Avoid Being Ripped Off by Bankruptcy Petition Preparers, By Mark Saiki 1/25/11.

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1 Avoid Being Ripped Off by Bankruptcy Petition Preparers, By Mark Saiki 1/25/ Bankruptcy Petition Preparers. Congressional Legislation allows Bankruptcy Petition Preparers, who are not attorneys, to type up the schedules. Make no mistake, in general these are not highly trained professionals. Rather, their scandals led the Legislature to regulate them, in an attempt to try and help protect innocent consumers. One of the precipitating causes for the enactment of Section 110 was a pattern of various fraudulent, deceptive and unfair practices by petition preparers. In re: Hennerman, 351 B.R. 143 (United States Bankruptcy Court, D. Colorado, No SBB, September 20, 2006). Sponsors of the legislation expressed a desire to see Congress control the proliferation of "bankruptcy typing mills" which were said to have "unfairly preyed upon" people who "do not speak English or understand the bankruptcy system." 140 Cong. Rec. H10772 (Oct. 4, 1994) (statements of Rep. Berman). Representative Berman noted that bankruptcy petition preparers often take advantage of persons who are ignorant of their rights both inside and outside the bankruptcy system, and that the proposed law was designed to protect individual debtors from "bankruptcy petition preparers who negligently or fraudulently prepare bankruptcy petitions." In re Guttierez, 248 B.R. 287 (United States Bankruptcy Court, W.D. Texas, San Antonio Division, No C, April 17, 2000). Congress did not authorize Bankruptcy Petitioner Prepares, as a low-cost alternative to lawyers. Instead, they chose to regulate an industry, which they found to be rife with fraud, deceit, consumer rip-offs, and corruption. 2. Importance of Legal Advice. The Bankruptcy Code is very complex. It is no place for amateurs, or general attorneys who gain experience, by making mistakes at your expense. The Bankruptcy Code has over 1,300 sections, Trustee Information forms, and Motions to Dismiss. A sign in the Court warns, Bankruptcy is a very complex and difficult process. This Court strongly recommends that individuals use an Attorney to handle their Bankruptcy case. Retaining an Attorney will significantly improve your prospects of a successful Bankruptcy case. US Bankruptcy Court, Denver, Colorado, The Court has periodically compiled statistics about the Chapter 13 process. These statistics consistently show that pro se Chapter 13 debtors seldom, if ever, successfully navigate through the statutory and procedural complexities associated with confirming a Chapter 13 plan. In re: Hennerman, 351 B.R. 143 (United States Bankruptcy Court, D. Colorado, No SBB, September 20, 2006). I often save my clients more money, than it costs to hire me. Carl G (Arvada, CO, 7/28/09), kept 1

2 $1,752 in federal and $562 in state tax refunds, and it only cost him $700 to hire me. By comparison a significant percentage of persons, who hire attorneys, learn that their tax refunds are non-exempt, at the First Meeting of Creditors. Tracey L (Denver, CO, 3/11/10) was paying $572 per paycheck to garnishments, and it only cost her $1,200 to hire me. And YM (Longmont, CO, 7/22/10, sold his guns for $1,400, and it only cost him $800 to hire me. If you hire a competent Bankruptcy specialist, most debtors will keep all of their property and discharge their debts. If not, then you may be making costly mistakes, with your hard earned dollars. 3. Incompetence. If you are lucky, you might hire a Bankruptcy Petition Preparer who is merely incompetent. Some of them prepare defective documents, incomplete schedules, files that are inconsistent with Local Rules, and documents that are filled with omissions and errors. I saw a Bankruptcy petition preparer case in Denver, where she filed no list of exemptions. Many of these cases get dismissed per day, because they did not file tax returns on time, and they do not cooperate with the panel US Trustee. The Debtor's letter also complains that at least some of the documents that she did receive from Mr. Gooch were not usable. In re: Hennerman, 351 B.R. 143 (United States Bankruptcy Court, D. Colorado, No SBB, September 20, 2006). For his $ fee the Debtor received two completed documents: his voluntary petition and his creditors matrix. He did not receive the other documents, which are required for complete Chapter 7 filing. In re Duran, 347 B.R. 760 (United States Bankruptcy Court, D. Colorado, No SBB, July 25, 2006). The necessary documents for Debtor George Avery's Chapter 7 bankruptcy case, with the exception of the $200 filing fee, were filed with this Court on December 28, Notably, at least three of these filings the Statement of Financial Affairs, the Statement of Intent and the Declaration Concerning Debtor's Schedules fail to conform to the Official Forms issued by the Judicial Conference of the United States and adopted in this District... In re Avery, 280 B.R. 523 (United States Bankruptcy Court, D. Colorado, No EEB, June 17, 2002). We the People Forms... The Bankruptcy Court determined from testimony that Mr. Finch learned from the trustee at the 341 meeting that his Statements and Schedules contained omissions. Memorandum Opinion, p. 5. Mr. Finch further testified that he then hired an attorney to assist him with correcting the omissions on his Schedules and Statements that resulted from following the "advice" provided by Appellant WTP. Gould V. Clippard, 340 B.R. 861 (United States District Court, M.D. Tennessee, Nashville Division, No. Civ. 3: , March 28, 2006). We the People Forms... The Bankruptcy Court noted that Ms. Smith testified that she also learned from the trustee at the 341 meeting that her Statements and Schedules prepared by Appellants Gould contained errors and omissions. Memorandum Opinion, p. 10. Ms. Smith also testified that she hired an attorney to correct and refile her petition. Gould V. Clippard, 340 B.R. 2

3 861 (United States District Court, M.D. Tennessee, Nashville Division, No. Civ. 3: , March 28, 2006). Bankruptcy Petition Preparers are not trained in Bankruptcy law. They have no experience litigating in front of the Bankruptcy Judges. They do not research case law. They are not versed in how to prepare Bankruptcy schedules, that protect your rights, zealously present your side of the case, discourage objections to discharge, or maximize available exemptions. By law they are forbidden to give you legal advice. They cannot help you with pre-bankruptcy planning, and choosing a date of filing, which is favorable to you. More importantly, if something does go wrong, you have little recourse. In comparison, if I make an error, I know how to amend the schedules, to correct the problem. 4. Fraud. Some Bankruptcy Petition Preparers actively defraud their clients. They have stolen from debtors, and have instructed them to commit criminal Bankruptcy fraud and perjury. Rosario Divins [a Bankruptcy Petition Preparer]... (6) committed theft of services by transferring her own utility bill to the name of the debtor with the intention that the charges for those services (in excess of $3,000.00) then be discharged in the debtor's bankruptcy... In re Guttierez, 248 B.R. 287 (United States Bankruptcy Court, W.D. Texas, San Antonio Division, No C, April 17, 2000). The UST also called Carol Warfield, a Chapter 7 debtor and a former client of Hills. She testified she met with Hills on November 18, 2009, for the purpose of filing a bankruptcy case... Warfield testified she paid Hills $ cash for his services... Hills had intimidated and improperly influenced her... Hills said, If they asked if I was there, you just tell them that I was just an observer. When Hills asked Warfield on cross-examination if she lied when testifying before Judge Shapero, and Warfield admitted that she did, she explained that was because of you [Hills]. You had me a nervous wreck. Warfield further explained that [t]he second time I was in front of Judge Shapero I told the truth because I couldn t live with myself knowing what I had done. In re: Johnny Terrell, Jr., (United States Bankruptcy Court, Eastern District Of Michigan, Southern Division (Detroit), Phillip J. Shefferly, , 10/13/10). I have worked as a Colorado Bankruptcy Attorney for eighteen years. All my ethical grievances and violations of criminal law, are easily available on the internet. I have defrauded and stolen from none of my clients, and have been convicted of no such violations. Bankruptcy law is my chosen specialty and profession. I am not likely to risk my license and reputation just to make a fast buck. 5. Widespread Abuse. Some Bankruptcy Petition Preparers are disbarred attorneys, career criminals, and scam artists. They often fly-by-night, and they reopen for business under a new business name, right after they are convicted or enjoined by the Courts. As Judge Brooks says, they often start a new business, under their brother s name, soon after he sanctions them. The various bankruptcy courts have had a modest impact on Mr. Gooch's practice. The United States Trustee has informed the Court that the website contains pages which indicate that Mr. 3

4 Gooch no longer will prepare bankruptcy documents for Ming in Arizona, North Carolina, South Carolina, the Southern District of Texas and the Western District of Texas. This list of jurisdictions in which Mr. Gooch does not offer services is a subset of the jurisdictions in which he has been sanctioned and/or enjoined. However, piecemeal injunctions and fines have not been effective at deterring Mr. Gooch's misfeasance and obstreperous defiance of the mandates of the United States Bankruptcy Code, the United States Bankruptcy Courts, and applicable state statutes governing unauthorized practice of law. He is unresponsive to client complaints about the quality of his document preparation services even while "guaranteeing" their quality. In re: Hennerman, 351 B.R. 143 (United States Bankruptcy Court, D. Colorado, No SBB, September 20, 2006). On February 10, 2010, the UST filed a declaration (docket entry no. 37) that listed 32 separate bankruptcy cases in which Derrick Hills was ordered by the Bankruptcy Court to pay specific sums to the debtors in those cases because of violations by Hills of the Permanent Injunction and 110 of the Bankruptcy Code. In re: Johnny Terrell, Jr., (United States Bankruptcy Court, Eastern District Of Michigan, Southern Division (Detroit), Phillip J. Shefferly, , 10/13/10). Paul John Brown's attempts to evade legal process have included a panoply of aliases, incorrect and even nonexistent addresses and phone numbers. He has used post office box addresses which are hard to trace and make personal visits to Mr. Brown's businesses by customers or process servers impossible. He has employed a panoply of trade names, artificial entities and fronts to conceal his identity from his duped customers, from the courts and from those such as the United States Trustee charged with the obligation to execute their duties to prevent the type of conduct that he stands accused of before this and other bankruptcy courts. These tactics have been partially successful. Even when confronted with proof of personal service he has consistently denied receiving legal process, e.g., Mr. Brown denied receiving personal service of the Colorado Supreme Court injunction despite the affidavit of service filed with that court and its mailing to Mr. Brown's correct address. These evasive tactics are ineffectual where due process has nonetheless been afforded to Mr. Brown. In re Duran, 347 B.R. 760 (United States Bankruptcy Court, D. Colorado, No SBB, July 25, 2006). The currency of the marketplace is let the buyer beware. Bankruptcy Petition Preparers tend to skirt the law, by using misleading trade names, illegally misrepresenting themselves as attorneys, professionals or experts. Their schemes, scams and cons are ensnaring a growing list of innocent persons, who are badly in need of debt relief. 6. Restrictions. Congress envisioned that Bankruptcy Petition Preparers were mere typists. They are forbidden by law from giving you legal advice, such as when to file, what types of property you are going to have to give up, and what types of debts you can get rid of. So what does 110 tacitly permit? The answer in a nutshell is "not much." Section 110 itself proscribes virtually all conduct falling into the category of guidance or advice, effectively restricting "petition preparers" to rendering only "scrivening/typing" services.[28] Anything else be it suggesting bankruptcy as an available remedy for a debtor's financial problems, 4

5 merely explaining how to fill out the schedules, or answering questions about exemptions or whether a claim is or is not secured will invariably contravene either state laws proscribing the unauthorized practice of law or other more specific provisions of 110. In re Guttierez, 248 B.R. 287 (United States Bankruptcy Court, W.D. Texas, San Antonio Division, No C, April 17, 2000). Congress' clear intent was that 110 authorize bankruptcy petition preparers to provide only scrivener services, limited to clerical services such as copying and typing. In re Gomez, 259 B.R. 379 (United States Bankruptcy Court, D. Colorado, No MSK, February 20, 2001). Most courts have held that a reasonable fee for typing bankruptcy petitions is between $50.00 and $ See In re Mullikin, 231 B.R. 750 (Bankr.W.D.Mo.1999) (holding that fees can never exceed $150.00); In re Guttierez, 248 B.R. 287 (United States Bankruptcy Court, W.D. Texas, San Antonio Division, No C, April 17, 2000). An honest Bankruptcy Petition Preparer will scrupulously avoid giving you any needed legal advice. They are supposed to type the answers, which you provide them. If they help you fill in the forms, or inform you about your rights, they are in violation of the law. 7. Do It Yourself Filings. Likewise, I would not advise anybody to file their own bankruptcy. The Bankruptcy Code has over 1,300 sections, Trustee Information forms, and Motions to Dismiss. A sign in the Court warns, Bankruptcy is a very complex and difficult process. This Court strongly recommends that individuals use an Attorney to handle their Bankruptcy case. Retaining an Attorney will significantly improve your prospects of a successful Bankruptcy case. US Bankruptcy Court, Denver, Colorado, I have seen cases dismissed because debtors did not pay their filing fees in installments, did not make a good faith effort to accurately fill out their schedules, and answer the Trustee s questions. Many Trustees move to dismiss cases based upon failure to mail out tax returns in a timely manner. For most people, who have never filed for Bankruptcy before, have not studied the Bankruptcy Code or case law, and do not know the Bankruptcy Judges, and Trustees, filing for Bankruptcy is a daunting task. If it weren t for bankruptcy software, most of them would have no idea how to draft a simple petition. It helps to have somebody with experience, an aptitude for reading Bankruptcy decisions, a flair for predicting likely outcomes, and the ability to artfully represent you in Court. Hiring an experienced Bankruptcy Specialist, like myself, is not a luxury; it borders on a necessity. I would no more recommend that you represent yourself in court, or hire a Bankruptcy Petition Preparer, than I would suggest that you do your own heart surgery. There is a lot riding on a successful Bankruptcy filing, hundreds of thousands of dollars in debts, tens of thousands in assets, fraud objections to discharge, and criminal Bankruptcy Fraud charges. Paying a reasonable amount of money to hire a competent Bankruptcy Attorney is an investment in your 5

6 financial future, and peace of mind. 6