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Commonwealth of Massachusetts

NO. BD-2009-029


S.J.C. Order of Term Suspension entered by Justice Ireland on March 26, 2010.1


The respondent received a two-year suspension for his misconduct in three matters as described below:

In the first matter, on March 6, 2008, the respondent filed a chapter 13 petition for bankruptcy on behalf of a young woman. At the time of filing, the respondent had never had any communication with the debtor and she had no knowledge of the filing of the petition. The respondent was told by the debtor’s parents that their debtor was aware of the petition and gave her permission for filing.

When filing the petition for the debtor, the respondent typed her signature and electronically filed the petition with the debtor’s typed signature. The respondent further declared that he informed the debtor that she could proceed under chapter 7, 11, 12 or 13 and that he explained the relief available under each chapter. He also certified that he gave her “the notice as required by 11 U.S.C. sec. 342”, thereby representing to the court that she approved of the filing. These statements were false and the respondent knew that they were false.

On December 7, 2007, the respondent had previously filed a chapter 13 petition for bankruptcy on behalf of the mother. As of March 6, 2008, that case was still pending. Just prior to filing the debtor’s petition, the respondent recorded at the Registry of Deeds a deed transferring an ownership interest in real estate owned by the mother to the debtor and her mother as joint tenants, for consideration of one dollar. The debtor had no knowledge of the drafting, execution or recording of the deed. At the time that the respondent recorded the deed, the respondent knew, or should have known with reasonable inquiry, that the property was an asset of the mother’s bankruptcy estate. At no time did the respondent obtain permission or authority from the court to convey an interest in estate property.

The respondent’s intentional or reckless conduct in recording a deed that transferred an interest in property of a bankruptcy estate, post petition, without notice, hearing and court approval, was in violation of section 549 of the Bankruptcy Code. The respondent’s violation of bankruptcy law in transferring ownership in real estate and recording the deed was in violation of Mass. R. Prof. C. 3.4(c), and 8.4(d) and (h) and the respondent’s false and misleading filings with the Court, were in violation of Mass. R. Prof. C. 3.3(a) and 8.4 (c), (d) and (h).

On January 15, 2009, as a result of the facts set forth above, the court entered an order of sanctions against the respondent. The order of sanctions required the respondent, among other matters, to pay $5,000 by February 18, 2009 and to disgorge fees and costs received by February 1, 2009. The respondent failed to pay the sanctions or to disgorge his fees, and failed to request or obtain from the court any extension of time to do so. The respondent’s failure without good cause to comply with an order of the court or seek modification or extension is in violation of Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h).

In the second matter, on April 18, 2008, a court reporter performed expedited transcription services of a deposition for the respondent. Thereafter, the reporter made repeated demands of the respondent for payment for services rendered and the respondent failed to respond. The reporter filed a small claims action. The respondent did not appear for the hearing and a judgment issued in favor of the Reporter for $261.45. The respondent was then directed to appear in court on February 4, 2009. The respondent received the order to appear but failed without good cause to appear. As a result, a capias issued.

On February 27, 2009, the reporter contacted bar counsel stating she had obtained a judgment and a capias against the respondent for the unpaid stenographer bill. On March 3, 2009, April 7, 2009, April 30, 2009, and May 13, 2009, bar counsel sent to the respondent correspondence requesting a response to the complaint from the reporter. As of December 2009, the respondent failed to respond to bar counsel’s requests and had not offered to bar counsel any explanation for his failure to respond. From March 3, 2009 to December 2009, the respondent had not contacted the reporter to discuss the matter or made any payment or offered any payment plan. At no time had the respondent contested the debt.

The respondent’s failure to comply with a judgment against him and the order to appear, without good cause, resulting in a capias for his arrest, is in violation of Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h). The respondent’s failure to cooperate with an investigation of bar counsel without good cause is in violation of Supreme Judicial Court Rule 4:01, § 3, and Mass. R. Prof. C. 8.4(d), (g) and (h).

In the third and final matter, on September 2, 2004, the respondent was settlement agent for a refinance transaction. From the closing proceeds, the respondent held back in his real estate IOLTA account the sum of $10,377 to pay off two creditors of the borrower. The holdback to pay off two creditors was required by the closing instructions from the lender. The respondent and the borrowers signed a HUD-1 settlement statement that included this deduction.

After the funding of the loan, two of the borrower’s creditors were timely paid from the holdback in full satisfaction of their claims.

After the closing, the respondent forwarded a HUD-1 settlement statement to the lender and the borrowers that on line 105 mistakenly indicated that $16,200 was withheld to pay three of the borrowers’ creditors, including Sears. This HUD-1 was an earlier and different HUD-1 settlement statement prepared by the respondent and signed by the borrowers.

In 2008, Sears began making demand of the borrowers for payment of the debt. The borrowers made many requests of the respondent to provide documentation of the transaction to prove that Sears had been paid. The respondent failed to adequately respond or to advise the borrowers that no funds were withheld to pay Sears. On March 31, 2009, one of the borrowers filed a complaint with bar counsel. Bar counsel requested that the respondent respond to the complaint by correspondence dated April 2, 2009, April 23, 2009, May 13, 2009, and June 18, 2009. The respondent did not respond.

Ultimately, the respondent produced evidence establishing that he had paid the creditors that the lender instructed him to pay, that Sears was not paid, and that the borrower received the net funds that the borrower was entitled to receive.

The respondent’s failure to cooperate with an investigation of bar counsel without good cause is in violation of Supreme Judicial Court Rule 4:01, § 3, and Mass. R. Prof. C. 8.4(d), (g) and (h), and the respondent’s failure to provide the lender with an accurate HUD-1 Settlement Statement was in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4(a).

In aggravation, the respondent had a prior admonition for borrowing funds from a client in violation of Mass. R. Prof. C. 1.8(a) (AD No. 03-20, 19 Mass. Att'y Disc. R. 556 (2003)), and he received a public reprimand, PR 2007-11, 23 Mass. Att'y Disc. R. 88 (2007), for charging an excessive or illegal fee.

In mitigation of the failure to cooperate, during the applicable times, the respondent suffered a chronic condition and a prescription medication inbalance.

This matter came before the board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by a two-year suspension. On March 8, 2010, the Board of Bar Overseers voted to adopt the parties’ stipulation and proposed sanction. On March 26, 2010, the Supreme Judicial Court for Suffolk County so ordered.


1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.

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