assigned case number The bankruptcy succeeded in stopping the sheriffs'

Transcription

1 BEFORE THE HEARING BOARD OF THE ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION In the Matter of: ROBERT VINCENT SCHALLER, Commission No. 2017PR00124 Attorney-Respondent, No ANSWER TO COMPLAINT Now comes ROBERT VINCENT SCHALLER, by his attorney, SAMUEL J. MANELLA, and for his Answer to the Complaint, states as follows: Count I (Dishonesty to the Tribunal in relation to the Jedynak bankruptcy matters) 1. In March 2012, Countrywide Home Loans and Bank of America had pending in the Circuit Court of Cook County as case number 2009 CH 15068, a mortgage foreclosure matter against Janusz Jedynak ("Janusz") and Zuzanna Jedynak ("Zuzanna") relating to the Jedynaks' mortgage payment arrearage on their marital home, located at 7323 N. Oketo Avenue in Chicago ("the Oketo property"). Upon information and belief, Respondent admits the allegations contained in Paragraph 1 of Count I of the 2. Prior to March 26, 2012, Respondent and Janusz agreed that Respondent would represent Janusz, individually, in a Chapter 13 bankruptcy proceeding to stop an impending sheriffs' sale of the Oketo property. On March 26, Respondent filed a petition on behalf of Janusz seeking bankruptcy protection under Chapter 13. The matter was assigned case number The bankruptcy succeeded in stopping the sheriffs' sale.

2 Respondent admits that prior to March 26, 2012, Respondent and Janusz agreed that Respondent would represent Janusz, individually, in a Chapter 13 bankruptcy proceeding. Respondent admits that one factor in filing Janusz' bankruptcy proceeding was an impending sheriffs' sale of the Oketo property. Respondent admits that on March 26, he filed a petition on behalf of Janusz seeking bankruptcy protection under Chapter 13, that the matter was assigned case number , and that the bankruptcy stopped the sheriffs' sale. 3. On April 9, 2012, Respondent filed an application for compensation in relation to case number , seeking $3,500 in fees and $316 in expenses. A hearing on Respondent's fee application was scheduled to take place on June 27, Respondent admits the allegations contained in Paragraph 3 of Count I of the 4. On June 27, 2012, the court entered an order granting Respondent's application for compensation and awarded Respondent $3,500 in fees and $316 in expenses. Respondent admits the allegations contained in Paragraph 4 of Count I of the 5. On July 13, 2012, the bankruptcy trustee filed a motion to dismissing case number because Janusz' repayment plan had been rejected. On July 25, 2013, the court entered an order granting the trustee's motion to dismiss. Respondent denies the allegations contained in the first sentence of Paragraph 5 of Count I of the Respondent admits the Trustee filed a Motion to Dismiss case number because Debtor failed to file required documents and because the confirmation of debtor's plan had been denied. Respondent admits that on July 25, 2012, the court entered an order granting the Trustee's Motion to Dismiss. 6. Prior to September 8, 2012, upon another impending sheriffs' sale of the Oketo property, Respondent and Janusz agreed that Respondent would represent Janusz, individually, in second Chapter 13 bankruptcy proceeding. On September 8, 2012, Respondent filed a Chapter 13 bankruptcy petition on behalf of Janusz. The matter

3 was assigned case number Case number was again successful in stopping the sheriffs' sale of the Oketo property. Respondent admits the allegations contained in Paragraph 6 of Count I of the Complaint, but further answering, states that again, the sheriff's sale was not the sole reason for filing the bankruptcy, and that it was not "Prior to September 8, 2012", but "On September 8, 2012" that Respondent and Janusz reached the stated agreement. 7. On October 9, 2012, Respondent filed an application for compensation in relation to case number , seeking $3,500 in fees and $281 in expenses. A hearing on Respondent's fee application was scheduled to be heard on November 28, Respondent admits the allegations contained in Paragraph 7 of Count I of the 8. On November 28, 2012, a confirmation hearing was set on the Ch. 13 proceeding before Judge Hollis. Respondent did not appear in court. The Trustee advised the court that this was the second case, that the prior was dismissed, and confirmation denied for "no money, no meeting." The trustee advised that court that again in the second case, he had "no money and no meeting." As a result, the court entered an order denying Respondent's application for compensation, stating that unless Respondent could appear and explain why the case "turned out to be such a mess," his fees were denied. Respondent admits the allegations contained in the first, second, third, and fourth sentences of Paragraph 8 of Count Iofthe Respondent neither admits nor denies the fifth sentence of Paragraph 8 of Count I of the Complaint, in that it is not clear as to what facts "as a result" refer. Respondent admits that the Order denying fees states it was entered for the reasons stated on the record and that the Court had stated, "I am going to deny his fees unless he can explain to me why this turned out to be such a mess." 9. On November 30, 2012, the bankruptcy trustee filed a motion to dismiss case number based upon unreasonable delay of the debtor. Respondent denies the allegations contained in Paragraph 9 of Count I of the

4 10. At no time between November 28, 2012 and December 12, 2012, did Respondent appear before Judge Hollis and explain why he was entitled to fees or why the case was a "mess." As a result, Respondent was precluded from receiving compensation in relation to case number Respondent admits the allegations contained in the first sentence of Paragraph 10 of Count I of the Respondent denies the allegations contained in the second sentence of Paragraph 10 of Count I of the 11. On December 12, 2012, the court entered an order grating the trustee's motion to dismiss case number Respondent admits the allegations contained in Paragraph 11 of Count I of the 12. At no time during the above bankruptcy actions did Janusz or Respondent speak with or inform Zuzanna of those matters or the ongoing foreclosure actions relating to the Oketo property. Respondent denies the allegations contained in Paragraph 12 of Count I of the 13. In December 2012, Janusz met with Respondent after receiving notice of a third impending sheriffs' sale on the Oketo property. Respondent informed Janusz that he could no longer stop the sheriffs' sale by filing a Chapter 13 bankruptcy petition on Janusz's behalf. Respondent said that Janusz's wife Zuzanna, however, was able to do so under bankruptcy law. At no time did Respondent meet with Zuzanna or discuss with her representing her in a Chapter 13 bankruptcy proceeding. Upon information and belief, Respondent denies the allegations contained in the first, second, and third sentences of Paragraph 13 of Count I of the Respondent neither admits nor denies the allegations contained in the fourth sentence of Paragraph 13 of Count I of the Complaint due to lack of specific recollection. 14. On or before January 22, 2013, Respondent prepared a bankruptcy petition pursuant to Chapter 13 of the Bankruptcy Code. Respondent advised Janusz to sign his wife's name to the petition, and pursuant to Respondent's advice, Janusz signed the

5 name of Zuzanna to the bankruptcy petition. On January 22, 2013, Respondent, as the attorney of record, caused the Chapter 13 bankruptcy petition to be filed in the United States Bankruptcy Court, Northern District of Illinois, on behalf of Zuzanna, entitled In re Zuzanna Jedynak, case number On or about January 24, 2013, Janusz paid Respondent at least $2,200 for his work in relation to case number Respondent admits the allegations contained in the first sentence of Paragraph 14 of Count I of the Respondent denies the allegations contained in the second sentence of Paragraph 14 of Count I of the Respondent admits the allegations contained in the third sentence of Paragraph 14 of Count I of the Respondent denies the allegations contained in the last sentence of Paragraph 14 of Count I of the 15. The Chapter 13 bankruptcy petition that Respondent filed purportedly on behalf of Zuzanna in relation to case number was false and fraudulent because at no time did Respondent speak with Zuzanna about the filing of the bankruptcy petition, obtain Zuzanna's permission to file the bankruptcy petition on her behalf, or obtain her signature on the bankruptcy petition. Respondent denies the allegations contained in Paragraph 15 of Count I of the 16. At the time that Respondent filed the Chapter 13 bankruptcy petition purportedly on behalf of Zuzanna, Respondent knew that the petition was false and fraudulent. Respondent denies the allegations contained in Paragraph 16 of Count I of the 17. Accompanying the purported Chapter 13 bankruptcy petition that Respondent filed on behalf of Zuzanna on January 22, 2013 were a Disclosure of Compensation of Attorney for Debtor as required under 11 U.S.C. Section 329(a) and Bankruptcy Rule 2016(b), and a copy of the Court-Approved Retention Agreement purportedly between Respondent and Zuzanna dated January 21, Respondent admits the allegations contained in Paragraph 17 of Count I of the

6 18. Respondent electronically affixed Zuzanna's signature to exhibit D of the petition, under penalty of perjury, which was individual debtor's statement of compliance with credit counseling requirement and attached that document to the petition he filed in case number The certificate of counseling by the credit counselor stated that the counseling session had been conducted by internet. Respondent admits the allegations contained in Paragraph 18 of Count I of the 19. Respondent electronically affixed Zuzanna's signature to a Northern District United States Bankruptcy Court-Approved attorney-debtor agreement, which provided that Respondent would, inter alia, meet personally with Zuzanna to discuss the advisability of a Chapter 7 or Chapter 13 case and issues regarding Respondent's fee, and would personally review and sign with Zuzanna the petition, plan, statements, and schedules, and attached that document to the petition he filed in case number Respondent admits that he electronically affixed Zuzanna's signature to the Court Approved Retention Agreement, which provided that Respondent would personally counsel Zuzanna regarding the advisability of filing Chapter 7 or Chapter 13 and issues regarding Respondent's fees and would personally review with Zuzanna the Petition and other court filed documents. Respondent denies the balance of the allegations contained in Paragraph 19 of Count I of the Complaint, as the agreement requires Respondent to "personally counsel" and not "personally meet" with the debtor. 20. Respondent electronically affixed Zuzanna's signature to the certification of notice to consumer debtor(s) under Sect. 342(b) of the Bankruptcy Code, which describes the credit counseling services available to debtors, as well as setting forth the purpose, benefits and costs of the four types of bankruptcy, and informs the debtor of bankruptcy crimes, and attached that document to the petition he filed in case number Respondent admits the allegations contained in Paragraph 20 of Count I of the 21. The signatures of Zuzanna affixed by Respondent to the documents referred to in paragraphs 18, 19 and 20, above, were false because Respondent had not met with Zuzanna and knew that she had not received the notice to consumer debtors nor had she complied with credit counseling requirements.

7 Respondent denies the allegations contained in Paragraph 21 of Count I of the 22. Respondent electronically affixed his own signature to the petition in case number at numerous places, including at Exhibit B of the petition, where Respondent, through his electronic signature, certified that he had provided information to Zuzanna, as follows: I, the attorney for the petitioner named in the foregoing petition, declare that I have informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title II, United States Code, and have explained the relief available under each chapter. I further certify that I have delivered to the debtor the notice required by 11 U.S.C. -342(b). Respondent admits the allegations contained in Paragraph 22 of Count I of the 23. Respondent's statement in Exhibit B of the petition was false, and Respondent knew it was false, because at no time did Respondent meet with or discuss with Zuzanna the relief available to her under the bankruptcy code. Respondent denies the allegations contained in Paragraph 23 of Count I of the 24. Respondent knew that Janusz had affixed the signature of Zuzanna to the Declaration Regarding Electronic Filing Petition and Accompanying Documents and Rights and Responsibilities Agreement Between Chapter 13 Debtors and Their Attorneys, and that those documents were filed with the bankruptcy petition. Respondent denies the allegations contained in Paragraph 24 of Count I of the 25. On February 5, 2013, Respondent filed a motion seeking an extension of the deadline to file the required schedules, statements, and plan, as well as the deadline to provide pay advices and tax information. At no time did Respondent file the required schedules, Statement of Financial Affairs, and plan. Therefore, on March 8, 2013, the bankruptcy trustee filed a motion to dismiss the case.

8 Respondent admits the allegations contained in Paragraph 25 of Count I of the On March 18, 2013, the court entered an order dismissing case number 13- Respondent admits the allegations contained in Paragraph 26 of Count I of the 27. On October 5, 2016, Zuzanna, through new counsel, filed a petition for an order finding that she did not file a petition for bankruptcy seeking to seal the file related to case number Respondent admits the allegations contained in Paragraph 27 of Count I of the On October 20, 2016, the court entered an order reopening case number Respondent admits the allegations contained in Paragraph 28 of Count I of the 29. By reason of the conduct described above, Respondent has engaged in the following misconduct: a. counseling or assisting a client (Janusz) in conduct that the lawyer knows is criminal or fraudulent, by conduct including assisting Janusz in preparing and filing bankruptcy documents on behalf of Zuzanna Jedynak without her knowledge, in violation of Rule 1.2(d) of the Illinois Rules of Professional Conduct (2010); b. knowingly making a false statement of material fact to a tribunal, by conduct including filing a bankruptcy petition purporting to be signed by Zuzanna Jedynak when Respondent knew it had been reviewed and signed by Janusz and not by Zuzanna, and by conduct including filing the documents attached to the petition purporting to be electronically signed by Zuzanna when Respondent knew that he had affixed Ms. Jedynak's electronic signature to those documents and that he had not discussed the petition, its filing or those materials with her, in violation of Rule 3.3(a)(1) of the Rules of Professional Conduct (2010);

9 c. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including filing a bankruptcy petition that he knew contained a forged signature of Zuzanna signed by Janusz without Zuzanna's authority, and by conduct including filing a bankruptcy petition whereon Respondent had affixed his electronic signature to Exhibit B of the bankruptcy petition which falsely stated that Respondent had provided information to Zuzanna Jedynak about different bankruptcy chapters and the relief available under each chapter when he had not done so, and by conduct including filing a bankruptcy petition whereon Respondent had affixed his electronic signature and falsely asserted that Zuzanna had attended credit counseling when he had not done even advised her to attend and he knew she had not done so, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010). Respondent denies the allegations contained in Paragraph 29 (a) through (c) of Count I of the WHEREFORE, the Respondent requests that the Complaint be dismissed. Respectfully submitted, /MAk SAMUEL J. MANELLA SAMUEL J. MANELLA ATTORNEY FOR RESPONDENT 77 WEST WASHINGTON STREET SUITE 705 CHICAGO, ILLINOIS (708) manellalawoffice@aol.com