Pamela Russell Ball

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PAMELA RUSSELL BALL,
Debtor.
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Case No. 10-00371
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
DIRECTING WILFREDO PESANTE TO DISGORGE FEES
Pursuant to a hearing of July 12, 2010, the court heard
evidence and argument of counsel regarding the issue of whether
the debtor’s attorney, Wilfredo Pesante, should be required to
disgorge fees, and in an oral ruling the court decided to order a
disgorgement of the entire $1,250.00 fee received by Pesante for
this case.
One aspect of the ruling deserves further elaboration.
Pesante failed to include on the debtor’s schedules the claim
under certain federal lending statutes (commonly known as TILA,
HOEPA, and RESPA) against the debtor’s former mortgagee that, if
successful, could lead to an award of damages. 	The debtor, Ball,
had hired Pesante initially to represent her with respect to such
a federal court lawsuit against the mortgagee, and paid a $7,500
The document below is hereby signed.
Signed: July 13, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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fee for that purpose. 	She later filed the instant bankruptcy
case with Pesante’s assistance as her attorney in exchange for a
$1,250 fee (paid for out of the $7,500 already paid). 	Pesante
decided not to schedule the potential lawsuit because it was
contingent on an appeal in the Maryland appellate court system
removing the possible res judicata effect of a lower court
ruling. 	The debtor’s schedules plainly called for her to
schedule any claim she held, even if a contingent claim. 	Failure
to schedule the claim will result in the claim not being
abandoned upon the closing of the case, and thus remaining
property of the estate that remains protected by the automatic
stay of 11 U.S.C. § 362(a), thereby preventing Ball from pursuing
the cause of action. 	In addition, even if the claim were deemed
to be abandoned, she faces a potential defense, on the part of
the mortgagee, of judicial estoppel. 	The failure to schedule the
asset will potentially subject Ball to additional expense by
reason of the problems that the failure raises.
In addition, Pesante failed to appear at the meeting of
creditors to represent Ball when she was examined under oath,
failed timely to correct deficiencies in Ball’s filings after
being notified to correct the deficiencies, and forced Ball to
file her own response to an order to show cause why the case
ought not be dismissed based on failure to correct those
deficiencies. 	Overall, the handling of Ball’s case was so shoddy
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that Pesante deserves no compensation in this case. 1 	The quality
of Pesante’s work may have suffered as a result of illnesses of
Pesante’s relatives and disruptions in his office, but that does
not justify charging Ball a fee. 	It is thus
ORDERED that within 21 days after entry of this order,
Wilfredo Pesante shall disgorge to the debtor, Pamela Russell
Ball, the $1,250.00 in fees he received for representing her in
this bankruptcy case, and he shall by that same deadline file and
serve on the United States Trustee a statement confirming
compliance with this order. 	It is further
ORDERED that the court reserves for further ruling whether
additional sanctions or disciplinary action against Wilfredo
Pesante are appropriate after it concludes hearings in other
cases presenting similar issues, and the hearing in that regard
is continued to August 20, 2010, at 12:00 noon.
[Signed and dated above.]
Copies to: Debtor; Wilfredo Pesante, Esq.; Chapter 7 Trustee;
Office of United States Trustee.
1 	It deserves noting that Pesante delegates work to
paralegals in his office but has disclaimed certain papers that
they have executed on his behalf, including even his own
statement disclosing compensation under Fed. R. Bankr. P.
2016(b). 	That Rule 2016(b) statement was entirely accurate
(despite Pesante’s disavowal) based on Ball’s entirely credible
testimony. 	The ultimate responsibility for the case rests with
the attorney, and he bears responsibility for the filings in the
case.
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