Burrage v. Homecomings Financial Network Inc. et al

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

Russ Kendig
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
IN RE: ) CHAPTER 13
)
LINDA K. BURRAGE, ) CASE NO. 03-66692
)
Debtor. ) ADV. NO. 08-6091
)
LINDA K. BURRAGE, ) JUDGE RUSS KENDIG
)
Plaintiff, )
)
Vv. ) MEMORANDUM OF OPINION
) (NOT INTENDED FOR
HOMECOMINGS FINANCIAL ) PUBLICATION)
NETWORK, INC.), et al., )
)
Defendants. )

On June 3, 2010, Attorney JoAnn P. Hoard, counsel for plaintiff-debtor Linda K.
Burrage, filed an amended motion to withdraw as counsel. Plaintiff-debtor opposed withdrawal
and filed responses on June 22, 2010 and July 13, 2010. The court conducted a hearing on July
21, 2010, attended by JoAnn P. Hoard, Linda K. Burrage, and Joel E. Sechler, counsel for
Defendant Homecomings Financial Network, Inc.

The court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1334 and the general
order of reference entered in this district on July 16, 1984. Venue in this district and division is

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proper pursuant to 28 U.S.C. § 1409. This is a core proceeding under 28 U.S.C. § 157(b)(2)(O).
The following constitutes the court’s findings of fact and conclusions of law pursuant to Federal

Rule of Bankruptcy Procedure 7052.

This opinion is not intended for publication or citation. The availability of this opinion,
in electronic or printed form, is not the result of a direct submission by the court.

FACTS

In 2003, Debtor filed a chapter 13 petition and was represented by attorney J ohn C.
O’Donnell. Debtor’s plan, confirmed on April 22, 2004, proposed to cure the mortgage default
and maintain regular monthly payments on the mortgage, in addition to providing a distribution
to other creditors. On October 16, 2007, the court entered an order declaring Debtor’s mortgage
current. Debtor received a discharge on November 14, 2007. The case was subsequently closed.

On February 12, 2008, Debtor, represented by attorney Deborah L. Mack, filed a motion
to reopen her case. After the case was reopened, Debtor instituted this adversary proceeding with
the filing of a complaint on August 8, 2008. The complaint contained seven counts, all arising
from defendants’ alleged failure to treat her mortgage as current pursuant to the court order.

On April 1, 2009, Attorney Deborah L. Mack moved to withdraw as counsel for debtor,
alleging that her client was not satisfied with her services and had contacted the court contending
Ms. Mack was unprofessional and unethical. The motion was granted, without objection, on
April 30, 2009. On April 28, 2009, Morris Laatsch entered an appearance on behalf of debtor.
On October 6, 2009, he filed a motion to withdraw as counsel. The breakdown in the
relationship occurred when he believed he had authority to settle the matter, submitted a proposal
to opposing counsel, only to have his client object. Debtor filed a response to his motion to
withdraw. Subsequently, JoAnn P. Hoard entered a notice of appearance on Debtor’s behalf,
dated November 4, 2009. The court thereafter granted Mr. Laatsch’s motion to withdraw.

Ms. Hoard filed an amended motion with withdraw as counsel on June 3, 2010, alleging
her client found her representation to be “inadequate.” Ms. Hoard alleges that Debtor frequently
changes her mind and is uncooperative. Debtor responded. It is apparent from her response that
communication problems exist between she and Ms. Hoard. However, Debtor does not consent

to the withdrawal.

At the hearing on July 21, 2010, Debtor informed the court she had an appointment with
counsel on July 23, 2010. Debtor was instructed to contact the court following the appointment
to advise the court if she was able to obtain alternate representation. Debtor complied, informing

the court counsel would not agree to represent her in this matter.

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LAW AND ANALYSIS

The local civil rules for the Northern District of Ohio, which sets the admission standards
for attorneys in the district, provide that when counsel seeks to withdraw:

The attorney of record may not withdraw, nor may any
other attorney file an appearance as a substitute for the
attorney of record, without first providing written notice
to the client and all other parties and obtaining leave of
Court. Attorneys from the same firm may file and serve
a notice of appearance or substitution for the attorney of
record without obtaining leave of Court.

Loc. Civ. R. 83.9. It is clear from the record that written notice was provided Debtor. First, the
amended motion to withdraw was served on Debtor. Second, Debtor admits that Ms. Hoard
wanted her to sign a document authorizing the withdrawal, which Debtor refused. (Debtor’s

First Resp., p. 1).

The decision to grant or deny a motion to withdraw as counsel is within the discretion of
the court. U.S. Sec. and Exch. Comm’n v. Merklinger, 2009 WL 3498721 (E.D. Mich. 2009)
(unpublished) (citing U.S. v. Iles, 906 F.2d 1122, 1130 n. 8 (6" Cir. 1990)). Merklinger suggests
four considerations a court should examine in determining a motion to withdraw:

(1) the timeliness of the motion, (2) the adequacy of the
court's inquiry into the matter, (3) the extent of the con-
flict between the attorney and client and whether it was so
great that it resulted in a total lack of communication pre-
venting an adequate defense, and (4) the balancing of these
factors with the public's interest in the prompt and efficient
administration of justice.

Merklinger at *2 (citing U.S. v. Mack, 258 F.3d 548, 556 (6" Cir. 2001)). The court finds
application of those factors awkward on these facts. The four considerations have generally been
applied in the context of withdrawal of defense counsel for indigents in criminal cases. See, e.g.,
Mack, 258 F.3d 548; U.S. v. Vasquez, 560 F.3d 461 (6" Cir. 2009). Consequently, it is not

particularly useful in this context.

Attorneys admitted to the bar in the State of Ohio are governed by the Ohio Rules of
Professional Conduct, (hereafter “Rules”) adopted by the Ohio Supreme Court on February 1,
2007. Rule 1.16(b) of the Ohio Rules of Professional Conduct outlines when an attorney may
withdraw from representation and is useful as a guide on the present facts. The rule provides:

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(b) Subject to divisions (c), (d), and (e) of this rule, a
lawyer may withdraw from the representation of a
client if any of the following applies:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

withdrawal can be accomplished without
material adverse effect on the interests of
a client;

the client persists in a course of action
involving the lawyer’s services that the
lawyer reasonably believes is illegal or
fraudulent,

the client has used the lawyer’s services to
perpetrate a crime or fraud;

the client insists upon taking action that the
lawyer considers repugnant or with which
the lawyer has a fundamental disagreement;

the client fails substantially to fulfill an obli-
gation, financial or otherwise, to the lawyer
regarding the lawyer’s services and has been
given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;

the representation will result in an unreasonable
financial burden on the lawyer or has been ren-
dered unreasonably difficult by the client;

the client gives informed consent to the termina-
tion of the representation;

the lawyer sells the law practice in accordance with
Rule 1.17;

other good cause for withdrawal exists.

Based on the information provided in the motion and Debtor’s responses, the court finds
several grounds to grant the motion to withdraw. First, with Ms. Hoard’s cooperation, the
withdrawal can be accomplished without material adverse effect on Debtor under 1.16(b)(1).
Although a trial is scheduled in September, defendant filed a motion requesting a brief
continuance of the trial. A continuance would provide Debtor additional time to collect her

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client file and attempt to obtain alternate counsel.

Under prong (6), there are grounds to find that representation has been rendered
unreasonably difficult by Debtor. Ms. Hoard also claims Debtor “repeatedly changes her mind
regarding settlement/discovery issues for trial and refuses to cooperate regarding legal and
professional issues.” (Am. M. Withdraw, p. 1.) The court takes note that this is a similar
problem identified by Mr. Laatsch in his motion to withdraw. It is also evident in two exhibits
attached to Debtor’s first response to the motion to dismiss. (Debtor’s First Resp., Exh. A and
Exh. B.) In the letters, dated two weeks apart in March 2010, Debtor outlines her demand, which
changes over the course of the two weeks. A catalyst for the change in demand is not evident.

At the time Debtor wrote the letters, the case had been pending for over eighteen months — more

than ample time to determine the demands.

Finally, there are multiple items which could support withdrawal under 1.16(b)(9). Ms.
Hoard cites irreconcilable differences generally and also claims her client finds her “to be
inadequate in her representation.” (Am. M. Withdraw, p. 1). This is confirmed by Debtor, who
states that “I am too busy and I should not have to come to your office without an appointment
because your work is inadequate.” (Debtor’s First Response to Am. M. Dism., Exh. G.) The
loss of a client’s confidence is a severe impediment to a successful attorney-client relationship.

In turn, Debtor alleges that Ms. Hoard “treats people differently according to their social
economic status.” (Debtor’s First Resp. to Am. M. Withdraw, p. 1). She alleges Ms. Hoard and
counsel for defendant extended this case when she “requested they settle the case.” (Id. at 2).
Ms. Hoard states that Debtor either “misunderstand[s her] or refuse[s] to cooperate.” (Debtor’s
First Response, Exh. H.) There is clearly a break-down in communication between Debtor and
her counsel. Review of Debtor’s responses, and the attached exhibits, suggests there is also
confusion about the fee agreement and fees charged and whether Ms. Hoard was to represent

Debtor in court.

The sum of these problems in the attorney-client relationship between Ms. Hoard and
Debtor indicate that withdrawal should be permitted. It is an undesirable result. First, Debtor
does not actually oppose withdrawal and admits she refused to sign a document allowing Ms.
Hoard to withdraw. Also, Debtor has not been able to retain other counsel and it is possible that
she will end up proceeding pro se. The court has no confidence that Debtor is prepared to
represent herself in this matter. However, in spite of these facts, when the attorney-client
relationship appears irreversibly broken, it is not in the best interest of the parties to force a non-
working relationship. Consequently, the court finds the motion to withdraw to be well-taken.

Attorney Hoard is instructed to assure that Debtor has a complete copy of her file and to

cooperate with any reasonable requests from future counsel. Unless counsel is obtained, Debtor
is deemed to be representing herself pro se. Attached is the court’s notice to pro se litigants.

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An order granting the motion shall be entered immediately.

# it it

Service List:

JoAnn P Hoard
One Marion Avenue, Suite 103
Mansfield, OH 44903

Joel Everett Sechler
Carpenter & Lipps, LLP
280 North High Street
280 Plaza Suite 1300
Columbus, OH 43215

Linda K. Burrage
320 Home Ave.
Mansfield, OH 44902

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