DocketNumber： Bankruptcy No. 10-40900-SBB; Adversary No. 11-01311-SBB
Citation Numbers： 481 B.R. 685
Judges： Brooks
Filed Date： 10/23/2012
Status： Precedential
Modified Date： 11/22/2022
MEMORANDUM OPINION AND ORDER
TABLE OF CONTENTS
I. Introduction .690
II. Summary.691
A. A Summary of this Opinion.691
B. The Enactment of 11 U.S.C. § 110 in the Reform Act of 1994 .692
C. The 2005 Amendments .693
D. The Unintended Consequences of 11 U.S.C. § 110.694
III. Jurisdiction.695
IV. Issues.695
A. The Plaintiffs Complaint. CS CO oj
B. The Plaintiffs Motion for Partial Summary Judgment and Motion for Judgment on the Pleadings. Q CO 05
V. Background. 05 CO Cn
C. The Remaining Claims — The Third and Fourth Claims for Relief-Oi CO -q
VI. Factual Findings. Ci CD -a
A. Facts Established by the Plaintiffs Motion for Partial Summary Judgment, Motion for Judgment on the Pleadings, and the Joint Pretrial Statement.
B. Defendant’s History.
1. Prior Colorado Misconduct.
2. The California Proceedings.
3. The Marco Antonio Briones-Coroy Bankruptcy Case.
4. Recent Matters Before this Court Involving Defendant.
C. Facts Established During the Course of this Case and at Trial.
1. Defendant’s Business.
2. Defendant’s Customers/Debtors.
3. Defendant’s Advertising .
4. Defendant’s Employees.
5. Defendant’s Books, Records and Accounting.
6. Defendant’s Fees and Services.
7. Defendant’s Fee Receipt.
8. Statement of Financial Affairs Question No. 9.
9. Disclosure of Compensation Forms.
10. Credit Counseling Course.
11. Exhibit D — Individual Debtor’s Statement of Compliance with Credit Counseling Requirement Forms. CO O t-
12. Abacus Credit Counseling. CO O t-
13. Debtor Education Financial Management Course. o r-i t-
14. “Debtor’s Certification of Completion of Postpetition Instructional Course Concerning Personal Financial Management” Forms. <1 Hi h-A
VII. Discussion. -Q H CO
A. Plaintiffs First Claim for Relief . *“-3 H CO
1. Violation of 11 U.S.C. § 110(h)(2). —3 H to
3. Violation Under 11 U.S.C. § 110(c). Tp i — i t-
4. Forfeiture of All Fees. lO t — (
B. Plaintiffs Second Claim for Relief — Fine for Failure to Disclose Compensation_•. t — f
1. Applicable Fines Under 11 U.S.C. § 110(1). r — I
2. The Discretion of this Court. rH
C. Plaintiffs Third Claim For Relief — Collecting Court Filing Fees. tH
1. 11 U.S.C. § 110(g). i — l
2. Testimony of Nicole Zollars. -\ — l
3. Testimony of Rodo Rezar-Ortega. i — I
4. Testimony from Debtors. 03
D. Plaintiffs Fourth Claim for Relief — Legal Advice. 03
1. 11 U.S.C. § 110(e)(2) . 03
2. Defendant’s History of Providing Legal Advice. 03
3. An Overview of Defendant’s Conduct with Respect to his Preparation of Cases at Issue, as Demonstrated at Trial h3 to
4. Category One: Specific Instances of Legal Advice — Pre-Filled Forms. -3 to W
a. Testimony of Rodo Rezcv-Ortega. -3 t>0
b. Debtors’ Testimony — A Summary. -3 to
c. A Survey of the Specific Testimony of Eleven Debtors. -3 to
d. Defendant’s Failure to Refute the Evidence of Pre-Filled Forms. 00 £
5. Category 2: Specific Instances of Legal Advice — Schedule C— Exemptions. E3
a. Testimony of Rodo Reza-Ortega with respect to Schedule C — Exemptions. to zo
b. Debtors’ Testimony with respect to Schedule C — Exemptions to so
c. Defendant’s Admissions Regarding Schedule C. CO o
6. Category 3: Specific Instances of Legal Advice — Applications for Waiver of Chapter 7 Filing Fees. o CO
a. Testimony of Nicole Zollars About Applications for Waiver of Filing Fees. —3 CO o
b. Testimony of Rodo Reza-Ortega About Applications for Waiver of Filing Fees. CO
c. Debtors ’ Testimony About Applications for Waiver of Filing Fees. -3 CO
7. Category I: Specific Instances of Legal Advice — Defendant’s Legal Advice Regarding United States Trustee Questionnaires . 03 CO t-
a. Testimony of Nicole Zollars About United States Trustee Questionnaires. —3 CO to
b. Testimony of Debtors About United States Trustee Questionnaires. CO CO
8. Category 5: Specific Instances of Legal Advice-Defendant’s Legal Advice — Regarding Chapter 7 Trustee Information Sheets and Declaration Under Penalty of Perjury for Debtors Without an Attorney Forms. CO b-
a. Testimony of Rodo Rezar-Ortega About Trustee Information Sheets and Declarations Under Penalty of Perjury Forms for Debtors Without an Attorney. CO
b. Debtors’ Testimony About Trustee Information Sheets and Declaration Under Penalty of Perjury Form for Debtors without an Attorney. —3 CO
9. Debtors’ Testimony About Additional Legal Advice They Received From Defendant Showing Defendant’s Pattern and Practice of Providing Legal Advice. -3 CO cn
a. Legal Advice. to CO
E. Plaintiffs Fifth Claim for Relief — Injunctive Relief for a Willful Pattern of Conduct.'. ©
1. Findings and Conclusions with Respect to Plaintiffs Requested Injunctive Relief. © ^ t-
2. Injunctive Relief Under Section 110(j) — Colorado. N ^ t-
3. Injunctive Relief Under Section 110(j) — Nationally. CO ^ t-
F. Plaintiffs Sixth Claim for Relief-Damages Pursuant to 11 U.S.C. § 110(i)(l) . s
-q in
THIS MATTER came before the Court for a three-day trial on June 4-6, 2012 (“Trial” herein), regarding consideration of the (a) Motion for Partial Summary Judgment filed on February 24, 2012, by Richard A. Wieland, United States Trustee for Region 19 (“Plaintiff’ or “United States Trustee” herein),
I. Introduction
As will becomes obvious to the reader of this decision, this Court is presenting a rather detailed, complete and lengthy decision to reach a fairly simple conclusion. That simple conclusion is that “bankruptcy petition preparers” can only provide typing, data entry and photocopying services to persons
This decision is admittedly longer and more encompassing than most. Unfortunately, however, the Defendant herein re
The opinion is written for several audiences:
(1) The Parties Herein and Any Appellate Court: The sections entitled “Background,” “Factual Findings,” and “Discussion” each consist of detailed findings and conclusions with respect to 241 similar cases before this Court. These cases are similar in that they were all prepared by the “bankruptcy petition preparer,” Mr. Emmanuel M. Assaf d/b/a Emmanuel Assaf Debt Relief Agency (“Defendant” or “Mr. Assaf’ herein). The Court has taken pains to ensure that the record is fully explained for the parties as well as an appellate court and others so that the reader can ascertain how and why the Court reached its conclusions and where in the record those findings can be found.
(2) Existing and Potential “Bankruptcy Petition Preparers”: Based on this Court’s experience with “bankruptcy petition preparers,” it seems that many find seeming nuances and supposed loopholes in 11 U.S.C. § 110. This opinion is designed to be unambiguous with respect to the conduct of a “bankruptcy petition preparer.”
(3) Debtors, Creditors, Other Participants in the Bankruptcy System and Other Courts: With the advent of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), it seems that along with the increased fees charged by attorneys to address the Congressionally instituted hurdles created by BAPCPA, the need for a less expensive alternative was fostered. Thus sprang forth the increased number of “bankruptcy petition preparers” in this District and across the nation. While bankruptcy courts — this Court included— have recognized the need for an inexpensive alternative to lawyers in preparing individual, or consumer, bankruptcy petitions and have perhaps given some lenience to “bankruptcy petition preparers,” the hybridized legal/paralegal practice that has ensued is snaring both innocent debtors and the “bankruptcy petition prepares” themselves. Unfortunately, however well-intended, the “bankruptcy petition preparer” that offers anything more than a typing, data entry, or photocopying service is in violation of 11 U.S.C. § 110. This opinion is a message to debtors, creditors, participants in the bankruptcy system and other courts, of this Court’s particular view of this subject.
The Court’s opinion also contains three separate, but unified, components. The first component contains this introduction and the summary that follows. In light of the length of this opinion, much of the fundamental conclusions are contained in these two sections. The second component relates to a discussion specific to this adversary proceeding and the 241 cases it involves. The third component relates to this Court’s conclusions and is intended to allow other courts and jurisdictions with the tool to stop future actions of this “bankruptcy petition preparer,” the Defendant herein, and perhaps other potential “bankruptcy petition preparers” who undertake similar conduct.
II. Summary
A. A Summary of this Opinion
The United States Trustee used this case as a vehicle to (1) stop a bankruptcy
The evidence produced by the United States Trustee accomplished that goal. This opinion exhaustively describes the misconduct of Mr. Assaf as a bankruptcy petition preparer and results in the imposition of a ten-year injunction prohibiting Mr. Assaf from acting as a bankruptcy petition preparer either directly or indirectly, personally or through others, in the District of Colorado as well as all other districts throughout the United States.
After the case was submitted to the Court and taken under advisement, the Court held a trial in another case involving this Defendant. The case was In re Antonio Valle-Rodriguez, Case No. 11-33249-SBB. The case involved the United States Trustee and this Defendant also. In the presence of both the United States Trustee and Mr. Assaf, the Court inquired as to the propriety and justification of the amounts sought by the United States Trustee under 11 U.S.C. § 110(l) and whether trebling damages into hundreds of thousands or even millions of dollars was appropriate. The Court’s inquiry was triggered by its reading of White v. General Motors Corporation.
The results achieved by this case are injunctive relief and an award of damages plus forfeiture of fees paid.
B. The Enactment of 11 U.S.C. § 110 in the Reform Act of 1994
In 1994, Congress added 11 U.S.C. § 110 to the Bankruptcy Code to provide restrictions on “a person, other than an attorney or an employee of an attorney, who prepares for compensation a document for filing.”
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.10
The matter before the Court in this Adversary Proceeding exemplifies the conduct Congress was trying to regulate or prohibit with the Reform Act of 1994 and by subsequent amendment in 2005. That is, Congress intended to regulate the com-duct of bankruptcy petition preparers, and penalize the misconduct of petition preparers who prey on others in financial distress and in need of bankruptcy protection, but do not understand the bankruptcy system and, more specific to this particular case and to most of the 240 additional cases examined herein, those who do not speak English.
The Justice Department reports that typing mills were responsible for 30 percent of all bankruptcy filings in the central district [California], many by individuals who were unfairly preyed upon because they do not speak English or understand the bankruptcy system. Section 308 of the bill creates a new set of civil standards and penalties pertaining to these typing services. Under this section, if a bankruptcy petition is dismissed as a result of fraud or incompetence by the preparer, the debtor will be entitled to actual as well as statutory damages.12
C. The 2005 Amendments
With BAPCPA, Congress attempted, among other things, to “clariffy] that the definition of a bankruptcy petition preparer does not include an attorney for a debt-
D. The Unintended Consequences of 11 U.S.C. § 110
While Congress likely intended to further clamp-down on bankruptcy petition preparers, the promulgation of such an expansive section in the Bankruptcy Code seems to, unfortunately, actually authorize or otherwise validate bankruptcy petition preparers as some sort of hybridized typing and legal service provider. Consequently, this Court has actually seen an increase in the number of bankruptcy petition preparers located in Colorado, elsewhere in the United States and, now with the advent and expansion of internet commerce, from overseas.
Congress, by its recognition of bankruptcy petition preparers, has, it would seem, created an entire industry of bankruptcy petition preparers who appear to offer a cheap alternative to lawyers. While this may appear to be a legitimate and laudable alternative for those unable to afford an attorney, the use of these bankruptcy petition preparers too often results in greater expense to debtors, documentary and filing mistakes, and more damage from the consequences of ill-advised assistance. While crafting a system for competent and inexpensive services to facilitate consumer bankruptcy filing is a worthwhile and laudable goal, it places both debtors and the bankruptcy petition preparers themselves in a problematic spot.
On the one hand, with respect to bankruptcy petition preparers, in order to provide a competent and complete service in preparing bankruptcy forms and schedules, the bankruptcy petition preparers are almost always, inevitably and necessarily, directly or indirectly, practicing law. Thus, as they are not by definition attorneys, they are all too often practicing law without a license. The law prohibits that without qualification or limitation. Stated another way, bankruptcy petition preparers cannot do anything other than typing, data input, or photocopying, period. Debtors must come prepared to the bankruptcy petition preparer’s office and then the bankruptcy petition preparer can only insert data into the forms to be filed. This provision in 11 U.S.C. § 110 is an almost certain snare for anyone who dares call himself or herself a bankruptcy petition preparer.
On the other hand, debtors, who are already financially strapped, cannot find (or believe they cannot find) an inexpensive alternative to a lawyer. This places an already impecunious and often desperate debtor into the hands of a bankruptcy
This case presents the very quandary that this statute has created. Here, there are 241 cases involving mostly non-English speaking customers who are uneducated in the law and each has their own story of financial hardship and desperation. The bankruptcy petition preparer herein runs what appears to be a flourishing “practice.” He is fluent in English and Spanish and from all appearances seems well-educated and extremely successful. But, alas, he is not a lawyer.
This case — -these 241 cases — exemplify(ies) the innumerable problems created by the approval by Congress of the validity of the statutory creature called a bankruptcy petition preparer. This case also exposes the plight of the impecunious debtor to obtain an inexpensive alternative to a bankruptcy lawyer. As this Court will explore in the discussion below, it must consider whether or not the Defendant has violated the provisions of 11 U.S.C. § 110 and, if so, has Defendant done so intentionally, knowingly and continuously over years and in different jurisdictions, as alleged by the United States Trustee.
III. Jurisdiction
This Court has jurisdiction over this matter pursuant to and consistent with 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A).
IV. Issues
The central issue before the Court is whether the Defendant, an acknowledged bankruptcy petition preparer, has violated the provisions of 11 U.S.C. § 110. If the answer is yes, then the Court must specifically determine,
(1) Has Defendant violated 11 U.S.C. § 110(h)(2) for his failure to accurately disclose his entire fee on his “Disclosure of Compensation of Bankruptcy Petition Preparer?” (Plaintiffs First Claim for Relief)
(2) Has Defendant violated 11 U.S.C. § 110(g) for collecting Court filing fees? (Plaintiffs Third Claim for Relief)
(3) Has Defendant violated 11 U.S.C. § 110(e)(1), (2)(A)-(B) for executing legal documents for Debtors and providing legal advice to Debtors? (Plaintiffs Fourth Claim for Relief)
(4) Should this Court enjoin Defendant from offering bankruptcy petition preparer services? (Plaintiffs Fifth Claim for Relief).
The Court, as discussed below, answers each in the affirmative. Specifically, this Court concludes that the Defendant has intentionally, knowingly and continuously violated the provisions of 11 U.S.C. § 110.
V. Background
A. The Plaintiffs Complaint
On May 13, 2011, the Plaintiff filed a Complaint against Defendant. The parties agree that the Defendant has operated and currently operates as a bankruptcy petition preparer in Colorado. From March 1, 2006 to May 12, 2011, the Defendant was responsible for filing at least 241 bankruptcy cases in the District of Colorado.
The within adversary proceeding is an assemblage of these 241 cases. In his
(A) First Claim for Relief — Violations of 11 U.S.C. § 110(h)(2) mandating a refund and disgorgement in each case of all fees paid to Defendant by the Debtor(s).
(B) Second Claim for Relief — Fines for failure to disclose compensation, as required by 11 U.S.C. § 110(h)(2), and as provided for by 11 U.S.C. § 110(i).17
(C) Third Claim for Relief — Sanction for collecting Court filing fees in violation of 11 U.S.C. § 110(g), as provided for by 11 U.S.C. § 110(Z).18
(D) Fourth Claim for Relief — Sanction for providing legal advice to debtors in violation of 11 U.S.C. § 110(e)(2)(A) and (B), as provided for by 11 U.S.C. § 110(Z).19
(E) Fifth Claim for Relief — Permanent injunction for providing a willful pattern of conduct in violating 11 U.S.C. § 110.
(F) Sixth Claim for Relief — Damages for Debtor(s) in each case, due to Defendant’s continuing violations of 11 U.S.C. § 110, including fraud and unfair and deceptive practices.
The Defendant generally denied the allegations in the Complaint in his Answer filed on June 9, 2011, and throughout this proceeding has denied most of the allegations leading to the Plaintiffs Claims for Relief.
B. The Plaintiffs Motion for Partial Summary Judgment and Motion for Judgment on the Pleadings
On February 24, 2012, the Plaintiff filed a Motion for Partial Summary Judgment on the Plaintiffs First, Second, Fifth and Sixth Claims for Relief.
On May 24, 2012, the Plaintiff filed a Motion for Judgment on the Pleadings Without Trial.
On June 4, 2012, the Court granted summary judgment on the First, Second,
The Court incorporates herein its oral findings and conclusions made on the record in open Court. Nevertheless, this opinion recites herein those facts already held to not be in dispute and includes further findings and conclusions to give more complete context to this decision. This decision should give notice to all existing and potential bankruptcy petition preparers who intend to “prepare for compensation a document for filing” in this District of the practices which this Court concludes are prohibited by 11 U.S.C. § 110.
C. The Remaining Claims — The Third and Fourth Claims for Relief
After making its oral ruling on June 4, 2012, the Court held an evidentiary hearing on the Plaintiffs Third and Fourth Claims for Relief.
YI. Factual Findings
A. Facts Established by the Plaintiffs Mlotion for Partial Summary Judgment, Motion for Judgment on the Pleadings, and the Joint Pretrial Statement
The Defendant did not respond to the factual allegations contained in Plaintiffs Motion for Partial Summary Judgment. Consequently, this Court deemed those facts as identified in the section of the Motion for Partial Summary Judgment as “Uncontested Material Facts” to be, indeed, established facts in this case.
Moreover, the Defendant did not participate in preparation of the Pretrial Statement filed on April 23, 2012,
The Court synthesizes in this decision the facts as established in the Motion for Partial Summary Judgment, the Pretrial Statement, and the Motion for Judgment on the Pleadings. Moreover, in this Opinion the Court identifies from the record at trial, such supplemental, additional, or other necessary facts to reach the conclusions herein.
B. Defendant’s History
This Court sets forth herein a history of this Defendant and the conduct of his business affairs and the entities he has managed, owned or otherwise operated as a bankruptcy petition preparer. This history establishes that the conduct of which the Plaintiff complains is not a mere fluke or accident, but rather is an intentional, knowing and continuous practice dating back to, at least, 2006.
(A) paragraphs 12-23 on pages 6-7.
(B) paragraphs 29-34, on page 9.
(C) paragraphs 40-45, on pages 11-12.
(D) paragraphs 50-60, on pages 13-15, and
(E) paragraphs 64-80, on pages 17-19.
1. Prior Colorado Misconduct
On April 24, 2006, the Defendant and the Unauthorized Practice of Law Committee entered into an Agreement Pursuant to Colo. R. Civ. P. 232.5(d)(3) to Refrain from Unauthorized Practice of Law whereby the Defendant specifically agreed to refrain from any further actions constituting the unauthorized practice of law in Colorado.
On April 3, 2009, the Office of Attorney Regulation Counsel filed a Petition for Injunction with the Colorado Supreme Court, which remanded the matter to the Office of the Presiding Disciplinary Judge (“PDJ.”).
2. The California Proceedings
The Defendant also operated
On January 29, 2008, the United States Bankruptcy Court for the Central District of California (Los Angeles Division) entered an order against the Defendant in the Albert Murillo Espinoza case, Case No. LA 07-18881 BB, concluding that he violated section 110(d), (f), (g) and (h).
The United States Bankruptcy Court for the Central District of California ordered: (1) disgorgement of Mr. Assafs fee of $1,201.00; (2) payment of $3,000.00 in liquidated damages pursuant to section 110(i)(l)(B); and (3) payment of a $2,000.00 fíne to the United States Trustee in California.
On May 21, 2008, the State Bar of California retrieved customer files from the Defendant’s Huntington Park, California office.
On July 22, 2009, the People of the State of California and the Defendant entered into a plea agreement before the Superior Court of the Los Angeles Judicial District, County of Los Angeles, State of California.
3. The Marco Antonio Briones-Coroy Bankruptcy Case
On December 10, 2010, Marco Antonio Briones-Coroy filed for relief under Chapter 7 case. On the same day, Mr. Assaf, on behalf of Mr. Briones-Coroy, applied for a waiver of the Chapter 7 filing fee, which this Court granted. In the order granting the waiver, this Court included language that the “order is subject to being vacated at a later time if developments in the administration of the Bankruptcy case demonstrate that the waiver was unwarranted.” The Chapter 7 trustee, Dennis W. King, moved for reconsideration of the order.
In the motion for reconsideration, the trustee asserted, among other things, that the debtor was not eligible for such waiver because the debtor: (1) had monthly gross income between $3,513.21 and $3,632.33 for the 2009 tax year and that the same is true for the 2010 tax year; (2) disclosed monthly income of $3,250.00 in the waiver application; and (3) incorrectly calculated several tax deductions and inappropriately included garnishments. The trustee also moved for the Defendant to surrender any fees paid to him by Mr. Briones-Coroy, to Mr. Briones-Coroy.
After holding an evidentiary hearing, on June 1, 2011, this Court granted the trustee’s motion for reconsideration and entered judgment against Mr. Assaf for $1.00 in actual damages pursuant to section 110(i)(l)(A), $2,000.00 pursuant to section 110(i)(l)(B), and $1,000.00 pursuant to section 110(i)(2).
4. Recent Matters Before this Court Involving Defendant
The Bankruptcy Court for the District of Colorado has issued recent rulings with respect to Defendant. In In re Soberanis, Case No. 11-33991-MER, the Honorable Michael E. Romero ordered the Mr. Assaf to pay statutory finds to the United States Trustee in the amount of $37,500.00 under 11 U.S.C. § 110(l) and statutory damages in the amount of $4,000.00 payable to debtors under 11 U.S.C. § 110(i). Judge Romero also ordered Mr. Assaf to forfeit and turnover $700.00 to the Chapter 7 trustee in the case under 11 U.S.C. § 110(h)(3).
Chief Judge Howard R. Tallman also encountered this Defendant in In re Moreno-Marquez, Case No. 11-37594-HRT. In that matter, Mr. Assaf settled a case brought under 11 U.S.C. § 110 by paying the Chapter 7 trustee, Jeffrey Weinman, the sum of $500.00 in damages to the debtor and $3,000.00 in legal fees to the Chapter 7 trustee.
C. Facts Established During the Course of this Case and at Trial
1. Defendant’s Business
From March 1, 2006 to May 12, 2011, Defendant was responsible for the filing of
Defendant presently operates his bankruptcy petition preparer services under Emmanuel M. Assaf Debt Relief Agency and Assaf Services, LLC.
2. Defendant’s Customers/Debtors
A lack of English language skills by the majority of Mr. Assafs customers/debtors is a major problem in this case. Interpreters were frequently needed to interpret questions and answers at section 341 meetings of creditors held in the 241 cases.
Defendant does not provide documents in Spanish to his Spanish-speaking customers who do not read or speak English.
3. Defendant’s Advertising
Defendant’s business card is two-sided and advertises Defendant’s services in English and Spanish. Defendant’s business card states: “We are a debt relief agency. We help people file for bankruptcy under the Bankruptcy Code.”
Defendant advertises his bankruptcy petition preparer services in the Denver Daily News, Westword, Aurora Sentinel, El Comercio, El Reportero, La Presna and El Hispano.
Defendant has expanded his advertising to the internet and now has access to national and international markets. By way of example, Defendant advertises his bankruptcy petition preparer services on the internet
4.Defendant’s Employees
Defendant’s employees have included Joseph M. Assaf, Rocío Reza-Ortega, Francisca Ruz, Martha Herrera and Maria Mejia.
5.Defendant’s Books, Records and Accounting
Defendant does not have any ledgers, journal entries, check registers or any other documents evidencing the receipt of money from Debtors identified in Exhibit A to the Plaintiffs Complaint.
6.Defendant’s Fees and Services
Defendant charges $200.00 for the typing service involved in typing his customers’ bankruptcy paperwork.
Defendant stated in his Answer to the Complaint that “many customers opt for the convenience of taking the course online at defendant’s office.” Defendant indicat
In his response to the Plaintiffs Interrogatory No. 1(c) regarding his fees, Defendant’s sworn answer was as follows:
$200 applied to bankruptcy petition typing service. $100 applied to workbook, credit report and transportation to bankruptcy court for filing of bankruptcy petition and $200 applied for customer using Emmanuel M. Assafs facilities and equipment for the processing of 1st class certificate and 2nd class certificate including payment to Abacus Credit Counseling fee of $25 for 1st class and payment of $25 to Sage Personal Finance for 2nd Class.75
Defendant stated the following in his Answer to the Complaint regarding the procedure he follows with his customers in his office:
[I]n the first meeting, customer pays defendant $200 for the service of typing all the bankruptcy forms that customer requires. Defendant prepares an agreement for the typing service to be provided, customer receives all documentation that is required to be given to customer, including a workbook that customer fills out and after completing the workbook defendant types all bankruptcy forms as requested by customer. When completed, customer comes to office and verifies the accuracy of all the information and then customer signs the paperwork and we take customer to court to have him file their paperwork.76
Defendant also assists his customers with filling out information sheets which are requested by case trustees and questionnaires from the United States Trustee.
7. Defendant’s Fee Receipt
Debtor Marco Briones-Coroy filed a voluntary petition for relief under Chapter 7 on December 10, 2010. Defendant served as the Debtor’s petition preparer.
A final evidentiary hearing was held May 24, 2011 on the Trustee’s Motion for Reconsideration (“final evidentiary hearing” herein). Pursuant to this Court’s oral ruling on May 26, 2011 and accompanying Order entered on June 2, 2011, the Court entered the following findings of fact and conclusions of law:
The Court also had before it Exhibit 2, which is a Fee Statement which the court finds susceptible to misunderstanding or misuse.
The Court concludes that under Section 110(i)(l), there has been proven by the Trustee by a preponderance of the evidence, that while Mr. Assaf has not specifically been shown to have violated Sections 110(b), (c), (d), (e), (f)or (g), he has engaged in an unfair or deceptive practice by two matters.
The first is, by not providing a written receipt for the cash transactions he undertakes with his customers, including the debtor, and thereby being candid, transparent, accountable in conducting business in the spirit of the Bankruptcy Code. The Court finds it is not fair for debtors having to engage with Mr. Assaf in cash transactions without accountable, strict and clear accounting.
Secondly, the Court further finds a violation of Section 110(i) as being an unfair practice, to use Exhibit 2, which is the Fee Disclosure Statement, which the Court finds to not be clear.81
The verbiage, format, and context of the Fee Receipt the Defendant submitted to his customers was confusing and misleading to the undersigned Judge whose primary language is English; to a customer whose primary language is Spanish, the Court concludes it was incomprehensible and/or deceptive. Before the Court’s Order in the Briones-Coroy case, the only “receipts” Defendant used were the Typing Agreement (Exhibit 1) and the Fee Receipt (Exhibit 2).
Q: So Exhibit 1 is the receipt to a debtor that they’ve paid you your fee?
A: Exhibit 1 is the receipt. The agreement is the receipt that indicates how much money they pay my office in conjunction with the typing of the bankruptcy forms.
So, to my belief, Exhibit 1 and Exhibit 2 will qualify how much a customer is paying for a bankruptcy, which is $200.82
The bottom line is that Mr. Assaf s billing and documentation of his fees in the Fee Receipts are incomplete, confusing and ambiguous. Consequently, the Fee Receipts deceive the customers as to the amount they are being charged and for what services and materials are provided for the fee which is charged. It was not until after this Court’s oral ruling and order that Defendant created additional receipts so he could stay in business.
8.Statement of Financial Affairs Question No. 9
Defendant lists the $200.00 fee on the Statement of Financial Affairs (“SOFA” herein) Question 9 “Payments related to debt counseling or bankruptcy.”
9.Disclosure of Compensation Forms
When Defendant’s customers file for bankruptcy relief, Defendant files a “Disclosure of Compensation of Bankruptcy Petition Preparer” (“Compensation Disclosure” herein) and states that he has accepted a fee in the amount of $200.00.
10.Credit Counseling Course
Debtors are required to take a pre-filing credit counseling course, as well as a post-filing financial management course, in order to receive a discharge.
A pre-bankruptcy counseling session with an approved credit counseling organization usually includes an evaluation of a debtor’s personal financial situation, a discussion of alternatives to bankruptcy, and a personal budget plan.
11. Exhibit D — Individual Debtor’s Statement of Compliance with Credit Counseling Requirement Forms
Defendant, personally or through an employee, prepares Exhibit D — Individual Debtor’s Statement of Compliance with Credit Counseling Requirement (“Statement of Compliance” herein) for his customers.
Furthermore, none of the Statement of Compliance forms prepared by Defendant have Defendant’s name (or his employee’s or agent’s name either) and address on the document.
12. Abacus Credit Counseling
Most of the pre-filing credit counseling certificates show that the Debtors listed in Exhibit A of the Complaint received pre-bankruptcy counseling from Abacus Credit Counseling with Credit Counselor, Laura M. Ahart.
Abacus is approved by the United States Trustee to provide pre-bankruptcy credit counseling.
Q: And just to confirm your knowledge, what — what credit counseling service or entity do you usually use so you would know that the customer did it in your office?
A: I believe it’s called Abacus.104
At the hearing held February 2, 2012 in the within adversary proceeding
In this request sometimes she asked for information about the financial institution that I use in order to pay for the courses taken by my customers. I really cannot state with exactitude which companies were used. Nonetheless, I can agree to that if any person from this list took a class in my office, I will agree that, you know, I — I did receive a payment for those classes, and that a payment to the counseling agency was paid in the amount of $25, for the first class, and $35 for the second class.106
Regarding Defendant’s accounting records for Abacus, Defendant stated in his response to the Plaintiffs Document Request No. 16 as follows:
I do not have accounting records, evidencing the amount and date of money I paid to any credit counseling and debtor education providers in connection with all debtors listed on Exhibit “A”. It is my belief that the U.S. trustee office has records from each of the credit counseling and debtor education providers evidencing the amounts paid on behalf of debtors and the dates this amounts were paid. I will not dispute this information and hereby agree that such information is correct.107
Documents from Abacus show that Defendant paid $25.00 for the credit counseling course for 238 debtors.
On January 31, 2012, the Plaintiff deposed Laura Ahart, Chief Executive Officer of Abacus. Despite written notice and a telephone call by counsel for the Plaintiff to Defendant, Defendant stated that he was not attending the deposition.
Since 2009, Abacus has had an online credit counseling course available through the internet so people can take it via computer. An individual or couple registers for the course and they provide numbers as to their monthly income and monthly spending across about 100 to 120 categories. The course is the same for all debtors.
Pursuant to a subpoena issued on September 22, 2011, Abacus was given a copy of Exhibit A to the Plaintiffs Complaint and asked to produce business records for all cases listed on Exhibit A. Pursuant to a second subpoena issued on December 19, 2011, Abacus was asked to produce business records for cases filed by Defendant after the Plaintiffs Complaint was filed, cases filed from May 13, 2011 through November 18, 2011.
One of Ms. Ahart’s responsibilities is to maintain the records of Abacus. In response to the Plaintiffs subpoenas, Ms. Ahart produced Abacus’ documents numbered 1 through 3,582 and two signed Declarations for Records of Regularly Conducted Business Activity.
The Abacus Client Record Page lists the name of the debtor and their spouse if it is a joint case.
Another field on the Abacus Client Record Page is the language field and the only choices are English or Spanish. Abacus records show that all of Defendant’s customers took the course in English.
Abacus’ credit counseling course is a 60-90 minute course regarding budget and credit counseling. Abacus designed the course with the anticipation that it would take a consumer 60-90 minutes to complete the course. Nicole Zollars, Paralegal Specialist for the United States Trustee, took Abacus’ online credit counseling course. It took Ms. Zollars approximately an hour to complete the course.
Out of 241 cases on Exhibit A of the Plaintiffs Complaint, 197 cases show that the debtors opted to take credit counseling courses at Defendant’s office with Abacus. According to Abacus’ records, the vast majority of Defendant’s customers that used Defendant’s facilities and equipment for the processing of the credit counseling certificate are not taking the full 60-90 minutes to take the online credit counseling course.
Abacus’ online course is always $25.00, regardless of whether it is an individual or a couple taking the course.
Defendant stated in his Answer to the Complaint “many customers opt for the convenience of taking the course online at defendant’s office. Customer normally pays defendant $100.00 for each certificate which includes the fee that the approved agency charges.”
“Depending on whether the Debtor is an individual or a couple, Defendant is profiting from between $75 and $125 [sic] [$175] dollars for his customers to use his facility.”
Further, the SOFA Question No. 9 states: “List All Payments made or property transferred by or on behalf of the debtor to any persons, including attorneys, for consultation concerning debt consolidation, relief under bankruptcy law or preparation of a petition in bankruptcy within one year immediately preceding the commencement of this case.” The Debtors’ answers to SOFA Question 9, “Payments related to debt counseling or bankruptcy,” consistently list Defendant as payee and uniformly show that only $200.00 was paid.
The Abacus Payment Page shows credit card transactions for everyone who takes the course and pays by credit card. Abacus verifies the address of the cardholder against the card and the last four digits of the credit card are displayed on the Payment Page.
13. Debtor Education Financial Management Course
A typical post-filing financial management course usually includes information on developing a budget, managing money, using credit wisely, and other resources.
Defendant uses Sage Personal Finance for this second certificate, the financial management course certificate.
Prior to using Abacus Credit Counseling and Sage Personal Finance, Defendant used Money Management International, Inc.
Business records from Money Management International, Inc. show that Defendant was the “customer” and that the financial management course certificates and credit counseling certificates were faxed to Defendant for several of Defendant’s customers. There are pre-filing credit counseling certificates that show that the Debtors listed in Exhibit A of the Complaint received pre-bankruptcy counseling from Money Management International, Inc.
14. “Debtor’s Certification of Completion of Postpetition Instructional Course Concerning Personal Financial Management” Forms
Debtor prepares the Form 23 “Debtor’s Certification of Completion of Postpetition Instructional Course Concerning Personal Financial Management.”
At commencement of the Trial of Plaintiffs Complaint, this Court granted Plaintiffs Motion for Partial Summary Judgment on Plaintiffs First, Second, Fifth and Sixth Claims for Relief. The Court, however, reserved judgment on the amount of damages. Moreover, the Court retained for trial the Third and Fourth Claims for Relief This discussion encompasses, where identified, both the ruling on summary judgment and this Court’s ruling on the merits after Trial.
A. Plaintiffs First Claim for Relief
1. Violation of 11 U.S.C. § 110(h)(2)
The Plaintiff asserts that Defendant violated 11 U.S.C. § 110(h)(2) for failing to disclose his entire fee on the Compensation Disclosure. 11 U.S.C. § 110(h)(2) provides:
A declaration under penalty of perjury by the bankruptcy petition preparer shall be filed together with the petition, disclosing any fee received from or on behalf of the debtor within 12 months immediately prior to the filing of the case ...
For the reasons stated on the record in open Court, which are incorporated herein, the Court granted the Plaintiffs First Claim for Relief and found that the Defendant did not disclose the fees he received from his customers/Debtors for the prepet-ition credit counseling course and postpetition financial management course.
Section 110(h)(2) is unambiguous and provides that “any” fee received by the preparer in the 12 months preceding the bankruptcy is to be disclosed. Even if services provided were not bankruptcy petition preparer services, a preparer must disclose all fees received.
Defendant lists the $200.00 fee on the SOFA Question 9 “Payments related to debt counseling or bankruptcy.” When Defendant’s customers file for bankruptcy relief, Defendant files a Compensation Disclosure and states that he has accepted a fee in the amount of $200.00. This, however, is misleading because Defendant also collects other related fees identified herein.
Defendant only discloses that he charges $200.00. Defendant admits, however, that in reality he charges each of his customers at least a total of $500.00 for his bankruptcy petition preparer services. Fees above $200.00 (i.e., workbook/credit report and transportation to the Court to file the case — $100.00; credit counseling certificate — $100.00 and financial management certificate — $100.00) are not reported on the Compensation Disclosure required to be filed with the Court.
Moreover, the profits Defendant makes on the credit counseling and financial management classes are not disclosed: a clear violation of section 110. Defendant states that customers who opt to do credit counseling with Defendant via Abacus (and
The $100.00 fee for customers to use Defendant’s facilities is never disclosed on the Compensation Disclosure. Moreover, Defendant never discloses the profit he makes. He does not identify his profit when he prepares the customer’s SOFA No. 9, “Payments related to debt counseling or bankruptcy” (SOFA No. 9). None of the SOFA No. 9 responses show this additional payment to Defendant. SOFA No. 9 merely shows $200.00.
Section 110(h)(2) requires Defendant to file a declaration under penalty of perjury about any fee received from a customer. Although Defendant signed 239 Compensation Disclosure forms which were filed with Debtors’ petitions, Defendant failed to disclose all the fees he received. In all 239 cases, Defendant only disclosed $200.00 on his Compensation Disclosure. Based on these violations, the Debtors in the 239 cases are entitled to damages pursuant to the Plaintiffs Sixth Claim for Relief.
For purposes of considering refunding fees to Defendant’s Debtors/customers, the Court looks to 11 U.S.C. § 110(h)(3) for guidance. Specifically, 11 U.S.C. § 110(h)(3)(A) provides:
The court shall disallow and order the immediate turnover to the bankruptcy trustee any fee referred to in paragraph
(2) found to be in excess of the value of any services
(i) rendered by the bankruptcy petition preparer during the 12-month period immediately preceding the date of the filing of the petition; or
(ii) found to be in violation of any rule or guideline promulgated or prescribed under paragraph (1).
Moreover, 11 U.S.C. § 110(h)(3)(B) states:
All fees charged by a bankruptcy petition preparer may be forfeited in any case in which the bankruptcy petition preparer fails to comply with this subsection or subsection (b), (c), (d), (e), (f), or (g).
As structured by Congress, this Court must ascertain whether the Defendant’s conduct was merely the charging of an excessive fee warranting a return of that excess to Defendant’s Debtors/customers under 11 U.S.C. § 110(h)(3)(A),
2. Violation Under 11 U.S.C. § 110(b)
The Plaintiff asserts that Defendant has violated 11 U.S.C. § 110(b) for
11 U.S.C. § 110(b)(1) states:
A bankruptcy petition preparer who prepares a document for filing shall sign the document and print the document preparer’s name and address. If a bankruptcy petition preparer is not an individual, then an officer, principal, responsible person, or partner of the bankruptcy petition preparer shall be required to—
(A) sign the document for filing; and
(B) print on the document the name and address of that officer, principal, responsible person, or partner.
Defendant has violated 11 U.S.C. § 110(b)(1)(A) and (B) because he prepared the Statement of Compliance for his customers and he failed to sign and print his name on the forms. Although signed by the Debtors, none of the Statement of Compliance forms prepared by Defendant, are signed by Defendant.
Defendant has also violated 11 U.S.C. § 110(b)(1)(A) and (B) because he prepared “Form B23 Debtor’s Certification of Completion of Postpetition Instructional Course Concerning Personal Financial Management” (“financial management course certificate” herein) for his customers and he failed to sign and print his name on the form. Although signed by the Debtors, none of the financial management course certificates prepared by Defendant, are signed by Defendant.
Defendant prepared the Statement of Compliance forms in 226 cases and failed to sign the document or identify himself on the document. Of these 226 cases, 38 cases were joint debtor cases; therefore, Defendant prepared a total of 264 Statement of Compliance forms. Accordingly, Defendant violated § 110(b)(1)(A), (B) at least 264 times. Based on these violations, the Debtors are entitled to damages pursuant to the United States Trustee’s Sixth Claim for Relief.
3. Violation Under 11 U.S.C. § 110(c)
The Plaintiff asserts that Defendant violated 11 U.S.C. § 110(c) by failing to place his social security number or other identifying number on the credit counseling and financial management course forms. 11 U.S.C. § 110(c)(1) states:
A bankruptcy petition preparer who prepares a document for filing shall place on the document, after the preparer’s signature, an identifying number that identifies individuals who prepared the document.
11 U.S.C. § 110(c)(2)(A) provides:
Subject to subparagraph (B), for purposes of this section, the identifying number of a bankruptcy petition preparer shall be the Social Security account number of each individual who prepared the document or assisted in its preparation.
11 U.S.C. § 110(c)(2)(B) states:
If a bankruptcy petition preparer is not an individual, the identifying number of the bankruptcy petition preparer shall be the Social Security account number of the officer, principal, responsible person, or partner of the bankruptcy petition preparer.
Defendant has violated 11 U.S.C. § 110(c)(1) and (2)(A) or (B), because none of the Statement of Compliance forms prepared by Defendant show a social security number or other identifying number that identified individuals who prepared the document.
Defendant has also violated 11 U.S.C. § 110(c)(1) and (2)(A) or (B), because none of the forms prepared by Defendant about certification of completion of the post-petition financial management course have a
Defendant prepared Statement of Compliance forms in 226 cases and failed to provide identifying numbers. Of these 226 cases, 38 cases were joint debtor cases; therefore, Defendant prepared a total of 264 Statement of Compliance forms. Accordingly, Defendant violated 11 U.S.C. § 110(c)(1) and (2)(A) or (B) at least 264 times. Based on these violations, the Debtors are entitled to damages pursuant to the United States Trustee’s Sixth Claim for Relief.
4. Forfeiture of All Fees
The United States Trustee has demonstrated that the Defendant has violated 11 U.S.C. § 110(b) and (c) and, consequently, consistent with 11 U.S.C. § 110(h)(3)(B), all fees received shall be forfeited by the Defendant and returned to the Debtors.
B. Plaintiffs Second Claim for Relief — Fine for Failure to Disclose Compensation
1. Applicable Fines Under 11 U.S.C. § 110(l) ■
The Plaintiff, through its Second Claim for Relief, sought fines, pursuant to 11 U.S.C. § 110(l), for failure to disclose compensation. The fines requested are discretionary under the statute. Plaintiff alleges that Defendant, under penalty of perjury, failed to file an accurate declaration disclosing all fees received from a bankruptcy debtor within 12 months immediately prior to the filing of the respective bankruptcy case, and disclosing any unpaid fee charged to the respective bankruptcy Debtor(s). At the first day of the Trial of Plaintiffs Complaint, the Court granted this claim for relief and reserved for ruling the discretionary fíne and mandatory trebling.
Under 11 U.S.C. § 110(l):
(1) A bankruptcy petition preparer who fails to comply with any provision of subsection (b), (c), (d), (e), (f), (g), or (h) may be fined not more than $500.00 for each such failure.
(2) The court shall triple the amount of a fine assessed under paragraph (1) in any case in which the court finds that a bankruptcy petition preparer—
(A) advised the debtor to exclude assets or income that should have been included on applicable schedules;
(B) advised the debtor to use a false Social Security account number;
(C) failed to inform the debtor that the debtor was filing for relief under this title; or
(D) prepared a document for filing in a manner that failed to disclose the identity of the bankruptcy petition preparer.
*716 (3) A debtor, trustee, creditor, or United States trustee (or the bankruptcy administrator, if nay) may file a motion for an order imposing a fine on the bankruptcy petition preparer for any violation of this section.
(4)(A) Fines imposed under this subsection in judicial districts served by United States trustees shall be paid to the United States trustee, who shall deposit an amount equal to such fines in the United States Trustee Fund.
This Court has held that Defendant violated 11 U.S.C. § 110(h)(2) and specifically 11 U.S.C. § 110(a) and (b). Consequently, this Court has the discretion to fine the Defendant not more than $500.00 for each failure to comply.
Following the Trial of Plaintiffs Complaint, the Plaintiff withdrew this claim for relief on September 14, 2012.
It appears that this Court must take into account certain factors when addressing a statutory discretionary fine. The discussion that follows addresses those factors.
2. The Discretion of this Court
The Plaintiff sought this Court’s determination to find each violation warranting a fine. The Court under the unique facts and circumstance of this case (and cases), would have declined this request to fine each individual violation, as they are many and would result, after trebling, in millions of dollars of fines. The Court concludes that such “racking up” or “stacking” of fines as against this Defendant is most likely not appropriate or a wise exercise of discretion on the part of this Court.
The Court, with respect to discretionary fines, is guided but not necessarily controlled, by the Tenth Circuit’s decision in White v. General Motors Corporation.
(1) Reasonableness (Lodestar) Calculation. That is, whether, the fee is reasonable. “In evaluating the reasonableness of the fee request, the ... court should consider that the very frivolousness of the claim is what justifies the sanctions.”160
*717 (2) Minimum to Deter. The Court of Appeals noted that the primary purpose of sanctions is to deter attorney and litigant misconduct, not to compensate the opposing party for its costs in defending a frivolous suit. It is particularly inappropriate to use sanctions as a means of driving certain attorneys out of practice. Such decisions are properly made by those charged with handling attorney disbarment and are generally accompanied by specific due process provisions to protect the rights of the attorney in question. Moreover, the Court held that the amount of sanctions is appropriate only when it is the “minimum that will serve to adequately deter the undesirable behavior. Thus, the limit of any sanction award should be that amount reasonably necessary to deter the wrongdoer.”161
(3) Ability to Pay. The Court of Appeals stated that this factor must “be considered, not because it affects the egregiousness of the violation, but because the purpose of monetary sanctions is to deter attorney and litigant misconduct ... and [an] [fin-ability to pay what the court would otherwise regard as an appropriate sanction should be treated as reasonably akin to an affirmative defense, with the burden upon the parties being sanctioned to come forward with evidence of their financial status.”162
(4) Other Factors. The court may consider “factors such as the offending party’s history, experience, and ability, the severity of the violation, the degree to which malice or bad faith contributed to the violation, the risk of chilling the type of litigation involved, and other factors as deemed appropriate.”163
This Court, with respect to the first factor, heard no direct testimony regarding the reasonableness of the maximum sanction requested by the United States Trustee. Regarding the second factor, it would appear that, as a deterrent, a significant fine could likely enter against Defendant, but that can be achieved under 11 U.S.C. § 110(i)(1) under the mandatory provisions of the statute. Moreover, with respect to the third factor, the Court heard absolutely no evidence of the Defendant’s ability to pay. Finally, on the fourth factor, this Court did consider the history, evidence, and testimony before this Court. However, again, the fine(s) to the Defendant can be entered according to other mandatory provisions of the Bankruptcy Code and need not be assessed as sought by the Plaintiffs Second Claim for Relief.
C. Plaintiffs Third Claim For Relief-Collecting Court Filing Fees
1. 11 U.S.C. § 110(g)
Plaintiff seeks, under its Third Claim for Relief, this Court’s ruling that the Defendant and/or Defendant’s agents, assigns or employees paid the full filing fee for a case filed with the Bankruptcy Court where there was no fee waiver application filed when they delivered the petition to the Bankruptcy Court. The United States Trustee asserted that in the majority of these bankruptcy cases, Defendant collected an additional fee and told the Debtors that the additional fee was for “court fees.” The United States Trustee asserts that this violates 11 U.S.C. § 110(g) because bankruptcy petition preparers are prohib
For the reasons stated here, this Court concludes that Defendant violated section 110(g) when his employees collected filing fees or received payments from Debtors for court fees in connection with filing the petition and this was done in at least ten cases.
In seven of these ten cases, the Defendant’s employees, Joseph Assaf and Rocio Reza-Ortega, made installment payments to the Court for the Chapter 7 filing fee, as well as payments to have amendments to schedules filed.
2. Testimony of Nicole Zollars
Nicole Zollars, Paralegal Specialist for the Office of the United States Trustee, was assigned to the Defendant’s case for over a year and a half.
According to Ms. Zollars’ spreadsheet, applications for waiver of filing fees were filed by Defendant in five of the ten cases:
A. Flores-Villasenor, Baltazar and Flores, Soledad Irma, Case No. 10-40234-MER;169
B. Vargas, Gerardo and Sanchez-Castillo, Lorena G, Case No. 10-32155-EEB;170
C. Bustamante, Arnaldo Uber and Hinostroza, Rebecca Romula, Case No. 11-11932-HRT;171
D. Campos-Molina, Armando, Case No. 11-11984-ABC;172 and
E. Rubio-Perez, Yessica A, Case No. 11-12367-MER.173
Ms. Zollars testified that the applications for fee waivers in all five of the above-listed cases were denied and, thus, the Debtors were required to pay the filing fee.
Ms. Zollars testified that her spreadsheet was based on the docket sheets for all cases filed by Defendant on behalf of his Debtors/customers, and the notations made by the Bankruptcy Court Clerk showing the installment fees paid and the dates they were paid by Defendant’s employees.
In addition to Defendant’s employees paying installment payments to the Court, Ms. Zollars testified about Defendant’s employee, Rocio Reza-Ortega, and Ms. Reza-Ortega’s payment of fees for Debtors in two cases in connection with the amendment of schedules.
3. Testimony of Rocio Reza-Ortega
Ms. Rocio Reza-Ortega was a former employee of Defendant and she provided testimony regarding Defendant’s business practices. The Court observed her testimony at the trial of Plaintiffs Complaint and at prior evidentiary hearings held before the Court. Her testimony was consistent with the documents admitted into evidence and the other testimony provided by various debtor witnesses. The Court accepts Ms. Reza-Ortega’s testimony as truthful and accurate in all material re
Based on her testimony, Ms. Reza-Orte-ga was employed by Defendant as a secretary from April 2011 through the middle of October 2011,
Ms. Reza-Ortega testified that she remembered paying the installment fee for the Rubio-Perez, Yessica A. case.
4. Testimony from Debtors
Debtor Yvonne Mota testified that she paid Defendant $200.00 and then $500.00 for a total of $700.00.
Debtor Jesus Manuel Diaz-Hernandez testified that he paid Defendant a total of $700.00.
Debtor Poncho Frank Correa testified that he paid Defendant $200.00 and then an additional $400.00.
The evidence presented to the Court demonstrates that the Defendant has violated 11 U.S.C. § 110(g). Under 11 U.S.C. § 110(h)(3)(B), this Court finds that Defendant paid the filing fees for the filing of a case on ten occasions.
D. Plaintiffs Fourth Claim for Relief — Legal Advice
1. 11 U.S.C. § 110(e)(2)
Pursuant to 11 U.S.C. § 110(e)(2):
(A) A bankruptcy petition preparer may not offer a potential bankruptcy debtor any legal advice, including any legal advice described in subparagraph (B).
(B) The legal advice referred to in sub-paragraph (A) includes advising the debtor—
(i) whether—
(I) to file a petition under this title; or
(II) commencing a case under chapter 7, 11, 12, or 13 is appropriate;
(ii) whether the debtor’s debts will be discharged in a case under this title;
(iii) whether the debtor will be able to retain the debtor’s home, care, or other property after commencing a case under this title:
(iv) concerning—
(I) the tax consequences of a case brought under this title; or
(II) the dischargeability of tax claims;
(v) whether the debtor may or should promise to repay debts to a creditor or enter into a reaffirmation agreement with a creditor to reaffirm a debt;
(vi) concerning how to characterize the nature of the debtor’s interest in property or the debtor’s debts; or
(vii) concerning bankruptcy procedures and rights.
At trial, the United States Trustee demonstrated that Defendant violated 11 U.S.C. § 110(e)(2) in each and every case. Again, however, because the Plaintiff has withdrawn the claim under 11 U.S.C. § 110(i), no fine will issue. The Court will nevertheless set forth below Defendant’s course of conduct in giving legal advice to establish a record of this Court’s findings.
2. Defendant’s History of Providing Legal Advice
Since 2006, Defendant has provided legal advice and assisted debtors in Colora
In 2009, the Colorado Supreme Court responded to a complaint filed against this Defendant and ordered Defendant to stop engaging in the unauthorized practice of law in connection with his bankruptcy petition preparer services.
3. An Overview of Defendant’s Conduct with Respect to his Preparation of Cases at Issue, as Demonstrated at Trial
Customers would call to make an appointment and would come in and see the Defendant first. Individual customers were generally charged $200.00 for typing services and $100.00 for a workbook. If the customer took credit counseling through Defendant’s office, he/she was charged $100.00 per class. Combined, an individual would be charged $500.00 for services to file bankruptcy.
Many of the Defendant’s customers were told to not worry about anything and that everything would be handled for them.
No documents are provided in Spanish to Defendant’s Spanish-speaking customers.
There are at least five main categories where Defendant shows a pattern that he gave some type of legal advice and violated 11 U.S.C. § 110(e).
(1) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers with the consistent use of pre-filled and pre-checked forms for his customers’ bankruptcies.
(2) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he consistently decided what debtors should claim in the way of exemptions and provided a legal explanation of Schedule C exemptions in his workbook.
(3) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he prepared applications for waiver of the Chapter 7 filing fees either without consent from his customers or without their knowledge and understanding of the document.
(4) Defendant violated section 110(e) after the United States Trustee analyzed how Defendant’s customers answered questions about legal advice in the United States Trustee’s Bankruptcy Petition Preparer Questionnaires.
(5)Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he or his employees filled out Chapter 7 Trustee information sheets that are signed by debtors under penalty of perjury.
4. Category One: Specific Instances of Legal Advice — Pre-Filled Forms
Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers with the consistent use of pre-filled and pre-checked forms for his customers’ bankruptcies. The evidence and testimony before this Court reflects that this violation occurred in all 241 cases.
a. Testimony of Rodo Reza-Ortega
As Defendant’s employee, Rocío Reza-Ortega was trained by Defendant on how to prepare a substantial portion of a typical debtor’s bankruptcy documents, and was personally familiar with Defendant’s business model and procedures.
(1) The official bankruptcy forms were prepared based on information provided by customers in the workbook, and if portions of the workbook were not completed, Defendant’s staff would obtain the information verbally.220
*724 (2) The official bankruptcy Voluntary Petition form used for customers’ cases usually had several items pre-checked, including: i) the box stating that “Debts are primarily consumer debts” located in the Nature of Debts section of the Petition; and ii) the box stating “Chapter 7” located in the “Chapter of Bankruptcy Code Under Which The Petition is Filed” section of the Petition.221
(3) Ms. Reza-Ortega testified that practically all of the answers to 25 questions on the SOFA are pre-checked and that changes are rarely made to the majority of the answers.222
(4) The SOFA forms used for customers’ cases all had these items pre-checked “NONE”:
• Question 2. Income other than from employment of operation of business.
• Question 3. Payments to creditors.
• Question 5. Repossessions, foreclosures and returns.
• Question 6. Assignments and re-ceiverships.
• Question 7. Gifts.
• Question 8. Losses.
• Question 9. Payments related to debt counseling or bankruptcy (filled in except for the date). The information was the same for all debtors, except the date.
• Question 10. Other Transfers.
• Question 11. Closed Financial Accounts.
• Question 12. Safe Deposit Boxes.
• Question 13. Setoffs.
• Question 14. Property held for another person.
• Question 16. Spouses and Former Spouses.
• Question 17. Environmental Information.
• Question 18. Nature, location and name of business.
• Question 19. Books, records and financial statements.
• Question 20. Inventories.
• Question 21. Current Partners, Officers, Directors and Shareholders.
• Question 22. Former partners, officers, directors and shareholders.
• Question 23. Withdrawals from a partnership or distributions by a corporation.
• Question 24. Tax Consolidation Group.
• Question 25. Pension Funds.223
(5) While Ms. Reza-Ortega indicated that information related to these questions in the SOFA would be filled in if provided by a customer, she does not recollect that all of these questions were asked as part of the workbook. In fact, they are not in the workbook.224
(6) Even if answers to a workbook question might be relevant to any bankruptcy matters, the workbook does not pose questions as they are asked in the official SOFA.225
(7) Ms. Reza-Ortega testified that the primary language of 85% to 90% of*725 Defendant’s customers was Spanish. Yet, the workbook was not in Spanish and Defendant’s staff never translated the official bankruptcy forms they prepared line-by-line for the customers.226
(8) As for preparing Schedules A and B, these schedules were generally typed out according to the information provided by the customer in the workbook or through verbally answering the workbook questions. If a customer had a home, that would be typed on Schedule A. Any other property would be typed on Schedule B.227
(9) Generally, Schedule C was already pre-formatted with common property descriptions and Colorado exemption statutes. Based on the customer’s property listed in the workbook, Defendant’s staff was trained to add things or to modify the pre-formatted Schedule C, based on information provided by the customers.228
(10) To the extent there was a type of property that Defendant’s staff was unsure of the proper exemption, the office maintained a sample file from which to refer, to type an exemption.229
(11) As for Schedules D, E, and F, Defendant trained his staff to put certain debts in certain schedules, i.e., they were trained to type mortgage and automobile related debts on Schedule D; tax debts on Schedule E; and all other debts were typed on Schedule F (which was generally typed out according to the information in the customer’s credit report and any additional information provided by a customer).230
(12)For Schedule G, Defendant’s staff was trained to check off the box that said “Check this box if debtor has no executory contracts or unexpired leases.” For Schedule H, Defendant’s staff was trained to check off the box that said “Check this box if debtor has no codebtors.”231
(18) Schedule I was typed with information provided by the customer. Because the customer was often confused by how to calculate monthly income, Defendant’s staff did the calculation most of the time from the information provided by the customer. Schedule J was typed based on the information provided by the customer.232
(14) The Means Test Form was usually prepared by Defendant’s staff by estimating the customer’s current monthly income based on whatever paystubs were provided. Defendant’s staff would do the calculation most of the time.233
b. Debtors’ Testimony — A Summary
Ms. Reza-Ortega’s testimony was corroborated by various Debtors’ testimony
Not one witness testified that they brought Defendant a draft of the official forms for Defendant to type. There was no evidence, either, that this occurred in any of the 241 bankruptcy cases prepared by Defendant. Rather, the uncontrovert-ed evidence reveals that Defendant completed the official forms by procuring information from (1) the customer’s answers to information sought by the workbook, (2) the customer’s answers to questions posed by Defendant and his staff, (3) documents provided by the customer, and (4) information procured by Defendant independently (such as a credit report). Then, either Defendant or a member of his trained staff determined how the official bankruptcy forms should be completed, on what particular schedule to type the customer’s property, and on what particular schedule to type the customer’s debts and, in so doing, characterized the nature of the customer’s property interests and debts.
Further, with the exception of Deana Sotelo, all of the Debtors/witnesses testified consistently that before they came to Defendant, they were unaware of the differences between the different Chapters in bankruptcy. They filed bankruptcy under Chapter 7 because Defendant either directed, advised or informed the Debtors that Chapter 7 bankruptcy was appropriate to their circumstance, or he simply prepared the bankruptcy as a Chapter 7 bankruptcy without any discussion.
Regarding the use of pre-filled forms, there are two highlights where customer testimony was consistently the same:
(1) Despite paying Defendant more than $200.00, not one Debtor stated that they directed Defendant to put*727 $200.00 in response SOFA Question No. 9.
(2) Not one Debtor understood the Schedule C exemptions or knew where the statutory sections came from or what they meant. The evidence showed that many Debtors merely signed the paperwork prepared by the Defendant and the Defendant gave absolutely no explanation why the exemptions were chosen.
c. A Survey of the Specific Testimony of Eleven Debtors
As noted above, the Court heard the testimony of eleven debtors with respect to the pre-filled in forms. The Court finds that each Debtor’s testimony was credible and corroborated with other testimony and evidence. The Defendant, on the other hand, offered very little to counter the evidence presented and he, himself, did not appear credible nor did he appear to directly contradict the testimony of the eleven Debtors/witnesses. The testimony considered by the Court includes the following:
(1)Gloria Chavez-Robles testified that she does not speak or read English. She testified that no documents were provided to her in Spanish or translated for her. Ms. Chavez testified that she paid Defendant $1,720 and that she did not fill out anything for her bankruptcy including SOFA Question No. 9 which had an “X” in the “None” box. In fact, Ms. Chavez testified that she never saw any of the forms.235
(2) Alvaro Mendoza-Rojo testified that although he understands spoken English, his proficiency in reading English is not as good. He testified that he paid Defendant $1,200.00 and that Defendant asked questions and filled out the paperwork in about thirty minutes.236
(3) Jesus Manuel Diaz-Hernandez testified that he does not speak or read English and that none of the forms were provided to him in Spanish or translated for him. Mr. Diaz testified that he paid Defendant a total of $700.00. Mr. Diaz testified that he did not direct Defendant to put $200.00 in response to SOFA Question No. 9.237
(4) Robert Frankel testified that he did not fill out the workbook because it was too complicated. He paid Defendant at least $500.00 and he did not direct Defendant to put $200.00 in response to SOFA Question No. 9. He also testified that he did not put any of the Xs on the rest of the questions on the SOFA.238
(5) Roberta Moland, who had power of attorney for her mother, Mary Jane Swanson, testified that she and her mother were merely shown where to sign the Petition, Schedules and SOFA and that she did not understand them. Ms. Moland paid Defendant $500.00 for the bankruptcy and she did not direct Defendant to put $200.00 in response to SOFA Question No. 9.239
*728 (6) Poncho Frank Correa testified that he paid Defendant $600.00 and he never received or filled out a workbook. He testified that he did not direct Defendant to fill in $200.00 in response to SOFA Question No. 9.240
(7) Guy Maestas testified that he paid Defendant $700.00 and that he did not direct Defendant to put only $200.00 in response to SOFA Question No. 9. He also did not provide the calculations for his monthly income.241
(8) Claudia Aponte testified that Ms. Reza-Ortega assisted her with the preparation of her bankruptcy. Ms. Aponte testified that she did not receive a workbook like the one that was shown to her during the trial. She testified that she did not calculate her income for the Means Test form. Ms. Aponte testified that she paid Defendant $200.00 and that she did not direct Defendant to put $200.00 in response to SOFA Question No. 9.242
(9) Yvonne Mota testified that she paid Defendant a total of $700.00. Ms. Mota did not direct Defendant to fill in $200.00 in response to SOFA Question No. 9. She testified that she did not receive a workbook and that she only received a few sheets from Defendant.243
(10) Deana Sotelo testified that she never received or filled out a workbook or filled out any paperwork. She paid Defendant $600.00 and she did not direct Defendant to put $200.00 in response to SOFA Question No. 9.244
(11) Francisco Sanchez testified that he paid Defendant $900.00 for him and his wife to file bankruptcy. He never filled out a workbook. Mr. Sanchez did not provide income calculations for the Means Test. Neither Mr. Sanchez nor his wife directed Defendant to put $200.00 in response to SOFA Question No. 9.245
d. Defendant’s Failure to Refute the Evidence of Pre-Filled Forms
With respect to the eleven Debtors/witnesses and their corroborating evidence, Defendant did not assert or present any substantive challenge. He offered no rebuttal witnesses or evidence. In fact, during closing argument, Defendant conceded that he routinely managed or performed the specified problematic general practices. He claimed that his business practice did entail giving all customers the workbook, stating specifically that, “[f]ol-lowing explaining each customer the fees that were involved, they will receive a workbook.”
5. Category 2: Specific Instances of Legal Advice — Schedule C — Exemptions
Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers by consistently deciding what his customers should claim in the way of exemptions, and he provided legal advice by explaining Schedule C exemptions in his workbook. Since the workbook provided his customers with legal advice about Schedule C exemptions and there are 241 cases that are the subject of the United States Trustee’s Complaint, there are 241 additional violations of Defendant providing legal advice to his customers in violation of section 110(e).
The evidence shows that the workbook contains a legal explanation of the Schedule C — exemptions and lists the statutory sections that many customers did not understand. Not one Debtor testified that they understood the Schedule C exemptions listed in the workbook or knew where the statutory sections for exemptions came from. All the Debtors/witnesses testified that they did not know the meaning of the specific statutory exemptions typed in Schedule C for their particular bankruptcy-
a. Testimony of Rodo Rezar-Ortega with respect to Schedule C— Exemptions
The workbook, in addition to seeking to procure various items of financial information from potential debtors, contained a summary of possible available Colorado property exemptions, with directions on how the Colorado exemption would purportedly apply to property interests.
Ms. Reza-Ortega testified that Schedule C would be prepared from the exemption chosen by the customer from the workbook; further, that if the customer did not understand what exemptions were, Defendant’s staff would inform the customer what statutes would permit the customer to retain specific property through the bankruptcy process.
b. Debtors’ Testimony with respect to Schedule C — Exemptions
Robert Frankel testified that he did not direct Defendant to fill out the numbers and he testified that he did not understand the numbers or the exemptions. He did not know what the numbers meant and he did not know where the citations came from.
Roberta Moland, who had power of attorney for her mother, Mary Jane Swanson, testified that she did not fill out the Schedule C exemptions and she did not understand them.
Poncho Frank Correa testified that he did not know where the numbers for
Guy Maestas testified that he did not understand the numbers on Schedule C and he did not know what the numbers meant.
Claudia Aponte testified that she did not know what the Schedule C exemptions were and that she did not check off the box on this schedule.
Yvonne Mota testified that she had no knowledge of the Schedule C exemptions and that she did not fill it out on her Schedule C. She also did not know where the legal citations came from.
Deana Sotelo testified that she did not provide the information for Schedule C exemptions and she did not understand them. She also did not know who filled in the citations and numbers.
Francisco Sanchez testified that he did not know what the numbers meant and that he did not provide the information for Schedule C or check off the box on Schedule C.
c. Defendant’s Admissions Regarding Schedule C
Defendant admits that his workbook provides legal advice. Defendant stated during closing arguments that with respect to the exemption list and advice provided in the workbook, “[t]he Colorado exemption list that appears in the workbook is only a tool that customers or debtors have to make the determination of what exemptions they’re going to be using to be listed in the bankruptcy. It has the list of every asset that they have, an amount of the maximum that they can claim, and it has the Colorado code.”
6. Category 8: Specific Instances of Legal Advice-Applications for Waiver of Chapter 7 Filing Fees
Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he prepared applications for waiver of the Chapter 7 filing fees either without consent from his customers or without their knowledge and understanding of the document. Defendant prepared at least 218 applications for waiver of the Chapter 7 filing fee either without consent from his customers or without their knowledge and understanding of the document.
a. Testimony of Nicole Zollars About Applications for Waiver of Filing Fees
Paralegal Specialist for the U.S. Trustee, Nicole Zollars, read into the record a portion of the transcript from the Marco Briones-Coroy trial about how Mr. Briones-Coroy did not have knowledge or an understanding about the application for the waiver of the Chapter 7 filing fee.
Ms. Zollars’ testified about how she analyzed all of Defendant’s original customer files and she discovered that only nine cases had a form created by Defendant called a “debtor’s declaration to file bankruptcy with a fee waiver.” Thus, practically all of the Defendant’s customers did not consent to the application for fee waiver being filed in their case.
b. Testimony of Rocío Rezar-Ortega About Applications for Waiver of Filing Fees
Rocío Reza-Ortega testified that Defendant’s employees and agents would explain the application for waiver of filing fee and they would fill it out for customers.
c. Debtors’ Testimony About Applications for Waiver of Filing Fees
No witness testified and there was no other evidence in any instance that a customer brought a draft of Official Form B3B (Application for Waiver of the Chapter 7 Filing Fee) for Defendant to type. Rather, the official form was typed by Defendant and/or his staff purportedly based on information provided by the customer.
Jesus Manuel Diaz-Hernandez testified that he had no knowledge that the application for waiver of Chapter 7 filing fee was filed in his case.
Robert Frankel testified that he had no knowledge of the application for waiver of Chapter 7 filing fee and he did not know that it was filed in his case.
Roberta Moland, who had power of attorney for her mother, Mary Jane Swanson, testified that she did not understand the application for waiver of Chapter 7 filing fee and she did not know that it was filed in her mother’s case
Poncho Frank Correa testified that although he was aware of the application for
Yvonne Mota testified that she had no knowledge that the application for waiver of filing fee was filed in her case and she did not even know what it was.
Deana Sotelo testified that Defendant advised her about the waiver. Ms. Sotelo did not provide the figures to Defendant and he filled it out for her. The fee that she paid Defendant did not accurately correspond to the receipt given to her by Defendant.
7. Category I: Specific Instances of Legal Advice — Defendant’s Legal Advice Regarding United States Trustee Questionnaires
Defendant violated section 110(e) after the United States Trustee analyzed how Defendant’s customers answered questions about legal advice in the United States Trustee’s Bankruptcy Petition Preparer Questionnaires. Defendant committed this violation 134 times.
a. Testimony of Nicole Zollars About United States Trustee Questionnaires
United States Trustee Paralegal Specialist, Nicole Zollars, testified that she assisted in sending a questionnaire to all Debtors without an attorney who used a bankruptcy petition preparer. The questionnaire and a cover letter were provided in English and in Spanish to Debtors identified in the United States Trustee’s Complaint.
Ms. Zollars testified that Question 7 of the United States Trustee’s questionnaire listed questions about whether the Debtor received legal advice. The questions were based on section 110(e)(2)(B) about legal advice.
Based on the questions about legal advice in the United States Trustee’s questionnaire, Ms. Zollars testified that her spreadsheet shows instances where Debtors received legal advice.
a. whether or not to file a bankruptcy petition;280
b. the difference between bankruptcy cases under chapter 7, 11, 12 or 13;281
c. whether your debts will be discharged or eliminated;282
d. whether you should select state or federal property exemptions;283
e. whether you will be able to retain your home, car, or other property after filing bankruptcy;284
f. any tax consequences from filing bankruptcy;285
g. whether you should repay any of your debts to a creditor before after filing bankruptcy;286
h. whether you should enter into an agreement with a creditor to reaffirm a debt;287
i. how to report property as either real or personal property;288
j. how to report debts as either priority, secured, or unsecured debts;289 and
k. any bankruptcy procedures and rights you have as a debtor in bankruptcy290
Since there were multiple questions about legal advice, according to Ms. Zol-lars’ spreadsheet the total affirmative answers about receipt of legal advice totaled 134 instances in these 27 cases.
b. Testimony of Debtors About United States Trustee Questionnaires
Roberta Moland testified how Defendant advised her mother to file Chapter 7 bankruptcy.
Guy Maestas testified that he just went along with Defendant’s choice of filing bankruptcy under Chapter 7.
Yvonne Mota testified that Defendant advised her about the difference between the bankruptcy chapters and Defendant explained that her debts could be discharged.
Deana Sotelo testified that Defendant advised her about the difference between the bankruptcy chapters.
Francisco Sanchez testified that he did not know the difference between chapters and that Defendant directed him to file Chapter 7.
8. Category 5: Specific Instances of Legal Advice — Defendant’s Legal Advice Regarding Chapter 7 Trustee Information Sheets and Declaration Under Penalty of Perjury for Debtors Without an Attorney Forms
Defendant violated section 110(e) by providing legal advice and making legal decisions for his customers when he or his employees filled out Chapter 7 Trustee information sheets and forms for debtors without an attorney that are signed by debtors under penalty of perjury. These forms are used routinely by trustees to gather financial information from debtors to assist and expedite the trustee’s examination of debtors’ finances, assets, debts, transactions, and the completeness and accuracy of debtors’ filed documents. According to the evidence, this was done in at least six cases. Chapter 7 Trustee information sheets are documents that the debtors sign under penalty of perjury. According to the evidence at trial, Defendant filled out the Chapter 7 Trastee information sheets in at least six cases.
a. Testimony of Rodo Reza-Ortega About Trustee Information Sheets and Declarations Under Penalty of Perjury Forms for Debtors Without an Attorney
Rocío Reza-Ortega testified that she and Defendant’s employees would sometimes fill out the Trustee Information Sheets and declarations under penalty of perjury forms for debtors without an attorney.
b. Debtors’ Testimony About Trustee Information Sheets and Declaration Under Penalty of Perjury Form for Debtors without an Attorney
Ms. Mota testified that Defendant told her to sign a blank Trustee Information Sheet and that he would fill it out for her. Indeed, her testimony was that the sheet
Finally, Mr. Sanchez testified that there were two questionnaires, one that he had Defendant’s employee assist him in filling out, which had incorrect fees about what was paid, and then another one that was filled out later and sent to the United States Trustee’s office.
9. Debtors’ Testimony About Additional Legal Advice They Received From Defendant Showing Defendant’s Pattern and Practice of Providing Legal Advice
Ten Debtors testified at trial about additional legal advice they received from Defendant. Additional evidence shows that Defendant regularly provides his customers with legal advice.
Gloria Chavez-Robles testified that she paid Defendant $1,720 and of that $1,720, she paid a $520 fee for advice from Defendant on how he could help her save her home. Ms. Chavez-Robles testified that she wanted to keep her house but that Defendant told them that she could not keep it because the trustee would want to sell the house to pay their accounts.
Alvaro Mendoza-Rojo testified that he paid Defendant a total of $1,200.00 and of that $1,200.00 Mr. Mendoza-Rojo paid $500.00 for advice from Defendant on how Mr. Mendoza-Rojo could stay in his house for another three months. Mr. Mendoza-Rojo followed Defendant’s advice, but lost his house two days later and lamented on how he would never see that $500.00 back.
Robert Frankel testified that he thought Defendant was an attorney because of the nice suit he wore. Mr. Frankel testified that he paid Defendant approximately $700.00 to do the bankruptcy and that his house was in jeopardy. He testified that Defendant gave him advice about not including his house on Schedule A. Later an amendment to Schedule A had to be filed by Mr. Frankel including his house. Mr. Frankel also testified that his handwriting was not the handwriting on the bankruptcy typing agreement.
Roberta Moland, who had power of attorney for her mother, Mary Jane Swanson, testified that she did not want her mother to lose her home. She testified about how she felt overwhelmed in Defendant’s office because it was chaotic and everyone spoke Spanish. She also testified how Defendant advised her mother to file Chapter 7 bankruptcy and advised her to change her workbook answers and make changes to certain numbers because he didn’t like her answers.
Poncho Frank Correa testified that Defendant advised him how to put his new truck on the schedules. Mr. Correa also testified that he knew something was not right regarding his experience with Defendant in 2010 and that this caused Mr. Correa to have a heart attack a week after
Guy Maestas testified that he went to Defendant because he wanted to stop a garnishment and that Defendant advised him on how he could stop the garnishment. Mr. Maestas testified that he just went along with Defendant’s choice of filing bankruptcy under Chapter 7 and Defendant figured out the numbers for him. Mr. Maestas told Defendant that he was afraid that things would be missing in the bankruptcy. In response, he testified that Defendant told him “don’t worry I can get it through your credit report.”
Claudia Aponte testified that she did not know the differences between the bankruptcy chapters and that Defendant told her that she would be filing Chapter 7. Defendant also advised her about how bankruptcy could take care of a lawsuit that a creditor brought against her. She testified that she did what he told her to do and that she did none of the calculations on her wages.
Yvonne Mota testified that Defendant advised her about the difference between the bankruptcy chapters and he explained that her debts could be discharged. She also testified that Joey said that they would fill out the declaration for filers without an attorney for her.
Deana Sotelo testified that Defendant advised her about her garnishment and explained the difference between the bankruptcy chapters. Defendant filled out the bankruptcy petition for her and came up with the income calculation.
Francisco Sanchez testified that he did not know the difference between chapters and that Defendant directed him to file Chapter 7. Defendant also came up with the income calculations.
10. Conclusions of Law With Respect to Defendant’s Conduct and Violations Under 11 U.S.C § 110(e)
a. Legal Advice
Defendant provided prohibited legal advice to unsophisticated customers all in violation of section 110(e). Defendant is a clever and smooth businessman — albeit not necessarily a sophisticated and skilled businessman — and he has figured out a way to make the bankruptcy system work for him, at the expense of the Debtors he purports to help and at the expense of the bankruptcy system itself.
Section 110(e)(2)(A) prohibits bankruptcy petition preparers from providing any legal advice. More specifically:
(2)(A) A bankruptcy petition preparer may not offer a potential bankruptcy debtor any legal advice, including any legal advice described in subparagraph (B).
“Congress’ clear intent was that §110 authorize bankruptcy petition preparers to provide only scrivener services, limited to clerical services such as copying and typing.”
The list of “legal advice” set forth in 11 U.S.C. § 110(e)(2)(B) is neither exclusive nor exhaustive, i.e., it is a non-exclusive list of examples describing what may constitute legal advice.
(1)Soliciting information from debtors (via interviews, questionnaires, internet queries, etc.) to prepare bankruptcy documents. Such conduct constitutes an unauthorized practice of law because “transferring information from the questionnaire to the official bankruptcy forms invariably will require some legal judgment.”319
(2) Choosing exemptions for debtors.320
(3) Providing debtors with a comprehensive list of available exemptions from which to choose.321
(4) Preparing and filling out the official bankruptcy forms to be filed by determining where property and debts are to be scheduled which is summarized and reformulated from information solicited from debtors.322
Advising debtors about forms, timelines, what may or may not occur in the ease, whether debtors might be able to avoid liens under 11 U.S.C. § 522(f)(1), cram-down rights, redemption rights, structuring of Chapter 13 plans, or virtually any other substantive or procedural issue in a consumer bankruptcy. Virtually any exercise of discretion about what to include or not include in the bankruptcy documents, will touch upon a bankruptcy ‘procedure’ or ‘right’.... ” This clause represents a catchall provision which leaves little room for a bankruptcy petition preparer to do anything beyond the typing and copying tasks discussed in Gomez [259 B.R. 379, 381 (Bankr.D.Colo.2001)] and a myriad of other published and unpublished opinions under pre-BAPCPA law.323
In Hennerman this Court stated that “[a]lthough a preparer could type these documents if the debtor herself had given the preparer drafts, the preparer cannot create de novo documents for filing. If the preparer does so then the preparer is providing prohibited ‘legal advice.’”
Further, the giving of legal advice by a petition preparer operates as a particularly unfair and deceptive practice. As stated by Judge Krieger in In re Gomez.
[B]y using a patchwork of legal resources, reference to years of legal experience and a computer program, they [the bankruptcy petition preparers] embellish the illusion that prospective debtors receive the essential legal assistance necessary to obtain bankruptcy relief. This makes the disclosure ... that [the bankruptcy petition preparer] is not an attorney and cannot provide legal advice particularly deceptive and misleading. The [bankruptcy petition preparers] simultaneously dispense advice which has potentially profound consequences while attempting to disclaim any responsibility for the advice given ... they provide fragmented and incomplete legal assistance, the inadequacies of which are not readily apparent to debtors such as Ms. Gomez. The practices of [the bankruptcy petition preparers] are not only unauthorized, they were, in this case, unfair and deceptive.325
Defendant violated section 110(e) in at least five categories, as follows:
*739 (1) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers with the consistent use of pre-filled and pre-checked forms for his customers’ bankruptcies. Defendant committed this violation in all 241 cases. Fed.R.Evid. 406 provides that evidence of a person’s habit or an organizations routine practice may be admitted to prove that in a particular occasion the person or organization acted in accordance with the habit or routine practice. In this case, the United States Trustee provided ample evidence, via Ms. Reza-Ortega, Ms. Zollers, the various testifying Debtors and Defendant’s admissions, 1 of his routine practices in preparing the official bankruptcy forms for Debtors. The Court finds that sufficient evidence of Defendant’s routine practice has been provided. The evidence demonstrates that across the span of these cases, at a minimum, Defendant provided legal advice which ultimately led to preparing all Debtors’ official bankruptcy forms from scratch.
(2) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he consistently decided what debtors should claim in the way of exemptions and provided a legal explanation of Schedule C exemptions in his workbook. Defendant committed this violation in all 241 cases.
(3) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he prepared applications for waiver of the Chapter 7 filing fees either without consent from his customers or without their knowledge and understanding of the document. Defendant committed this violation in at least 218 cases.
(4) Defendant violated section 110(e) after the United States Trustee analyzed how Defendant’s customers answered questions about legal advice in the United States Trustee’s Bankruptcy Petition Preparer Questionnaires. Defendant committed this violation 134 times in at least 27 cases.
(5) Defendant violated section 110(e) when he provided legal advice and made legal decisions for his customers when he or his employees filled out Chapter 7 Trustee information sheets that are signed by debtors under penalty of perjury. Defendant committed this violation in at least seven cases.
The Court concludes that in each of the 241 cases, the Defendant has provided legal advice to Debtors in violation of 11 U.S.C. § 110(e)(2)(A) and (B). Violations of section 110(e) may result in forfeiture and refunding of “all fees” Defendant charged and received from customers. 11 U.S.C. § 110(h)(3), (5).
E. Plaintiffs Fifth Claim for Relief&emdash;Injunctive Relief for a Willful Pattern of Conduct
1. Findings and Conclusions with, Respect to Plaintiffs Requested Injunctive Relief
Plaintiff asserts that because Defendant has engaged in a clear and consistent pattern and practice of violating 11 U.S.C. § 110, this Court should permanently enjoin the Defendant from providing any bankruptcy petition preparer services as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant.
Pursuant to section 110(j)(2)(A) and (B), a bankruptcy petition preparer may be enjoined from engaging in any conduct in violation of section 110 or from further acting as a bankruptcy petition preparer.
The Fifth Claim of the United States Trustee’s Complaint (injunction for willful pattern of conduct) alleges that Defendant has engaged in a clear and consistent pattern and practice of violating 11 U.S.C. § 110. Injunctive relief, as well as other damages and fines, is appropriate in this case and Defendant should be enjoined from practicing as a bankruptcy petition preparer because he “has engaged in conduct in violation of section 110” and he has “engaged in any other fraudulent, unfair, or deceptive conduct.”
In deciding whether permanent injunctive relief is appropriate, a court should consider: (1) whether there is a cognizable danger that the violation will be repeated: (2) prior conduct; (3) current conduct; and (4) whether reliable promises have been made to commit no further violations in the future.
Pursuant to section 110(j), a bankruptcy petition preparer may be enjoined from engaging in any conduct in violation of section 110 or from further acting as a bankruptcy petition preparer. Pursuant to section 110(j)(2)(A), the Court may enjoin the bankruptcy petition preparer, specifically, if the Court finds that:
i. bankruptcy petition preparer has&emdash;
(I) engaged in conduct in violation of this section or of any provision of this title;
(II) misrepresented the preparer’s experience or education as a bankruptcy petition preparer; or
(III) engaged in any other fraudulent, unfair, or deceptive conduct; and
ii. injunctive relief is appropriate to prevent the recurrence of such conduct, the Court mag enjoin the bankruptcy*741 petition preparer from engaging in such conduct.330
Pursuant to section 110(j)(2)(B), if specified statutory aggravating circumstances are present, a court may also enjoin the preparer from being a bankruptcy petition preparer. Relevant to the present dispute, if the Court finds that a bankruptcy petition preparer has continually engaged in conduct proscribed by section 110(j)(2)(A), and “that an injunction prohibiting such [specific] conduct would not be sufficient to prevent such person’s interference with the proper administration of [the Bankruptcy Code] ... the court may enjoin the person from acting as a bankruptcy petition preparer.”
The Court finds that Defendant is such a person who should and must be enjoined from acting as a bankruptcy petition preparer. Defendant’s conduct violated 11 U.S.C. § 110, and he engaged in numerous fraudulent, unfair and deceptive practices, satisfying 11 U.S.C. §§ 110(j)(2)(A)(i)(D and (i)(III). With respect to 11 U.S.C. § 110(j)(2)(B), the facts reveal in abundance that: (1) Defendant has continually engaged in this conduct; and (2) injunctive relief prohibiting such conduct is necessary to prevent Defendant’s interference with the proper administration of the Bankruptcy Code. Defendant has and continues to disregard the mandates and restrictions of section 110, notwithstanding the litany of fines, sanctions and injunction orders which have previously issued against him.
Defendant’s violations of 11 U.S.C. § 110 in multiple jurisdictions warrant a national injunction. The Court finds that Defendant should be enjoined from acting as a bankruptcy petition preparer on a national basis. For years, Defendant has engaged in repeated and continuous violations of 11 U.S.C. § 110. After previously being enjoined in the Central District of California, he continued his violations, unabated, in this District.
Various judges of this Court have previously found that Defendant violated 11 U.S.C. § 110 and engaged in various fraudulent, unfair and deceptive conduct, satisfying 11 U.S.C. § 110(j). Defendant has continually engaged in this conduct and injunctive relief prohibiting such conduct is necessary to prevent Defendant’s interference with the proper administration of the Bankruptcy Code. Defendant has and continues to disregard the mandates and restrictions of 11 U.S.C. § 110. Defendant was enjoined from being a bankruptcy petition preparer in California. The Supreme Court of Colorado also enjoined Defendant for unauthorized practice of law. None of this has had any apparent impact on Defendant in providing bankruptcy assistance to Debtors, nor has this been successful in regulating his conduct. In fact, as evidenced by Defendant’s fraudulent procurement of certificates evidencing the completion of credit counseling courses, Defendant’s fraud, deceit and willingness to violate the Bankruptcy Code in general and 11 U.S.C. § 110 in particular, has escalated notwithstanding the prior sanctions and injunctions.
Combined, Defendant’s conduct demonstrates that there is a cognizable danger that violation of section 110 will be repeated: his prior conduct and current conduct reveals a disregard for the strictures imposed by section 110. This Court has no reasonable confidence or assurance that Defendant will commit no further violations in the future.
Without a national injunction, the Court would likely just foist anew this problem
The Court has discretion to issue a statewide, regionwide or nationwide injunction.
Bankruptcy is a complex arena, filled with potential legal pitfalls for the pro se debtor. Many of Defendant’s customers do not speak English and Spanish is their native language. The last thing any pro se debtor needs is a bankruptcy petition preparer like Defendant to navigate them through the bankruptcy system. Because Defendant has crossed jurisdictional borders in the past and has repeatedly violated section 110, this Court shall enjoin Defendant pursuant to the Plaintiffs Fifth Claim for Relief in the Complaint.
2. Injunctive Relief Under Section 110(j) — Colorado
Defendant, as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant, shall be enjoined in the District of Colorado for a period of ten (10) years from the date this Order and corresponding Judgment become final and non-ap-pealable:
(1) From acting, directly or indirectly, as a bankruptcy petition preparer as*743 that term is defined by 11 U.S.C. § 110 and any amendments thereto.
(2) From providing any services, directly or indirectly, as a debt relief agency or from providing any bankruptcy assistance, as those terms are defined in 11 U.S.C. § 101, et al, and any amendments thereto.
(3) From typing, assisting, advising, providing legal guidance, advice, assistance, or consultation of any kind, directly or indirectly to any person in connection with the filing or prosecution of any bankruptcy case or any document in any bankruptcy case.
(4) From advertising, selling, marketing, displaying, or making any other offer or making any representation, directly or indirectly, that they may provide any of the services enjoined by this Order.
(5) From giving any legal advice, from preparing or assisting in the preparation of any petitions, schedules, statement of financial affairs or any other documents for filing in a bankruptcy case in the District of Colorado or from rendering any advice, instruction, direction or assistance with the preparation of any document for filing in any bankruptcy matter in Colorado; whether for a direct fee, indirect compensation or for free, pursuant to 11 U.S.C. § 110(j)(2)(B), until such time as Emmanuel Assaf is admitted to practice law in the state where the bankruptcy case is filed.
(6) From contracting or agreeing, directly or indirectly, whether orally or in writing, with anyone to perform any service or engage in any act enjoined by this Order.
Immediately after this Order and the corresponding Judgment are entered on the Court docket, Defendant, as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant shall be required to cease all advertising for services offered in connection with any bankruptcy, including cancelling all print, radio, television or online ads; disable any websites, blogs or other electronic forums or media that advertises prohibited services; remove signs, notices, posters, billboards or other means of notifying the public of offered services that are prohibited; and destroy all advertising materials, business cards, letterhead, envelops or any other material advertising his services in connection with bankruptcy cases. In addition, within thirty (30) days from the date of entry of this Order on the Court’s docket, Defendant shall be required to file a declaration with this Court, under penalty of perjury, that he has fully complied with this Order.
3. Injunctive Relief Under Section 110(j) — Nationally
Emmanuel Assaf, Bankruptcy Petition Preparer, dba Emmanuel Assaf Debt Relief Agency, his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant shall be enjoined in the United States for a period of ten (10) years from the date this Order and Judgment become final and non-appealable:
(1) From acting, directly or indirectly, as a bankruptcy petition preparer as that term is defined by 11 U.S.C. § 110 and any amendments thereto.
(2) From providing any services, directly or indirectly, as a debt relief agen*744 cy or from providing any bankruptcy assistance, as those terms are defined in 11 U.S.C. § 101, et al., and any amendments thereto.
(3) From typing, assisting, advising, providing legal guidance, advice, assistance, or consultation of any kind, directly or indirectly, to any person in connection with the filing or prosecution of any bankruptcy case or any document in any bankruptcy case.
(4) From advertising, selling, marketing, displaying, or making any other offer or making any representation, directly or indirectly, that they may provide any of the services enjoined by this Order.
(5) From giving any legal advice, from preparing or assisting in the preparation of any petitions, schedules, statement of financial affairs or any other documents for filing in a bankruptcy case in any District in the United States or from rendering any advice, instruction, direction or assistance with the preparation of any document for filing in any bankruptcy matter in any District in the United States; whether for a direct fee, indirect compensation or for free, pursuant to 11 U.S.C. § 110(j)(2)(B), until such time as Defendant is admitted to practice law in the state where the bankruptcy case is filed.
(6) From contracting or agreeing, directly or indirectly, whether orally or in writing, with anyone to perform any service or engage in any act enjoined by this Order.
Immediately after this Order and the corresponding Judgment are entered on the Court docket, Defendant, as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant, shall be required to cease all advertising on a national basis for services offered in connection with any bankruptcy, including cancelling all print, radio, television or on line ads; disable any websites, blogs or other electronic forums or media that advertises prohibited services; remove signs, notices, posters, billboards or other means of notifying the public of offered services that are prohibited; and destroy all advertising materials, business cards, letterhead, envelops or any other material advertising his services in connection with bankruptcy cases. In addition, within thirty (30) days from the date of entry of this Order on the Court’s docket, Defendant shall be required to file a declaration with this Court, under penalty of perjury, that he has fully complied with this Order.
Notwithstanding anything otherwise provided herein, this injunction shall prohibit the above described conduct, regardless of whether any service or product is provided for a fee, barter, trade or for free.
F. Plaintiffs Sixth Claim for Relief — Damages Pursuant to 11 U.S.C. § 110(i)(l)
The Plaintiff alleges that Defendant engaged in fraudulent, unfair and deceptive acts in violation of section 110(i) when he (1) used and provided receipts for fees that were deceptive (Exhibit 84), (2) used a Compensation Disclosure which was inaccurate and false (Exhibit, e.g., 83) in 106 cases; (3) fraudulently obtained and charged excessive fees for credit counseling certificates from Abacus Credit Counseling on behalf of his customers in 197 cases, and (4) routinely and uniformly mis
11 U.S.C. § 110(i)(l) provides:
If a bankruptcy petition preparer violated this section or commits any act that the court finds to be fraudulent, unfair, or deceptive ... the court shall order the bankruptcy petition preparer to pay to the debtor&emdash;
(A) the debtor’s actual damages;
(B) the greater of&emdash;
(i) $2,000; or
(ii) twice the amount paid by the debtor to the bankruptcy petition prepare for the preparer’s services.
First, this Court has already found that the Defendant violated 11 U.S.C. § 110(i)(l) when he used a deceptive Compensation Disclosure in the Marco Antonio Briones-Coroy case.
Second, the Plaintiff alleged that Defendant engaged in fraudulent, unfair and deceptive acts in violation of section 110(i) when he fraudulently obtained credit counseling certificates from Abacus Credit Counseling on behalf of his customers.
Because of Defendant’s conduct and the pattern of deceptive practices in all 241 cases under 11 U.S.C. § 110, the Court shall order the Defendant to pay the sum of $2,000.00 to Debtor(s) in each case.
VIII. Order
Based on the above and foregoing, IT IS HEREBY ORDERED as follows:
1. Plaintiffs First Claim for Relief (refund of all fees) in the Complaint is GRANTED. For violation of 11 U.S.C. § 110(h)(2), within 30 (thirty) days after the entry of this Order on the Court’s docket, the Defendant shall, pursuant to 11 U.S.C. § 110(h)(3), tender to the United States Trustee all fees paid to him by the Debtors listed on Exhibit A hereto.335 The United States Trustee shall disburse the refunds to the Debtors within thirty (30) days after all fees have been tendered by the Defendant. In the event that the Defendant fails or refuses to tender such fees paid to him by the Debtors to the United States Trustee in the time required, the United States Trustee may take whatever legal action as is necessary to collect and enforce this judgment pursuant to 11 U.S.C. § 110(h)(5) and 11 U.S.C. § 105. The United States Trustee shall file with this Court a statement regarding Defendant’s compliance with this Order within forty-five (45) days after entry of this Order on the Court’s docket.
2. Plaintiffs Second Claim for Relief (fine for failure to disclose compensa*746 tion) in the Complaint is GRANTED to the extent a finding is requested that Defendant did indeed fail to disclose compensation. However, Plaintiff withdrew his request for further relief under 11 U.S.C. § 110(l) and thus none will be granted.
3. Plaintiffs Third Claim for Relief (collecting Court filing fees) in the Complaint is GRANTED. The Defendant did indeed collect, receive or otherwise deal with Debtors’ Court filing fees. Within 30 (thirty) days after the entry of this Order on the Court’s docket, the Defendant shall tender to the United States Trustee the sum of $8,060.00.336
4. Plaintiffs Fourth Claim for Relief (legal advice) in the Complaint is GRANTED. The Court concludes that in each of the 241 cases, the Defendant has provided legal advice to Debtors in violation of 11 U.S.C. § 110(e)(2)(A) and (B). However, Plaintiff withdrew his request for further relief under 11 U.S.C. § 110(l) and thus none will be granted.
5. Plaintiffs Fifth Claim for Relief (injunction for willful pattern of conduct) in the Complaint is GRANTED. In accord with the relief granted, Defendant, as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant are, commencing forthwith, hereby enjoined for a period of ten (10) years from the date of the entry of this Order on the Court’s docket, in both Colorado and in the United States:
(a) From acting, directly or indirectly, as a bankruptcy petition preparer as that term is defined by 11 U.S.C. § 110 and any amendments thereto.
(b) From providing any services, directly or indirectly, as a debt relief agency or from providing any bankruptcy assistance, as those terms are defined in 11 U.S.C. § 101, et al, and any amendments thereto.
(c) From typing, assisting, advising, providing legal guidance, advice, assistance, or consultation of any kind, directly or indirectly, to any person in connection with the filing or prosecution of any bankruptcy case or any document in any bankruptcy case.
(d) From advertising, selling, marketing, displaying, or making any other offer or making any representation, directly or indirectly, that they may provide any of the services enjoined by this Order.
(e) From giving any legal advice, from preparing or assisting in the preparation of any petitions, schedules, statement of financial affairs or any other documents for filing in a bankruptcy case in the District of Colorado or anywhere in the United States or from rendering any advice, instruction, direction or assistance with the preparation of any document for filing in any bankruptcy matter in Colorado or anywhere in the United States; whether for a direct fee, indirect compensation or for free, pursuant to 11 U.S.C. § 110(j)(2)(B), until*747 such time as Defendant is admitted to practice law in the state where the bankruptcy case is filed.
(f) From contracting or agreeing, directly or indirectly, whether orally or in writing, with anyone to perform any service or engage in any act enjoined by this Order.
IT IS FURTHER ORDERED with respect to the Fifth Claim for Relief, that immediately after entry of this Order on the Court’s docket the Defendant, as an individual and a/k/a Emmanuel Assaf Debt Relief Agency, directly or indirectly, by and through any of his agents, partners, officers, directors, representatives, servants, employees, associates, assignees, successors or assigns and/or all persons and legal entities working in concert and participation with Defendant shall:
(a) cease all advertising for services offered in connection with any bankruptcy, including cancelling all print, radio, television or on line ads;
(b) disable any websites, blogs or other electronic forums or media that advertises prohibited services;
(e) remove signs, notices, posters, billboards or other means of notifying the public of offered services that are prohibited; and (d) destroy all advertising materials, business cards, letterhead, envelops or any other material advertising his services in connection with bankruptcy cases.
IT IS FURTHER ORDERED that with respect to the Fifth Claim for Relief, notwithstanding anything otherwise provided herein, this injunction shall prohibit the above described conduct, regardless of whether any service or product is provided for a fee, barter, trade or for free.
6. Pursuant to 11 U.S.C. § 110(i)(l)(B), the Plaintiffs Sixth Claim for Relief (damages for fraudulent, unfair or deceptive acts upon the Debtors) in the Complaint is GRANTED. As set forth in paragraph one of this Court’s Order, Defendant shall pay to the United States Trustee, for and on behalf of each of the 240 Debtor cases, the sum of $480,000.00. As provided in paragraph one of this Order’s Order, this sum shall be paid to the United States Trustee for accounting and distribution to each of the Debtors.337
IT IS FURTHER ORDERED that the United States Trustee may file with this Court and serve a copy on the Defendant, an application for an award of attorney fees pursuant to 11 U.S.C. § 110(i)(C) within thirty (30) days after entry of this Order on the Court’s docket. The Defendant shall, within twenty (20) days after the date of service of any application for an award of attorney fees, file with this Court and serve a copy on the United States Trustee, any objection, in whole or in part, to such an award of fees. Upon receipt of the response, if any, the matter shall stand submitted for consideration.
IT IS FURTHER ORDERED that within thirty (30) days from the date of the entry of this Order on the Court’s docket, Defendant shall file a declaration with this Court, under penalty of perjury, that he has fully complied with this Order.
United States District Court for the District of Colorado
Committee on Conduct
Alfred A. Arraj U.S. Courthouse
901 19th Street
Denver, CO 80294
Colorado Supreme Court
Office of Attorney Regulation Counsel
1560 Broadway, Suite 1800
Denver, CO 80202
United States Bankruptcy Court for the Central District of California
Edward R. Roybal Federal Building and Courthouse
255 E. Temple Street, Room 940
Los Angeles, CA 90012
EXHIBIT A
No. Case No. Case Name
1 106-10921 SBB Gausin, Fernando
2 06-12038 SBB Terrazas, Francisco I.
3 07-11746 ABC Chavez-Robles, Salvador & Gloria F.
4 07-12367 MER Rodriguez, Hugo
5 07-14342 SBB Regalado, Alfonso
6 07-21217 HRT Villa-Ruiz, Roberto
7 07-24848 HRT Villa-Ruiz, Roberto
8 08-10680 MER Avendano-Diaz, Alejandro
9 08-11192 EEB Martinez, Victor M. & Chavarin, Maritza
10 08-12521 MER Ugarte, Lida Aracelli
11 08-13437 MER Orrantia, Jesus C. & Teresa
12 08-13974 HRT Brown, Christopher R.
13 08-19636 SBB Garcia, Juan A.
14 08-19655 ABC Garcia, Rosa Ivania
15 08-23034 HRT Mira-De Peraza, Delmira
16 08-28251 HRT Chacon-Aleman, Victor O.
17 09-16229 MER Flores, Jesus & Guillermina
18 09-16231 HRT Amaya-Figueroa, Diana G.
19 09-28667 MER Carreon-Holguin, Ofelia
20 10-16586 MER Gamez, Carlos R. & Lilian R.
21 10-19896 MER Tellez-Rodriguez, Mario & Tellez, Rocio
22 10-20275 ABC Roque-Pena, Jose
23 10-21250 ABC Flores-Torres, Edgar Antonio
24 10-21252 EEB Flores, Aurora M.
25 10-23864 EEB Eudabe, Marcia Karina
26 10-24260 EEB Ortiz, Irma S.
27 10-24470 EEB Correa, Pancho F.
28 10-25284 MER Soto, Reyes & Maria De La Luz
29 10-25633 MER Velazquez, Maria D.
30 10-26047 SBB Corchado-Vasquez, Jesus
31 10-26662 ABC Carrasco, Liset
32 10-26954 MER Camino, Larry Steven
33 10-27061 MER Zuniga, Arjelia
34 10-27083 HRT Palacios-Palacios, Maria Isabel
35 10-27329 EEB Andrade, Aracely
36 10-27423 MER Villegas, Maria
37 10-27426 ABC Perez, Maria J.
38 10-27741 MER Lopez-Marquez, Pedro Damian
39 10-28226 HRT Brown, Russell
40 10-28773 SBB Salazar-Plata, Miguel Angel
41 10-29599 MER Frankel, Robert L.
42 10-29600 MER Bunting, Shayla M.
43 10-29661 ABC Gurule, Garylee P.
44 10-29967 SBB Diaz-Hernandez, Jesus Manuel
45 10-30097 SBB Gonzalez, Ofelia
46 10-30607 HRT Neloms, Elain
47 10-30956 MER Stiglich, May V.
48 10-30957 SBB Lucero, Angela
49 10-31243 EEB Arreola-Lopez, Juan Manuel
50 10-31244 SBB Campos, Jose M.
51 10-31392 MER Sandoval, Elizabeth R.
52 10-31507 MER Bernal, Maria De Jesus
53 10-31620 SBB Jimenez, Maria Eugenia
54 10-31930 HRT Garcia-Barrera, Gerardo & Garcia, Maria E.
55 10-32465 EEB Gutierrez, Adriana E.
56 10-32470 HRT Araujo, Juan Antonio
57 10-32624 MER Kirbey, Ronda Lee
58 10-32750 MERD Saenz, Lazaro Arturo
59 10-32757 ABC Tomatzin-Ramirez, Juan
60 10-33208 MER Brown, Laquitra M.
61 10-33319 MER Martinez, Barney T.
62 10-33322 MER Camblin, Kevin R.
63 10-33323 ABC Carmona, Martin
64 10-33482 ABC Brito-Perez, Constantino &
65 10-33483 HRT Lobatos, Adalberto
66 10-33485 MER Garcia-Nino, Alfonso
67 10-33699 SBB Guzman-Cortes, Javier
68 10-33822 HRT Morales, Margarito
69 10-33824 HRT Vargas-Ordonez, Hector J. & Vargas, Graciela
70 10-33897 SBB Bohannon, Michael G.
71 10-34490 SBB Favela-Moreno, Ignacio & Delgadillo, Aracely
72 10-34491 ABC Vilchis-Arriaga, Gabriel & Vilchis, Maria J.
73 10-35160 ABC Thomas, Margaret H.
74 10-35161 EEB Sepulveda-Vargas, Alejandro
75 10-35199 MER Venzor-Najera, Erasmo
76 10-35281 SBB Rosa-Rivera, Wilfredo
77 10-35457 EEB Davies, Mark A.
78 10-35660 SBB Ruiz, Ana L.
79 10-35904 SBB Pedroza, Victor Angelo
80 10-35906 HRT Gutierrez-Millan, Urbano
81 10-35998 HRT Ortiz, Gonzalo
82 10-36437 MER 83 10-36450 EEB Lopez, Carlos A. & Martinez-Sanabria, Luz B. Vargas-Carrasco, Bias
84 10-36531 MER Martinez, Barney T.
85 10-36931 MER Ruiz, Guillermo & Rafaela
86 10-36934 EEB Dominguez-Munos, Rafael
87 10-36938 SBB Dunaway, Jane Cora
88 10-37041 MER Maestas, Guy Jesse
89 10-37152 HRT Rossi, Fatima
90 10-37153 HRT Drown, Terence Lee
91 10-37154 EEB Ramirez, Jose Ulises & Ana Gladis
92 10-37582 HRT Hernandez, Federico & Mendoza, Adriana
93 10-37858 MER Bernal, Maria De Jesus
94 10-37914 HRT Martinez-Villaruel, Jose M.
95 10-38168 MER Martinez, Victoria K.
96 10-38170 MER Potter, Charles R. & Carol L.
97 10-38171 EEB Carrero, Iris M.
98 10-38404 SBB Ramirez, Joseph Michael & Crystal Marie
99 10-38413 MER Venzor-Herrera, Senobio
100 10-38775 ABC Zapata-Maldonado, Salvador
101 10-38781 HRT Pena, Jose F.
102 10-38875 MER Farazandeh, Adriano Kamyar
103 10-38876 SBB Bernal-Flores, Jose Antonio
104 10-39483 ABC Mares-Aguilera, Maria Del Carmen
105 10-40231 MER Gutierrez, Jose & Eloísa
106 10-40233 MER Langle, Maria
107 10-40234 MER Flores-Villasenor, Baltazar & Flores, Soledad Irma
108 10-40373 MER Reyes, Tomasa
109 10-40492 EEB Gonzalez-Flores, Rosa Elena
110 10-40900 SBB Briones-Coroy, Marco Antonio
111 10-40902 MER Turner, Norman Vincent
112 10-40906 HRT Leal-Chavira, Armando
113 10-40907 EEB Teran, Claudia V.
114 10-41134 HRT Rossi, Fatima
115 10-41209 MER Mendoza-Rojo, Alvaro
116 10-41623 HRT Cortes, Rosangel
117 10-41626 HRT Espino, Lilian E.
118 10-41756 MER Davies-Archuleta, Jean Marie
119 10-42155 EEB Vargas, Gerardo & Sanchez-Castillo, Lorena G.
120 10-42170 ABC Abrego-Giron, Maria Yolanda
121 11-10161 MER Villarreal, Petra Ramirez De
122 11-10385 ABC Bernhard, Spencer Thomas
123 11-10459 ABC Banuelos, Julian Mesa
124 11-10463 HRT Banuelos, Alicia
125 11-10808 HRT Torres, Guadalupe
126 11-11006 MER Herrera, Jose Alfredo
127 11-11010 MER Casillas-Garcia, Maria I.
128 11-11229 ABC Mendez-Romero, Javier
129 11-11313 HRT Salazar, Tomasa
130 11-11496 HRT Araujo, Juan Antonio Bustamante, Arnaldo Uber & Hinostroza, Rebecca
131 11-11932 HRT Romula
132 11-11934 ABC Herrera, Juan
133 11-11984 ABC Campos-Molina, Armando
134 11-11993 ABC Zelaya, Miguel Alfonso
135 11-12053 HRT Sotelo, Deanna llene
136 11-12144 SBB Ortega-Soto, Maria Del Socorro
137 11-12299 ABC Lopez-Valles, Amalia
138 11-12367 MER Rubio-Perez, Yessica A.
139 11-12457 HRT Hernandez, Irma Lidia
140 11-12599 HRT Urista-Alarcon, Guillermo
141 11-12645 MER Roman-Penaloza, Noe
142 11-12678 SBB Cueto-Ramirez, Enrique D. & Cueto, Tracy L.
143 11-12788 EEB Zepeda, Claudia A.
144 11-12806 EEB Mota, Yvonne
145 11-13005 EEB Onate, Esperanza L.
146 11-13224 HRT Quintana-Meneses, Raul
147 11-13226 HRT Lamas, Ramon
11-13349 MER Correa, Genaro & Silvia P.
Gonzalez, Sanjuana
11-13352 HRT Walker, Detrice D.
11-13358 MER Eddings, Roscoe
11-13484 EEB Torres, Jesus Manuel
11-13486 SBB Rivera, Yessenia
11-13487 MER Trujillo, Noel
11-13502 EEB Covarrubias-Escobedo, Cynthia
11-13603 EEB Serrant, Maria Antonieta
11-13605 EEB Villescas-Valdiviezo, Jesus A.
11-13968 HRT Arevalo, Manuel V.
11-13972 MER Solis-Zepeda, Luis M.
11-13988 SBB Castillo, Guadalupe M.
11-14081 ABC Diaz-Amador, Javier
11-14084 EEB Peyro, Yicky M.
11-14309 MER Lopez-Villagrana, Maria S.
11-14318 HRT Gutierrez-Moreno, Laura M.
11-14319 ABC Rutherford, Sean E. & Marcina D.
11-14390 SBB Shajiei, Mohammad Hassan
11-14422 MER Mingo, David Earl
11-14647 MER Santiago, Lacey Leandrea
11-14933 EEB Tweet, Claudia Elizabeth
11-14951 SBB Avila-Villegas, Alba Marisol
11-14957 ABC Lara, Martha De
11-15079 SBB Yargas-Sotelo, Jose Luis
11-15159 MER Langle, Maria
11-15201 MER Gamez-Elizalde, Maria
11-15211 ABC Lopez-Quintana, Matías
11-15312 ABC Rubio, Francisca
11-15313 ABC Zamarron-Pinela, Leonel
11-15450 MER Mingo, Larnette Lynn
11-15550 EEB Herrera, Mayra Maria
11-15759 SBB Aguilar, Jose Santos
11-15761 MER Gonzalez, Antonia
11-15762 MER Quezada, Pedro J. & Gonzalez-Melendez, Jena Liza
11-15865 ABC Jimenez, Esperanza
11-15996 SBB Marin-Martinez, Cynthia P.
11-15998 EEB Marin-Martinez, Juan Gilberto
11-16084 SBB Espinoza, Sylvia Guadalupe
11-16109 SBB Prada, Juveisa C.
11-16119 EEB Rubalcava, Jose Merced & Rubalcava-Zapata, Ofelia J.
11-16255 HRT Cordoba, Daniel & Bermejo, Ysell D.
11-16425 MER Turner, Neal
11-16430 MER Guity, Claudia Carolina
11-16525 SBB Vazquez-Gutierrez, Alejandro
11-16753 ABC Jimenez, Esperanza
11-16754 ABC Lindsey, Jason Patrick
11-16756 SBB Palacios, Raul
11-17025 HRT Carrillos, Ronald Osmin
11-17026 EEB Diaz-Meza, Juan Carlos
11-17205 HRT Hernandez, Agustín
11-17273 ABC Cota-Rosales, Lorenzo
11-17275 ABC Bastidas-Bustamante, Apolonio
11-17403 HRT Martinez, Gregorio & Maria M.
11-17497 MER Sedillo-Sanchez, Manuel & Sedillo, Angie Banuelos-Hernandez, Juan & Calzada, Maria
11-17498 MER Guadalupe
11-17736 SBB Leyva, Jesus
11-17737 SBB Portillo-Hernandez, William A.
206 11-17780 HRT Routson, Kimberly D. 206 11-17780 HRT
207 11-17949 EEB Lopez-Lopez, Carlos Alberto & Lopez, Rosa Maria 207 11-17949 EEB
208 11-18107 AJBC Renteria-Acosta, Ramiro 208 11-18107 AJBC
209 11-18108 MER Rodriguez-Garcia, Ventura 209 11-18108 MER
210 11-18254 HRT Castanon, Lucinda M. 210 11-18254 HRT
211 11-18255 SBB Anderson, Justin W. & Raya, Crystal R. 211 11-18255 SBB
212 11-18501 MER Trujillo-Villatoro, Roberto 212 11-18501 MER
213 11-18507 SBB Quine, Blanca Esther 213 11-18507 SBB
214 11-18509 SBB AIvarado-Ramirez, Jose R. & Ortega-Torres, Maria C. 214 11-18509 SBB
215 11-18814 MER Amador-Hernandez, Laura Rocio 215 11-18814 MER
216 11-19099 EEB Davila-Orjeda, Luis Enrique 216 11-19099 EEB
217 11-19231 AJBC Rojas, Elias 217 11-19231 ABC
218 11-19248 AJBC Moreno-Miramontes, Mario 218 11-19248 AJBC
219 11-19398 SBB Siravo, Richael H. 219 11-19398 SBB
220 11-19504 HRT Avitia, Alba 220 11-19504 HRT
221 11-19505 MER Santos-Gamez, Angel A. 221 11-19505 MER
222 11-19541 SBB Sanchez Jr., Francisco Javier & Virginia 222 11-19541 SBB
223 11-20032 HRT Delgado-Hernandez, Cesar 223 11-20032 HRT
224 11-20293 EEB Swanson, Mary Jane 224 11-20293 EEB
225 11-20376 ABC Ramie, Sifet 225 11-20376 ABC
226 11-20655 ABC Ramirez-Rios, Eduardo & Rodríguez-Manzanares, Maria P. 226 11-20655 ABC
227 11-20656 HRT Garcia Jr., Benjamin 227 11-20656 HRT
228 11-20663 ABC Morales-Orozco, Adela 228 11-20663 ABC
229 11-20757 EEB Ibarra, Juan Gabriel & Luna-Mendiola, Yesenia De 229 11-20757 EEB
230 11-20758 EEB Peralta-Reyes, Oscar A. 230 11-20758 EEB
231 11-20871 SBB Martinez, Maria Del Carmen 231 11-20871 SBB
232 11-20872 SBB Villalobos-Rosales, Paul 232 11-20872 SBB
233 11-20989 HRT Godoy-Cabral, Paulin 233 11-20989 HRT
234 11-20993 HRT Aponte, Claudia Ivette 234 11-20993 HRT
235 11-20994 MER Flores, Margarita 235 11-20994 MER
236 11-21001 HRT Saenzpardo, Nabor A. 236 11-21001 HRT
237 11-21118 MER Barraza-Esquivel, Tomas 237 11-21118 MER
238 11-21120 HRT Barraza, Jacquelin 238 11-21120 HRT
239 11-21237 MER Molina, Francisco G. 239 11-21237 MER
240 11-21241 HRT Vasquez-Quinones, Valentin 240 11-21241 HRT
241 11-21242 EEB Buris, Heather Marie 241 11-21242 EEB
. Docket #81.
. Docket# 117.
. Reference herein is made to various proceedings wherein evidentiary hearings or trials were conducted related to Mr. Assaf. Specifically, in addition to the Trial conducted June 4 through June 6, 2012, in the underlying bankruptcy case, In re Antonio Briones-Coroy, Case No. 10-40900-SBB, this Court conducted a final evidentiary hearing on May 24 and May 26, 2012, regarding the Chapter 7 Trustee's Motion for Order Reconsidering Order Waiving Court Filing Fees filed February 9, 2011 (Docket # 19), and consideration of disgorgement of fees paid to petition preparer and assessment of sanctions against petition preparer as requested in the motion, along with timely-filed objections thereto, including Objection of Emmanuel Assaf filed March 25, 2011 (Docket # 22). The Minutes of the Proceeding are docketed at Docket #35 and #36 in the underlying case file.
Also, this Court conducted a final evidentia-ry hearing on September 6, 2012 in a separate case involving the same parties herein, in In re Antonio Valle-Rodriguez, Case No. 11-33249-SBB (Docket #39 therein). The Court will specify the cases which it is referring to as applicable throughout this decision.
.The term "person” or "persons” is not defined in the Bankruptcy Code, but for the purposes of this decision "person(s)” means "human beings.” "Person” does not include corporations, partnerships, other unincorporated organization, or any other "entities.” See 11 U.S.C. § 101(15). In this District, no corporation, partnership, or other unincorporated organization may file bankruptcy without representation by an attorney. See Local Bankruptcy Rule 9010-1 (e).
. See infra 36 n.158.
. Contemporaneous with the enactment of 11 U.S.C. § 110, Congress also added 18 U.S.C. § 156 to define the term "bankruptcy petition preparer” and to also impose certain criminal ramifications for any "knowing attempt by a bankruptcy petition preparer in any manner to disregard the requirements of [the Bankruptcy Code].” Specifically, 18 U.S.C. § 156 provides:
Knowing disregard of bankruptcy law or rule
(a) Definitions — In this section—
(1) The term "bankruptcy petition preparer” means a person, other than the debtor’s attorney or an employee of such an attorney, who prepares for compensation a document for filing; and (2) the term "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 title 11.
(b) Offense — If a bankruptcy case or related proceeding is dismissed because of a knowing attempt by a bankruptcy petition preparer in any manner to disregard the requirements of title 11, United States Code, or the Federal Rules of Bankruptcy Procedure, the bankruptcy petition pre*693 parer shall be fined under this title, imprisoned not more than 1 year, or both.
. This section of the Bankruptcy Code was added by section 308 of the Bankruptcy Reform Act of 1994, Pub. L. 103-394 (Oct. 22, 1994). In 2005, this provision was amended as follows:
a person, other than an attorney or an empleyee-af-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”
(Strike out utilized herein to note the portions of this provision that were removed and italics are utilized to note additions to this Bankruptcy Code provision as amended in 2005. Unless otherwise noted, all statutory references are those codified within Title 11 of the United States Code.
. H.R. Rep. 103-834, 103rd Cong., 2d Sess 40-41 (October 4, 1994), 1994 U.S.C.C.A.N. 3336; 140 Cong. Rec. H10770 (Oct. 4, 1994).
. Id.
. Id. (emphasis added).
. Id.
. 140 Cong. Rec. H10772 (Oct. 4, 1994) (statement of Rep. Berman) (emphasis added).
. H.R.Rep. No. 31, 109th Cong., 1st Sess 221 (2005).
. See 11 U.S.C. § 110(e)(2).
. See United States Courts, Increased Use of Bankruptcy Petition Preparers Raises Concerns (June 18, 2012), http://news.uscourts.gov/ increased-use-bankruptcy-petition-preparers-raises-concerns (last visited October 22, 2012).
. See Exhibit A attached to this Order.
.The Plaintiff withdrew the request for relief under 11 U.S.C. § 110(l) on September 14, 2012 (Docket # 138). In another matter before this Court, In re Antonio Valle-Rodriguez, Case No. 11-33249-SBB, the Court questioned the propriety of an award of statutory penalties, which were discretionary in a range of $0-$500.00, but where the statute required the trebling of such damages. Here, such amount, if awarded to the full extent, would add up to millions of dollars in fines. The Plaintiff concluded that: "These unique circumstances and other factors considered include, but are not limited to, the financial remedies already imposed against Mr. Assaf, the existence of other pending matters against Mr. Assaf, and the totality of other remedies remaining available under § 110 (other than § 110(Z)) in this action and in other actions still pending against Mr. Assaf.”
. The 11 U.S.C. § 110(1) claim has been withdrawn. See supra note 17.
. The 11 U.S.C. § 110(l) claim has been withdrawn. See supra note 17.
. The Court does note, however, that in his Answer, Defendant did not provide responses to paragraphs 1, 3, 4, 5, 11, 13, 16, 17, 18, 22, 23, 24, 33, 38, 41, 42, 43, 44, 46, 47, 48, 49, 50, 52, and 54. By failing to specifically answer, these paragraphs have been admitted as noted in Docket #14 in this Adversary Proceeding.
. Docket #81.
. Docket# 117.
. Fed.R.Civ.P. 56(a), made applicable to adversary proceedings by Fed.R.Bankr P. 7056.
. Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir.1990).
. Docket# 119 and# 120.
. The facts established are set forth in paragraphs 1-55 on pages 5-22 of the Motion for Partial Summary Judgment.
. Docket #104.
. See Minutes of Proceeding dated May 22, 2012 (Docket # 116). Specifically, the facts as contained in paragraphs 1-87 on pages 4-12 of the Pretrial Statement were deemed established in this case.
. Specifically, the facts included within the Motion for Judgment on the Pleadings are:
. Motion for Partial Summary Judgment, Ex. 3, p. 2.
. Motion for Partial Summary Judgment, Ex. 3, p. 2.
. Motion for Partial Summary Judgment, Ex. 3, p. 3.
. Motion for Partial Summary Judgment, Ex. 3, p. 1.
. Motion for Partial Summary Judgment, Ex. 3, p. 4.
. Motion for Partial Summary Judgment, Ex. 4.
. The Court assumes that the past tense of "operate” is appropriate here. However, the Court is not fully advised as to whether Defendant continues his practice(s) in California.
. Motion for Partial Summary Judgment, Exhibit 8.
. Motion for Partial Summary Judgment, Ex. 3, p. 3.
. Motion for Partial Summary Judgment, Ex. 3, p. 3.
. Motion for Partial Summary Judgment, p. 9, ¶ 12, 13, 14, Ex. 8.
. Motion for Partial Summary Judgment, Ex. 3, p. 3.
. Motion for Partial Summary Judgment, Ex. 3, p. 3.
. Motion for Partial Summary Judgment, pp. 8-9, ¶ 11, Ex. 5; Joint Pretrial Statement, p. 9, ¶ 45.
. Motion for Partial Summary Judgment, Ex. 4, p. 2.
. Docket # 19 in Case No. 10-40900-SBB.
.Docket # 35 in Case No. 10-40900-SBB.
. Id.
. Id.
. A list of the cases was attached to the Complaint as Exhibit A. That same list is attached to this Opinion as Exhibit A. See Complaint, p. 6, ¶ 19; Motion for Partial Summary Judgment, pp. 6 at ¶ 4 at 10 at ¶ 15; Joint Pretrial Statement, pp. 4-5, ¶¶ 2, 20.
. See Joint Pretrial Statement, p. 5, ¶ 23.
. See Complaint, p. 2, ¶ 1; Motion for Partial Summary Judgment, p. 5 ¶ 2; Joint Pretrial Statement, p. 4, ¶ 4.
. See Joint Pretrial Statement, p. 4, ¶ 5.
. See Joint Pretrial Statement, p. 4, ¶ 6.
. See Complaint, p. 7, ¶ 19; Motion for Partial Summary Judgment, p. 6, ¶ 4; Joint Pretrial Statement ¶ 21.
. See Trial Transcript 6/5/12, p. 31, lines 8-10.
. See Trial Transcript 6/5/12, p. 106, lines 13-18; p. 119, lines 5-10; p. 123, lines 8-14.
. See Trial Transcript 6/5/12, p. 31, lines 21-25; p. 32, line 1; p. 106, 19-21; p. 119, lines 11-13; p. 123, lines 15-17.
. See Trial Transcript 6/5/12, p. 32, lines 2-16; p. 106, lines 22-24; p. 119, lines 14—16; p. 123, lines 18-19.
. See Complaint, p. 6, ¶ 17; Joint Pretrial Statement, p. 5, ¶ 16. See also Trial Exhibit 62.
. See Complaint, p. 7, ¶ 16; Joint Pretrial Statement, p. 4, ¶ 10. See also Trial Exhibits 56, 57 and 58.
. See Complaint, p. 6, ¶ 16; Joint Pretrial Statement p. 4, ¶ 11.
. See Complaint, p. 6, ¶ 16; Joint Pretrial Statement, p. 5, ¶ 12.
. See Joint Pretrial Statement, p. 5, ¶ 13. See also Trial Exhibits 60 and 61.
. See Complaint, p. 6, ¶ 16; Joint Pretrial Statement, p. 5, ¶ 14. See also Trial Exhibit 59. The Court was also a bit surprised to be informed that at least one Debtor learned of Mr. Assaf's services on an advertisement on the wall of a bathroom.
. See Joint Pretrial Statement, p. 5, ¶ 15.
. See Joint Pretrial Statement, p. 5, ¶ 17. The Joint Pretrial Statement indicated the following:
Joseph M. Assaf's job title: Agent. Type of work performed: typing bankruptcy agreements, assisting customers with online registration for 1st and 2nd class courses. Providing customers transportation to court to file bankruptcy documents. Dates of employment — Jan. 2011 to present. Salary: Started at $9.00 per hour.
See Joint Pretrial Statement, p. 5, ¶ 18.
Martha Herrera's job title: Agent/Administrator. Type of work performed: typing bankruptcy agreements, assisting customers with online registration for 1st and 2nd class certificates. Providing customers with transportation to court to file bankruptcy documents. Dates of employment-— Jan. 2011 to present. Salary: Started at $9.00 per hour.
See Joint Pretrial Statement, p. 5, ¶ 19.
. See Joint Pretrial Statement, p. 6, ¶ 26; Motion for Judgment on the Pleadings, p. 13, ¶ 53.
. See Joint Pretrial Statement, p. 6, ¶ 27; Motion for Judgment on the Pleadings, p. 14, ¶ 54.
. See Joint Pretrial Statement, p. 6, ¶ 28; Motion for Judgment on the Pleadings, p. 6, ¶ 14.
. See Joint Pretrial Statement, p. 6, ¶ 29; Motion for Judgment on the Pleadings, p. 6, ¶ 15.
. See Joint Pretrial Statement, p. 6, ¶ 30; Motion for Judgment on the Pleadings, p. 6 at V 16 and p. 16 at ¶ 66.
. See Joint Pretrial Statement, p. 6, ¶ 31; Motion for Judgment on the Pleadings, p. 6 at ¶ 17, and p. 16, at ¶ 67.
. See Joint Pretrial Statement, p. 6, ¶ 32; Motion for Judgment on the Pleading, p. 7 at ¶ 20 and p. 13 at ¶ 52.
. The evidence demonstrates that an unknown number of Defendant's customers paid more than $500.00. See supra Section VII. C.4. If the eleven debtors who actually testified in Court are any representation, many Debtors paid more than $500.00. See supra Section VII.C.4.; D.4.C.; D.9.
. See Motion for Partial Summary Judgment, 14 ¶ 27. See also Trial Exhibits 44, 45, Interrogatory No. 1.
. See Motion for Partial Summary Judgment, pp. 10-11, ¶ 17; Joint Pretrial Statement, p. 6, ¶ 33.
. See Joint Pretrial Statement, p. 6, ¶ 22.
. The United States Trustee refers to the term "Deceptive Receipt” to describe the Fee Receipt tendered to Debtors. The Defendant’s Fee Receipts were contained in Trial Exhibit 84. The Court ultimately held after trial on the merits that the so-called receipt was, indeed, a deceptive and misleading pricing statement or receipt. The Defendant’s Fee Receipts are distinct and separate from the Disclosure of Compensation of Bankruptcy Petition Preparer Form filed with the Court. See, e.g., Trial Exhibit 83.
. Complaint, p. 3, ¶ 5; Motion for Partial Summary Judgment, p. 6 ¶ 5; Joint Pretrial Statement, p. 6, ¶ 37; Motion for Judgment on the Pleadings, p. 14, ¶ 55.
. Complaint, p. 12, ¶ 35; Motion for Partial Summary Judgment, p. 6, ¶ 6.
. See Motion for Partial Summary Judgment, p. 7, ¶ 7; Joint Pretrial Statement, p. 7, ¶ 38; Motion for Judgment on the Pleadings, p. 14, ¶ 57. See also Trial Exhibits 9, 10, 13 and 15.
. See Motion for Partial Summary Judgment, p. 11, ¶ 18; Joint Pretrial Statement, p. 8, ¶ 41; Motion for Judgment on the Pleadings, p. 14, ¶ 56. See also Trial Exhibit 12, p. 27, lines 22-24.
.See Motion for Partial Summary Judgment, p. 11, V 19; Joint Pretrial Statement, p. 8, ¶ 42; Motion for Judgment on the Pleadings, p. 15, ¶ 59. See also Trial Exhibit 9 ¶¶ 4-5.
. See Motion for Partial Summary Judgment, p. 11, ¶ 19; Joint Pretrial Statement, p. 8, ¶ 43; Motion for Judgment on the Pleadings, p. 15, ¶ 60. See also Trial Exhibit 84 and Trial Exhibit 64 "Deceptive Receipt” column. See also, supra n.78. Curiously, the "Deceptive Receipt” appears in almost every file immediately after Mr. Briones-Coroy’s file. None of these "Deceptive Receipts” are in any files before Mr. Briones-Coroy’s case which was filed on December 10, 2010. Ten other files have a variation of the "Deceptive Receipt.” See Motion for Partial Summary Judgment ¶ 19. See also Trial Exhibit 85 and Trial Exhibit 64 "Deceptive Receipt” and "Deceptive Receipt Variation” columns.
. See Complaint, p. 10, ¶ 29; Motion for Partial Summary Judgment, p. 10, ¶ 16. See also Trial Exhibits 81 and 81a.
. See Joint Pretrial Statement, p. 7, ¶ 34; Motion for Judgment on the Pleadings, p. 7, ¶ 23. See also Trial Exhibits 81 and 81a.
. See Complaint, p. 10, ¶ 29; Motion for Partial Summary Judgment, p. 10, ¶ 16; Joint Pretrial Statement, p. 7, ¶ 35; Motion for Judgment on the Pleadings, p. 7, ¶ 21. As noted in footnote 78, supra, the Compensation Disclosure is separate and distinct from the Defendant's Fee Receipts evidenced at Trial Exhibit 84.
. Joint Pretrial Statement, p. 7, ¶ 36; Motion for Judgment on the Pleadings, p. 7, ¶ 22. See also Trial Exhibits 81 and 83.
. 11 U.S.C. § 109(h); 11 U.S.C. § 521(b), 11 U.S.C. § 727(a)(11), 11 U.S.C. § 1328(g); Fed.R.Bankr.P. 1007(b)(2); and Fed.R.Bankr.P. 4004(c)(4). See Complaint, p. 8, ¶ 22; Motion for Partial Summary Judgment, p. 12, ¶ 22; Joint Pretrial Statement, p. 9, ¶ 50; Motion for Judgment on the Pleadings, p. 17, ¶ 68.
. See Complaint, p. 8, ¶ 22; Motion for Partial Summary Judgment, p. 12, ¶ 22; Joint Pretrial Statement, p. 10, ¶ 56; Motion for Judgment on the Pleadings, p. 18, ¶ 72.
. See Complaint, p. 8, ¶ 23; Motion for Partial Summary Judgment, p. 13, ¶ 23; Joint Pretrial Statement, p. 9, ¶ 51; Motion for Judgment on the Pleadings, p. 17, ¶ 69.
. See Complaint, p. 8, ¶ 23; Motion for Partial Summary Judgment, p. 13, ¶ 23; Joint Pretrial Statement, p. 9, ¶ 52; Motion for Judgment on the Pleadings, p. 18, ¶ 70.
. See Joint Pretrial Statement, p. 10, ¶ 57; Motion for Judgment on the Pleadings, p. 9 at ¶ 31, p. 10, at ¶ 42.
. See Motion for Partial Summary Judgment, p. 22, ¶ 55.
. See Motion for Partial Summary Judgment, p. 22, ¶ 55. See also Trial Exhibit 79.
. See Motion for Partial Summary Judgment, p. 22, ¶ 54. See also Trial Exhibit 117 ¶8.
. See Motion for Partial Summary Judgment, p. 22, ¶ 55; Joint Pretrial Statement, p. 10, ¶ 58; Motion for Judgment on the Pleadings, p. 9, ¶ 32. See also Trial Exhibit 79.
. See Motion for Partial Summary Judgment, p. 22, ¶ 55. See also Trial Exhibit 79.
. See Motion for Partial Summary Judgment, p. 22, ¶ 55; Joint Pretrial Statement, p. 10, ¶ 59; Motion for Judgment on the Pleadings, p. 11, ¶ 43. See also Trial Exhibit 79.
. See Complaint, p. 9, ¶ 25; Motion for Partial Summary Judgment, p. 13, ¶ 24; Joint Pretrial Statement, p. 10, ¶ 65. See also Trial Exhibit 79.
. Joint Pretrial Statement, p. 11, ¶ 66; Motion for Judgment on the Pleadings, p. 27, ¶ 118. See also Trial Exhibit 79.
. Complaint, p. 8, ¶ 21; Motion for Partial Summary Judgment, p. 13, ¶ 24; Joint Pretrial Statement, p. 10, ¶ 64; Motion for Judgment on the Pleadings, p. 19, ¶ 75. See, 11 U.S.C. § 111 with respect to credit counseling agencies.
. Joint Pretrial Statement, p. 10, ¶ 63; Motion for Judgment on the Pleadings, p. 18, ¶ 74.
. See Motion for Partial Summary Judgment, p. 13, ¶ 25. See also Trial Exhibit 12, p. 44, lines 11-14.
. Docket # 42.
. See Motion for Partial Summary Judgment, p. 14, ¶ 26. See also Trial Exhibit 43, p. 9, lines 13-22; Trial Exhibit 45, Interrogatory Nos. 1 and 2.
. See Motion for Partial Summary Judgment, p. 15, ¶ 28; Joint Pretrial Statement, p. 10, ¶ 55; Motion for Judgment on the Pleadings, p. 18, ¶ 71. See also Trial Exhibit 47 at Document Request No. 16.
. See Motion for Partial Summary Judgment, p. 19, ¶ 46; Joint Pretrial Statement, p. 11, ¶ 67; Motion for Judgment on the Pleadings, p. 6 at ¶ 18, p. 19 at ¶ 76.
. See Motion for Partial Summary Judgment, p. 15, V 30. See also Trial Exhibit 78, p. 5, Lines 17-25; p. 8, Lines 19-25; p. 9, Lines 1-5.
. See Motion for Partial Summary Judgment, p. 16, ¶ 31. See also Trial Exhibit 78 p. 15, Lines 13-17; p. 18, Lines 5-16; p. 20, Lines 19-25.
. See Motion for Partial Summary Judgment, p. 16, ¶ 32. See also Trial Exhibit 78c and Trial Exhibit 78 p. 22, Lines 1-17; p. 30, Lines 12-25; p. 31, Line 1-25; p. 32, Line 1; p. 36, Lines 22-25.
. See Motion for Partial Summary Judgment, p. 16, ¶ 33. See also Trial Exhibit 78d.
. See Motion for Partial Summary Judgment, p. 16, ¶ 34. See also Trial Exhibit 78e and Trial Exhibit 78, p. 13, Lines 7-9; p. 39, Lines 1-8.
. See Motion for Partial Summary Judgment, p. 17, ¶ 35. See also Trial Exhibit 78 p. 41, Lines 5-12, 22-25; p. 42, Lines 1-6.
. See Motion for Partial Summary Judgment, p. 17, ¶ 35. See also Trial Exhibit 78 p. 42, Lines 1-13; p. 48, Lines 11-15.
. See Motion for Partial Summary Judgment, p. 17, ¶ 35. See also Trial Exhibit 78 p. 42, Lines 1-13; p. 48, Lines 11-15.
. See Motion for Partial Summary Judgment, p. 17, ¶¶ 36, 37. See also Trial Exhibit 78 p. 49, Lines 3-22; Trial Exhibit 74 "Certificate No." column.
. See Joint Pretrial Statement, p 11, ¶ 69; Motion for Judgment on the Pleadings, p. 19, ¶ 78.
. See Motion for Partial Summary Judgment, p. 17, ¶ 39; Joint Pretrial Statement, p. 11, ¶ 70: Motion for Judgment on the Pleadings, p. 19, ¶ 79. See also Trial Exhibit 78 p. 51, Lines 7-10; Trial Exhibit 74 "Language Course Taken In” column.
. See Motion for Partial Summary Judgment, p. 18, ¶ 40. See also Trial Exhibit 78 p. 47, Lines 15-25; p. 68, Lines 12-18.
. See Motion for Partial Summary Judgment, p. 18, ¶ 41. See also Trial Exhibit 78 p. 58, Lines 23-25; p. 59, Lines 1-6.
. See Complaint, p. 9, ¶ 25; Motion for Partial Summary Judgment, p. 18, ¶ 42; Joint Pretrial Statement, p. 11, ¶ 71; Motion for Judgment on the Pleadings, p. 19, ¶ 80. See also Trial Exhibit 75.
. See Motion for Partial Summary Judgment, p. 19, ¶ 43; Joint Pretrial Statement, p. 11, ¶ 71.
. See Motion for Partial Summary Judgment, p. 19, ¶45; Joint Pretrial Statement, p. 11, ¶ 68; Motion for Judgment on the Pleadings, p. 19, ¶ 77. See also Trial Exhibit 78 p. 63, Lines 1-9.
. See Motion for Partial Summary Judgment, p. 19, ¶ 46; Joint Pretrial Statement, p. 11, ¶ 67. See also Trial Exhibit 77.
. See Motion for Partial Summary Judgment, p. 20, ¶ 47. See also Trial Exhibit 3, Affirmative Defenses ¶ 10.
. See Motion for Partial Summary Judgment, p. 20, ¶ 48. See also Trial Exhibit 84 and Trial Exhibit 64 “Deceptive Receipt (Exhibit 2)” column.
. Id.
. See Motion for Partial Summary Judgment, p. 20, ¶ 49. See also Trial Exhibit 81a and Trial Exhibit 83.
. See Motion for Partial Summary Judgment, p. 20, ¶ 50.
. See Motion for Partial Summary Judgment, pp. 20-21, ¶ 51; Joint Pretrial Statement, p. 6, ¶ 34; Motion for Judgment on the Pleadings, p. 7, ¶ 23 See also Trial Exhibit 81a.
. See Motion for Partial Summary Judgment, p. 21 ¶ 52. See also Trial Exhibit 78 p. 64, Lines 12-17; p. 66, Lines 3-17; Trial Exhibit 77 "Card Type” and “Card No.” columns.
. See Motion for Partial Summary Judgment, p. 21, ¶ 53. See also Trial Exhibit 78 p. 66, Lines 23-25; p. 67, Lines 1-5; Trial Exhibit 77 "Name on Credit Card” and "Address Associated with Credit Card” columns.
. Complaint, pp. 8-9, ¶ 24; Joint Pretrial Statement, p. 9, ¶ 53.
. Complaint, pp. 8-9, ¶ 24; Joint Pretrial Statement, p. 9, ¶ 54.
. Joint Pretrial Statement, p. 11, ¶ 72.
. Joint Pretrial Statement, p. 11, ¶ 73.
. Joint Pretrial Statement, p.. 11, ¶ 74.
. Joint Pretrial Statement, p. 11, ¶ 75; Motion for Judgment on the Pleadings, p. 27, ¶ 118.
. Joint Pretrial Statement, p. 11, ¶ 76; Motion for Judgment on the Pleadings, p. 7, ¶ 19.
. Joint Pretrial Statement, p. 11, ¶ 77.
. Joint Pretrial Statement, p. 11, ¶ 78.
. Joint Pretrial Statement, p. 12, 11 83.
. Joint Pretrial Statement, p. 12, ¶ 84.
. Joint Pretrial Statement, p. 12, ¶ 85.
. Joint Pretrial Statement, p. 12, ¶ 86.
. Joint Pretrial Statement, p. 12, ¶ 87.
. Joint Pretrial Statement, p. 10, ¶ 60; Motion for Judgment on the Pleadings, p. 9 at ¶ 33, and p. 10 at ¶ 44.
. Joint Pretrial Statement, p. 10, ¶ 161; Motion for Judgment on the Pleadings, p. 9, ¶ 34.
. Docket # 120 and # 122.
. See, e.g., In re Evans, 413 B.R. 315, 324 (Bankr.E.D.Va.2009) (Section § 110(h)(2) "requires the disclosure of ‘any fee received from the debtors in the year before their bankruptcy filing, not just those fees connected to the typing (or computer entry and printing) of the schedules and petition”) (emphasis in original); In re Moran, 256 B.R. 842, 852 (Bankr.D.N.H.2000) ("fees collected for other services must be disclosed pursuant to 11 U.S.C. § 110(h)(1) if they are collected within one year preceding a debtor’s bankruptcy and such fees are subject to review and disgorgement pursuant to 11 U.S.C. § 110(h)(2) if found to be excessive”) (emphasis added); Kaitangian, 218 B.R. at 114 ("The plain language of the statute does not limit the fee received to only fees incurred in connection with typing the petition and schedules”).
.The evidence produced at Trial through Debtors’ testimony actually suggests, or allows the inference, that fees charged to Debtors by Mr. Assaf not infrequently actually exceeded $500.00 and sometimes significantly so. See supra, Sections VII.C.4.; D.4.C.; D.9.
. 11 U.S.C. § 110(h)(3)(A) provides for a mandatory return of the fees in excess of the value of services.
. 11 U.S.C. § 110(h)(3)(B) is a discretionary provision authorizing the Court to return all fees to the Debtors.
. On June 1, 2011, this Court, in the In re Briones-Coroy case, Case No. 10-40900-SBB, granted the trustee’s motion for reconsideration and entered judgment against Mr. Assaf for $1.00 in actual damages pursuant to section 110(i)(l)(A), $2,000.00 pursuant to section 110(i)(1)(B), and $1,000.00 pursuant to section 110(i)(2). See Docket # 35 in Case No. 10-40900-SBB. Consequently, this Court is not including in this Order that fees charged to the Debtor Briones-Coroy be forfeited, inasmuch as it has already been ordered.
. Docket #138.
. The hearing was conducted on September 6, 2012 (Docket #39 in the Antonio Valle-Rodriguez case).
. 908 F.2d 675 (10th Cir.1990).
. Admittedly, the Tenth Circuit in White was examining Rule 11, while, here, the Court is examining 11 U.S.C. § 110 and a provision for "discretionary” fines. Although not directly on point, this Court finds the guidance in White to be helpful if not compelling.
. 908 F.2d at 684.
. Id.
. Id. at 685.
. Id.
. 11 U.S.C. § 110(g) provides that:
A bankruptcy petition preparer shall not collect or receive any payment from the debtor or on behalf of the debtor for the court fees in connection with filing the petition.
. See Trial Exhibit 112.
. See Trial Transcript, 6/4/12. p. 23, lines 14-18; p. 24, lines 7-10.
. See Trial Transcript, 6/4/12. p. 33, lines 1-13; See also Trial Exhibit 112.
. See Trial Transcript, 6/4/12. p. 33, lines 20-25; p. 34, lines 1-2. See also Trial Exhibit 112 "Application for Waiver of Filing Fees” column.
. United States Trustee Assigned Debtors # 107 on Exhibit A attached hereto.
. United States Trustee Assigned Debtors # 119 on Exhibit A attached hereto.
. United States Trustee Assigned Debtors # 131 on Exhibit A attached hereto.
. United States Trustee Assigned Debtor # 133 on Exhibit A attached hereto.
. United States Trustee Assigned Debtor # 138 on Exhibit A attached hereto.
. See Trial Transcript, 6/4/12, p. 34, lines 7-15. See also Trial Exhibit 112 "Order Granting/Denying Application for Waiver of Filing Fees” column.
. See Trial Transcript, 6/4/12, p. 34, lines 16-20. See also Trial Exhibit 112 "Assaf Employee Who Paid Installment Fee with the Bankruptcy Court” column.
. Id. These cases were in Ms. Zollars’ spreadsheet at Trial Exhibit 112 and the back up documentation was in Trial Exhibit 112a.
. See Trial Transcript, 6/4/12, p. 34, lines 18-23; p. 35, lines 16-20; p. 36, lines 1-7. See also Trial Exhibit 112a.
. See Trial Exhibit 112.
. Id.
. Id.
. Id.
. Id.
. See Trial Transcript, 6/4/12, p. 37, lines 19-25; p. 38, lines 1-8. See also Trial Exhibit 112 and 112a.
. United States Trustee Assigned Debtors # 149 on Exhibit A attached hereto.
. See Trial Exhibit 112 and Exhibit 112a at page 25 of 32.
. United States Trustee Assigned Debtor # 179 on Exhibit A attached hereto.
. See Trial Exhibit 112 and Exhibit 112a at page 30 of 32.
. See Trial Transcript, 6/5/12, p. 3, lines 15-20, p. 4, lines 12-14.
. See Trial Transcript, 6/5/12, p. 5, lines 14-20, 23-24.
. See Trial Transcript, 6/5/12, p. 4, lines 6-7.
. See Trial Transcript, 6/5/12, p. 26, lines 11-23.
. See Trial Transcript, 6/5/12, p. 26, lines 23-25.
. See Trial Transcript, 6/5/12, p. 27, lines 14-16.
. See Trial Transcript, 6/5/12, p. 26, lines 23-25.
. See Trial Transcript, 6/5/12, p. 133, lines 6-16.
. See Trial Transcript, 6/5/12, p. 134, lines 4-7.
. See Trial Transcript, 6/5/12, p. 134, lines 8-15.
. See Trial Transcript, 6/5/12, p. 125, lines 13-23.
. See Trial Transcript, 6/5/12, p. 125, lines 14-18.
. See Trial Transcript, 6/5/12, p. 125, lines 20-23.
. See Trial Transcript, 6/5/12, p. 125, lines 22-25; p. 126, lines 1-8.
. See Trial Transcript, 6/4/12, p. 156, lines 5-10.
. See Trial Transcript, 6/4/12, p. 156, lines 10-13.
. Specifically, filing fees were paid in these cases:
A. Flores-Villasenor, Baltazar and Flores, Soledad Irma, Case No. 10-40234-MER;
B. Vargas, Gerardo and Sanchez-Castillo, Lorena G, Case No. 10-32155-EEB;
C. Bustamante, Amaldo Uber and Hinos-troza, Rebecca Romula, Case No. 11-11932-HRT;
D. Campos-Molina, Armando, Case No. 11-11984-ABC;
E. Rubio-Perez, Yessica A, Case No. 11-12367-MER;
F. Gonzales, Antonio and Sanjuana, Case No. 11-13351-SBB;
G. Herrera, Mayra Maria, Case No. 11-15550-EEB; H. Mota, Yvonne, Case No. 11-12806-EEB;
I. Diaz-Hernandez, Jesus Manuel, Case No. 10-29967-SBB; and
J. Correa, Pancho F., Case No. 10-24470-EEB.
. See Complaint, p. 3, ¶ 19; Motion for Partial Summary Judgment, p. 5 at ¶ 4 and p. 9 at ¶ 15; Joint Pretrial Statement, p. 4 at ¶ 2 and p. 5 at ¶ 20.
. See Complaint, p. 3 at ¶ 8 and p. 4 at ¶ 10; Motion for Partial Summary Judgment, p. 9, ¶¶ 12, 13, 14; Joint Pretrial Statement, p. 9, ¶¶ 47, 49; Motion for Judgment on the Pleadings, p. 27, ¶ 118. See also Trial Exhibits 21, 22, 24, 25 and 64 "Petition Date” column.
. See Joint Pretrial Statement, p. 5, ¶ 23.
. See Complaint, p. 5 at ¶ 13 and p. 6 at ¶ 14; MSJ ¶ 10; Joint Pretrial Statement, p. 8, ¶ 44; Motion for Judgment on the Pleadings, p. 27, ¶ 118. See also Trial Exhibits 33 and 34.
. See Trial Exhibits 33 and 34.
. See Joint Pretrial Statement, p. 6, ¶¶ 28, 29, 30; Motion for Judgment on the Pleadings, p. 6 at ¶¶ 14, 15, 16, and p. 17 at ¶ 66.
. See Trial Transcript 6/4/12, p. 150, lines 1-5; 6/5/12, p. 80, lines 5-8.
. See Trial Transcript 6/4/12, p. 168, lines 16-21; 6/5/12, p. 144, lines 1-4.
. See Trial Exhibit 64.
. United States Trustee Assigned Debtor # 220 on Exhibit A attached hereto. See Trial Exhibit 71.
. See Trial Transcript 6/5/12, p. 31, lines 21-25; p. 32, line 1; p. 106, 19-21; p. 119, lines 11-13; p. 123, lines 15-17.
. See Trial Transcript 6/5/12, p. 32, lines 2-16; p. 106, lines 22-24; p. 119, lines 14-16; p. 123, lines 18-19.
. See Trial Transcript 6/4/12, p. 180, lines 13-16; 6/5/12, p. 37, lines 12-17. See also Trial Exhibit 70 at p. 1.
. See Trial Exhibit 64, "Debtor's Acknowledgment that Emmanuel Assaf is Not an Attorney” column.
. See e.g., Trial Transcript 6/5/12, p. 5, lines 19-23, p. 6, lines 5-7.
. See Trial Transcript 6/5/12, p. 7, lines 8-25, p. 8, lines 1-8.
. See Trial Transcript 6/5/12, p. 12, lines 11-20, p. 13, lines 8-11.
. See Trial Transcript 6/5/12, p. 13, lines 12-25, p. 14, lines 1-25, p. 15, lines 1-17.
. See Trial Transcript 6/5/12, p. 13, lines 12-25, p. 14, lines 1-25, p. 15, lines 1-17.
. See Trial Transcript 6/5/12, p. 44, lines 15-24, p. 45, lines 1-25, p. 15.
. See Trial Exhibit 71.
. See Trial Transcript 6/5/12, p. 31, lines 7-10, p. 32, lines 14-16.
. See Trial Transcript 6/5/12, p. 15, lines 18-25, p. 16, lines 1-11.
. See Trial Transcript 6/5/12, p. 16, lines 12-22.
. See Trial Transcript 6/5/12, p. 16, lines 24-25, p. 17, lines 1-3, 20-25, p. 18, lines 1-7.
. See Trial Transcript 6/5/12, p. 18, lines 23-25, p. 19, lines 1-25, p. 20, lines 1-5.
. See Trial Transcript 6/5/12, p. 20, lines 13-25.
. See Trial Transcript 6/5/12, p. 20, lines 6-10, p. 21, lines 1-21.
. See Trial Transcript 6/5/12, p. 23, lines 1-25, p. 24, lines 1-19.
. In order, Roberta Moland (who had power of attorney in her mother Maty Jan Swanson’s bankruptcy) regarding Case No. 11-20293 (United States Trustee Assigned Debtor # 224 on Exhibit A attached hereto); Pancho Frank Correa, debtor in Case No. 10-24470 (United States Trustee Assigned Debtor # 27 on Exhibit A attached hereto); Guy Maestas, debtor in Case No. 10-37041 (United States Trustee Assigned Debtor #88 on Exhibit A attached hereto); Claudia Aponte, debtor in Case No. 11-20993 (United States Trustee Assigned Debtor # 234 on Exhibit A attached hereto); Robert Frankel, debtor in Case No. 10-29559 (United States Trustee Assigned Debtor #41 on Exhibit A attached hereto); Alvaro Mendoza-Rojo; debtor in Case No. 10-41209 (United States Trustee Assigned Debtor #115 on Exhibit A attached hereto); Gloria Chavez, debtor in Case No. 07-11746 (United States Trustee Assigned Debtor # 3 on Exhibit A attached hereto); Jesus Diaz; debtor in Case No. 10-29967 (United States Trustee Assigned Debtor # 44 on Exhibit A attached hereto); Yvonne Mota, debtor in Case No. 11-12806 (United States Trustee Assigned United States Trustee Assigned Debtor #144 on Exhibit A attached hereto); Deana Sotelo, debtor in Case No. 11-12053 (United States Trustee Assigned Debtor #135 on Exhibit A attached hereto); and Francisco Sanchez, debtor in Case No. 11-19541 (United States Trustee Assigned Debtor # 222 on Exhibit A attached hereto).
. See Trial Transcript 6/5/12, p. 119, lines 7-17, p. 120, lines 1-3, 20-25, p. 121, lines 1-16.
. See Trial Transcript 6/5/12, p. 106, lines 15-18, p. 109, lines 6-17.
. See Trial Transcript 6/5/12, p. 123, lines 9-23, p. 125, lines 13-23.
. See Trial Transcript 6/5/12, p. 74, lines 6-21, p. 75, lines 2-6, p. 78, lines 1-12.
. See Trial Transcript 6/4/12, p. 129, lines 5-20; p. 128, lines 13-25; p. 130, lines 1-5; p. 131, lines 10-15.
. See Trial Transcript 6/4/12, p. 156, lines 7-13, 22-25, p. 157, lines 1-2, p. 158, lines 1-9.
. See Trial Transcript 6/4/12, p. 169, lines 1-14; p. 170, lines 1-20, 16-21; p. 173, lines 6-16.
. See Trial Transcript 6/5/12, p. 53, lines 19-25; p. 57, lines 6-25; p. 58, lines 14-25; p. 59, lines 1-4, p. 66, lines 21-25.
. See Trial Transcript 6/5/12, p. 133, lines 16-17, p. 135, lines 4-21, p. 137, lines 14-20.
. See Trial Transcript 6/6/12, p. 5, lines 15-21; p. 7, lines 1-5; p. 9, lines 16-27.
. See Trial Transcript 6/6/12, p. 34, lines 1-6; p. 35, lines 10-14, p. 39, lines 1-12, p. 40, lines 6-24.
. See Trial Transcript 6/6/12, p. 76, lines 18-23.
. See Trial Exhibit 114b, p. 52.
. See Trial Transcript 6/5/12, p. 9, lines 5-25; p. 10, lines 1-22.
. See Trial Transcript 6/5/12, p. 9, lines 5-25; p. 10, lines 1-22.
. See Trial Transcript 6/5/12, p. 83, lines 10-24.
. See Trial Transcript 6/4/12, p. 130, lines 1-12.
. See Trial Transcript 6/4/12, p. 158, lines 14-25, p. 159, lines 1-2.
. See Trial Transcript 6/4/12, p. 171, lines 19-25; p. 172, lines 1-15.
. See Trial Transcript 6/5/12, p. 55, lines 23-25; p. 56, lines 1-24.
. See Trial Transcript 6/5/12, p. 137, lines 21-25, p. 138, lines 1-8.
. See Trial Transcript 6/6/12, p. 10, lines 11-25; p. 11 line 1.
. See Trial Transcript 6/6/12, p. 37, lines 4-25; p. 38, lines 1-7.
. See Trial Transcript 6/6/12, p. 79, lines 5-22.
. See Trial Transcript 6/4/12, p. 30, lines 21-25, p. 31, lines 1-15, p. 32, lines 1-16. See also Trial Exhibit 11, p. 10, 17.
. See Trial Transcript 6/4/12, p. 25, lines 1-16, p. 26, lines 16-25, p. 27, lines 1-9. See also Trial Exhibit 82.
. See Trial Transcript 6/4/12, p. 63, lines 11-18. See also Trial Exhibit 82 and Trial Exhibit 121 p. 21 of 32.
. See Trial Transcript 6/4/12, p. 28, lines 16-25, p. 29, lines 1-5, 11-21. See also Trial Exhibit 64g, p. 7-12.
. See Trial Transcript 6/5/12, p. 25, lines 16-19.
. See Trial Transcript 6/5/12, p. 25, lines 18-19.
. Trial Transcript, 6/5/12, p. 25.
. See Trial Transcript 6/5/12, p. 127, lines 3-6. See also Trial Witness Exhibit 7, p. 62-64.
. See Trial Transcript 6/5/12, p. 84, lines 12-16.
. See Trial Transcript 6/4/12, p. 132, lines 4-17. See also Trial Witness Exhibit 24 p. 67-69.
. See Trial Transcript 6/4/12, p. 159, lines 4-25, p. 160 lines 1-7. See also Witness Exhibit 30, p. 67-70.
. See Trial Transcript 6/5/12, p. 138, lines 15-21. See also Trial Witness Exhibit 13, p. 68-70.
. See Trial Transcript 6/6/12, p. 11, line 25; p. 12, lines 1-11.
. See Trial Transcript 6/4/12, p. 38, lines 12-25. See also Trial Exhibit 68.
. See Trial Exhibit 68b (questionnaires received from Debtors).
. See Trial Transcript 6/4/12, p. 39, lines 5-10. See also Trial Exhibit 68a.
. See Trial Transcript 6/4/12, p. 39, lines 19-25. See also Trial Exhibit 68.
. See Trial Transcript 6/4/12, p. 40, lines 1-19, p. 41, lines 9-25. See also Trial Exhibit 68a.
. See Trial Transcript 6/4/12, p. 42, lines 18-24. See also Trial Exhibit 68a.
. See Trial Transcript 6/4/12, p. 45, lines 13-15. See also Trial Exhibit 68a.
. The listing below at items a-k constituted the questions asked by the United States Trustee in his survey questionnaire to Debtors who used the Defendant's services. Where applicable, the Court will note the bankruptcy provision relevant to the question. See Trial Exhibit 68a, p. 25-33.
. 11 U.S.C. § 110(e)(2)(B)(i)(I).
. 11 U.S.C. § 110(e)(2)(B)(i)(II).
. 11 U.S.C. § 110(e)(2)(B)(ii).
. 11 U.S.C. § 110(e)(2)(B)(vii).
. 11 U.S.C. § 110(e)(2)(B)(iii).
. 11 U.S.C. § 110(e)(2)(B)(iv)(I).
. 11 U.S.C. § 110(e)(2)(B)(iv)(II).
. 11 U.S.C. § 110(e)(2)(B)(v).
. 11 U.S.C. § 110(e)(2)(B)(vi).
. 11 U.S.C. § 110(e)(2)(B)(vi).
. 11 U.S.C. § 110(e)(2)(B)(vii).
. See Trial Exhibit 68a, p. 25-33.
. See Trial Exhibit 68a, p. 25-33.
. See Trial Transcript 6/4/12, p. 33, lines 13-15.
. See Trial Transcript 6/4/12, p. 174, lines 9-15.
. See Trial Transcript 6/5/12, p. 54, lines 16-25, p. 55, lines 1-12.
. See Trial Transcript 6/5/12, p. 140, lines 4-9.
. See Trial Transcript 6/6/12, p. 13, lines 13-24.
. See Trial Transcript 6/6/12, p. 36, lines 6-9.
. See Trial Transcript 6/5/12, p. 27, lines 23-25, p. 28, lines 12-15. See also Trial Exhibit 70, p. 34.
. See Trial Transcript 6/5/12, p. 30, lines 3-7. See also Trial Exhibit 70, p. 44.
. See Trial Transcript 6/5/12, p. 28, lines 12-23, p. 29, lines 2-25. See also Trial Exhibit 70, p. 34, 38, 41.
. See Joint Pretrial Statement ¶¶ 17, 19.
. See Trial Transcript 6/5/12, p. 138, lines 22-25, p. 139, lines 1-17. See also Trial Witness Exhibit 13, p. 72-75.
. See Trial Transcript 6/5/12, p. 44, lines 10-25, p. 45, lines 1-25; p. 46, lines 1-25, p. 47, lines 1-11. See also Trial Witness Exhibit 23, p. 85-92.
. See Trial Transcript 6/5/12, p. 120, lines 1-19.
. See Trial Transcript 6/5/12, p. 110, lines 13-20; p. Ill, lines 12-25; p. 112, lines 1-2.
. See Trial Transcript 6/5/12, p. 73, lines 4-7; p. 79, lines 14-23; p. 80, lines 22-25; p. 81, lines 18-25.
. See Trial Transcript 6/4/12, p. 123, lines 23-24; p. 128, lines 13-25; p. 133, lines 13-21; p. 150, lines 1-7, 15-21.
. See Trial Transcript 6/4/12, p. 160, lines 9-18, 23-25; p. 161, lines 1-24.
. See Trial Transcript 6/4/12, p. 167, lines 17-24; p. 168, lines 1-3, 16-21; p. 174, lines 3-16; p. 174, lines 9-15.
. See Trial Transcript 6/5/12, p. 54, lines 12-19; p. 55, lines 13-22; p. 57, lines 6-25; p. 58, lines 1-5.
. See Trial Transcript 6/5/12, p. 139, lines 4-17; p. 140, lines 4-17.
. See Trial Transcript 6/6/12, p. 5, lines 15-21; p. 7, lines 1-5; p. 10, lines 5-10; p. 14 lines 6-11.
. See Trial Transcript 6/6/12, p. 38, lines 17-25; p. 36, lines 6-9.
. In re Gomez, 259 B.R. 379, 385 (Bankr.D.Colo.2001).
. Gomez, 259 B.R. at 386.
. Id. (emphasis added).
. In re Bernales, 345 B.R. 206, 214-15 (Bankr.C.D.Cal.2006).
. In re Moffett, 263 B.R. 805, 815 (Bankr.W.D.Ky.2001). See, also, Gomez, 259 B.R. 379, 385 (Bankr.D.Colo.2001) (in providing and using a questionnaire filled out by debtor to prepare documents, the bankruptcy petition preparer, "greatly exceeded the authority of § 110”); In re Bagley, 433 B.R. 325, 333 (Bankr.D.Mont.2010) ("Advising debtors of available exemptions, and soliciting information which is then translated into completed bankruptcy forms is the unauthorized practice of law, whether by website or otherwise”); In re Bernales, 345 B.R. 206, 225 (Bankr.C.D.Cal.2006) ("the creation and use of the Questionnaire requires interpretation and understanding of the meaning of the questions in the Schedules and Statement of Financial Affairs”); In re Kaitangian, 218 B.R. 102, 110 (Bankr.S.D.Cal.1998) (finding that a bankruptcy petition preparer violated section 110 by choosing exemptions, stating that "[pllugging in solicited information from questionnaires and personal interviews to a prepackaged bankruptcy software program constitutes the unauthorized practice of law.”); In re Agyekum, 225 B.R. 695, 702 (9th Cir. BAP 1998) ("The 'InfoForm Questionnaire' functioned to solicit information to be used to complete bankruptcy schedules. Soliciting information from a debtor which is then typed into schedules constitutes the unauthorized practice of law").
. See In re Evans, 413 B.R. 315, 326 (Bankr.E.D.Va.2009) (software program selects exemptions); In re Moffett, 263 B.R. 805, 814 (Bankr.W.D.Ky.2001) ("[Ajdvising clients about exemptions, or determining which exemptions apply to a client’s property, is the unauthorized practice of law”) (citing Gomez, 259 B.R. at 387 and In re Lyvers, 179 B.R. 837, 839-840 (Bankr.W.D.Ky.1995)).
. See, e.g., In re Ellingson, 230 B.R. 426, 433 (Bankr.D.Mont.1999) ("Monroe engaged in the unauthorized practice of law ... The record is clear that Monroe advised Ellingson and Erwins of available exemptions, provided them with a comprehensive list of available exemptions ..."); see also, McDow v. Mayton, 379 B.R. 601, 607 (E.D.Va.2007).
. See, e.g., In re Ellingson, 230 B.R. 426, 433-34 (Bankr.D.Mont.1999) ("Monroe engaged in the unauthorized practice of law ... The record is clear that Monroe ... summarized and reformulated information solicited from clients, and generated the completed bankruptcy forms for Ellingson and Erwin on her computer. These tasks require the exercise of legal judgment”); In re Herren, 138
. In re Hennerman, 351 B.R. 143, 151-52 (Bankr.D.Colo.2006) (emphasis added).
. Id. See also, In re Guttierez, 248 B.R. 287 (Bankr.W.D.Tex.2000) ("The only service that a bankruptcy petition preparer can safely offer and complete on behalf of a pro se debtor after the enactment of § 110 is the 'transcription’ of dictated or handwritten notes prepared by the debtor prior to the debtor having sought out the petition preparer's service. Any other service provided on behalf of the debtor by a non-attorney (even telling the debtor where the information goes on the form) is not permitted under state unauthorized practice of law statutes, and so is also not authorized by § 110”); In re Dunkle, 272 B.R. 450, 455 (Bankr.W.D.Pa.2002) ("A petition preparer is only authorized to type information exactly as provided by potential debtors”); In re Schneider, 271 B.R. 761, 764-65 (Bankr.D.Vt.2002) ("It is clear from § 110 that the "bankruptcy petition preparer” moves at his or her peril when performing any service beyond that of simply typing the information provided by a prospective debtor on approved bankruptcy forms”).
. Gomez, 259 B.R. at 388.
. 11 U.S.C. Section 110(h)(3) states, in part, as follows:
(3)(A) The court shall disallow and order the immediate turnover to the bankruptcy trustee any fee referred to in paragraph (2)-
(i) found to be in excess of the value of any services rendered by the bankruptcy petition preparer during the 12-month period immediately preceding the date of the filing of the petition; or
(ii) found to be in violation of any rule or guideline promulgated or prescribed under paragraph (1).
(B) All fees charged by a bankruptcy petition preparer may be forfeited in any case in which the bankruptcy petition preparer*740 fails to comply with this subsection or subsection (b), (c), (d), (e), (f), or (g).
(5) A bankruptcy petition preparer shall be fined not more than $500 for each failure to comply with a court order to turn over funds within 30 days of service of such order.
.Importantly, it should be noted that Mr. Assaf advertises and offers other quasi legal or related services to the public. Indeed, the evidence suggests Mr. Assaf has a flourishing quasi or extra-legal practice that includes providing assistance in divorce, debt collection, wills, restraining orders, and lawsuits. See Trial Exhibits 61 and 62.
. See 11 U.S.C. § 110(j).
. See Metzler v. IBP, Inc., 127 F.3d 959, 963-64 (10th Cir.1997).
. Emphasis added.
. 11 U.S.C. § 110(j)(2)(B).
. See, e.g., In re Wagner, 241 B.R. 112, 123 (Bankr.E.D.Pa.1999) (nationwide injunction prohibiting all of preparer’s petition preparer activities pursuant to 11 U.S.C. § 110(J)(2)(B)); In re Bradshaw, 233 B.R. 315, 329 (Bankr.D.N.J.1999) (nationwide injunction prohibiting all of preparer's petition preparer activities pursuant to 11 U.S.C. § 110(J)(2)(B)); In re Gabrielson, 217 B.R. 819, 828 (Bankr.D.Ariz.1998) (enjoining preparer "in the District of Arizona or in any federal district in which he might now or subsequently locate”); In re Stacy, 1997 WL 178852 (Bankr.D.Or. April 3, 1997) (nationwide injunction from acting as a preparer); In re Paskel, 201 B.R. 511 (Bankr.E.D.Ark.1996) (Eastern and Western Districts of Arkansas.); In re Brokenbrough, 197 B.R. 839, 845 (Bankr.S.D.Ohio 1996) (in view of the court's conclusions with regard to violations of 11 U.S.C. § 110 in this case, the findings of fraudulent, unfair or deceptive conduct, as well as the existence of three other injunctions with respect to preparer, permanent injunction from acting as preparers and engaging in the unauthorized practice of law in this jurisdiction and other jurisdictions within the United States); In re Stacy, 193 B.R. 31, 39 (Bankr.D.Or.1996) (nationwide injunction imposed as to 11 U.S.C. § 110 violations, but not as to unauthorized practice of law); In re Gavin, 181 B.R. 814, 825 (Bankr.E.D.Pa. 1995), adopted 184 B.R. 670 (E.D.Pa.1995) (nationwide injunction warranted because of preparer's egregious unauthorized practice of law and 11 U.S.C. § 110 violations — "A nationwide injunction appears clearly authorized by 11 U.S.C. § 110(j)(1) and (j)(2)(B), since they speak in terms of entry of an injunction preventing a person from acting as a preparer anywhere”).
. See, also, In re Duran, 347 B.R. 760, 768-69 (Bankr.D.Colo.2006) ("It is the intent of this Court that Mr. Brown and his related entities have nothing whatsoever to do with any bankruptcy matter pending before this Court or any other court exercising bankruptcy jurisdiction”); In re Bagley, 433 B.R. 325, 334 (Bankr.D.Mont.2010) (nationwide injunction issued when repeated violations of section 110 were shown and preparer already enjoined in another jurisdiction).
. This Court, in the In re Briones-Coroy case, Case No. 10-40900-SBB, already granted the trustee's motion for reconsideration and entered judgment against the Defendant for $1.00 in actual damages pursuant to section 110(i)(l)(A), $2,000.00 pursuant to section 110(i)(l)(B), and $1,000.00 pursuant to section 110(i)(2). See Docket #35 in Case No. 10-40900-SBB. Consequently, this Court is not including in this Order the debt- or, Briones-Coroy, as he has already been provided.
. The total amount of Debtors’ fees to be refunded is an amount not less than $120,000.00 (240 customers times $500.00 per case filed). The evidence at Trial and at Exhibit 81 suggest that fees paid by many Debtors may be more than $500.00. To the degree feasible, the United States Trustee should assemble, calculate, and account for all such fee information and refund fees to Debtors accordingly.
. The total amount of fees for the ten Debtors’ cases, not more than $3,060.00 (ten cases times $306.00).
. $480,000.00 = 240 cases x $2,000 apiece. See supra n.155 and n.334, whereby this Court already ordered the payment of $2,000 in the within case, the Briones-Coroy case.