In Re Cabrera-Mejia , 402 B.R. 335 ( 2008 )


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  • 402 B.R. 335 (2008)

    In re Fernando CABRERA-MEJIA, et al., Debtors.

    No. LA08-13505SB.

    United States Bankruptcy Court, C.D. California.

    December 23, 2008.

    *339 James T. King, King & Associates, Glendale, CA, for Debtors.

    OPINION ON SANCTIONS

    SAMUEL L. BUFFORD, Bankruptcy Judge.

    I. Introduction

    This case raises the issue of whether, and to what extent, the court should impose sanctions on a law firm for filing twenty-one relief from automatic stay motions in chapter 7 cases with no competent evidence to support any of the motions and no intent to proceed to a hearing on the merits of the motions.

    Under the facts of these cases, the court finds that Pite Duncan LLP ("Pite") filed twenty-one relief from stay motions in bad faith and with the improper purpose of delaying and increasing the costs of litigation. The court further finds that Pite knowingly or recklessly filed the motions with no adequate evidentiary support.

    Pursuant to Rule 9011(b)(1)[1] and (3), § 105(a) and the court's inherent authority, the court orders that Pite pay sanctions to the court in the amount of $1000 for each motion filed after April 1, 2008, for a total of $21,000. This payment is due thirty days from the date of entry of this order.

    II. Relevant Facts

    A. Background

    In 2007, the court's attention was called to increasing foundational defects in declarations filed with relief from stay motions in chapter 7 cases involving real estate. The supporting declarations often appeared insufficient to establish the competency of the declarant as a witness, and to lay the required foundation for the admission of the evidence. For example, while the declarations contained information that was likely retrieved from computer-generated business records, the declarations usually failed to make a prima facie showing of the declarants' competency to testify to such matters under applicable case law. See In re Vinhnee, 336 B.R. 437, 444 (9th Cir. BAP 2005).

    As a result, subsequent to the filing of each motion for relief from stay involving real estate, the court issued an order for *340 each declarant in the accompanying declaration to appear to testify.[2]

    B. Pite's Actions

    Between December 21, 2007 and May 5, 2008, Pite filed forty-one motions for relief from the automatic stay with this court on behalf of home mortgage creditors.[3] Twenty motions were filed before April 1, 2008 ("the first group"); the remaining twenty-one were filed after April 1, 2008 ("the second group").

    In response to the court's orders for declarants to appear and testify, Pite commenced a suspicious pattern of filing and then withdrawing such motions. By the end of March 2008, Pite had withdrawn eight of the motions in the first group, and had received orders for witnesses to appear and testify in twelve other first group motions that were subsequently withdrawn. In consequence, the court finds, Pite was on notice when it filed the second group of motions that the declarants would be required to appear and testify. Nonetheless, in April and May 2008 Pite filed the twenty-one motions in the second group and, after the court issued orders for declarants to appear and testify, withdrew all but the two that were denied.

    Overall, Pite withdrew thirty-eight out of forty-one motions filed with this court. With two exceptions, all of the motions were withdrawn within a week of the hearings on the motions, even though all were filed at least 24 days before the scheduled hearings (as required by local rule). By the time the withdrawals were filed, the court had expended substantial time and effort in preparing for the hearings.

    The late withdrawal of a relief from stay motion has an important impact on the court. Both the clerk's office and chambers staff put a lot of work into preparing for a relief from stay hearing. Because of the late date on which the motions were withdrawn, in almost all cases the work was completely done before the withdrawal became known in chambers.[4] This resulted in a large waste of valuable staff time that could have been put to good use on other cases pending in the court.

    On numerous occasions, Pite requested a continuance so that the witness could make travel plans to appear and testify. Pite failed to produce a single witness pursuant to such a request. From the failure ever to produce a witness, the court infers that Pite knew, at the time each such request was made, that the witness would not appear to testify. The court finds that each such request was made in bad faith.

    Eventually, to protect the integrity of the court and the bankruptcy process, the court issued an order ("OSC") to Pite on June 2, 2008 (and amended on June 5, 2008) to appear and to show cause why it should not be sanctioned for filing relief from stay motions with no intent to proceed *341 to a hearing on the merits.[5] The OSC ordered Pite to appear and to show cause why the court should not sanction it with respect to the twenty-one motions that it filed between April 1, 2008 and May 6, 2008.

    Pite filed a response with thirteen supporting declarations. The declarations attempted to establish that (1) the declarants were competent to testify as to the matters set forth in the declarations in support of motions for relief from stay, and (2) Pite did in fact intend to prosecute the subject motions on the merits. Because none of the declarations appeared sufficient to accomplish either of the two objectives, the court ordered all thirteen declarants to appear in person and testify at the July 8 hearing.

    All thirteen declarants appeared at the hearing.[6] Three declarants testified as to their knowledge of the matters discussed in their respective declarations, and each admitted to relying on computer-generated business records to obtain such information. Each declarant failed to provide any testimony to support the declarant's competence to testify with respect to such records. After the testimony of the three declarants, Pite made an offer of proof (which was accepted by the court) that the testimony of the ten remaining declarants would be substantially the same, and would not be different from the first three in any material respect.

    Pite failed to learn its lesson: three months later, Pite appeared on two more occasions and withdrew motions on the hearing dates,[7] after the court had again issued orders to produce its witnesses for testimony and had completed all of the work in preparation for the hearings.

    III. Analysis

    The OSC required Pite to show cause why sanctions should not be imposed on it in the amount of $5,000 per case "for filing relief from stay motions, as to which you were . . . counsel, with no intent to proceed to a hearing on the merits. . . ."[8] The *342 order further specified that the lack of intent appeared from "the failure to produce a witness, as required by Local Rule 9013-1(a)(13)(A) and court orders issued pursuant thereto in each of these cases, and the subsequent withdrawal (or attempted withdrawal) of each motion before or at the hearing on the merits."

    The OSC stated that it rests on four grounds: (a) the court's inherent authority to impose sanctions for misconduct before the court; (b) § 105(a); (c) 28 U.S.C. § 1927;[9] and (d) Rule 9011(b)(1) and (3). The OSC consolidated the twenty-one cases involved herein for the purposes of the show cause order and hearing.

    Sanctions are not warranted where the claimant's evidence is merely weak. See, e.g., Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.1998). However, the declarants' uniform refusal to provide any testimony in support of their computer-generated evidence prevents Pite from taking advantage of this rule.

    A. Rule 9011

    The court first turns to Rule 9011,[10] which authorizes the imposition of sanctions on a party (and not only on the party's attorney) if that party or its attorney files a paper with the court (a) for an improper purpose (such as to harass or to cause unnecessary delay or needless increase in the cost of litigation), or (b) that makes claims, defenses or other legal contentions that are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. Rule 9011 is the bankruptcy counterpart to Federal Rule of Civil Procedure 11: thus, *343 caselaw interpreting Rule 11 is applicable to Rule 9011. See 10 COLLIER ON BANKRUPTCY ¶ 9011.02 (Alan N. Resnick & Henry J. Sommer eds, 15th ed. rev.2008).

    Rule 9011 (like Rule 11) imposes three obligations on an attorney:

    First, the attorney must conduct a reasonable inquiry to determine that the document is well grounded in fact. Second, the attorney must conduct a reasonable inquiry to determine that the positions taken are warranted by existing law or as good faith arguments for extension or modification of existing law. Third, the document must not be filed for any improper purpose.

    Jackson v. Law Firm of O'Hara, Ruberg, Osborne & Taylor, 875 F.2d 1224, 1229 (6th Cir.1989). Thus Rule 9011 sanctions are warranted when a party files a pleading that (a) has no reasonable factual basis; (b) is based on a legal theory that that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (c) is filed in bad faith or for an improper purpose.

    The purpose of Rule 9011 is to reduce frivolous claims, defenses or motions, and to deter costly meritless maneuvers. See, e.g., Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003) (citations and quotation marks omitted). It establishes an objective standard: whether a reasonable attorney in like circumstances could believe that the actions were factually and legally justified. See Baker, 158 F.3d at 524.

    The factors that a court should consider in deciding whether to impose sanctions under Rule 9011 include: whether the improper conduct was willful or negligent; whether it was part of a pattern of activity or an isolated event; whether it infected the entire pleading or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether the conduct was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law.[11]

    1. Improper Purpose

    In determining whether a party has violated Rule 9011, a court must consider both frivolousness and improper purposes on a sliding scale. "[T]he more compelling the showing as to one element, the less decisive need be the showing as to the other." In re Marsch, 36 F.3d 825, 830 (9th Cir.1994).

    Filing a motion with no intent to proceed to a hearing on the merits violates Rule 9011. Rule 9011(b)(1) provides that "[b]y presenting to the court . . . [a] written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances. . . it is not being presented for any improper purpose. . . ." According to Rule 9011(b)(1), examples of improper purposes include (but are not limited to) harassing, causing unnecessary delay, or needlessly increasing the costs of litigation. Improper purpose may be shown by excessive persistence in pursuing a claim or defense in the fact of repeated adverse rulings. See, e.g., Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte, 141 F.3d 1434, 1448 (11th Cir.1998).

    A court may infer the purpose of filing a motion from its consequences such as creating "a persistent pattern of abusive litigation." See, e.g., Aetna Life *344 Ins. Co. v. Alia Med. Servs., Inc., 855 F.2d 1470, 1476 (9th Cir.1988). Likewise, evidence of a pleading's frivolousness may "in circumstances that warrant it infer that it was filed for an improper purpose." See, e.g., Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1365 (9th Cir.1990). Ultimately, the purpose of Rule 9011 is "to deter baseless filings in district court" and streamline litigation. See, Cooter v. Hartmarx Corp., 496 U.S. 384, 393, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990).

    In its actions of repeatedly filing and withdrawing (or attempting to withdraw) motions with no intent to proceed to a hearing on the merits, Pite displays "a pattern of abusive litigation activity." Aetna, 855 F.2d at 1476.

    For all twenty motions in the first group, filed between December 21, 2007 and April 1, 2008, the court ordered that the declarants appear at the hearing to testify. The court makes no finding that any of these motions were filed for an improper purpose. The court treats them as learning experiences for Pite.

    However, Pite refused to learn. The court finds that, by the end of March 2008, Pite clearly had notice of the court's requirement for declarants to appear at the hearings on relief from stay motions involving real estate and knew of the expenses involved in prosecuting such motions.

    Pite did not make any reasonable inquiry into the likelihood of success of the motions in light of the court's requirements before making the filings. Instead, Pite admits that it was only after the issuance of orders to appear and testify that it began to research and analyze the likelihood of success of the motions.

    If Pite had responsibly made a reasonable inquiry into the likelihood of success of the motions prior to the filings, it could not in good faith have filed the motions here at issue. First, Pite admits that, at the time it filed the motions, it anticipated imminent termination of the automatic stay by the operation of law. Second, Pite knew the level of difficulty of satisfying the evidentiary requirements for the witness: Pite states that, "in preparing for the upcoming hearings, Pite Duncan evaluated the requirements for authenticating electronic business records pursuant to the stringent evidentiary standard set forth in In re Vinh[n]ee." It follows that, by April 1, 2008, after having researched and analyzed the likelihood of success for twenty such motions, Pite knew of the expenses required to satisfy the evidentiary requirements. Nevertheless, Pite knowingly or recklessly neglected to make any inquiry into competency of its declarants before filing the second group of motions after April 1, 2008.

    The declarants who testified in court complained of the expense in bringing witnesses to court to testify. The court finds that bringing the declarants to testify in court is not prohibitively expensive. The motions here at issue each involved debts of several hundred thousand dollars. The travel expenses of bringing a witness to testify would rarely exceed $1000, particularly given that the court was generous in granting continuances in a number of the motions to permit the declarants to make travel plans. Expending $1000 (or even $2000) to pursue a claim of several hundred thousand dollars is clearly not prohibitive. Indeed, such an expense barely exceeds the legal fees and costs for the relief from stay motion itself.

    "If a court finds that a motion . . . is filed in the context of a persistent pattern of clearly abusive litigation activity, it will be deemed to have been filed for an improper purpose and sanctionable." Aetna, 855 F.2d at 1476. Pile's filing the *345 twenty-one motions in the second group, with full knowledge of this court's evidentiary requirements, and subsequently withdrawing almost all of the motions once ordered to comply with these requirements, constituted abusive litigation activity. Accordingly, the court finds that the second group of motions was filed for an improper purpose in violation of Rule 9011.

    2. Inadequate Evidentiary Support

    Rule 9011(b)(3) extends the attorney's certification to include that "the allegations and other factual contentions have evidentiary support. . . ." Thus, before filing evidentiary support for a motion, an attorney has an obligation under Rule 9011(b)(3) to determine that the evidence is admissible, or at least that there is a good faith argument for its admissibility.[12]

    Simply completing the mandatory court form of declaration for a relief from stay motion[13] may be insufficient to satisfy this rule. If the form declaration is not sufficient, the moving party is required to supplement the declaration (and, if necessary, to line out inapplicable parts).

    Pite did not begin to investigate the legal requirements for admission of the evidence provided in the declarations until after most of them had been filed. Thus Pite failed to satisfy its investigatory obligations under Rule 9011(b)(3). If Pite had conducted an inquiry beforehand, it would have learned that many, if not all, of the declarants were not competent to testify to at least some of the facts included in their respective declarations.

    The live witness testimony of the declarants at the OSC hearing confirmed that the motions lacked adequate evidentiary support at the time of filing. For example, Kristy Wagner, a declarant employed by Wachovia Mortgage, offered nothing but her job title (department manager) as a qualification for her competency to testify as a witness to the factual contentions underlying her declaration. Similarly, Norman Shaw, a declarant employed by Washington Mutual, merely stated his job title (vice president) when asked why he was competent to testify to the factual contentions in his declaration. Pite's offer of proof that the remaining declarants would only provide similar testimony shows that all of the declarants were unable to provide admissible evidence to support the computer-generated evidence. See, In re Vinhnee, 336 B.R. 437, 444 (9th Cir. BAP 2005).

    In consequence, the court finds that none of the twenty-one motions in the second group was supported by admissible evidence. Filing a motion without adequate evidentiary support is a violation of Rule 9011(b)(3), and justifies the imposition of sanctions.

    B. Section 105(a) and Inherent Powers

    Section 105(a) grants broad authority to bankruptcy courts to enforce the *346 provisions of the U.S. bankruptcy code. See, e.g., In re Evergreen Sec. Ltd., 381 B.R. 407, 415 (Bankr.M.D.Fla.2007). Pursuant to § 105(a), the court has the inherent power "to issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." This power includes the power to address wrongful conduct, such as bad faith or unreasonable, vexatious conduct, by any party or representative that has appeared before the court. Evergreen, 381 B.R. at 415.

    The court has the authority to take action sua sponte to prevent abuse of the bankruptcy process. Section 105(a) provides: "No [bankruptcy code] provision. . . providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to . . . prevent an abuse of process;" In re Parsley, 384 B.R. 138, 172-73 (Bankr.S.D.Tex.2008) (citing § 105(a) in support of its sua sponte order to show cause against Countrywide after an attempt to withdraw a single relief from stay motion).

    In addition, all federal courts, including bankruptcy courts, have inherent powers to enforce their orders and judgments. See, e.g., Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 284 (9th Cir.1996) ("By providing that bankruptcy courts could issue orders necessary `to prevent an abuse of process,' Congress impliedly recognized that bankruptcy courts have the inherent power to sanction"); In re Haque, 395 B.R. 799, 803 (Bankr.S.D.Fla.2008) ("The Court's power to sanction resides both in 11 U.S.C. § 105(a) and in the inherent power of the federal courts to sanction improper conduct.") (citations omitted).

    The enforcement of a court order or judgment is ordinarily exercised through a court's contempt power — the power of the court to hold a person (who may or may not be a party to a proceeding in the court) in contempt for not obeying an order of the court. Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991) ("[l]t is firmly established that `[t]he power to punish for contempts is inherent in all courts.'") (citations omitted); Jove Engineering, Inc. v. I.R.S., 92 F.3d 1539, 1553 (11th Cir.1996) (holding that " § 105 creates a statutory contempt power in bankruptcy proceedings, distinct from the court's inherent contempt powers").

    The court finds that Pile knowingly or recklessly filed motions containing inadequate evidentiary support. Further, it filed motions with the improper purposes of delaying and increasing the costs of litigation. In addition to causing detriment to Pite's own clients, Pite's filings unnecessarily drained the court's time and resources. Thus, Pite filed the motions in bad faith.

    Thus, pursuant to § 105(a), the court has the inherent power to exercise authority where necessary to protect the integrity of the bankruptcy process. Accordingly, sanctions in this case are supported by § 105(a) and the court's inherent power, as well as by Rule 9011.

    C. Amount of Sanctions

    A bankruptcy court has wide discretion in determining the appropriate sanction under Rule 9011. See, e.g., Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545, 555 (9th Cir. BAP 1992). When imposing sanctions pursuant to Rule 9011 and § 105 the court should impose sanctions that are "appropriate" and the least severe to adequately deter the acts of bad faith. See, e.g., id. ("[A] court should impose the least severe sanction *347 likely to serve Rule 11's principal goal-deterrence."); Jackson v. Law Firm of O'Hara, Ruberg, Osborne & Taylor, 875 F.2d 1224, 1229 (6th Cir.1989) ("because deterrence, not compensation, is the principal goal of Rule 11, courts should impose the least severe sanction that is likely to deter"); In re Boyd, 143 B.R. 237, 242 (Bankr.C.D.Cal.1992) ("In determining the. . . amount of sanction, the court's discretion must be guided by the reasonableness of the sanction requested and by the least severe sanction necessary to serve the principal goal of Rule 9011."). Thus, the court should consider what amount is needed to deter Pite from repetition of the same conduct, and what amount is needed to deter similar activity by other litigants.

    In the context of motions for relief from stay, courts have imposed harsh sanctions on counsel and its clients for supporting the motions with "unrefined and unexamined form pleadings, instead of . . . carefully considered legal papers." In re Haque, 395 B.R. at 805 (imposing jointly and severally on the creditor and its law firm sanctions in the amount of $2,114.10 for each of 45 false affidavits, prepared and filed by the firm and signed by the client, falsely claiming entitlement to default interest, for a total sanction of $95,130.45); Nosek v. Ameriquest Mortgage Co. (In re Nosek), 386 B.R. 374 (Bankr.D.Mass.2008) (sanctioning the lender $250,000, the lender's local counsel $25,000 and the lender's national counsel $100,000, where the lender had misrepresented in its motion that it was the holder of the note).[14]

    Pite's actions were not a matter of insufficient notice of the court's requirements. Prior to filing the second group of motions, Pile fully knew of the court's evidentiary requirements and the costs of satisfying such requirements. Indeed, Pite filed half of all of the real estate relief from stay motions received by this court during that time period.

    At the OSC hearing, Pite claimed it had modified its practices and would not file motions unless it is assured its clients can and will present its declarants at the hearings. This is not true. Pite has recently appeared in this court on two occasions to withdraw motions for relief from stay, after the court had issued orders for the declarants to appear to testify. Again, each motion was withdrawn on the date of the hearing, after the court had completed all preparatory work. As such, Pete's conduct goes beyond the "sloppy and unprofessional" conduct of attorneys in In re Haque, 395 B.R. at 803: it amounts to a knowing and systematic disregard of the court's requirements committed in bad faith.

    Pite's acts of filing each of the motions in the second group with no intent to proceed to a hearing on the merits caused unnecessary delay to chapter 7 debtors and needless cost of litigation to creditors in twenty-one cases. In addition, it required the court to expend substantial time and resources in preparation for each hearing before the motion was withdrawn. The court reserved numerous hearing dates for Pite to produce witnesses as ordered by the court. Pite failed to present a single witness at any of the hearings. The court concludes that Pite filed the motions in bad faith and with no intent to proceed to a hearing on the merits, and should be sanctioned accordingly.

    *348 Taking account of the relevant standards and all of the facts and circumstances of these consolidated cases, the court finds that sanctions the amount of $1000 per motion is the least severe sanction necessary to deter Pite and others similarly situated from making abusive filings in the future. Accordingly, Pite is ordered to pay to the court $1,000 for each motion in the second group, for a total of $21,000.

    IV. Conclusion

    The court finds that Pite filed twenty-one relief from stay motions with no intent to proceed to a hearing on the merits, in violation of Rule 9011 and § 105. Pite's repeated filings of needless motions led to delays in the resolution of debtors' chapter 7 cases, increased costs to the debtors and creditors, and a substantially increased burden on the court. In consequence, the court finds that Pite filed the motions for improper purposes in violation of Rule 9011(b)(1).

    The court further finds that Pite knowingly or recklessly filed the motions without adequate evidentiary support in violation of Rule 9011(b)(3), because the declarations filed with these motions were not competent to show that relief from stay was warranted. The court further finds that Pite's actions amounted to bad faith conduct in violation of § 105(a).

    Accordingly, the court imposes sanctions in the amount of $1000 per motion for a total of $21,000. The court further orders that Pite pay this amount to the court within thirty days of the entry of this order.

    *349 Pite Duncan, LLP: Motions for Relief of Stay

    08-13131    Nery Walter Son                   Suntrust Mortgage, Inc.      5/05/08     6/03/08    5/08/08     Withdrawal filed 5/30/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-14709    Gabriel Raul Cabrera and          Washington Mutual Bank       5/06/08     6/03/08    5/13/08     Withdrawal filed 5/30/08
                Maria Lara Cabrera
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-12195    Reginald Tinsley                  Wilmington Finance           4/30/08     05/27/08   5/08/08     Withdrawal filed 5/22/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-14915    David Cardenas and                Wells Fargo Bank, N.A.       4/28/08     05/27/08   5/08/08     Withdrawal filed 5/23/08
                Idalia Maldonado
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-15000    Lawrence Martin Villalobos        Argent Mortgage              4/29/08     05/27/08   5/08/08     Withdrawal filed 05/22/08
                and Rene Rose Newell-Villalobos   Company, LLC
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-19023    Deatra Clinton, Jr.               Wachovia Mortgage, fka       4/17/08     5/20/08    4/28/08     Withdrawal filed 5/14/08
                                                  World Savings Bank,
                                                  FSB
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-10454    Ronnita V. Darnell                U.S. Bank Nat'l Ass'n,       4/16/08     5/20/08    4/28/08     Withdrawal filed 5/13/08
                                                  Tr. for Lehman Brothers
                                                  Structured Asset Inv.
                                                  Loan Trust Sail 2005-5
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-12279    Roberto M. Menezes and            New Century Mortgage         4/11/08     5/20/08    4/25/08     Withdrawal filed 5/13/08
                Olivia P. Menezes                 Corporation
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-12337    James Z. Pescasio                 DB Home Lending, LLC         4/24/08     5/20/08    5/13/08     Denied on 5/20/08
                                                                                                                  Order 5/23/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-12432    Edgardo C. Glinoga and Helen      Casa Blanca Mortgage,        4/16/08     5/20/08    4/28/08     Withdrawal filed 5/19/08
                M. Glinoga                        Inc., dba Shearson
                                                  Mortgage
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-12648    Haenam David Lee                  Just Mortgage, Inc.          4/21/08     5/20/08    4/24/08     Withdrawal filed 5/08/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13172    Jose Fidencio De La Rosa          Option One Mortgage          4/10/08     5/20/08    4/28/08     Withdrawal filed 5/14/08
                                                  Corporation
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13248    Sergio Leal                       Indymac Bank, FSB            4/16/08     5/20/08    4/24/08     Withdrawal filed 5/15/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13350    Charr Antuan Gahagan and          JP Mortgage Chase            4/11/08     5/20/08    4/24/08     Order denied on 5/23/08
                Brandye Michell Gahagan           Bank, N.A.
    

    *350
    08-13643    Marian Lajuan Sparling; Re:       Homecomings Fin., LLC,       4/17/08     5/20/08    4/24/08     Withdrawal filed 5/13/08
                3466 North Greenbrier Road,       fka Homecomings Fin.
                Long Beach, California 90808;     Network, Inc.
                $150k
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13643    Marian Lajuan Sparling; Re:       Homecomings Fin., LLC,       4/30/08     5/27/08    5/08/08     Withdrawal filed 5/22/08
                3466 North Greenbrier Road,       fka Homecomings Fin.
                Long Beach, California 90808;     Network, Inc.
                $566k
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13771    De Jaun Blackburn                 First Franklin A Division    4/28/08     5/20/08    5/13/08     Withdrawal filed 5/12/08
                                                  of Nat. City Bank IN
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13986    Rene A. Cruz                      Golden Empire                4/11/08     5/20/08;   4/24/08;    Withdrawal filed 5/23/08
                                                  Mortgage, Inc.                           5/27/08    5/22/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11531    Rocky Lyn Edwards; Re: 6245       Alliance Bancorp             2/29/08     4/01/08    3/20/08     Granted on 4/03/08
                Huntington Ridge Avenue, Las
                Vegas, Nevada 89139
    ----------------------------------------------------------------------------------------------------------------------------------------
                Rocky Lyn Edwards; Re: 1037       Encore Credit Corp.          4/04/08     4/29/08    4/21/08     Withdrawal filed 4/28/08
                Arroyo Verde Road, #G,
                Pasadena, California 91030
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11613    John Allen Youngblood             Wells Fargo Bank, N.A.       3/26/08     4/29/08    4/24/08     Withdrawal filed 4/28/08
                                                  as Tr. for the MLMI
                                                  Trust Series 2006-WMC1
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11791    Edgar Florian                     Wash. Mutual Bank, F.A.      3/06/08     4/08/08    3/31/08     Withdrawal filed 4/28/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11939    Susi R Zecena                     Moneyline Lending            4/04/08     4/29/08    4/21/08     Withdrawal filed 4/28/08
                                                  Serv., Inc.                                                     Denied 5/08/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-13505    Fernando Cabrera-Mejia            Deutsche Bank Nat'l          4/03/08     4/29/08    4/24/08     Withdrawal filed 4/28/08
                                                  Trust Co., as Tr. for
                                                  Sound view Home Loan
                                                  Trust 2006-WF1
    

    *351
    06-15911    Lorece Wright                     SCME Mortgage                1/31/08     3/11/08;   2/12/08     Denied on 5/09/08
                                                  Bankers, Inc.                            4/29/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-20408    Daryll John Stevens and           Fin. Am., LLC                1/31/08     3/11/08;   2/12/08     Withdrawal filed 4/24/08
                Serena Fawn Stevens                                                        4/29/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-10768    Cynthia Ann Kalina                LaSalle Bank Midwest,        3/14/08     4/08/08    3/31/08     Withdrawal filed 4/17/08
                                                  NA
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11640    Anita Marie Clark                 Wells Fargo Bank, N.A.       3/12/08     4/08/08    3/31/08     Withdrawal filed 4/23/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11791    Edgar Florian                     Wash. Mutual Bank, F.A.      3/06/08     4/08/08    3/31/08     Withdrawal filed 4/28/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    08-11612    Daniel Mucu and Sayra Leon        New Century Mortgage         2/28/08     4/01/08;   3/20/08;    Withdrawal filed 5/14/08
                                                  Corp.                                    5/20/08    5/13/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-18651    Dwight A. Penn                    U.S. Bank Nat'l Ass'n,       1/04/08     2/05/08;   3/20/08     Withdrawal filed 4/14/08
                                                  solely as Tr. for the                    3/25/08;
                                                  Holder of Bear Stearns                   4/15/08
                                                  Asset Backed Sec.
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-21194    Sigrid Falcon Zandate             Wash. Mutual Bank, F.A.      1/11/08     2/05/08;   3/20/08     Withdrawal filed 4/10/08
                                                                                           3/25/08;
                                                                                           4/15/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-21348    Leonardo Q. Marin                 Argent Mortgage Co.,         1/03/08     2/14/08;   3/20/08     Withdrawal filed 4/10/08
                                                  LLC                                      3/25/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-21486    Vidal Vega                        People's Choice Home         1/02/08     2/05/08;   3/20/08     Withdrawal filed 4/14/08
                                                  Loan, Inc.                               3/25/08;
                                                                                           4/15/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-21488    Benjamin Silva                    Bank of America, N.A.        1/31/08     3/11/08    2/12/08     Withdrawal filed 2/28/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-15768    Clifford Wayne Maddox             Homecoming Fin.              1/22/08     2/26/08    2/12/08     Withdrawal filed 2/2508
                                                  Network, Inc.
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-19623    Billy Ray Michael Brock and       Mortgageit, Inc.             1/16/08     2/26/08    2/12/08     Withdrawal filed 2/2508
                Andrea Maria Lomento-Brock
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-19639    Noel Charros and Ana L.           Argent Mortgage Co.          12/24/07    1/22/08;   2/12/08     Withdrawal filed 2/22/08
                Charros                                                                    2/26/08
    

    *352
    07-20660    Kanika Lashaun Johnson            US Bank Nat'l Ass'n, as      12/26/07    1/22/08;   2/12/08     Withdrawal filed 2/22/08
                                                  Tr.                                      2/26/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-20689    Misael Hernandez and Blanca       The Chase Manhattan          12/28/07    1/22/08;   2/12/08     Withdrawal filed 2/2508
                Lilian Hernandez                  Bank, as Indenture Tr.                   2/26/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-20978    Louis James Salcido               BNC Mortgage, Inc.           12/21/07    1/22/08;   2/12/08     Withdrawal filed 2/22/08
                                                                                           2/26/08
    ----------------------------------------------------------------------------------------------------------------------------------------
    07-21055    Maximino G. Lopez                 HSBC Bank USA, Nat.          12/21/07    1/22/08;   2/12/08     Withdrawal filed 2/22/08
                                                  Ass'n, as Tr. for Home                   2/26/08
                                                  Equity Loan Trust Series
                                                  Ace 2005-HE7
    ----------------------------------------------------------------------------------------------------------------------------------------
    

    -------------------
    38        Withdrawn
    -------------------
    3         Denied
    -------------------
    1         Granted
    -------------------
    

    NOTES

    [1] Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C.A. §§ 101-1532 (West 2008) and to the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX.

    [2] The court continues to issue such orders.

    [3] The cases in which the twenty-one motions were filed, and their dates are listed in Appendix A hereto.

    [4] Each motion was set for hearing on a Tuesday. Thus no motion was withdrawn either two or three days before the hearing, because these were weekend days. Four motions were withdrawn the day before the hearing, four were withdrawn the Friday before the hearing, four were withdrawn the Thursday before the hearing, two were withdrawn the Wednesday before the hearing, and three were withdrawn a week in advance. Of the remaining two motions, one was withdrawn eight days before the hearing, and other was withdrawn 12 days in advance. Counsel never informed the court of the withdrawal of a motion, apart from filing the withdrawal electronically: in consequence, court and chambers staff continued to work on the motions notwithstanding the filing of the notice of withdrawal.

    [5] The order also required that Pile's clients show cause why sanctions should not be imposed on them as well. The following parties were named in the OSC: Pite, Deutsche Bank National Trust Co. as trustee for Soundview Home Loan Trust 2006-WF1; Encore Credit Corp.; Moneyline Lending Service, Inc.; Option One Mortgage Corporation; JP Morgan Chase Bank, N.A.; Golden Empire Mortgage, Inc.; U.S. Bank National Association, Trustee for Lehman Brothers Structured Asset Investment Loan Trust Sail 2005-5; Casa Blanca Mortgage Inc.; Indymac Bank, F.S.B.; Wachovia Mortgage; Homecomings Financial, LLC; Just Mortgage Inc.; DB Home Lending, LLC; First Franklin; Wells Fargo Bank, N.A.; Argent Mortgage Company, LLC; Wilmington Finance; Suntrust Mortgage, Inc.; Washington Mutual Bank. At the hearing on July 10, 2008, the court discharged the order as to the clients, for lack of sufficient evidence that they acted improperly. See, e.g., Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545, 554 (9th Cir. BAP 1992) (noting that, "[w]here the client is unsophisticated and the actions arise from a misreading of or failure to research the applicable law, sanctions have been imposed solely on counsel").

    [6] Subsequent to the issuance of the OSC, six creditors substituted Wolfe & Wyman LLP for Pite. One of the thirteen declarants appeared on behalf of the six creditors: GMAC Mortgage, LLC; Homecomings Financial LLC; Wilmington Trust; Suntrust Mortgage, Inc.; New Century Mortgage Corp.; and Casa Blanca Mortgage, Inc. dba Shearson Mortgage.

    [7] Pite appeared on October 21, 2008 in In re Mary Autera, case no. 08-12506, and on October 7, 2008 in In re Dornzell Johnson, case no. 08-20936. In both cases, Pite failed to produce its witness as ordered by the court. In both cases, Pite requested dismissal at the hearing, and gave no advance notice of its intent.

    [8] The OSC was also issued to each of Pite's clients who were the moving parties on the motions here at issue. At the hearing, the court discharged the OSC as to the clients, on the grounds that there was insufficient evidence that any of them, in contrast with Pite, had acted improperly. The court does not find that any of the clients is blameless, but only that the evidence is insufficient for the imposition of sanctions.

    [9] The court declines to use § 1927 as a basis for imposing sanctions, notwithstanding that Pite has not opposed the imposition of sanctions under this statute.

    [10] Rule 9011 provides in relevant part:

    (b) Representations to the court

    By presenting to the court (whether by signing, filing, submitting, or later advocating) a . . . written motion . . ., an attorney . . . is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—

    (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

    . . .

    (3) the allegations and other factual contentions have evidentiary support. . . .

    (c) Sanctions

    If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys [or] law firms . . . that have violated subdivision (b) or are responsible for the violation.

    (1) How initiated

    . . . .

    (B) On court's initiative

    On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

    (2) Nature of sanction; limitations

    A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include . . . an order to pay a penalty into court. . . .

    (3) Order

    When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

    [11] See FED.R.CIV.P. 11, Advisory Committee Notes.

    [12] Rule 9011(b)(3) also permits an attorney to make factual allegations that are likely to have evidentiary support after a reasonable investigation or discovery. This provision is not applicable in this case for two reasons. First, the party relying on this alternative must so specify in the motion, which Pite did not do. Second, this provision is not applicable to an affidavit or a declaration under penalty of perjury, which each of these cases involves.

    [13] In this district, relief from stay motions must be made with mandatory court forms. The form for residential real estate requires the movant to attach a copy of the promissory note and mortgage (or deed of trust) to show the debt and its secured status. The form also requires that the movant complete and attach a separate declaration form to provide evidentiary support for the motion and to establish that the declarant is competent to testify to the matters set forth therein.

    [14] See also Parsley, 384 B.R. at 180-81, where the court found that the movant acted in bad faith in a single motion for relief from stay by misrepresenting to the court that the motion was a "good motion" when in fact it contained factual inaccuracies about the charges made on the loan at issue. However, the court declined to impose sanctions in light of corrective measures taken by the firm. Id. at 182.

Document Info

DocketNumber: LA08-13505SB

Citation Numbers: 402 B.R. 335

Judges: Samuel L. Bufford

Filed Date: 12/23/2008

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (18)

Jove Engineering, Inc., In Re: , 92 F.3d 1539 ( 1996 )

elwood-i-kaplan-and-norma-kaplan-v-daimlerchrysler-ag-fka , 331 F.3d 1251 ( 2003 )

Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384 ( 1990 )

Chambers v. Nasco, Inc. , 501 U.S. 32 ( 1991 )

aetna-life-insurance-company-v-alla-medical-services-inc-management , 855 F.2d 1470 ( 1988 )

Robert G. Jackson, Robert P. Gettys, Attorney-Appellant v. ... , 875 F.2d 1224 ( 1989 )

patrick-townsend-karen-townsend-v-holman-consulting-corporation-and , 929 F.2d 1358 ( 1991 )

In Re Carol Freeman Marsch, Debtor (Two Cases). John D. ... , 36 F.3d 825 ( 1994 )

In Re Rainbow Magazine, Inc., Debtor. Craig E. Caldwell v. ... , 77 F.3d 278 ( 1996 )

industrial-risk-insurers-barnard-burk-group-inc-barnard-and-burk , 141 F.3d 1434 ( 1998 )

charles-n-baker-kennan-g-dandar-movant-appellant-v-ronald-alderman , 158 F.3d 516 ( 1998 )

In Re Nosek , 386 B.R. 374 ( 2008 )

In Re Parsley , 384 B.R. 138 ( 2008 )

In Re Haque , 395 B.R. 799 ( 2008 )

In Re Boyd , 143 B.R. 237 ( 1992 )

In Re Vee Vinhnee , 336 B.R. 437 ( 2005 )

In Re Rainbow Magazine, Inc. , 136 B.R. 545 ( 1992 )

In Re Evergreen Sec., Ltd. , 381 B.R. 407 ( 2007 )

View All Authorities »