In Re Ludwick

185 B.R. 238, 1995 Bankr. LEXIS 1201
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedAugust 11, 1995
Docket19-80129
StatusPublished
Cited by22 cases

This text of 185 B.R. 238 (In Re Ludwick) 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 Ludwick, 185 B.R. 238, 1995 Bankr. LEXIS 1201 (Mich. 1995).

Opinion

EN BANC OPINION AND ORDER IMPOSING SANCTIONS AND SUSPENDING ANDREW D. MORGAN FROM THE PRACTICE OF LAW IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF MICHIGAN

JO ANN C. STEVENSON, Bankruptcy Judge:

I.Introduction

This matter comes before the Court upon the United States Trustee’s March 13, 1995 Ex Parte Motion for an Order Directing the Debtor and Debtor’s Counsel to Appear and Show Cause Why the Case Should Not be Dismissed and Why Sanctions Should Not be Imposed or Why the Court Should Not Grant Other Relief. 1 Based on the seriousness of the allegations raised against Attorney Morgan at the March 27, 1995 show cause hearing, the Honorable Jo Ann C. Stevenson determined that the hearing should be continued en banc to consider the possibility of suspending Attorney Morgan from practice before this Court. What follows are the factual and legal determinations reached after considering the testimony of witnesses and the exhibits offered during the March 27, 1995 hearing and the May 16, 1995 en banc hearing, adjourned to, and completed on July 10, 1995.

II.Jurisdiction

The U.S. Trustee’s motion to show cause arises in a case referred to this Court by the Standing Order of Reference entered in this district on July 24,1984 and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Accordingly, this Court is authorized to enter a final judgment subject to the right of appeal provided by 28 U.S.C. § 158(a) and Fed.R.BankR.P. 8002. The following constitutes this Court’s findings of fact and conclusions of law. Fed.R.Bajjkr.P. 7052.

III.Facts

Attorney Morgan represented Debtor Scott Ludwick in the latter’s Chapter 7 case. At the March hearing, Chapter 7 Trustee John Porter testified that in the course of preparing for Debtor Ludwick’s 341 Meeting, he became suspicious of the validity of the signatures on Debtor Ludwick’s petition. 2 At that time, he noticed that Debtor Lud-wick’s signature on his schedules differed markedly from the signatures appearing in several places on his petition (Transcript of March 27, 1995 hearing, p. 8). When questioned about this discrepancy at the 341 Meeting, Debtor Ludwick stated that he had never signed his petition.

On cross-examination of Trustee Porter, Attorney Morgan attempted to show that the reason Debtor Ludwick stated at the 341 Meeting that he had not signed his petition was due to his nervousness. This allegation was later refuted by Debtor Ludwick (Transcript of March 27, 1995 hearing, p. 26).

Following an off-the-record discussion between Assistant United States Trustee Michael V. Maggio, Trustee Porter, and Attorney Morgan, Trustee Porter testified that Attorney Morgan had continued to claim that the signature on the petition was indeed that of Debtor Ludwick. However, when Mr. Maggio reminded Attorney Morgan that it *240 may be a federal crime to lie to him as a federal law enforcement officer, Attorney Morgan changed his story. His new story was that it was possible that either he or one of his employees had signed Debtor Lud-wick’s name to the petition because of the urgency of filing it, due to the fact that Debtor Ludwiek was facing a garnishment. Attorney Morgan admitted off-the-record to Mr. Maggio and Trustee Porter that the signature was not in fact Debtor Ludwick’s (Transcript of March 27,1995 hearing, p. 20). He could not recall, however, whether he (Mr. Morgan) had been the party who had signed the petition. 3

Despite Trustee Porter’s testimony, Attorney Morgan still sought to elicit testimony as to Debtor Ludwick’s alleged agitated state at the 341 Meeting. The Court inquired as to the relevance of this line of questioning, since Attorney Morgan had already admitted that he or someone in his office had signed the petition and not Debtor Ludwiek. Attorney Morgan then claimed that he had never admitted that he or someone in his office had signed the petition but had only said that it was ‘possible that that was what had happened. Mr. Maggio stated, and the Court agreed, that Attorney Morgan had unequivocally admitted that Debtor Ludwiek had not signed his petition. Attorney Morgan seemed to concede as much in his closing statement. 4

At the May 16,1995 en banc hearing (May “en banc hearing”) Attorney Morgan again attempted to retract his March 27, 1995 off-the-record admission to Messrs. Maggio and Porter that Debtor Ludwiek had not signed his petition. Attorney Morgan instead testified that Debtor Ludwiek may have signed the petition himself (Transcript of May 16, 1995 en banc hearing, p. 16). He explained that if someone in his office had forged Debt- or Ludwick’s name, it was because a note in the file indicated that Debtor Ludwiek was facing an imminent garnishment, and the petition had to be filed immediately in order to prevent the garnishment from being entered.

Debtor Ludwiek had testified at the March hearing, however, that he had never faced a garnishment. At the May en banc hearing, Debtor Ludwiek added that Attorney Morgan should not have been in any hurry to file his petition since, although he had given Attorney Morgan the materials to file his petition at the beginning of November 1994, the petition was not filed until January 20, 1995. If Attorney Morgan were in a hurry to file the petition, it was not because Debtor Lud-wick was facing a garnishment but because Debtor Ludwiek had threatened to contact the Attorney Grievance Commission because of the unexplained filing delay.

IV. Analysis

All three judges found Attorney Morgan to be an extremely unreliable witness and his explanation of events to be entirely unbelievable. This finding of incredibility is based upon Attorney Morgan’s inconsistent, vague statements, illogical arguments and overall demeanor. Under Fed.R.BankR.P. 8013, “findings of fact, whether based on oral or documentary evidence, shall not be set aside *241 unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness.” See also, In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988) (“We do not have the authority to reevaluate the bankruptcy court’s factual findings, especially where the credibility of the witness is involved, unless they are clearly erroneous.”); In re Casa Nova of Lansing, Inc., 146 B.R. 370 (Bankr.W.D.Mich.1992).

We find that the signature on the Ludwiek petition was forged by Attorney Morgan. We reach this conclusion by simply comparing the authenticated Morgan signature (Exhibit 4) with the forged Ludwiek signature (Exhibit l). 5 Under Fed.R.Evid.

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Cite This Page — Counsel Stack

Bluebook (online)
185 B.R. 238, 1995 Bankr. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ludwick-miwb-1995.