In re Oliver

480 B.R. 275, 2012 WL 5199208, 2012 Bankr. LEXIS 4963
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedOctober 22, 2012
DocketNo. 12-10851(1)(13)
StatusPublished
Cited by2 cases

This text of 480 B.R. 275 (In re Oliver) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Oliver, 480 B.R. 275, 2012 WL 5199208, 2012 Bankr. LEXIS 4963 (Ky. 2012).

Opinion

MEMORANDUM-OPINION

JOAN A. LLOYD, Bankruptcy Judge.

This matter is before the Court on the Order of this Court for Debtor’s counsel, John Corey Morgan (“Morgan”), to show cause why he should not be sanctioned for failure to properly represent the Debtor, Martha Ann Oliver (“Debtor”) in this case. The Court considered the entire record of this case, the Report of the U.S. Trustee, the comments of the Debtor, the U.S. Trustee and Morgan at the hearing held on the matter, as well as the Response to the Report of the U.S. Trustee filed by Morgan. An Order incorporating the Court’s findings herein accompanies this Memorandum-Opinion.

[277]*277 PROCEDURAL BACKGROUND

Debtor is disabled and her sole source of income is a $700 monthly payment from Social Security. Debtor began to experience financial difficulty, including threatened eviction from her home for failure to consistently make timely installment payments to the title holder of the property where Debtor resides.

On May 17, 2012, Debtor met with Morgan (“Morgan”) seeking assistance in stopping the impending eviction. Morgan had previously represented Debtor and her husband in a Chapter 13 bankruptcy proceeding. At this initial meeting, Debtor and Morgan discussed Debtor’s legal options and decided to pursue another Chapter 13 proceeding. Debtor paid Morgan $281 in cash. Morgan signed and issued a written receipt for this payment. Morgan requested Debtor to provide him with financial information related to her assets and liabilities.

On May 18, 2012, Debtor met with Morgan again at his office with much of the requested financial information. Debtor provided Morgan with a copy of a document that Debtor executed with the title holder to the property which references monthly payments and an option to purchase the property.

On June 6, 2012, Debtor and Morgan met again in order for Debtor to sign the Voluntary Petition, Schedules and Forms that Morgan had prepared on her behalf.

On June 13, 2012, Debtor completed the required Credit Counseling pursuant to 11 U.S.C. § 109.

On June 21, 2012, Debtor met again with Morgan and provided him with a second copy of the document related to the residence. Also on June 21, 2012, Morgan filed Debtor’s Voluntary Petition seeking relief under Chapter 13 of the United States Bankruptcy Code. In addition to the Petition and Schedules, Morgan also filed an Application to Pay Filing Fee in Installments (“Application”). The Application requested that Debtor be allowed to pay the $281 filing fee in three installments. The Application on file shows the electronic signature of Morgan and Debt- or. Debtor stated unequivocally at the initial hearing and in an Affidavit filed with the Trustee’s Report that Morgan did not discuss filing the Application with her, nor did they discuss paying the filing fee in installments.

On June 22, 2012, this Court entered an Order approving the Application allowing Debtor to pay the fee in four installments with the entire filing fee due no later than July 16, 2012.

Subsequent to June 21, 2012, Debtor states, despite repeated attempts to contact Morgan for information on her case, Morgan was unresponsive and failed to contact her with any information about her case.

Morgan states that on June 25, 2012, he sent Debtor a letter stating that her Chapter 13 Plan payment would be $100 per month and that she needed to pay the first Plan payment of $100 to him prior to the date set for the First Meeting of Creditors pursuant to 11 U.S.C. § 341. Debtor denies receipt of this letter.

On July 16, 2012, Debtor states Morgan called her and stated she needed to provide him with $100 to cover her first Plan payment. Debtor returned to Morgan’s office that same day and gave him $100 cash for the first Plan payment. Morgan issued a receipt for this payment.

Morgan states that he had discussions with two attorneys, Dwight Burton and Robert Harrison, representing Tamara Shockley, the creditor who holds the title to the property where Debtor resides. Both attorneys told Morgan that the agreement between Debtor and Shockley was a lease with an option to purchase the property. They indicated that Debtor had defaulted on her payments under the lease prior to exercising the option to purchase and that Shockley would pursue eviction proceedings rather than foreclosure since the document constituted a lease, not a [278]*278land sale contract.

Morgan states that after checking the county records, he was told there was no mortgage of record on the Debtor’s residence. He claims that he sent Debtor a letter dated July 12, 2012 stating that a Chapter 13 proceeding would not stop her eviction since the document constituted a lease rather than a land sale contract, that Debtor needed to decide whether she wanted to proceed with the Chapter 13 ease or convert the case to a Chapter 7 proceeding. He also stated he would represent her in the Chapter 7 proceeding should she choose to convert the case if she agreed to a $50 per month legal fee. Morgan also states that in the letter he offered to refund all money she had paid to him up to that point.

On July 17, 2012, Debtor claimed she called Morgan’s office to check the status of the case and was told by a staff person in Morgan’s office that her case could not be heard because the “court dockets were full.”

Also on July 17, 2012, this Court entered an Order dismissing Debtor’s case for failure to pay the filing fee. The Court sent electronic notice of the dismissal to Morgan. At no point did Morgan notify Debt- or that her case had been dismissed.

On July 23, 2012, Debtor received a notice in the mail indicating that her Chapter 18 case had been dismissed for failure to pay the filing fee. Debtor was confused and immediately contacted the Bankruptcy Clerk’s office inquiring why the case had been dismissed. She informed the Clerk that she had given her attorney the entire filing fee and that she had a receipt to prove the payment. After discussing the matter with the case administrator in the Clerk’s office, Debtor faxed a copy of the receipt that she received from Morgan when she gave him the $281 cash payment at the May 17, 2012 meeting. After receiving this information from the Debtor, the Court issued an Order on July 23, 2012 vacating the July 17, 2012 Order of Dismissal and reinstating the Chapter 13 case.

Additionally, on July 23, 2012, upon receiving the faxed copy of the receipt evidencing Morgan’s receipt of the $281 cash payment from Debtor on May 17, 2012 and the $100 cash payment on July 16, 2012, the Court ordered the receipts filed of record under seal. Upon receiving a copy of the Court’s Order dated July 23, 2012 reinstating the case, Morgan contacted the Debtor inquiring as to (1) why the case had been reinstated; and (2) whether she knew the contents of the documents that had been filed under seal. Debtor states this was Morgan’s first contact with her since the Order of Dismissal.

On July 24, 2012, the Court issued an Order sua sponte for Debtor and Debtor’s counsel to appear and show cause “why Debtor’s counsel should not be sanctioned for failure to properly represent the case” (“Show Cause Order”).

On August 23, 2012, the Court held a hearing on the Show Cause Order.

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Bluebook (online)
480 B.R. 275, 2012 WL 5199208, 2012 Bankr. LEXIS 4963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oliver-kywb-2012.