U.S. Trustee v. The American Debt Free Association, Inc.

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
In Re: 	Case No. 05-90478PM
Chapter 13
CHARLES H. SPENCE,
et al.,
Debtors.
W. CLARKSON McDOW, JR., 	AP No. 07-00854PM (LEAD AP)
UNITED STATES TRUSTEE,
Plaintiff,
v. 	AP Nos. 07-00852 through 07-00861,
07-00863 through 07-00873, 07-00875
through 07-00898
THE AMERICAN DEBT FREE
ASSOCIATION, INC.,
Defendant.
MEMORANDUM OF DECISION
These proceedings came before the court for trial on July 30, 2008, on the
Complaint of the United States Trustee (“UST”) Seeking Civil Penalties, Injunctive
and Other Miscellaneous Relief filed against The American Debt Free Association,
Inc. (“TADFA”). After careful review of the record and the argument of the parties,
the court submits the following findings of facts and conclusions of law.
Date signed January 13, 2009
Entered: January 14, 2009 Case 07-00854 Doc 56 Filed 01/14/09 Page 1 of 26

1 By Stipulation approved by this court on June 10, 2008, Counts I and II of the Complaints
were dismissed as to Adversary Proceeding Nos. 07-00896 (Broadus), 07-00889 (Garris), 07-00857
(Hayes), 07-00892 (Montgomery) and 07-00880 (Shields).
2 Unless otherwise designated, all statutory references are to Title 11 of the United States
Code.
3 Specifically, TADFA asserted that:
The provisions . . . that the U.S. Trustee attempts to enforce against TADFA are
unconstitutional under the First and Fifth Amendments of the United States
Constitution. BAPCPA’s limitations on TADFA’s communications with its customers
violate TADFA’s free speech rights and are unconstitutionally vague and over-broad
and BAPCPA violates the due process and equal protection provisions of the
Constitution.
The court’s analysis on this issue will follow, infra. The court notes that by its Post-Trial Brief,
TADFA clarified that §§ 527 and 528 allegedly restrict its First Amendment right to free speech.
(Dkt. No. 51).
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Background
A. Procedure
The UST filed Complaints on November 1, 2007, in 45 adversary
proceedings. 1 These proceedings were consolidated for trial, the case of Charles H.
Spence, Case No. 05-90478PM, Adversary Proceeding No. 07-00854PM, being the
lead case procedurally. The Complaints state seven causes of action – two related
to 11 U.S.C. § 526 (restrictions on debt relief agencies) and five related to 11 U.S.C.
§ 110 (penalties for persons who negligently or fraudulently prepare bankruptcy
petitions). 2 Section 526 and the applicable part of § 110 were created by the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”)
that was signed into law on April 20, 2005. Following this court’s Order entered
February 5, 2008, denying a motion to dismiss the Complaints, TADFA filed a
general denial of the material allegations of the Complaints and affirmatively
raised an issue of the constitutionality of the relevant sections of the Bankruptcy
Code. 3
Case 07-00854 Doc 56 Filed 01/14/09 Page 2 of 26

4 TADFA objected to the UST’s Exhibit Nos. 18, 28, 38, 48, 58, 68, 78, 88, 98, 108, 118, 128,
138, 148, 158, 168, 178, 188, 198, 208, 218, 228, 238, 248, 258, 268, 278, 288, 298, 308, 318, 328, 338,
348, 358, 368, 378, 388, 398, 408, 418, 427, 437, 446 and 456. These exhibits represented summaries
prepared by an employee of the Office of the UST, Terry Miller, who also testified at trial. The UST
objected to TADFA’s Exhibit Nos. 1, 2, 5, 6, 7 and 9. Exhibit 1 was admitted at trial.
5 The court is aware that, by Stipulation, the parties dismissed Counts I and II of the
Complaint as to Ms. Hayes. This is irrelevant to the court’s factual discussion.
6 Solicitation letters were directed to defendants in pending lawsuits. (Tr. p. 28, l. 18).
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At trial, the UST offered hundreds of exhibits and the testimony of six
witnesses. TADFA offered ten exhibits and two witnesses, its manager and
president, Curtis B. Uhre (“Uhre”), who incorporated TADFA in late 2001 (Tr. p.
168, l. 8), and its operations manager, Sabrina Tracey (“Tracey”). Objections to
exhibits were filed by the parties. (Dkt. Nos. 45, 47). After review of the
documents, the court admits all into evidence.4 TADFA’s oral motion for judgment
in its favor made immediately following the UST’s presentation, the court having
deferred ruling, will be denied.
B. Facts
This dispute involves 45 similarly-situated debtors who engaged TADFA. In
the 45 cases, when presented with choices, all of the debtors opted to file a
bankruptcy case. Thirty-two of the 45 cases were filed under Chapter 13, the others
filed under Chapter 7.
The court will use the circumstances of Sandra Hayes (“Ms. Hayes”), the
debtor in Case No. 06-11265PM, in discussing the underlying facts.5 The facts of
her case are typical.
On November 10, 2005, Uhre, on behalf of TADFA, solicited Ms. Hayes by
letter. (UST 1).6 Emphasized by a bullet point, TADFA offered the following:
You may be able to get rid of this debt and your other credit card bills,
repossessions and medical bills. If you qualify, your debt can become
ZERO. And, you can stop lawsuits, garnishments and foreclosures.
Case 07-00854 Doc 56 Filed 01/14/09 Page 3 of 26

7 Uhre testified that in 2005 and 2006, he and Tracey were TADFA’s only employees. (Tr. p.
168, l. 15-16).
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Your credit will usually improve so that you can buy a car in 3 months
or a house in the next 2 years. Yes, even under the new laws you
probably qualify for Bankruptcy. Most of the time, people keep their
car, house and other property and still wipe out or reduce their bills.
(UST 1).
Enticed, Ms. Hayes contacted TADFA, speaking with one of two TADFA
employees, either Uhre or Tracey.7 She was presented options – to settle the debt,
to file a bankruptcy case or to be referred to counsel. As explained by Tracey at
trial:
Usually what we discuss is the lawsuit that is at hand, why they’re
being sued; what do they want to do with that situation, whether they
want to work out a payment plan, a lump sum settlement. Then in
discussion we ask is this the only debt that they have. If it’s not, then
maybe they can’t afford to pay the debt back, so we do a quick analysis
of their debt as a whole and then look into whether a bankruptcy
would be beneficial to them.
(Tr. p. 32, l. 4-12).
If there are any cases where a person would need legal counsel, we
would refer them to our attorney, Adam Freiman’s office, to represent
them in court should they need representation in court.
(Tr. p. 32, l. 19-22).
After Ms. Hayes selected the bankruptcy option, TADFA forwarded to her its
“bankruptcy brochure.” (Tr. p. 34, l. 18). This brochure set forth on the first page a
listing of “Your Benefits” that included the stopping of garnishments, foreclosures,
lawsuits, harassment and evictions, an obvious reference to the automatic stay of
Case 07-00854 Doc 56 Filed 01/14/09 Page 4 of 26

8 An updated version of the brochure appears at UST 461. TADFA removed the list of
benefits and identified itself as a debt relief agency that helps “people file for bankruptcy under the
Bankruptcy Code.”
9 Similar letters appear at UST 13 (Alam), 23 (Alston), 33 (Baens), 43 (Baker), 53 (Beck), 63
(Bennett), 73 (Bittinger), 83 (Capshaw), 93 (Cardoso), 103 (Castellanos), 113 (Dewarf), 123 (Domer),
133 (Durbin), 143 (Fazenbaker), 153 (Forker), 163 (Franklin), 173 (Garris), 183 (Goad), 193 (Green),
203 (Hardrick), 223 (Jae), 233 (Jones-Sanders), 243 (Junior), 253 (Laperle), 263 (Momaiya), 273
(Montgomery), 283 (Broadus/Moore), 293 (Nicaragua), 303 (Pryor), 313 (Paton), 323 (Reynolds), 333
(Robinson), 343 (Shields), 353 (Sinclair), 363 (Siron), 373 (Spence), 383 (Steve), 393 (Stiles), 403
(Turner), 413 (Vance), 432 (Will), 451 (Woingust). The court notes that there are differing versions of
this letter. Specifically, some letters referenced “court filing fees” that exceeded the statutory
amount effective at the pertinent times while others made no reference to a filing fee amount.
Testimony at trial clarified that the actual filing fee was not being disclosed by TADFA and that
there existed an additional administrative fee to counsel ($100.00). (Tr. pp. 176-177). An updated
version of this letter appears at UST 463 and 464.
10 According to Tracey, the bankruptcy option required an initial payment of $325.00. (Tr. p.
36, l. 10). The total cost for TADFA’s bankruptcy option at the relevant time was approximately
$1,595.00 (Tr. p. 36, l. 18) that could be paid over time. (Tr. p. 37, l. 2-3). All of the debtors were
admonished that no cases would be filed with the bankruptcy court until TADFA received full
payment of its fee. (Tr. p. 47, l. 21).
11 This Workbook appears in substantially the same form at UST 14 (Alam), 24 (Alston), 34
(Baens), 44 (Baker), 54 (Beck), 64 (Bennett), 74 (Bittinger), 84 (Capshaw), 94 (Cardoso), 104
(Castellanos), 114 (Dewarf), 124 (Domer), 134 (Durbin), 144 (Fazenbaker), 154 (Forker), 164
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§ 362(a), as well as obtaining a “fresh start,” the very essence of the bankruptcy
discharge. 8 (UST 4).
Upon TADFA’s receipt of initial payment, it sent a December 2005, letter to
Ms. Hayes setting forth the payment arrangement and thanking her for choosing
TADFA to assist her “with a Bankruptcy.” (UST 213).9 The fee charged “for
providing the bankruptcy plan” to Ms. Hayes was $1,495.00 with an initial payment
of $300.00. 10 (UST 213). The letter further provided that: “Our attorneys have
many years of bankruptcy experience and will provide you with all necessary legal
assistance for filing your bankruptcy petition.” (UST 213). Included as an
enclosure was TADFA’s “Bankruptcy Information and Workbook” (“Workbook”).
Ms. Hayes was directed to complete the Workbook and return it to TADFA so that
TADFA could “proceed with [her] bankruptcy filing[.]” (UST 213). Her completed
Workbook appears at UST 214.11
Case 07-00854 Doc 56 Filed 01/14/09 Page 5 of 26

(Franklin), 174 (Garris), 184 (Goad), 194 (Green), 204 (Hardrick), 224 (Jae), 234 (Jones-Sanders), 244
(Junior), 254 (Laperle), 264 (Momaiya), 274 (Montgomery), 284 (Broadus/Moore), 294 (Nicaragua),
304 (Pryor), 314 (Paton) , 324 (Reynolds), 334 (Robinson), 344 (Shields), 354 (Sinclair), 364 (Siron),
374 (Spence), 384 (Steve), 394 (Stiles), 404 (Turner), 414 (Vance), 423 (Ward), 433 (Will), 442
(Winpisinger), 452 (Woingust). The court notes that some of the Workbooks included differing total
page numbers and others included lists of credit counselors.
UST 459 and 460 represent updated Workbooks. Among other changes, the title is “Financial
Information Workbook” and there is a disclosure that TADFA is a debt relief agency.
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The second page of the Workbook requested copies of various documents,
including pay stubs, deeds, promissory notes and deeds of trust, the last monthly
statement for every loan secured by the property, car titles, tax returns, legal
correspondence, foreclosure notices, court papers and foreclosure notices. The client
was instructed to retain originals of all documents and to send photocopies as
TADFA would retain copies in a “permanent bankruptcy file.” (UST 214, p. 2).
Photocopies of credit reports ordered by TADFA for the debtors were also requested.
The page following is akin to a Voluntary Petition, requesting personal information,
including a social security number and information regarding prior bankruptcy
cases. There are boxes to select whether the bankruptcy case is to be filed under
Chapter 7 or Chapter 13. (UST 214, p. 3).
On the Workbook’s “Schedule A: Real Property,” TADFA requested specific
information about, among other things, real estate ownership, loans and account
numbers and payment information, as well as whether monthly payments were
current. (UST 214, p. 4). 	Ms. Hayes was asked whether she wanted to retain the
listed property or surrender it. (UST 214, p. 4).
Page five of the Workbook sought information regarding vehicles. (UST 214,
p. 5). “Schedule B: Other Assets” is modeled after Official Bankruptcy Form B6B as
it requested information regarding personal property. (UST 214, pp. 6-7).
The Workbook’s “Schedule C: Priority creditors” advised that “Some taxes,
fines, penalties, bad checks, child support, alimony, and most student loans are not
dischargeable in a bankruptcy; however, the debt must be listed on the bankruptcy
schedules[.]” (UST 214, p. 8). Ms. Hayes was then requested to provide information
Case 07-00854 Doc 56 Filed 01/14/09 Page 6 of 26

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regarding federal and state taxes, child support, alimony and student loans and
directed to “Please list any other priority debts on a separate sheet.” (UST 214,
p. 8).
“Schedule D: Unsecured Creditors” of the Workbook sought information
regarding, to list a few examples, credit cards, personal loans, medical and dental
bills. (UST 214, p. 9-15). In underlined text, the following statement appeared:
“Failure to list the names and addresses of all of your creditors may result in an
additional charge to you for preparing your Bankruptcy petition.” (UST 214, p. 9).
In bold text, the following statement appeared: “Any debt not listed on these pages
may not be discharged by your bankruptcy.” (UST 214, p. 9).
The Workbook’s “Schedule E: Secured creditors” sought information about
creditors holding secured claims. (UST 214, p. 16). This legal concept was
explained to Ms. Hayes in bold print as follows: “(example: furniture accounts,
jewelry accounts, or any personal loans for which you pledged your car or
household goods as collateral).” (UST 214, p. 16). Again, Ms. Hayes was asked
whether she wanted to retain the listed property or surrender it. (UST 214, p. 16).
“Schedule F: Leases” requested information from Ms. Hayes as to autos or
apartments. (UST 214, p. 17). “Schedule G” requested information as to co-debtors,
“persons that jointly owe a debt with you as a co-signor, guarantor or authorized
user[.]” (UST 214, p. 18).
The Workbook’s “Schedule H” addressed income. (UST 214, p. 18). Specific
instruction as to whose information was required was provided. Thus, on page 18,
TADFA advised Ms. Hayes: “If you are married and not separated but are filing an
individual petition, you still must list your spouse’s income.” (UST 214, p. 18). On
page 19, “If you are married and not separated but you are filing an individual
petition, you still must list your spouse’s income.” (UST 214, p. 19). Workbook
“Schedule H” was separated by two sections, not-so-surprisingly titled “Schedule I:
Monthly Income” and “Schedule J: Monthly Expenses.” (UST 214, p. 19-20); see
Official Bankruptcy Forms B6I and B6J.
Case 07-00854 Doc 56 Filed 01/14/09 Page 7 of 26

12 Similar letters appear at UST 15 (Alam), 25 (Alston), 35 (Baens), 45 (Baker), 55 (Beck), 65
(Bennett), 75 (Bittinger), 85 (Capshaw), 95 (Cardoso), 105 (Castellanos), 115 (Dewarf), 125 (Domer),
135 (Durbin), 145 (Fazenbaker), 155 (Forker), 165 (Franklin), 175 (Garris), 185 (Goad), 195 (Green),
205 (Hardrick), 225 (Jae), 235 (Jones-Sanders), 245 (Junior), 255 (Laperle), 265 (Momaiya), 275
(Montgomery), 285 (Broadus/Moore), 295 (Nicaragua), 305 (Pryor), 315 (Paton), 325 (Reynolds), 335
(Robinson), 345 (Shields), 355 (Sinclair), 365,(Siron), 375 (Spence), 385 (Steve), 395 (Stiles), 405
(Turner), 415 (Vance), 424 (Ward), 434 (Will), 443 (Winpisinger), 453 (Woingust). In some instances,
TADFA advised the debtors of missing information required for the bankruptcy filing. UST 95
(Cardoso), 135 (Durbin), 385 (Steve).
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The Workbook’s “Statement of Financial Affairs” (UST 214, pp. 21-26) is
virtually identical to the Official Bankruptcy Form B7 (Statement of Financial
Affairs). It does not include questions 19 through 25 of the Official Bankruptcy
Form relating to partnerships, corporations, tax consolidation groups or pension
funds that are generally irrelevant in consumer bankruptcy cases.
The following month, on January 30, 2006, Uhre sent another letter to
Ms. Hayes. (UST 215). 	This form letter goes to TADFA clients who returned the
completed Workbook and “completed [the] bankruptcy plan payments due TADFA.”
(Tr. p. 52, l. 9-12). Therein, Ms. Hayes was advised as follows:
Please call your bankruptcy attorney listed below to schedule a
meeting and make arrangements for the preparation of your
bankruptcy petition. He has many years of bankruptcy experience and
will provide you with all necessary legal assistance for filing your
bankruptcy petition. After you have reviewed and signed the
bankruptcy petition, he will file it with the Bankruptcy Court. You
will need to pay any court filing fees directly to your attorney.
(UST 215). 12 “Your bankruptcy attorney” was listed by Uhre as Adam M. Freiman
(“Freiman”) of the Law Office of Sirody, Freiman and Feldman, P.A. (“Sirody
Firm”). (UST 215). The letter also informed her that the Workbook had been
forwarded to the Sirody Firm.
Ms. Hayes filed a petition initiating a bankruptcy case under Chapter 13 on
March 9, 2006. (Dkt. No. 1; UST 209). There are differences from the information
provided by Ms. Hayes in the Workbook (UST 214) to the Schedules and Statement
Case 07-00854 Doc 56 Filed 01/14/09 Page 8 of 26

13 This is true as to all of the Schedules and Statement of Financial Affairs filed by the
debtors as reflected by the summaries prepared by the UST. UST 18 (Alam), 28 (Alston), 38 (Baens),
48 (Baker), 58 (Beck), 68 (Bennett), 78 (Bittinger), 88 (Capshaw), 98 (Cardoso), 108 (Castellanos), 118
(Dewarf), 128 (Domer), 138 (Durbin), 148 (Fazenbaker), 158 (Forker), 168 (Franklin), 178 (Garris),
188 (Goad), 198 (Green), 208 (Hardrick), 228 (Jae), 238 (Jones-Sanders), 248 (Junior), 258 (Laperle),
268 (Momaiya), 278 (Montgomery), 288 (Broadus/Moore), 298 (Nicaragua), 308 (Pryor), 318 (Patton),
328 (Reynolds), 338 (Robinson), 348 (Shields), 358 (Sinclair), 368 (Siron), 378 (Spence), 388 (Steve),
398 (Stiles), 408 (Turner), 418 (Vance), 427 (Ward), 437 (Will), 446 (Winpesinger), 456 (Woingust).
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of Financial Affairs that appear on this court’s docket.13 (Dkt. No. 1; UST 210-211,
218). For one, Official Bankruptcy Form B6C (Schedule C. Property Claimed as
Exempt) was added. Freiman signed the Voluntary Petition. (Dkt. No. 1; UST
209). The portion of the Voluntary Petition requiring that a bankruptcy petition
preparer disclose its information was blank. Id
.
Question No. 9 (Payments related to debt counseling or bankruptcy) of
Ms. Hayes’ Statement of Financial Affairs disclosed the following payment
information for consultation concerning “relief under the bankruptcy law or
preparation of the petition in bankruptcy”:
TADFA 	02/06 	$1495.00
Adam M . Freiman, PA 	03/06 	$375.00 to atty from
TADFA per debtor’s
prepaid plan, $100
from client.
(Dkt. No. 1; UST 211).
Freiman’s “Disclosure of Compensation of Attorney for Debtor(s)” stated that
for legal services, he agreed to accept from Ms. Hayes $4,500.00. Prior to the filing
of the case, Freiman disclosed receipt of $975.00, $620.00 (sic) of which was received
from TADFA “per debtor’s prepaid plan” and the remaining $375.00 from
Ms. Hayes. Ms. Hayes was to be responsible for the balance to Freiman of
$3,525.00 by payments through her Chapter 13 Plan. (Dkt. No. 4; UST 212). Thus,
Ms. Hayes paid in excess of $5,000.00 for her Chapter 13 bankruptcy case, including
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14 According to TADFA, Ms. Hayes paid it $1,495.00. (UST 213). According to Freiman’s
Disclosure of Compensation, he charged Ms. Hayes an additional $4,500.00, $375.00 of which was
said to have come from Ms. Hayes and $620.00 from TADFA on behalf of Ms. Hayes. (Dkt. No. 4).
The filing fee at the time was $189.00. The balance to be paid through the Chapter 13 Plan is
incorrect as the amount received prior to the filing of the case should have been $995.00 rather than
$975.00. Further, the information on the Statement of Financial Affairs does not comport with
Freiman’s Disclosure of Compensation. Therefore, the court cannot calculate the exact amount Ms.
Hayes paid to TADFA and the Sirody Firm for her filing.
The court reviewed each of the debtors’ answers to Question 9 on the Statement of Financial
Affairs and the Disclosures of Compensation filed by the Sirody Firm. The court found numerous
inconsistencies between the answers on the Statements of Financial Affairs to the information
disclosed on the Disclosures of Compensation. Indeed, in some of the cases, TADFA was not disclosed
on the Statements of Financial Affairs. UST 81 (Capshaw), 111 (Dewarf), 221 (Jae), 261 (Momaiya),
361 (Siron), 401 (Turner). In the case of Thomas R. Pryor, Case No. 06-13245, the $1,000.00 paid to
TADFA was disclosed on the Disclosure of Compensation as a “membership credit.” UST 302.
Generally, the Sirody Firm disclosed TADFA’s contribution as pursuant to a debtor’s “prepaid plan.”
The impression given by this statement is that the payment is made pursuant to a legal services
agreement such as contained in some collective bargaining contracts. The fact is that the
arrangement seems far more akin to a sharing of compensation that is barred by § 504(a).
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the filing fee. 14 Ms. Hayes’ Amended Plan providing for 60 monthly payments of
$425.00 was confirmed by Order entered September 8, 2006. (Dkt. No. 20). The
case remains open.
As previously noted, Ms. Hayes’ experience was similar to that of the other
debtors. For the right of participation in TADFA’s “bankruptcy payment plan,” the
debtors paid to TADFA from $995.00 to $1,495.00. In the 45 cases at issue, all were
subsequently referred to the Sirody Firm. In all of the cases, the Sirody Firm input
information from the Workbooks into typed forms that were filed. The pivotal
query for this court is: What service did TADFA provide to these debtors in
exchange for the compensation it received?
Analysis
A. Debt Relief Agency Counts (Counts I and II)
Section 526, “Restrictions on debt relief agencies,” was added by the passage
of the 2005 Act and became effective as to cases filed on and after October 17, 2005.
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Critical to the application of § 526 and its counterparts (§§ 527 and 528) are the
definitions of the terms “assisted person,” “bankruptcy assistance” and “debt relief
agency.” The court agrees with the observation found in COLLIER ON BANKRUPTCY
¶ 526.01[3], p. 526-6 (15th ed. rev. 2008):
Although the expressed intent of Congress in enacting Section 526 and
related provisions was to improve the conduct of professionals and
others who assist consumer debtors with their bankruptcy cases, each
of these definitions contain imprecise language that create problems in
application (citations omitted).
Section 526(a) provides:
(a) A debt relief agency shall not–
(1) fail to perform any service that such agency informed an
assisted person or prospective assisted person it would provide
in connection with a case or proceeding under this title;
(2) make any statement, or counsel or advise any assisted person or
prospective assisted person to make a statement in a document filed in
a case or proceeding under this title, that is untrue and misleading, or
that upon the exercise of reasonable care, should have been known by
such agency to be untrue or misleading;
(3) misrepresent to any assisted person or prospective
assisted person, directly or indirectly, affirmatively or by
material omission, with respect to–
(A) the services that such agency will provide
to such person; or
(B) the benefits and risks that may result if
such person becomes a debtor in a case
under this title; or
(4) advise an assisted person or prospective assisted
person to incur more debt in contemplation of such person
filing a case under this title or to pay an attorney or
bankruptcy petition preparer fee or charge for services
performed as part of preparing for or representing a
debtor in a case under this title.
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15 This dollar amount was adjusted by the Judicial Conference of the United States to
$164,250.00 pursuant to 11 U.S.C. § 104(a) (change effective in three-year intervals).
16 See § 101(41).
17 The court notes that § 101(4A) is phrased in the disjunctive. It has purposefully omitted
discussion regarding document preparation and filing for its analysis with respect to § 110.
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The three pertinent definitions appear at § 101(3), (4A) and (12A) and, in
pertinent part, provide:
(3) The term “assisted person” means any person whose debts consist
primarily of consumer debts and the value of whose nonexempt
property is less than $150,000.00.15
(4A) The term “bankruptcy assistance” means any goods or services
sold or otherwise provided to an assisted person with the express or
implied purpose of providing information, advice, counsel, document
preparation, or filing, or attendance at a creditors' meeting or
appearing in a case or proceeding on behalf of another or providing
legal representation with respect to a case or proceeding under this
title.
(12A) The term “debt relief agency” means any person who provides
any bankruptcy assistance to an assisted person in return for the
payment of money or other valuable consideration, or who is a
bankruptcy petition preparer under section 110[.]
A person 16 may be rendered a “debt relief agency” if it provides any
“bankruptcy assistance” to an “assisted person” in return for the payment of money
or it is a petition preparer under § 110. It is without question that TADFA was at
the pertinent time a “debt relief agency” and now is a self-proclaimed “debt relief
agency.” (UST 459-461, 463-464).
TADFA provided “bankruptcy assistance.” Its service for those clients
pursuing the “bankruptcy option” was to provide information (the Workbook),
advice (telephone or in-person consultations) and counsel (“our attorneys,” Freiman
and the Sirody Firm). 17 As explained by Uhre, “We provide people when there
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18 The court again notes those over-the-limit debtors that the parties agreed were not
“assisted person[s].”
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doesn’t appear to be any other alternative with a bankruptcy option.” (Tr. 169, l.
22-23). That option, according to Uhre, entailed:
Well, we basically, after reviewing the financial information, go over
with the client the options that they have, the amount of dollars that
roughly it’s going to take if they were to set up a monthly payment
plan with the creditor or creditors, whatever the case may be, and look
at their situation to see if those amounts of money are available. I
think we spend a lot of time helping people understand their financial
situation and their financial situation as it relates to the numbers so to
speak. After that, if it appears to be absolutely not an option for them
to have the wherewithal to make a monthly payment or any other kind
of payment on their settlements that would work for them within a
time frame that makes sense, then we would sometimes discuss with
them the option of doing the bankruptcy, that that might be an
alternative that they would want to consider.
(Tr. 170, l. 1-17).
Well, we would tell them in a general way that we have a bankruptcy
program, the cost of which at the time here in question was
approximately $1,495 which includes the cost of providing the attorney
to provide the bankruptcy services for them; that they would need to
fill out some information on a financial information workbook, if you
would, I think is the term that's been used here today. We would order
credit reports for the client and then ask that they return that
information when they have completed it to us.
(Tr. 170, l. 17-25; Tr. 171, l. 1-5).
The “bankruptcy assistance” TADFA provided was to “assisted person[s]”
as the debtors’ debts consisted primarily of consumer debts and the value of their
nonexempt property was less than the statutory cap.18 The court was not swayed by
TADFA’s argument that a determination of whether a person is an “assisted
person” would force TADFA to engage in the unauthorized practice of law. The
court finds that TADFA employees did indeed delve into its clients’ financial
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situations and had the wherewithal to make an assessment of the financial
landscape. Tracey testified that:
Then in discussion we ask is this the only debt that they have. If it’s
not, then maybe they can’t afford to pay the debt back, so we do a
quick analysis of their debt as a whole and then look into whether a
bankruptcy would be beneficial to them.
(Tr. p. 32, l. 8-12).
Uhre testified that TADFA employees looked at completed Workbooks “to see
if any of the financial information had changed drastically from what they had
initially told us[.]” (Tr. p. 175, l. 9-15). In some cases, financial information missing
from the Workbook was requested by TADFA. (UST 95 (Cardoso), 135 (Durbin),
385 (Steve)). Although TADFA argues vehemently that the “assisted person”
analysis is complicated and complex, Uhre testified of his qualifications and
experience (Tr. p. 167-168), his grasp of complicated and complex financial
situations and the training he provided to his employees. (Tr. p. 182, l. 16-20) (In
response to a question regarding training of TADFA employees, Uhre responded:
“It’s the total understanding of everything and, as you well know, at Ginnie Mae I
was one of two people in charge of working out a $2 billion program that had
defaulted at the corporation and I was involved in workouts every single day
there.”). Further, without inquiry as to specific financial circumstances, TADFA
could not have steered its prospective debtors into its “bankruptcy option.”
The analysis as to who is an “assisted person” does not end here. Section
§ 526(a) uses the term “prospective assisted person” that is not defined. COLLIER ON
BANKRUPTCY ¶ 526.01[3], p. 526-6 (15th ed. rev. 2008) explains:
[T]he definition of the term ‘prospective assisted person’ is unclear.
Although the term is used several times throughout this section, the
term is not defined elsewhere in this section or elsewhere in the
Bankruptcy Code. It will be left to the courts to define the meaning of
the term.
Case 07-00854 Doc 56 Filed 01/14/09 Page 14 of 26

19 UST 13 is one example of many others of its kind. By this letter dated February 28, 2007,
to Mohammed S. Alam, Tracey, in pertinent part, wrote:
Thank you for requesting that The American Debt Free Association, Inc. (TADFA)
assist you with a Bankruptcy. Our attorneys have many years of bankruptcy
experience and will provide you with all necessary legal assistance for filing your
bankruptcy petition[.]
* * * *
Please fill out and complete the enclosed Bankruptcy information workbook and
return it to us as soon as possible. We can not proceed with your bankruptcy filing
until you have returned the workbook to us[.]
If any of your creditors are calling, tell them you are filing for bankruptcy and give
them the name and address of our organization[.]
(emphasis added.)
-15-
The court cannot reconcile the definition of “assisted person” with the lack of
definition of “prospective assisted person.” In two cases, Milavetz, Gallop &
Milavetz, P.A. v. United States, 541 F.3d 785 (CA8 2008), and McDermott v.
Derrick Hills (In re Grissett), 2008 WL 4553083 (BC E.D.Mich. October 08, 2008),
the terms are used interchangeably. The court finds for the purpose of this opinion
that a conversion from “prospective assisted person” to “assisted person” takes place
upon the transfer of compensation. Therefore, TADFA provided “bankruptcy
assistance” to “assisted persons” rendering it a “debt relief agency.”
Finding that TADFA falls within the scope of these consumer protection
measures, the court finds, under § 526(a)(3), that TADFA misrepresented to these
debtors its services as well as the benefits that may result if one became a debtor.
It led each and every one of its “bankruptcy option” clients to believe that it would
be filing the bankruptcy cases and that its attorneys, not an outside law firm, would
be assisting with same.19 Debtors Herbert Hardrick and Kimberly Montgomery
testified that they believed that they would be dealing with TADFA and not outside
counsel. (Tr. 78, 101). TADFA failed to admonish its clients pursuing the
“bankruptcy option” that the actual filing did not come without further cost, a
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material omission and blatant misrepresentation. Also, TADFA, through
ambiguous advertising and correspondence, dangled a “fresh start” before these
debtors. TADFA impressed upon these debtors that only a bankruptcy filing could
provide a benefit. Believing that that new beginning would be theirs after payment
of TADFA’s fee, they learned later that there was much more to the story. TADFA’s
classic bait-and-switch tactic is the very type of conduct that prompted Congress to
enact § 526 and its counterparts. See § 227, H.R. Rep. No. 109-31, 109th Cong., 1st
Sess. 17 (2005).
Section 526 addresses the restrictions upon a debt relief agency as well as the
remedies for violations. Sections 527 and 528 address requirements imposed upon
a debt relief agency. As to § 527 (Disclosures), the UST failed to meet his burden
that TADFA did not provide these debtors with the required disclosures. With
regard to § 528 (Requirements for debt relief agencies), TADFA failed to comply.
Section 528 provides:
(a) A debt relief agency shall–
(1) not later than 5 business days after the first date on which such
agency provides any bankruptcy assistance services to an assisted
person, but prior to such assisted person's petition under this title
being filed, execute a written contract with such assisted person that
explains clearly and conspicuously–
(A) the services such agency will provide to such assisted person;
and
(B) the fees or charges for such services, and the terms of
payment;
(2) provide the assisted person with a copy of the fully executed and
completed contract;
(3) clearly and conspicuously disclose in any advertisement of
bankruptcy assistance services or of the benefits of bankruptcy
directed to the general public (whether in general media, seminars or
specific mailings, telephonic or electronic messages, or otherwise) that
Case 07-00854 Doc 56 Filed 01/14/09 Page 16 of 26

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the services or benefits are with respect to bankruptcy relief under this
title; and
(4) clearly and conspicuously use the following statement in such
advertisement: “We are a debt relief agency. We help people file for
bankruptcy relief under the Bankruptcy Code.” or a substantially
similar statement.
(b)(1) An advertisement of bankruptcy assistance services or of the benefits of
bankruptcy directed to the general public includes–
(A) descriptions of bankruptcy assistance in connection with a chapter
13 plan whether or not chapter 13 is specifically mentioned in such
advertisement; and
(B) statements such as “federally supervised repayment plan” or
“Federal debt restructuring help” or other similar statements that
could lead a reasonable consumer to believe that debt counseling was
being offered when in fact the services were directed to providing
bankruptcy assistance with a chapter 13 plan or other form of
bankruptcy relief under this title.
(2) An advertisement, directed to the general public, indicating that the debt
relief agency provides assistance with respect to credit defaults, mortgage
foreclosures, eviction proceedings, excessive debt, debt collection pressure, or
inability to pay any consumer debt shall–
(A) disclose clearly and conspicuously in such advertisement that the
assistance may involve bankruptcy relief under this title; and
(B) include the following statement: “We are a debt relief agency. We
help people file for bankruptcy relief under the Bankruptcy Code.” or a
substantially similar statement.
TADFA did not execute a written contract with its “bankruptcy option”
clients. § 528(a)(1). Its letter (see n. 9, supra) cannot be regarded as such.
Accordingly, TADFA also did not provide to its clients a fully executed and
completed contract. § 528(a)(2). Its advertisements failed to clearly and
conspicuously disclose that its services were with respect to bankruptcy relief
(§ 528(a)(3)) and did not include the required statement regarding debt relief
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agencies. § 528(a)(4). Thus, similar violations occurred as to § 528(b) as to
TADFA’s internet presence.
TADFA’s recent attempted compliance with §§ 526, 527 and 528 does not
mitigate the damages sustained by these debtors; yet, the court acknowledges that
Uhre might have been misled by the ambiguity of the statute and the court should
take this into account in fixing sanctions. Having found that TADFA’s practices
during the pertinent period run afoul of §§ 526(a)(3) and § 528, the court will
consider appropriate damages and/or penalties under § 526.
TADFA raised the defense that §§ 527 and 528 allegedly restrict its First
Amendment right to free speech. Courts have addressed the overbreadth of the
debt relief agency provisions; however, those cases dealt with application of the
provisions as to attorneys. See generally Hersh v. U.S. ex rel Mukasey, __ F.3d ___,
2008 WL 5255905 (CA5 Dec. 18, 2008)(judgment of District Court reversed that
§ 526(a)(4) was unconstitutional); Milavetz, Gallop & Milavetz, P.A. v. United
States, 541 F.3d 785 (CA8 2008)(§ 526(a)(4) held substantially over-broad and
unconstitutional as applied to attorneys providing bankruptcy assistance to assisted
persons but § 528 passed constitutional muster as reasonably related to protecting
consumer debtors from deceptive advertising); Connecticut Bar Ass’n v. United
States, 394 B.R. 274 (D. Conn. 2008)(§ 526(a)(4) barring attorneys from advising
clients to incur more debt in contemplation of bankruptcy held in violation of the
First Amendment; application of § 528 to creditors’ attorneys was likewise wrong
but upheld the remaining provisions); Zelotes v. Adams, 363 B.R. 660 (D. Conn.
2007)(United States Trustee enjoined from enforcing § 526(a)(4) as to plaintiff
attorney); Olsen v. Gonzales, 368 B.R. 886 (D. Ore. 2007)(§ 526(a)(4) held to violate
attorney’s First Amendment rights). Whether §§ 527 and 528 unconstitutionally
restrict a non-lawyer’s First Amendment rights appears to be a question of first
Case 07-00854 Doc 56 Filed 01/14/09 Page 18 of 26

20 Inasmuch as the UST is the Plaintiff in this action, no further notice is required upon the
Attorney General pursuant to Rule 5.1(a) of the Fed. Rules of Civil Proc., made applicable to
bankruptcy cases by Fed. Rule of Bankruptcy Proc. 9005.1
-19-
impression. 20 Based on the reasoning of the above cases dealing with lawyers, the
court finds that the challenged provisions do not prohibit a substantial amount of
protected speech.
B. The Bankruptcy Petition Preparer Counts (Counts III-VII)
Section 110 was enacted to protect consumers from abuses by non-attorneys.
See In re Jolly, 313 B.R. 295, 300 (BC S.D. Iowa 2004) citing Consumer Seven Corp.
v. United States Trustee ( In re Fraga), 210 B.R. 812, 816-17 (B.A.P. CA9 1997).
The In re Jolly court set forth the rationale for the enactment of § 110 as follows:
Bankruptcy petition preparers not employed or supervised by any
attorney have proliferated across the country. While it is permissible
for a petition preparer to provide services solely limited to typing, far
too many of them also attempt to provide legal advice and legal
services to debtors. These preparers often lack the necessary legal
training and ethics regulation to provide such services in an adequate
and appropriate manner. These services may take unfair advantage of
persons who are ignorant of their rights both inside and outside the
bankruptcy system.
In re Jolly at 300 (quoting H.R. Rep. 103-835, 103rd Cong., 2nd Sess. at 56 (Oct.4,
1994)), U.S. Code Cong. & Admin. News 1994, pp. 3340, 3365).
Section 110(a) defines “bankruptcy petition preparer” and “document for
filing” as:
(1) “bankruptcy petition preparer” means a person, other than an
attorney for the debtor or an employee of such attorney under the
direct supervision of such attorney, who prepares for compensation a
document for filing; and
Case 07-00854 Doc 56 Filed 01/14/09 Page 19 of 26

21 In the case of In re Stone, 166 B.R. 269 (BC W.D. Pa.1994), the court found that a
bankruptcy petition preparer arrangement with an attorney admitted to practice in the jurisdiction
whereby counsel reviewed the prepared documents did not shield the non-attorney from civil
contempt liability for the continued unauthorized practice of law. The In re Stone case is
distinguishable because counsel did not file or sign the documents. See also In re Doser, 281 B.R. 292
(BC D. Idaho 2002), aff’d, 412 F.3d 1056, 304-5, 309-10 (CA9 2005) (Bankruptcy Court characterized
bankruptcy petition preparer’s representation of providing a “supervising attorney” as deceptive and
unfair and further discussed the dangers of using a workbook or questionnaire versus the official
forms).
-20-
(2) “document for filing” means a petition or any other document
prepared for filing by a debtor in a United States bankruptcy court or a
United States district court in connection with a case under this title.
Once determined that a person is indeed a bankruptcy petition preparer, what
follows are specific requirements as well as penalties for non-compliance.
Does § 110 apply to TADFA? The issue is whether the word “preparation”
applies only to the actual document that is filed with the court. If that were the
intention of Congress, then all parties similar to TADFA would need to do is limit
their work to the penultimate draft. The court finds that the intention of the
legislation was to endow “preparation” with a broader meaning than that.
The court did not find any case where a person worked in concert with
attorneys admitted to practice law in the relevant jurisdiction.21 However, courts
applied the definition of § 110(a) broadly in rendering a person a bankruptcy
petition preparer. See In re McGill, 2007 WL 1119939 (BC E.D. Tenn. Apr. 13,
2007); In re Reynoso, 477 F.3d 1117, 1123 (CA9 2007); In re Springs, 358 B.R. 236,
241 n.4 (BC M.D.N.C. 2006); In re Hennerman, 351 B.R. 143, 148-49 (BC D. Colo.
2006); In re Thomas, 315 B.R. 697, 703-04 (BC N.D. Ohio 2004); In re Jolly, 313
B.R. at 301 (BC S.D. Iowa 2004); In re Pillot, 286 B.R. 157 (BC C.D. Cal. 2002); In
re Willman, 1997 WL 781878 (BC E.D. Pa. Dec. 18, 1997); Ferm v. United States (In
re Crowe), 243 B.R. 43 (CA9 2000); In re Landry, 250 B.R. 441 (BC M.D. Fla. 2000);
In re Gaftick, 333 B.R. 177 (BC E.D.N.Y. 2005); In re Moore, 290 B.R. 287, 293 (BC
Case 07-00854 Doc 56 Filed 01/14/09 Page 20 of 26

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E.D.N.C. 2003); In re Moffett, 263 B.R. 805 (BC W.D. Ky. 2001); In re Farness, 244
B.R. 464 (BC D. Idaho 2000).
As demonstrated by the attached Appendix, the papers prepared by TADFA
tracked the papers required for a bankruptcy filing and were easily transferred to
the Schedules and Statement of Financial Affairs by the Sirody Firm. TADFA
opened the door to the bankruptcy process and then led these debtors inside that
process by assembling the material necessary, including ordering credit reports, to
enable the Sirody Firm to actually file the cases. The court finds no competent
evidence of any other function. (“We assemble the information that they return to
us together with the credit reports and any other pertinent financial information
and forward it to the attorneys who are going to be handling that particular
individual's case.” (Tr. 171, l. 20-24)).
It is abundantly clear to the court that TADFA’s “bankruptcy option” was
developed by Uhre in an attempt to escape the requirements of § 110. TADFA
solicited those in financial peril, advised and steered most of them who could afford
its fees toward bankruptcy, dangled “benefits” before them and then sold, for a hefty
price, a Workbook that was the functional equivalent to bankruptcy Schedules and
Statements of Financial Affairs.
Therefore, inductive reasoning (i.e., “If it looks like a duck, swims like a duck
and quacks like a duck, then it probably is a duck.”) leads this court to find that
TADFA is indeed a bankruptcy petition preparer under § 110 and subject to that
section’s requirements and penalties. A contrary finding would undoubtedly
frustrate the legislative purpose of § 110.
The court requests that the parties submit a proposed schedule within 15 days from the
entry of this Memorandum of Decision for the filing of memoranda with respect to the
damages and/or penalties to be awarded under § 526(c)(2) and § 110 in these cases. The
court may schedule a hearing to assist in its determination of the award.
Case 07-00854 Doc 56 Filed 01/14/09 Page 21 of 26

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cc: 	Jeanne M. Crouse
Assistant U.S. Trustee
6305 Ivy Lane, Suite 600
Greenbelt, MD 20770
Mark A. Neal
Assistant U.S. Trustee
101 W. Lombard Street, Suite 2625
Baltimore, MD 21201
The American Debt Free Association, Inc.
c/o Curtis B. Uhre, Registered Agent
11 N. Washington Street, Suite 210
Rockville, MD 20850
The American Debt Free Association, Inc.
c/o Curtis B. Uhre
Registered Agent77
S. Washington Street, Suite 306
Rockville, MD 20852
Brian E. Barkley, Esq.
Barkley & Kennedy, Chtd.
51 Monroe Street, Suite 1407
Rockville, MD 20850
Jeffrey M. Sirody, Esq
Adam M. Freiman, Esq.
Sirody, Freiman & Feldman, P.C.
1777 Reisterstown Road, Suite 360E
Baltimore, MD 21208
Case 07-00854 Doc 56 Filed 01/14/09 Page 22 of 26

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Sirody, Freiman & Feldman, P.C.
c/o Jeffrey M. Sirody, Registered Agent
1777 Reisterstown Road, Suite 360E
Baltimore, MD 21208
End of Memorandum Decision
Case 07-00854 Doc 56 Filed 01/14/09 Page 23 of 26

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Appendix
TADFA’s Workbook 	Official Bankruptcy Forms
“Schedule A: Real Property” requests
information as to real property owned or
sold/transferred in the past two years.
Information requested includes address, date of
purchase, title, payment, current value,
intention as to retention/surrender and loans.
“Schedule A - Real Property” (Form B6A)
requests descriptions and locations of real
property, the nature of the debtor’s interest in
same, whether the property is owned
individually, jointly or community, current
value and amount of secured claims. See also
“Schedule D - Creditors Holding Secured
Claims” (Form B6D).
The “Automobiles/Trucks” page requests
information regarding motor vehicles, including
make, model, year, mileage, purchase price,
date of purchase, title, loans, payments and
intention as to retention/surrender.
“Schedule B - Personal Property” (Form B6B),
question 25, requests descriptions and locations
of automobiles, trucks, trailers, and other
vehicles and accessories, whether the property
is owned individually, jointly or community and
current value.
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“Schedule B: Other Assets” requests
information as to cash on hand, checking
account balances, savings account balances,
names of banks/credit unions, security deposits,
pending tax refunds, retirement funds, life
insurance, stocks/securities/business interests,
burial plots, time shares, money owed to the
debtor(s), pending lawsuits, jewelry, household
furnishings and clothing.
“Schedule B - Personal Property” (Form B6B)
requests details as to (1) cash on hand; (2)
checking, savings or other financial accounts,
certificates of deposit or shares in banks,
savings and loan, thrift, building and loan, and
homestead associations, or credit unions,
brokerage houses, or cooperatives; (3) security
deposits with public utilities, telephone
companies, landlords, and others; (4) household
goods and furnishings, including audio, video,
and computer equipment; (5) books; pictures
and other art objects; antiques; stamp, coin,
record, tape, compact disc, and other
collections or collectibles; (6) wearing apparel;
(7) furs and jewelry; (8) firearms and sports,
photographic, and other hobby equipment; (9)
interests in insurance policies; (10) annuities;
(11) interests in an education IRA as
defined in 26 U.S.C. § 530(b)(1) or under
a qualified State tuition plan as defined in
26 U.S.C. § 529(b)(1); (12) interests in IRA,
ERISA, Keogh, or other pension or profit
sharing plans; (13) stock and interests in
incorporated and unincorporated businesses;
(14) interests in partnerships or joint
ventures; (15) government and corporate bonds
and other negotiable and nonnegotiable
instruments; (16)accounts receivable; (17)
alimony, maintenance, support,
and property settlements to which the
debtor is or may be entitled; (18) other
liquidated debts owed to debtor including tax
refunds; (19) equitable or future interests, life
estates, and rights or powers exercisable
for the benefit of the debtor; (20) contingent and
noncontingent interests in estate of a decedent,
death benefit plan, life insurance policy, or
trust; (21) other contingent and unliquidated
claims of every nature, including tax
refunds, counterclaims of the debtor, and
rights to setoff claims; (22) patents, copyrights,
and other intellectual property; (23) licenses,
franchises, and other general intangibles; (24)
customer lists or other compilations containing
personally identifiable information provided to
the debtor by individuals in connection with
obtaining a product or service from the debtor
primarily for personal, family, or household
purposes; (25) automobiles, trucks, trailers, and
other vehicles and accessories;
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(26) boats, motors, and accessories; (27) aircraft
and accessories; (28) office equipment,
furnishings, and supplies; (29) machinery,
fixtures, equipment, and supplies used in
business; (30) inventory; (31) animals; (32)
crops - growing or harvested; (33) farming
equipment and implements; (34) farm supplies,
chemicals, and feed; and (35) other personal
property of any kind not already listed.
“Schedule C: Priority creditors” requests
information as to tax, child support, alimony,
and student loans.
“Schedule E - Creditors Holding Unsecured
Priority Claims” (Form B6E).
“Schedule D: Unsecured Creditors” requests
information as to creditors holding unsecured
claims such as “credit cards, personal loans,
medical and dental bills, magazine clubs, health
club dues, insurance bills, etc.”
“Schedule F - Creditors Holding Unsecured
NonPriority Claims” (Form B6F).
“Schedule E: Secured creditors” requests
information as to creditors holding secured
claims (“loans for which you pledged your car or
household goods as collateral.”).
“Schedule D - Creditors Holding Secured
Claims” (Form B6D).
“Schedule F: Leases” requests information as to
automobile leases and apartment leases.
“Schedule G - Executory Contracts and
Unexpired Leases” (Form B6G).
“Schedule G” seeks information as to co-debtors. 	“Schedule H - Codebtors” (Form B6H).
“Schedule H” seeks personal information (age,
marital status, occupation, employment
information, dependents).
“Schedule I - Current Income of Individual
Debtor(s)” (Form B6I).
“Schedule I: Monthly Income” is modeled after
the Official Bankruptcy Form.
“Schedule I - Current Income of Individual
Debtor(s)” (Form B6I).
“Schedule J: Monthly Expenses,”is modeled
after the Official Bankruptcy Form.
“Schedule J - Current Expenditures of
Individual Debtor(s)” (Form B6J).
TADFA’s “Statement of Financial Affairs” and the Official Bankruptcy Form are virtually
identical. The exceptions are that TADFA’s form omits question 16, Spouses and Former Spouses;
adds a question 19 seeking information about charging more that $1,000.00 on a credit card within
the past three months; and omits questions 19 through 25 that appear on the Official Bankruptcy
Form.
Case 07-00854 Doc 56 Filed 01/14/09 Page 26 of 26