Scott v. United States Trust ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: KEVIN J. DOSER; In re: 
LAURA E. DOSER,
No. 03-35411
JUDITH M. SCOTT,
Appellant,  D.C. No.
CV-02-00327-BLW
v. OPINION
UNITED STATES TRUSTEE,
Appellee.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
November 1, 2004—Seattle, Washington
Filed June 17, 2005
Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
7243
7246 IN RE: DOSER
COUNSEL
Charles F. Vihon, Western Springs, Illinois, for respondent-
appellant Judith M. Scott.
R. Craig Green (briefed), Daniel Meron (argued), Department
of Justice, Office of the General Counsel, Executive Office
for U.S. Trustees, Washington, D.C., for movant-appellee
United States Trustee.
IN RE: DOSER 7247
OPINION
RAWLINSON, Circuit Judge:
We hold today that when enacting 11 U.S.C. § 110,1 Con-
gress acted within its power under Article I, section 8, clause
4 of the United States Constitution. We further hold that § 110
is not unconstitutionally vague or overbroad and that it does
not violate the First Amendment. Finally, we affirm the bank-
ruptcy court’s findings that Judith Scott violated § 110 by
engaging in deceptive or unfair conduct and by charging
excessive fees.2 However, we express no opinion on whether
Scott engaged in the unauthorized practice of law, whether the
unauthorized practice of law itself is a violation of § 110, or
whether the unauthorized practice of law constitutes fraudu-
lent, deceptive or unfair conduct under § 110.
I
BACKGROUND
A. Facts
Appellant Judith Scott is a franchisee of We The People
Forms and Service Centers USA, Inc. (We the People or
Franchisor).3 Scott is not an attorney, but is a bankruptcy peti-
1
11 U.S.C. § 110 has recently been amended. See Pub. L. No. 109-8,
§ 221, 119 Stat. 23, 59-62 (April 20, 2005). The amendments do not affect
our analysis.
2
Although Scott did not challenge the bankruptcy court’s holding that
she engaged in deceptive or unfair practices or that she charged an exces-
sive fee, we may affirm on any ground supported by the record. See
Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1223 (9th Cir. 1999) (cita-
tion omitted).
3
According to its website, We The People franchisees prepare legal doc-
uments and provide general legal information to assist individuals who
wish to represent themselves pro se in certain types of legal proceedings.
See www.wethepeopleusa.com. (last visited 06/06/05).
7248 IN RE: DOSER
tion preparer (BPP) within the meaning of 11 U.S.C. § 110.4
Kevin and Laura Doser’s bankruptcy petition under Chapter
7 of the Bankruptcy Code was prepared by Scott. When a cus-
tomer decides to use Scott’s services, the customer signs a
“purchase order,” which the Dosers did. The customer must
pay the “purchase fee” up front. Scott charges a flat fee, set
by the Franchisor.
Once the customer has signed the purchase order and paid
the fee, Scott provides the customer with certain materials,
including a “Workbook,” which contains questions for the
customer to answer regarding the customer’s assets, liabilities
and financial affairs. According to Scott, it is her understand-
ing that this Workbook seeks the same information as does
the official bankruptcy petition forms, but is “simpler to
answer.” Once the customer has answered the questions, Scott
checks the information for “completeness and legibility.”
Scott then faxes the document to a processing center in Cali-
fornia operated by the Franchisor. The information is trans-
ferred to the required bankruptcy forms and e-mailed back to
Scott, who prints a hard copy for the customer to sign. Scott
then files the paperwork with the court and mails a copy to the
customer.
In addition to the Workbook, Scott provides customers with
a publication entitled “Bankruptcy Overview—Chapter 7
Idaho” (the Overview). The Overview, which is prepared by
the Franchisor, contains a general discussion of Chapter 7 law
and procedure, and offers helpful tips on representing oneself
in bankruptcy proceedings. The Overview contains a question
and answer section, including answers to some fairly specific
technical questions. Finally, the Overview lists exemptions
under Idaho law and the possible amount of the listed exemp-
tions.
4
“ ‘[B]ankruptcy petition preparer’ means a person, other than an attor-
ney or an employee of an attorney, who prepares for compensation a docu-
ment for filing.” 11 U.S.C. § 110(a)(1).
IN RE: DOSER 7249
The Overview was reviewed and approved by John Con-
nolly, an Idaho attorney employed by We the People, who
acts as the supervising attorney for Scott’s business. The
Overview informs customers that they “enjoy the right, as a
We the People customer, to chat with our Supervising Attor-
ney, at no additional cost to you.” Scott maintains that she
informs her customers that the supervising attorney can only
answer “general,” not “specific” legal questions. Scott pays a
monthly fee of $200 to We the People for Mr. Connolly’s ser-
vices.
B. Procedural History
After the Dosers’ bankruptcy petition was filed, the United
States Bankruptcy Court for the District of Idaho issued a sua
sponte Order to Show Cause (OTC) why Scott should not be
found in violation of 11 U.S.C. § 110 with respect to the
nature of the services she provided and the amount of com-
pensation she received. The court held: (1) the OTC proce-
dure satisfied due process; (2) Scott engaged in unfair and
deceptive acts; (3) Scott engaged in the unauthorized practice
of law; (4) Scott collected a fee for filing the petition in viola-
tion of law; and (5) the fee charged by Scott was excessive.
In re Doser, 281 B.R. 292, 301, 303, 306, 310, 312, 314
(Bankr. D. Idaho 2002). The bankruptcy court fined Scott $10
for money received for filing the petition, and reduced Scott’s
fee by $114. Id. at 319.
Scott appealed the bankruptcy court’s decision to the
United States District Court for the District of Idaho. In addi-
tion to contesting the findings of the bankruptcy court, Scott
also challenged the constitutionality of 11 U.S.C. § 110 as
beyond the scope of Congress’s power to regulate under the
Bankruptcy Clause. Scott also attacked § 110 as being vague,
overbroad and violative of Scott’s due process and First
Amendment rights. The district court denied Scott’s appeal. In
re Doser, 292 B.R. 652 (D. Idaho 2003).
7250 IN RE: DOSER
Scott’s present appeal raises three issues. Scott first chal-
lenges the district court’s holding that § 110 is within Con-
gress’s power under the Bankruptcy Clause. Scott’s second
challenge is to the district court’s holding that § 110 is not
vague, overbroad or violative of Scott’s First Amendment
rights. Finally, Scott challenges the district court’s holding
that Scott engaged in the unauthorized practice of law.5
II
STANDARD OF REVIEW
“We independently review the bankruptcy court’s determi-
nations and do not give deference to the district court.” Taub
v. Weber, 366 F.3d 966, 968 (9th Cir. 2004) (citation omit-
ted). The bankruptcy court’s conclusions of law are reviewed
de novo, and its findings of fact are reviewed for clear error.
United States v. Fowler (In re Fowler), 394 F.3d 1208, 1212
(9th Cir. 2005). “A challenge to the constitutionality of a stat-
ute also is reviewed de novo.” In re Adams, 214 B.R. 212,
214 (9th Cir. B.A.P. 1997) (citation omitted).
III
DISCUSSION
A. 11 U.S.C. § 110 is within Congress’s Article I
Powers
[1] Article I, Section 8, Clause 4 of the United States Con-
stitution grants Congress the authority “to establish . . . uni-
form laws on the subject of Bankruptcies.” U.S. Const., art.
I, § 8, cl. 4. Congress is also bestowed the power to “make all
Laws which shall be necessary and proper for carrying into
5
Scott does not challenge on appeal the reduction of her fees, or the con-
clusion that she engaged in fraudulent, deceptive, or unfair conduct.
IN RE: DOSER 7251
Execution” its granted authority. U.S. Const., Art. I, § 8, cl.
18.
[2] Section 110 was added to the Bankruptcy Code to
create a set of standards and accompanying penalties to regu-
late bankruptcy petition preparers, who are not employed or
supervised by attorneys and who had proliferated across the
country, often taking advantage of poor and non-English
speaking debtors. 140 Cong. Rec. H10,770 (October 4, 1994).
Scott contends that § 110 exceeds the scope of Congress’s
enumerated power under the Bankruptcy Clause. Scott relies
on language from the Supreme Court’s decision in Northern
Pipeline Construction Co. v. Marathon Pipe Line Co., 458
U.S. 50, 71 (1982), which states that “the restructuring of
debtor-creditor relations . . . is at the core of the federal bank-
ruptcy power . . . .” However, Scott’s reliance on Northern
Pipeline is misplaced. That case dealt with the constitutional-
ity of granting bankruptcy judges the power to hear cases gen-
erally within the ambit of Article III courts, and not with
Congress’s power under the Bankruptcy Clause to enact bank-
ruptcy laws. See Northern Pipeline, 458 U.S. at 52.
The quoted statement was made in the context of resolving
whether the Bankruptcy Reform Act of 1978’s broad grant of
jurisdiction to bankruptcy courts “unconstitutionally con-
ferred Article III judicial power” upon non-Article III judges.
Id. at 56-57. In holding the Bankruptcy Reform Act unconsti-
tutional, the Supreme Court characterized the Act as contain-
ing “unwarranted encroachments upon the judicial power of
the United States, which our Constitution reserves for Article
III courts.” Id. at 84. The encroachment conclusion flowed
from the jurisdictional grant of authority to bankruptcy courts
to decide “suits to recover accounts, controversies involving
exempt property, actions to avoid transfers and payments as
preferences or fraudulent conveyances, and causes of action
owned by the debtor at the time of the petition for bankruptcy
. . . [including] claims based on state law as well as those
7252 IN RE: DOSER
based on federal law.” Id. at 54 (citation omitted). Critical to
the Court’s conclusion was that the bankruptcy court’s juris-
diction was co-extensive with that of a district court. Id. at 54,
n.3.
[3] Nowhere in Northern Pipeline did the Court limit Con-
gress’s substantive power under the Bankruptcy Clause to the
restructuring of debtor-creditor relations. In fact, the scope of
Congress’s power under the Bankruptcy Clause has been rec-
ognized as broad. See Blanchette v. Conn. Gen. Insur. Corps.,
419 U.S. 102, 154 (1974). “From the beginning, the tendency
of legislation and of judicial interpretation has been uniformly
in the direction of progressive liberalization in respect of the
operation of the bankruptcy power.” Continental Ill. Nat’l
Bank & Trust Co. of Chicago v. Chicago, R.I. & P. Ry. Co.,
294 U.S. 648, 668 (1935).
[4] Use of the expansive power is targeted toward affording
debtors a fresh start. See Sliney v. Battley (In re Schmitz), 270
F.3d 1254, 1258 (9th Cir. 2001). Before a debtor can seek that
fresh start, however, the debtor must first file a petition with
the clerk of the court. 11 U.S.C. § 302. The filing of the peti-
tion in bankruptcy is significant because it “triggers an auto-
matic stay of actions against the debtor, the creation of an
estate, and the appointment of a trustee.” Leonard v. St. Rose
Dominican Hosp. (In re Majewski), 310 F.3d 653, 656 (9th
Cir. 2002) (citation omitted). “The petition is essential to the
proper operation of the bankruptcy process, and all parties
suffer if a petition is improperly prepared.” In re Moore, 283
B.R. 852, 857 (Bankr. E.D.N.C. 2002).
[5] Because of the importance of the petition and schedule
in the bankruptcy process, we hold that it is within the mean-
ing of “the subject of Bankruptcy” and within Congress’s
power to pass uniform laws governing those persons wishing
to prepare such documents. Even if not squarely within the
meaning of “the subject of Bankruptcies,” passing uniform
laws for the protection of debtors during the process of pre-
IN RE: DOSER 7253
paring the bankruptcy petition is eminently “necessary and
proper” to effectuate Congress’s power under the Bankruptcy
Clause.
B. Section 110 is not vague or overbroad and does not
violate Scott’s First Amendment rights.
[6] Scott contends that subsections 110(h), 110(i), and
110(j) are vague and overbroad because they fail to provide
adequate notice of the conduct to be sanctioned or to provide
guidance to a court which must enforce the mandates of the
statute. As such, Scott argues that the statute violates her First
Amendment rights. A statute is vague if “men of common
intelligence must necessarily guess at its meaning and differ
as to its application.” United States v. Hugs, 384 F.3d 762,
768 (9th Cir. 2004) (citation omitted). The statute defines a
bankruptcy petition preparer as “a person, other than an attor-
ney or an employee of an attorney, who prepares for compen-
sation a document for filing.” 11 U.S.C. § 110(a)(1). Thus, it
is clear to whom the provisions of the statute apply and any-
one performing the services of a BPP are on notice of what
conduct is forbidden by statute.
[7] The specific subsections of which Scott complains are
similarly direct. Scott contends that subsection 110(h) is
vague because the statute contains no frame of reference
against which to measure what fee would be excessive. Sub-
section 110(h)(2) states that “[t]he court shall disallow . . . any
fee . . . found to be in excess of the value of services rendered
for the documents prepared.” A person of ordinary intelli-
gence would know when a fee is excessive when compared to
the limited services that may be permissibly performed by a
BPP. Because a BPP can perform “only the modest service of
transcribing or typing bankruptcy forms that the debtor alone
must prepare without assistance,” a BPP may only charge
“what professional typists or word processors would charge.”
In re Bush, 275 B.R. 69, 84, 85 (Bankr. D. Idaho 2002).
7254 IN RE: DOSER
[8] Subsection 110(i) provides for damages if a bankruptcy
petition preparer engages in “any fraudulent, unfair, or decep-
tive act . . . ” 11 U.S.C. § 110(i)(1). Subsection 110(j) allows
the trustee, a creditor, or the United States Trustee to enjoin
a bankruptcy petition preparer from engaging in “any other
fraudulent, unfair or deceptive conduct . . . .” Id. at § 110(j)(2)
(A)(i)(III). Scott criticizes these subsections as vague because
no guidance is given to help identify what would constitute
fraudulent, unfair or deceptive acts or conduct. However, the
terms “fraudulent,” “unfair,” and “deceptive” are used in
numerous federal statutes and regulations and have been con-
sistently upheld against vagueness challenges. See, e.g., Mar-
tini v. We the People Forms & Svc. Ctrs. USA, Inc. (In re
Barcelo), 313 B.R. 135, 145 (Bankr. E.D.N.Y. 2004); see also
8 U.S.C. § 1101(a)(43)(M)(i) (an “ ‘aggravated felony’ . . .
includes an offense that—involves fraud or deceit . . .”); 17
C.F.R. § 240.10b-5(c) (“It shall be unlawful for any person
. . . [t]o engage in any act, practice or course of business
which operates or would operate as a fraud or deceit upon any
person . . .”); 49 U.S.C. § 41712(a) (“[T]he Secretary may
investigate and decide whether an air carrier, foreign air car-
rier, or ticket agent has been or is engaged in an unfair or
deceptive practice . . .”).
[9] Scott further contends that § 110 violates her First
Amendment rights because it restricts the information she can
communicate to her customers. She argues that enforcement
of § 110 results in a lack of access to literature that provides
general information about bankruptcy. However, the statute is
aimed at Scott’s conduct as a BPP in preparing a bankruptcy
petition, not at this distribution of literature. See Ferm v.
United States Trustee (In re Crowe), 243 B.R. 43, 50 (9th Cir.
BAP 2000).
[10] Even assuming § 110 regulates Scott’s speech, it does
not infringe on her First Amendment rights. Commercial
speech is afforded less protection than other forms of pro-
tected expression. Cent. Hudson Gas & Elec. Corp. v. Pub.
IN RE: DOSER 7255
Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980). The
Court in Central Hudson created a four-part test to evaluate
the protection due commercial speech:
For commercial speech to come within [the First
Amendment], it at least must concern lawful activity
and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both
inquiries yield positive answers, we must determine
whether the regulation directly advances the govern-
mental interest asserted, and whether it is not more
extensive than is necessary to serve that interest.
Id. at 566. Because the commercial activity must be lawful
and not misleading, the State may, without further justifica-
tion, ban commercial expression that is fraudulent or decep-
tive. Edenfield v. Fane, 507 U.S. 761, 768-69 (1993).
Assuming, without deciding, that some truthful and non-
misleading speech could be swept up by the prohibition
against fraudulent and deceptive speech, the remainder of the
Central Hudson test must be considered. Edenfield, 597 U.S.
at 769. The government has a substantial interest in protecting
pro se debtors from fraudulent and deceptive practices of non-
attorneys who prepare bankruptcy petitions. See 140 Cong.
Rec. H 10,770 (discussing the proliferation of BPPs). The
statute directly advances that interest because it specifically
prohibits fraudulent and deceptive acts by bankruptcy petition
preparers and only in the narrow context of the preparation of
bankruptcy petitions.
[11] After considering the Central Hudson factors, we hold
that § 110 is not vague or overbroad and does not violate the
First Amendment.
7256 IN RE: DOSER
C. Scott’s violations of 11 U.S.C. § 110
1. Scott engaged in fraudulent, deceptive, and unfair
practices
Subsection 110(i)(1) of 11 U.S.C. § 110 states that if the
district court finds that a BPP has engaged in fraudulent,
deceptive or unfair acts or conduct, the district court shall, on
a motion of the debtor, trustee, or a creditor, order that the
BPP pay damages as set forth in that subsection. 11 U.S.C.
§ 110(i)(1). A finding of fraudulent, deceptive, or unfair acts
or conduct also exposes a BPP to suit from the United States
trustee for civil or injunctive relief. 11 U.S.C. § 110(j)(1).
In this case, the bankruptcy court held that by offering the
services of a “supervising attorney,” Scott engaged in decep-
tive and unfair practices in violation of § 110. In re Doser,
281 B.R. at 306. The supervising attorney is selected and paid
by the Franchisor and does not represent Scott or her custom-
ers. Id. at 305. Yet, Scott personally informed her customers
that the supervising attorney was available to answer ques-
tions the customers might have. Id. In addition, Scott and the
Franchisor “hype the availability of the supervising attorney
as an advantage to customers who deal with We the People
as compared to other BPPs.” Id. The bankruptcy court found
that this arrangement misled Scott’s customers into believing
that Scott’s services were more beneficial and reliable than
other BPPs. Id.
[12] As the bankruptcy court noted, there was no real
advantage to having the supervising attorney review the forms
used by Scott to obtain information from her customers. Id.
Forms used by any BPP must be consistent in content and for-
mat to the Official Forms as prescribed by the Judicial Con-
ference of the United States. Id.; Fed. R. Bankr. P. 9009. The
forms used by a BPP either comply with the Official Forms
or they do not. Unless the supervising attorney does more, a
IN RE: DOSER 7257
possibility Scott denies, there is no advantage to having him
available merely to review the forms. Id.
[13] The bankruptcy court also found no advantage to hav-
ing the supervising attorney available to answer “general”
legal questions. Id. at 306. We agree. Scott acknowledges that
the supervising attorney is unauthorized to answer specific
legal questions. Essentially then, the supervising attorney is
permitted to give only the same advice a lay person is permit-
ted to give. Unless the attorney is exceeding this role, there
is no advantage to having the attorney available to answer
“general” questions. Id. Finally, although Scott informed her
customers that the availability of the supervising attorney is
an advantage to them, Scott did not inform her customers that
the supervising attorney was not their lawyer and that they
should not rely on his advice. Id.
[14] The bankruptcy court also held that Scott engaged in
deceptive and unfair practices by providing her customers
with the Overview and the Workbook. Id. at 306-10. For
example, the bankruptcy court found the Overview to be
deceptive because, while it attempts to advise non-lawyers
about a complex area of law, it provides a summary of Chap-
ter 7 only. Id. at 307. This potentially deceived customers into
believing that the content of the summary is all they need to
know. Id. The Overview fails to mention the option of filing
a petition under Chapter 13, which in some cases could be
more beneficial than a Chapter 7 filing. Id. Finally, the Over-
view states that all debts are discharged as a general rule. It
then lists some of the exceptions to that rule. However, we
agree with the district court that the Overview does not list all
the exceptions, and a potential debtor might be deceived into
thinking that his or her particular debt will be discharged
when in fact it will not.
As for the Workbook, the bankruptcy court found that
although the substance of the forms comes close to mirroring
the Official Forms, certain terms are changed or explained in
7258 IN RE: DOSER
order to simplify the process. Id. at 309. However, the added
terms and explanations are not entirely accurate and could
potentially cause a debtor prejudice. Id. at 309-10. Therefore,
its use amounts to an unfair and deceptive practice.
[15] The bankruptcy court’s conclusion that Scott engaged
in deceptive and unfair practices by informing her customers
that the supervising attorney reviews forms and is available to
answer questions was not erroneous. Similarly, the bank-
ruptcy court’s determination that use of the Overview and
Workbook amounted to a deceptive and unfair practice was
not erroneous. For the reasons stated by the bankruptcy court
and discussed above, Scott’s actions were likely to mislead
the users of her service, and thus violated § 110.
2. Excessive fees charged by Scott
Section 110 states that a court “shall disallow and order the
immediate turnover to the bankruptcy trustee of any [BPP] fee
. . . found to be in excess of the value of the services rendered
for the documents prepared.” 11 U.S.C. § 110(h)(2). The
bankruptcy court held that the fee Scott charged the Dosers
was excessive and ordered Scott to refund $114 of the $214
fee she collected. Id. at 319. We agree.
[16] In In re Bush, the bankruptcy court held that when
determining appropriate fees for a BPP, “the proper reference
point is what professional typists or word processors would
charge.” In re Bush, 275 B.R. at 85. This is because, as the
court noted, a BPP can perform “only the modest service of
transcribing or typing bankruptcy forms that the debtors alone
must prepare without assistance” and “other sorts of services
are improper, and those services can perforce not be compen-
sated.” Id. at 84. (emphasis in the original).
[17] The bankruptcy court described the Dosers’ bank-
ruptcy as “a simple, straightforward consumer Chapter 7
case” and that “[f]ew Chapter 7 cases will involve a simpler
IN RE: DOSER 7259
set of bankruptcy paperwork.” In re Doser, 281 B.R. at 314.
Thus, the court found that $100 would be a reasonable fee for
services Scott provided. Id. at 319. The fee included $30 per
hour for three hours of preparing the documents, $7.00 for
copy costs, and $3.00 for postage. Id. at 318. Despite the addi-
tional benefits Scott claims her service offered, “[n]o addi-
tional compensation [was] justified nor available under
§ 110.” Id.6
IV
CONCLUSION
[18] We hold that 11 U.S.C. § 110 was enacted within Con-
gress’s power under the Bankruptcy Clause. We further hold
that § 110 is not unconstitutionally vague or overbroad and
does not violate the First Amendment. Finally, we affirm the
bankruptcy court’s finding that Scott violated § 110 by engag-
ing in deceptive or unfair acts and by charging excessive fees.
AFFIRMED.
6
Because we uphold the findings that Scott engaged in fraudulent,
deceptive, and unfair practices, and charged excessive fees, we need not
and do not express any opinion on whether Scott’s service constitutes the
unauthorized practice of law. Nor do we express any opinion on whether
the unauthorized practice of law is itself a violation of § 110, or whether
the unauthorized practice of law per se constitutes fraudulent, deceptive
or unfair acts or conduct.