (In re Hager) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hager, 510 B.R. 131, 2014 WL 1779436, 2014 Bankr. LEXIS 2052 (Mich. 2014).

Opinion

OPINION AND ORDER

SCOTT W. DALES, Chief Judge.

Darcy Hager (the “Debtor”) filed a chapter 7 bankruptcy petition with this court on December 23, 2009 when, like many debtors, she was still embroiled in litigation with a former spouse. Attorney Lawrence Newmeyer was representing the Debtor in connection with the family court matter and had a claim against her for prepetition legal services. During the bankruptcy proceeding he continued to represent her and she incurred legal fees for which she still remains obligated. When the relationship between Mr. New-meyer and the Debtor deteriorated, principally as the result of her failure to pay him, Mr. Newmeyer filed suit in state court to recover his legal fees (the “Lawsuit”), including, to some extent, his pre-petition claim against the Debtor.

At the time he commenced the Lawsuit, however, he — like the Debtor’s other creditors — was subject to the court’s discharge entered on May 5, 2010. (Exh. 6 and DN 36) (the “Discharge”). Although the Debt- or listed his claim on Schedule F and included him on her bankruptcy mailing matrix, Mr. Newmeyer asserts he did not receive any notice of the Debtor’s bankruptcy filing until he received a copy of the Discharge in the mail. In addition, the Debtor did not tell Mr. Newmeyer of her bankruptcy filing as he continued to represent her in her support and custody case, nor did she raise it as a defense to the Lawsuit until after the state court entered judgment against her. Once that happened, the Debtor filed a motion for sanctions against Mr. Newmeyer, seeking to hold him in contempt for violating the discharge injunction (the “Contempt Motion,” DN 70).

The court held an evidentiary hearing on April 24, 2014 in Kalamazoo, Michigan, to consider whether Mr. Newmeyer violated the discharge injunction; whether the court should hold him in contempt; and whether some compensatory award to the Debtor is appropriate. At the evidentiary hearing, Mr. Newmeyer and the Debtor each testified, and each offered exhibits which the court admitted into evidence mostly on stipulation. In addition, the court has reviewed the document entitled “Lawrence Newmeyer’s (Attorney’s) Request to Darcy Frantz-Hager (Debtor) to Admit and Proof of Service” (the “Rule 36 Admissions”) attached to Mr. Newmeyer’s trial brief filed January 24, 2014 (DN 89). Because the Debtor did not timely respond to the Rule 36 Admissions, the court has treated the statements included therein as established for purposes of this contested matter. See Fed.R.Civ.P. 36 and Fed. R. Bankr.P. 9014(c) (incorporating Rule 36 into contested matters).

The court has carefully considered the testimony and exhibits admitted during the hearing and, for the reasons set forth in this Opinion and Order, will hold Mr. Newmeyer in contempt. However, principally due to the Debtor’s concealment of her Discharge from Mr. Newmeyer, the court will limit its compensatory award to invalidating only that portion of the state court judgment that comprises Mr. New-meyer’s prepetition claim.

The following constitutes the court’s findings of fact and conclusions of law in [133]*133accordance with Fed.R.Civ.P. 52 applicable herein pursuant to Fed. R. Bankr.P. 7052.

I. JURISDICTION

The court has jurisdiction over the Debt- or’s bankruptcy case pursuant to 28 U.S.C. § 1334(a), and the matter has been referred to the court by the United States District Court pursuant to 28 U.S.C. § 157(a) and LCivR 83.2. The Contempt Motion is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(I) and (0). The court has ample authority to protect its judgments, including the discharge injunction in this case.

II. ANALYSIS

A. Factual Background

Off and on throughout the period of 2007 to 2011, Mr. Newmeyer represented the Debtor in legal proceedings in Kalamazoo County family court against her ex-husband, James Hager. Mr. Newmeyer testified that he began representing the Debtor after she and Mr. Hager divorced but while they were embroiled in contentious litigation regarding support and custody of their children. The documentary evidence and Mr. Newmeyer’s credible testimony established that he provided services in connection with these proceedings from July 7, 2007 through August 29, 2011, at which time the family court permitted him to withdraw from representation. (Exh. 9). As of October 6, 2008, prior to her bankruptcy filing, the Debtor owed Mr. Newmeyer $6,623.00. (Exh. 7). Mr. New-meyer was understandably concerned about the amount of the unpaid legal bill and he refused to continue representing the Debtor unless and until she paid for his services. (Exh. B). In October, 2008, after the Debtor failed to pay him what she owed, including “$6,000.00 for past attorney fees and a $1,000.00 retainer,” Mr. Newmeyer sent a letter to the Debtor confirming that she “had elected not to hire” him. (Exh. C).

As the family court proceedings continued, the Debtor persuaded Mr. Newmeyer to resume his representation by tendering $2,000.00 on December 9, 2009 (the “Payment”). She did not advise him of any impending plan to file bankruptcy, even though a week later she was to complete her pre-bankruptcy credit counseling and had apparently consulted with bankruptcy counsel over two months earlier. (Exh. 1, pp. 9 and 36). According to Mr. Newmeyer, and without contradiction from the Debtor, the parties memorialized the Payment in a document, the terms of which the Debtor dictated and Mr. Newmeyer transcribed and signed. (Exh. 8).

The Debtor contends that the Payment represented a retainer and points to the language in Exhibit 8 as evidence. Specifically it states:

12-09-09
Received from Darcy Frantz-Hager the sum of $2,000.00 to re-enter the case of Hager v. Hager 04 6448 DM, until the ease is closed, with services to be billed at the rate of $110.00 per hour.
/s/
Lawrence Newmeyer

(Exh. 8). In addition, the Debtor notes that in her Statement of Financial Affairs (“SOFA”) at Paragraph 10 she listed the Payment as representing “future legal work” rather than as a payment on ae-[134]*134count of a prepetition debt at Paragraph 3. (Exh. 1, pp. 34 & 36). Mr. Newmeyer contends, in contrast, that he would not have resumed representation unless she paid down her pre-existing debt, and therefore the Payment was not a retainer but an installment on his overdue legal fees.

Although Exhibit 8 is ambiguous as to whether the Payment was a retainer or a payment on account of an antecedent debt, the document corroborates Mr. Newmeyer’s view of the context in which the Debt- or made the Payment.

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Related

In re Hager
572 B.R. 848 (W.D. Michigan, 2017)
In re Humbert
567 B.R. 512 (N.D. Ohio, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
510 B.R. 131, 2014 WL 1779436, 2014 Bankr. LEXIS 2052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hager-miwb-2014.