Robbins v. Jennings (In re Oliphant)

511 B.R. 773, 2014 WL 2860930, 2014 Bankr. LEXIS 2732
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedJune 23, 2014
DocketNo. 12-70668
StatusPublished

This text of 511 B.R. 773 (Robbins v. Jennings (In re Oliphant)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robbins v. Jennings (In re Oliphant), 511 B.R. 773, 2014 WL 2860930, 2014 Bankr. LEXIS 2732 (Va. 2014).

Opinion

MEMORANDUM OPINION

PAUL M. BLACK, Bankruptcy Judge.

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 (“the Motion”) against Mark Jennings (“Jennings”) and his company, Financial Associates Enterprise Marketing, Inc. (“FAEM”). For the reasons set forth below the Court will grant the U.S. Trustee’s Motion.

This Memorandum Opinion sets forth this Court’s findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.

FINDINGS OF FACT

Reginald A. Oliphant, the Debtor in the present case (“Oliphant”), and his wife Susan C. Oliphant, retained Jennings and FAEM for the purpose of pursuing mortgage modifications on eleven properties they owned. This, in turn, led to four consecutive bankruptcy petitions, guided by Jennings behind the scenes. Initially, Oliphant and his wife paid a deposit to Jennings on June 1, 2011.1 Ex. 35. Oli-phant testified that when he went to see Jennings at the outset, Jennings instructed him to stop making his mortgage payments. On September 26, 2011, under Jennings’ guidance, Oliphant and his wife filed a joint pro se Chapter 13 case, which was assigned case number 11-71976. Ex. 9. According to Oliphant’s testimony at the hearing on June 10, 2014, (“the Hearing”) neither he nor his wife had ever filed bankruptcy and had no previous knowledge of the requirements, procedures, or necessary documents. Oliphant testified that Jennings instructed him and his wife to file for Chapter 13 and provided them with the voluntary petition, which was completed in Jennings’ office under Jennings’ direction. At the Hearing, Jennings disputed this point and indicated that a member of the Clerk’s Office staff provided the voluntary petition and it was eom-[776]*776pleted at the Clerk’s Office. Jennings did admit that he chose the online credit counseling agency and set up the credit counseling course for the Oliphants in his office.2 He also admitted that he drove the Oliphants to the Clerk’s Office to file their bankruptcy.

Oliphant testified that Jennings instructed them on how to complete the Motion for Extension of Time for Payment of Filing Fee as well as the Statement of Debtor as to Assistance by Non-Attorney in Regards to Preparing and Filing Petition. He directed them to list $0.00 as the amount paid for assistance, despite the fact that the Oliphants had paid him approximately $5,000.00 at the time of filing. Jennings completed the Statement of Assistance by Bankruptcy Petition Preparer, and he certified that he had been paid $0.00 and that $0.00 was the amount still due. Ex. 12. Jennings contended that he was operating under a misunderstanding when he signed the Statement of Assistance and he only signed it because a member of the Clerk’s Office staff provided the document to him. According to Oliphant, Jennings instructed them to list Bank of America as their sole creditor, even though Jennings knew that the Oliphants had several other secured and unsecured creditors. When the U.S. Trustee questioned Oliphant at the Hearing as to the reasoning behind only listing one creditor, he replied that Jennings told them to only list Bank of America because that was the bank attempting to foreclose. Oliphant testified that following the filing of the initial documents, Jennings directed the Oliphants to ignore mail or any other communication received from the United States Bankruptcy Court. According to Oliphant, Jennings stated that if they continued to ignore any correspondence, their bankruptcy case “would go away.” On October 19, 2011, the Court dismissed the case for failure to cure various deficiencies including the failure to file schedules and statements and the failure to pay the filing fees.

On October 25, 2011, six days after dismissal of the joint case, Oliphant filed another pro se voluntary petition, which was assigned case number 11-72168. Ex. 16. This time Oliphant filed an individual case because Jennings told him he could file individually and the bank would still work with Jennings on the modification. Oli-phant again asserted that Jennings provided the voluntary petition, he completed it in Jennings’ office, and Jennings instructed Oliphant on what Chapter to file as well as how to complete the Motion for Extension of Time for Payment of Filing Fee. Jennings advised him that the credit counseling certificate obtained in the prior case could be reused.3 Oliphant testified that, unlike the previous case, Jennings told him to check the box that “[n]o assistance was provided” on the Statement of Debtor as to Assistance by Non-Attorney in Regards to Preparing and Filing Petition. Ex. 17. Oliphant said Jennings instructed him to say no assistance was provided because if anyone knew Jennings was involved, it would create problems for Jennings. Oli-phant admitted he knew that his statement “[n]o assistance was provided” was false because Jennings was, in fact, assisting [777]*777him.4 Oliphant stated that Jennings directed him to list StellarOne Bank as the sole creditor, despite knowledge that Oli-phant had other creditors, because Stellar-One was attempting to foreclose. Again Jennings counseled Oliphant to ignore any correspondence from the United States Bankruptcy Court. On November 18, 2011, the Court issued an Order requiring Oliphant to appear on December 14, 2011, and show cause why the case should not be dismissed. When asked by the U.S. Trustee at the Hearing if he received this Order, Oliphant responded that he did and he either brought it to Jennings or called him about it and Jennings told him to pay no attention to the Order. This second case was dismissed on December 14, 2011, when Oliphant failed to appear or cure the deficiencies including failure to file schedules and statements and failure to pay the filing fees.

On February 6, 2012, less than two months after the dismissal of the previous filing, Oliphant’s wife filed an individual pro se Chapter 13 petition, which was assigned case number 12-70193. Ex. 21. Oliphant stated that they were instructed by Jennings first to file a joint case, then he was to file individually, then she was to file individually, thus it was “her turn.” Oliphant testified that he was present when Jennings provided his wife with the voluntary petition and when she completed and signed it at Jennings’ direction. There is some confusion over whether the petition was completed in Jennings’ office or at the Clerk’s Office, however Oliphant and his wife both testified that Jennings instructed them how to complete the petition. StellarOne was the sole creditor listed on this petition and Oliphant testified that Jennings instructed them to file this bankruptcy to stave off StellarOne.

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Cite This Page — Counsel Stack

Bluebook (online)
511 B.R. 773, 2014 WL 2860930, 2014 Bankr. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robbins-v-jennings-in-re-oliphant-vawb-2014.