United States Trustee v. Tank (In Re Stacy)

193 B.R. 31, 1996 Bankr. LEXIS 241, 28 Bankr. Ct. Dec. (CRR) 951, 1996 WL 112409
CourtUnited States Bankruptcy Court, D. Oregon
DecidedMarch 11, 1996
Docket19-30629
StatusPublished
Cited by30 cases

This text of 193 B.R. 31 (United States Trustee v. Tank (In Re Stacy)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Trustee v. Tank (In Re Stacy), 193 B.R. 31, 1996 Bankr. LEXIS 241, 28 Bankr. Ct. Dec. (CRR) 951, 1996 WL 112409 (Or. 1996).

Opinion

MEMORANDUM OPINION

ELIZABETH L. PERRIS, Bankruptcy Judge.

In this adversary proceeding, the U.S. Trustee (“UST”) seeks to permanently enjoin defendant Robert Tank (“Tank”), a bankruptcy petition preparer, from assisting or advising any person in connection with the filing or prosecution of any bankruptcy ease or any documents in any bankruptcy case. The UST also asks the court to fine Tank for violations of 11 U.S.C. § 110(f)(1), and requests that Tank turn over to the Chapter 7 trustee, for the benefit of debtors Susan and Edwin Stacy’s estate, funds debtor Susan Stacy (“Stacy”) paid to Tank for his services in connection with the filing of her first bankruptcy petition. The matter came on for trial on February 21, 1996. 1 This is a core proceeding. 28 U.S.C. § 157(b). After hearing the testimony and reviewing the evidence and the joint statement of agreed facts, for the reasons set forth below, I grant the requested relief.

I. BACKGROUND FACTS

Defendant Robert Tank is a bankruptcy petition preparer who does business under the assumed business name of Legal Alternatives or Law Alternatives. He has been engaged in that business for 11 years, during which time he has assisted thousands of debtors in preparing bankruptcy petitions in Oregon, Washington, and numerous other states. Tank is not an attorney. He advertises his services approximately once every week in various publications, primarily the Nickel Ads, using the business name of Legal Alternatives or Law Alternatives.

In December 1994, after seeing an advertisement for Legal Alternatives in the Nickel Ads or a similar publication, Susan Stacy called Tank on the telephone and talked with him about having him assist her in filing bankruptcy. On December 5, she met with Tank at his office to prepare the documents for filing. She paid him $50 of a $95 fee. She explained to Tank that she had received a summons to small claims court and was in danger of having her wages garnished, so the petition needed to be filed quickly. Stacy gave Tank a complete list of creditors, which included their addresses and the amounts owed. 2 She filled out an application form used by Legal Alternatives and answered Tank’s questions about her ownership of personal property. She explained to him that she had nothing except the clothes on her back and her wedding ring. She was living with her mother and did not have any household furnishings or a car. She did not give him an estimate of the value of the clothes and wedding ring.

On December 9, 1994, Stacy returned to Tank’s office and signed the papers that Tank had prepared for her. She then hand delivered them to the bankruptcy court for *34 an “emergency,” or “minimum,” filing. 3 Schedule C, which was filed with the petition, showed that Stacy claimed as exempt household furnishings worth $3,000, wearing apparel worth $500, jewelry worth $500, and $400 cash or other property. Stacy received a notice that she needed to file additional documents within 15 days. Stacy immediately contacted Tank to tell him that she needed the rest of the papers to file with the court. On January 3, 1995, Stacy signed the Statement of Intention and Statement of Financial Affairs. She understood from Tank that he was going to send the documents to the court and that he had taken care of everything. Those documents were not filed with the court, despite Tank’s repeated assurances to Stacy that he was taking care of everything and not to worry. Stacy then received a notice from the court that her case was going to be dismissed for failure to file ordered documents. She contacted Tank, who filed an objection to the dismissal on Stacy’s behalf, representing that the documents had not been timely received because of “slow mail during the Christmas season.” Tank continued to assure Stacy that the papers had been filed and not to worry. Stacy’s ease was dismissed on January 31, 1995 for failure to file documents.

Sometime between February 6 and mid-February, 1995, Stacy returned to Tank for assistance in refiling the bankruptcy, this time jointly with her husband. She provided all of the information that was needed to file the joint petition. Tank did not charge another fee, and he agreed to waive the $45 balance remaining on the $95 fee from the first case, due to the inconvenience Stacy had suffered. Tank did not complete the documents for the filing at that time. Stacy began calling Tank’s office at least three times each week, trying to find out what was happening with her papers. She seldom got through to Tank, often times talking to Tank’s receptionist. On more than one occasion, Stacy got frustrated with Tank’s failure to respond by telephone and went to Tank’s office to try to get the papers. When she did talk to Tank, he told her that he was working on the papers and that they would be done in a few days. While she was waiting for the paperwork to be completed, Stacy was being contacted constantly by her creditors, who were demanding payment.

Tank finally completed the papers and Stacy and her husband signed them on May 29. Stacy sent the petition via Federal Express to the court for filing, where it was filed on June 1. Tank gave Stacy $5 to help her with the filing fee. After the joint petition was filed, the court notified the Stacys that numerous documents were missing and needed to be filed by June 16. Stacy contacted Tank and then went to his office between June 2 and June 8 to pick up the documents that had been missing or were deficient. She brought those documents to the court on June 9. The documents that Tank completed for the Stacys in early June contained different financial information than the documents he had completed for them in May. Nothing in their circumstances had changed to warrant the differences, and Tank did not discuss the changes he had made with the Sta-cys. The court returned those documents to the Stacys with an explanation of what was wrong with the documents. On June 14, Stacy received assistance from a court clerk in getting her papers in order for filing, and she successfully filed them on June 14.

Tank also assisted Crystal Norred in preparing her bankruptcy petition. She contacted Tank because her wages were about to be garnished because of nonpayment of a student loan. Tank explained that Norred would have to file a Chapter 13 in order to obtain a discharge of the student loan. He also indicated that he could recover for her a tax refund that had been taken by the student loan creditor. He told her that the creditor would have to return the refund in 30 or 90 days after the bankruptcy filing. Tank told Norred that she could tell the *35 creditor that he was her lawyer and that the creditor should contact him. Norred did not tell Tank the value of any of her personal property except her ear. She told him that her rent was $490. They did not discuss any specifics of her Chapter 13 plan. Tank told Norred he would make the expense schedule work out so that she would have $50 left over to pay the Chapter 13 plan. Norred provided Tank with a complete list of her creditors.

Tank did not complete the papers immediately.

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Cite This Page — Counsel Stack

Bluebook (online)
193 B.R. 31, 1996 Bankr. LEXIS 241, 28 Bankr. Ct. Dec. (CRR) 951, 1996 WL 112409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-trustee-v-tank-in-re-stacy-orb-1996.