Deann L Eggers

MEMORANDUM OF DECISION - 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
IN RE 	)
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DEANN L. EGGERS, 	) 	Case No. 	04-21899-TLM
)
)
Debtor. 	) MEMORANDUM OF DECISION
)
________________________________ 	)
)
IN RE 	)
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GARY V. FAIRFIELD, 	) 	Case No. 	05-20014-TLM
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Debtor. 	)
)
________________________________ 	)
)
IN RE 	)
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LISA M. COLE, 	) 	Case No. 05-20015-TLM
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Debtor. 	)
)
_________________________________ )
BACKGROUND AND FACTS
In each of these chapter 7 cases, the debtors were and are represented by
attorney Robert Van Idor (“Counsel”). There are other similarities as well. They
are outlined below. This information comes from the Court’s record.
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1 No action was taken on this motion.
MEMORANDUM OF DECISION - 2
Case No. 04-21899-TLM
In Ms. Eggers’ case, the petition was filed on December 29, 2004, along
with the filing fee. None of the other required documents were filed with the
petition. They were all due January 13, 2005. Fed. R. Bankr. P. 1007(c). They
were not timely filed, and no timely request for extension was made. Id.; see also
LBR 1007.2. On February 16, the schedules were filed, but a host of other
required documents were not. Two weeks later, the Office of the United States
Trustee (“UST”) moved to dismiss the case.1 The statement of financial affairs
was filed that same day, but there were still missing, unfiled documents. They
included Counsel’s Rule 2016(b) fee disclosure.
Ms. Eggers’ first meeting had to be continued. The UST filed a motion to
review Counsel’s compensation under § 329(b) and Fed. R. Bankr. P. 2017(a).
Only thereafter was the Rule 2016(b) disclosure filed. Counsel stated therein that
he had been paid $500.00 to represent the debtor in her bankruptcy case.
Case No. 05-20014-TLM
In Mr. Fairfield’s case, the chapter 7 petition was filed January 2, 2005,
with certain of the schedules. However, schedule C was missing, as was the
summary of schedules, debtor’s signature and verification of the schedules, the
statement of social security number, the statement of intention under § 521, the
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2 Electronic case filing (“ECF”) was instituted in this District effective January 1, 2005.
Prior to ECF, case filing fees (as well as filing fees for adversary proceedings and certain motions
or other pleadings) were due at the time the pleading or document was tendered for filing. The
ECF system allows an attorney who is a “registered participant” to pay by credit card and to
chose to “pay later” rather than at the time the petition is filed. The intent is to allow fees to be
accumulated and paid in a group at the end of the day rather than as each case or motion is filed
during that day. Several ECF participants, perhaps through forgetfulness rather than intent, failed
to remit their payments at the end of the day, and some even for several days. The Clerk
monitors this matter and “freezes” participants’ access to the ECF system if they do not promptly
pay the filing fees.
3 By clerk docket entry, the UST’s motion was deemed withdrawn due to the filings
made on March 4.
MEMORANDUM OF DECISION - 3
statement of financial affairs, and Counsel’s Rule 2016(b) disclosure. The filing
fee, though due at the time of the petition’s filing, was paid several days later.2
The incomplete filings were due January 18. None were timely filed and, again,
no extension was requested. At the time the UST moved to dismiss the case on
March 4, the statement of financial affairs and the missing schedule C were filed.3
The other defects were not cured.
Mr. Fairfield’s § 341(a) meeting also had to be continued. After the UST
filed its motion to review Counsel’s conduct and compensation, Counsel filed on
March 21 a Rule 2016(b) disclosure indicating he had been paid $500.00.
Case No. 05-20015-TLM
In Ms. Cole’s case, the petition was filed on January 2, 2005. The filing fee
was paid several days later. No documents accompanied the petition, and all were
due by January 18. When they weren’t filed, the UST moved to dismiss the case
on February 9 and the order of dismissal was entered the following day.
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4 Counsel’s motion to reinstate alluded to a “problem” with his ECF account. The Court
concludes it likely that Counsel’s access was “frozen” based on outstanding unpaid filing fees, as
discussed supra note 2. However, other problems with Counsel’s ECF operations may have also
been involved. Such problems and Counsel’s inability to comply with the Court’s ECF
procedures and orders led the Court to bar him from use of the ECF system until remedial
training could occur and Counsel proved himself capable of meeting the ECF requirements. The
bar was imposed after the problems in the three cases outlined herein, and before the hearing on
the UST’s motions took place.
MEMORANDUM OF DECISION - 4
On January 14, Counsel moved to reinstate the case.4 Following a hearing
on March 8, the motion was granted. However Counsel was warned to complete
all the required filings and cure outstanding defects within 7 days of that hearing
and ruling. Schedules, a statement of financial affairs, and Counsel’s Rule 2016(b)
disclosure were filed on March 14.
The UST’s motion under § 329(b) was filed the next day. It, and the § 329
motions in Ms. Eggars’ and Mr. Fairfield’s cases, were heard collectively on April
4. Immediately prior to the hearing, Counsel filed affidavits in each case
addressing his conduct. They were reviewed after hearing.
DISCUSSION AND DISPOSITION
Counsel admits he has had serious difficulty complying with the filing
requirements imposed by the Federal Rules of Bankruptcy Procedure and the
Local Bankruptcy Rules. In none of the three cases were all the necessary
schedules, statements and forms filed within the required 15 days, and in none was
a timely and proper request for extension of time made. See Fed. R. Bankr. P.
1007; LBR 1007.2.
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MEMORANDUM OF DECISION - 5
This is not just a question of harmless neglect of technical rules. The filings
made by debtors initiating a bankruptcy case are tremendously significant. The
Court, the trustee, and creditors rely on them. The consequences to debtors of
incomplete or erroneous submissions are serious. And, as the chapter 7 trustee in
these three cases noted at hearing, the inability to timely comply with the
requirements generates delay, cost and expense to all involved. In two of the three
cases, it necessitated a second § 341(a) meeting. That meant that Ms. Eggers and
Mr. Fairfield had to make a second trip from Lewiston to Moscow.
In none of these cases was Counsel’s Rule 2016(b) statement timely filed.
It ordinarily should be filed with the petition. Counsel certainly reached an
understanding with his clients as to his fees before the petitions in these cases were
filed. Each of the untimely disclosures indicated the $500.00 fee was paid pre-
bankruptcy and no further fees were owed. See also Idaho Rule of Professional
Conduct 1.5 (addressing obligations of attorneys to clients regarding fees to be
charged).
The Rule 2016(b) disclosure requires the attorney to identify the
compensation paid prior to filing, the agreement with the debtor for compensation
to be paid for the case, the source of payments, whether the fees are to be shared,
and the services to be rendered. All of these items are of a sort established and
known to the attorney as of the date of filing; none require additional post-petition
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5 The affidavits of Counsel filed in the three cases at issue reflect he had “office
conferences” with each debtor prior to filing. Thus, the information in the form could have been
then conveyed to and discussed with the debtors, enabling Counsel to file the actual disclosure
with the petition.
MEMORANDUM OF DECISION - 6
information before the disclosures can be made. Only the attorney signs the
disclosure; there is no need to await a debtor’s signature and return.5 In short,
there is rarely a good reason for the Rule 2016(b) disclosure not to be filed with
the petition, and virtually no reason why it cannot be filed within the 15 days
following.
Counsel provides no credible reason or excuse in these cases for his failures
regarding the Rule 2016(b) disclosure or otherwise. That his schedule was
“crowded and hectic” is, he admits, not an excuse. Nor is it an explanation. The
delays and inattention lasted months. Deadlines were ignored, and no extensions
timely sought. Counsel admits he did not “properly calendar” filing deadlines. He
is responsible for the management and operation of his office. His clients repose
trust and confidence in him to do his job.
The failure to meet the disclosure requirement under Rule 2016(b) is alone
sufficient to support a reduction of fees. In re Larson, 04.1 I.B.C.R. 15, 16-17
(Bankr. D. Idaho 2004). The requirements of the rule are mandatory, not optional
or merely suggestions, and those requirements are or should be well known to any
attorney holding himself or herself out as competent to practice bankruptcy law.
Id. Violations of the rules regarding disclosure should not be lightly excused. In
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MEMORANDUM OF DECISION - 7
re Combe Farms, Inc., 01.1 I.B.C.R. 7, 9 (Bankr. D. Idaho 2001). A reduction in
Counsel’s compensation is therefore appropriate. Id.
The Court has reviewed the course of events in these three cases, as
outlined above. It has also reviewed Counsel’s affidavit in each case which,
among other things, summarizes the time he spent on the matter. Unfortunately,
the affidavits provide only partial support for the fees claimed. The descriptions of
services are terse and unhelpful. The amount of time Counsel says he spent
“preparing” or “drafting” schedules and other documents leads the Court to
conclude (especially after looking at the subject documents) that Counsel is
charging not just for legal services but for the clerical function of personally typing
the documents. The charges in these regards are not adequately justified. Accord,
In re Castorena, 270 B.R. 504, 516-17, 01.4 I.B.C.R. 153 (Bankr. D. Idaho 2001).
Counsel also lists time spent in Ms. Cole’s case to travel from Lewiston to
Moscow “to file documents.” This, too, is not an appropriate charge.
CONCLUSION
In considering Counsel’s admitted failure to meet the deadlines for filing
documents or requesting extensions; and considering the charges shown in the
affidavits that are not for compensable legal services; and considering the impact
on the debtors from Counsel’s conduct, including but not limited to the need for
two of his debtors to attend continued § 341(a) meetings, reductions in Counsel’s
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MEMORANDUM OF DECISION - 8
compensation are warranted. The Court concludes that, in each of these three
cases, Counsel shall refund to the debtor $200.00 of the $500.00 fee previously
paid. Such amounts shall be paid within ten (10) days of the date of this Decision
and related Order. Proof of compliance shall be made to the chapter 7 trustee and
the UST.
DATED: April 7, 2005
TERRY L. MYERS
CHIEF U. S. BANKRUPTCY JUDGE
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MEMORANDUM OF DECISION - 9
CERTIFICATE RE: SERVICE
A “notice of entry” of this Decision, Order and/or Judgment has been
served on Registered Participants as reflected by the Notice of Electronic Filing.
A copy of the Decision, Order and/or Judgment has also been provided to non-
registered participants by first class mail addressed to:
Deann L. Eggers
860 Eagle Pt. Blvd.
Lewiston, ID 83501
Gary V. Fairfield
611 Burrell Avenue
Lewiston, ID 83501
Lisa M. Cole
20836 Rye Grass Ln.
Lenore, ID 83541
Robert J. Van Idour
Attorney at Law
504 Main Street, #480
Lewiston, ID 83501
Case No. 04-21899-TLM (Deann L. Eggers)
Case No. 05-20014-TLM (Gary V. Fairfield)
Case No. 05-20015-TLM (Lisa M. Cole)
Dated: April 7, 2005
/s/Jo Ann B. Canderan
Judicial Assistant to Chief Judge Myers
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