ARDC Hearing Board Recommends Six Month Suspension For Gross Negligence

Filed October 21:

This case is essentially a gross negligence case where an attorney failed to file the necessary paperwork to complete a personal bankruptcy for a client and then refused to return the client’s unearned legal fee. The lawyer was also accused of failing to diligently work on another bankruptcy matter.
“On March 9, 2007, CitiFinancial, Inc. obtained a judgment in the amount of $16,021.46 against Autumn Park-Fortney (formerly Autumn Clark) in the case of CitiFinancial v. Autumn Clark, Sangamon County, No. 07-LM-301. On March 20, 2007, CitiFinancial recorded the judgment with the Sangamon County Recorder as a lien on Autumn’s house.
In August 2007, Respondent began representing Autumn in a Chapter 13 bankruptcy proceeding to obtain a discharge of Autumn’s debts. Autumn paid Respondent the agreed upon flat fee of $2,200 for his representation. On September 10, 2007, Respondent filed a petition, schedules and related pleadings on behalf of Autumn in the U. S. Bankruptcy Court for the Central District of Illinois. (In re Autumn Clark, No. 07-71867). Respondent included the above described judgment of CitiFinancial in Schedule F of Autumn’s bankruptcy pleadings. CitiFinancial received notice of the bankruptcy proceeding and filed a claim in the amount of $15,183.32. On January 23, 2008, the Bankruptcy Court entered an order striking CitiFinancial’s claim on the basis that it had not filed its proof of claim in compliance with the court’s general order for electronic filing. CitiFinancial did not re-file its claim. On January 20, 2010, the Bankruptcy Court entered an order granting Autumn a discharge of her debts, including CitiFinancial’s judgment, following the successful completion of her Chapter 13 plan. As a result of the discharge, Autumn was entitled to an order avoiding CitiFinancial’s judgment lien.
In July 2013, Autumn sought to refinance the mortgage on her house with CEFCU to obtain a lower interest rate and reduce her monthly mortgage payments. On July 23, 2013, Lisa Brocksieck-Smith, a loan representative at CEFCU, notified Autumn by e-mail that CitiFinancial had a lien on her house, based upon the bankruptcy judgment discussed above. Brocksieck-Smith told Autumn to contact her bankruptcy attorney and obtain a “Release Deed from CitiFinancial Services which will remove the lien from your property.” Autumn forwarded that e-mail to Respondent. (Adm. Ex. 9). Later in July 2013, Respondent agreed to represent Autumn and to file a motion in the Bankruptcy Court for an order avoiding CitiFinancial’s lien. Respondent told her that CitiFinancial would have 30 days to respond to the motion, and that he would obtain the order promptly after the 30 days expired. Respondent requested a flat fee in the amount of $600 for his work regarding the release of the lien. Autumn agreed to the fee, and subsequently paid it.
On August 13, 2013, Autumn sent an e-mail to Respondent stating that she had “called a couple of times and emailed with no response.” She also asked in the e-mail if Respondent had “moved on this at all.” Respondent replied on August 15, 2013, stating “I am very sorry, but I am very far behind. I do have you on the list, though.” (Adm. Ex. 11). On August 22, 1013, Autumn sent another e-mail to Respondent asking him for an “update soon.” (Adm. Ex. 12). On August 30, 2013, Brocksieck-Smith sent Autumn an e-mail inquiring about what Respondent had done regarding the lien. She also said “documentation is date sensitive and will expire soon, so we want to make sure the release deed is taken [care] of soon.” On the same date, Autumn forwarded Brocksieck-Smith’s e-mail to Respondent and asked him to “let me know what kind of update I can give them.” (Adm. Ex. 13). On September 10, 2013, Autumn sent Respondent an e-mail asking Respondent if he had “any news for me.” (Adm. Ex. 14).
In October 2013, Autumn received notification that CEFCU withdrew Autumn’s loan approval and closed her refinancing file because too much time had passed since she applied. (Tr. 86). Consequently, Autumn was unable to refinance her mortgage at that time.
On January 10, 2014, and on March 5, 2014, Respondent met with Autumn at his office. At both meetings, he assured Autumn that he would file a motion for an order to avoid CitiFinancial’s judgment lien within 30 days. (Tr. 28-29). However, Respondent did not file the motion to reopen Autumn’s bankruptcy case until December 19, 2014, which was after the Complaint in this matter was filed. (Tr. 29; Adm. Ex. 3 at 10). An order granting the motion to avoid CitiFinancial’s lien was entered on March 30, 2015. (Adm. Ex. 12).
Respondent testified that the motion to reopen Autumn’s bankruptcy case was “not a complicated matter.” He explained that “there seemed to be something else screaming for my attention;” “I have a hard time concentrating when there is a lot of things to do;” and “I can only concentrate and really do one thing at a time.” He also testified that he “kind of put off calling [Autumn] until I had done what she wanted me to do.” (Tr. 101-102).”
The Hearing Board found a violation of Rule 1.3.
The Hearing Board summarized the facts of the second bankruptcy matter as follows:
“In July 2013, Respondent and Carl Tuttle agreed that Respondent would represent Tuttle in a Chapter 7 Bankruptcy proceeding to obtain a discharge of Tuttle’s debts. They also agreed that Respondent would receive a fee of $850 for complete representation in the bankruptcy proceeding,
plus $300 for the filing fee and $100 for other costs. (Adm. Ex. 18). Tuttle paid Respondent the $1,250.
In August 2013, Respondent filed a petition, schedules and relating pleadings for Tuttle in the U.S. bankruptcy Court for the Central District of Illinois. (In re Carl R. Tuttle, Debtor, No. 13-71685). In December 2013, the Chapter 7 Trustee filed a “no asset” report, stating that Tuttle’s bankruptcy estate had no assets available for distribution to the claimants and that the Trustee had completed her services. (Adm. Ex. 19 at 2-3). The Trustee’s report meant that Tuttle could be granted a discharge of his debts and the case could be closed, unless unforeseen circumstances arose.
On December 30, 2013, the Clerk of the Bankruptcy Court sent notice to Tuttle and Respondent, stating that Tuttle was required to file a certification that he had completed a personal financial management course as a perquisite to obtaining a discharge of debts. (Adm. Ex. 20). On January 10,
2014, Tuttle completed the foregoing course and provided the certificate of Tuttle’s completion of the course to Respondent. However, Respondent did not file the certificate by January 14, 2014.
On January 14, 2014, the Bankruptcy Judge entered an order stating that a certificate of Tuttle’s completion of a financial management course had not been filed. The order directed that Tuttle’s case be closed without a discharge being granted and without further notice if the certificate was not filed within seven days. (Adm. Ex. 22 at 1). Notice of the foregoing order was sent to Respondent. (Adm. Ex. 22 at 4). Respondent still did not file the certificate, and on January 22, 2014, the Clerk of the Bankruptcy Court filed notice that Tuttle’s bankruptcy case had been closed without a discharge
being granted. (Adm. Ex. 2 at 5).
On January 23, 2014, after the bankruptcy case was closed, Respondent filed the certificate of Tuttle’s completion of the financial management course. On the following day, the Clerk of the Bankruptcy Court issued a notice that no action would be taken on Respondent’s filing”unless the case is reopened.” (Adm. Ex. 22 at 8). Later in January 2014 and then again in February 2014, Respondent assured Tuttle that Respondent would file a motion to reopen the bankruptcy case. Respondent did not file a motion to reopen or take any other action on behalf of Tuttle.
During the five to seven months after February 2014, Tuttle telephoned Respondent’s office and heard the answering machine say “Dees Law Office.” Tuttle left messages along with his telephone number, but Respondent “never returned the calls.” Respondent finally answered a telephone call from Tuttle. Tuttle told Respondent that he would “like to have my money back and go somewhere else.” Respondent refunded the entire $1,200 that Tuttle had paid to him. (Tr. 115-16).”
The Hearing Board found that this conduct violated Rule 1.3 (Diligence).
In sum, this is a classic case of negligence prosecuted by the ARDC.

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