LAURA T. BEYER, Bankruptcy Judge.
This order addresses matters related to the representation of the Debtor by Joseph M. Kosko ("Kosko"), Volks Anwalt Law
1. The Debtor filed a Chapter 13 voluntary petition on November 6, 2015 [docket #1]. At that time, the Debtor also filed an Application for Individuals to Pay the Filing Fee in Installments [docket #2] that was purportedly signed by Kosko as the Debtor's attorney and the Debtor. The court granted this application by order entered on November 9, 2015 [docket #4].
2. The court issued a Notice of Deficient Filing [docket #3] on November 9, 2015 because the Debtor's petition was a "bare bones" filing and did not contain all of the required schedules, statements, summaries, declarations, and local forms. Federal Rule of Bankruptcy Procedure ("Bankruptcy Rule" or "Rule") 1007(c) requires any missing documents to be filed within 14 days of the filing of the petition or, in this case, by Friday, November 20, 2015. Local Rule 2016-2(b) requires every Chapter 13 debtor to file an executed Disclosure to Debtor of Attorney's Fees Procedure For Chapter 13 Cases in the United States Bankruptcy Court for the Western District of North Carolina ("Local Form 3"). Local Rule 2016-2(f) requires the attorney for the debtor to maintain the originally executed Local Form 3 "for a period of four years after the closing of the case."
3. On November 22, 2015, after the expiration of the time period to file the remaining documents, Kosko filed an Ex Parte Motion for Extension of Time to File Schedules, Statements and Chapter 13 Plan ("Extension Motion") [docket #7]. While the motion requested an extension until December 4, 2015, no order was ever submitted allowing the extension. Even if the extension had been allowed, the Debtor's schedules, statements, and other documents would still have been untimely, as they were dated and filed on December 7, 2015 [docket #s 10, 29]. These documents resulted in two Notices of Defective Entry or Filing [docket #s 12, 13] when they were belatedly filed, as the documents were docketed incorrectly, the Chapter 13 plan motions were not selected in the plan, and the documents did not comply with Bankruptcy Rule 9037.
4. The court entered the Kosko Show Cause Order due to the problems with the case up to that point in time. The problems included Kosko's failure to submit an order granting the Extension Motion, the incorrectly docketed schedules, the missing Local Forms 3 and 13, Kosko's failure to respond to communications from the court and the Debtor, and the unpaid portion of the filing fee. Kosko was ordered to appear on January 12, 2016 at 10:00 a.m. The Kosko Show Cause Order was served on Kosko through his registered ECF (Electronic Case Filing) email address and on Volks Anwalt by regular mail [docket #16].
5. On January 12, 2016, the court conducted a hearing on the Kosko Show Cause Order. Jenny P. Holman ("Holman"), attorney for the Chapter 13 Trustee; Linda W. Simpson ("Simpson"), U.S. Bankruptcy Administrator; and the Debtor appeared at the hearing.
6. As a result of Kosko's failure to appear on January 12, 2016, the court granted the Trustee Motion, found Kosko in contempt, and entered the Contempt Order. The Contempt Order set a hearing for January 28, 2016 and allowed Kosko the opportunity to purge his contempt by appearing at the hearing.
7. On January 28, 2016, the court conducted hearings on the Trustee Motion, the BA Motion, the Kosko Show Cause Order, and the Contempt Order. Holman; Alexandria P. Kenny ("Kenny"), attorney for the U.S. Bankruptcy Administrator; the Debtor; and Kosko appeared at these hearings. Neither McClean nor Volks Anwalt appeared to contest the BA Motion. Kosko; David Jobson ("Jobson"),
8. At the conclusion of the January 28, 2016 hearings, the court granted the BA Motion, continued the remaining hearings, and announced that the final ruling on these matters would occur after the hearing on the Volks Anwalt Order on February 18, 2016. Kosko was not required to appear at the February 18 hearing unless subpoenaed by a party.
9. On February 18, 2016, the court conducted a hearing on the Volks Anwalt Order.
10. The Debtor's representations at the January 12 hearing and the Debtor's testimony at the January 28 and February 18 hearings were consistent, logical, and believable. The Debtor was intelligent and articulate and epitomized the honest but unfortunate debtor that the bankruptcy laws are designed to protect.
11. In contrast, Kosko was inarticulate. At the January 28, 2016 hearing, the court had to ask him numerous times to repeat his answers or to speak up. Kosko lacked recollection of matters that he should have remembered either from memory or from reviewing the records prior to the hearing. Kosko did not take responsibility for his part in the Debtor's representation or show any remorse. Despite all of this, the court finds Kosko's testimony to be credible because it was replete with statements against his own interest.
12. McClean's testimony was generally vague or non-responsive. The court instructed McClean to give estimates in the event she did not know the specific answer to a question. McClean, however, continued to answer questions by stating, "I don't know," prompting the court to admonish her that consistently answering questions in this manner was not believable in light of her position as managing partner of Volks Anwalt and would not prove helpful to her. On multiple occasions, McClean referred to an error or a violation of law as an "isolated incident." For example, she said that the agreement not to practice in the Western District of Virginia
13. Kosko has been licensed to practice law in North Carolina for approximately twenty years. His practice is a general practice that includes bankruptcy services. According to Kosko, he files Chapter 7 cases more often than other types of bankruptcy cases.
14. McClean received her J.D. degree from the Florida Coastal School of Law in 2013 and was admitted to the bars of New York (2014) and Florida (2015). McClean is not a licensed attorney in North Carolina and is not admitted to practice in state or federal court in North Carolina. McClean has permanently resided in Jacksonville Beach, Florida since the spring of 2015. Prior to that, McClean resided in Rochester, New York. McClean has never resided in New York City. McClean has personally filed five bankruptcy cases for debtors, all in the Middle District of Florida.
15. Volks Anwalt was formed as a New York limited liability company on May 13, 2015 by McClean, who is the sole owner and the managing partner of the firm. McClean realized that she "did not have a lot of experience" and researched law firm business models to create Volks Anwalt. She "figured this was a way to learn from other experienced attorneys." McClean estimated that her friends invested $10,000 for the start-up of the firm. While Volks Anwalt has "partners" other than McClean, they have no voting rights, own only nominal shares in the firm, and have no authority, control, or input over the operations and management of Volks Anwalt. The only authority that these "partners" may have is with respect to case management of their assigned cases in their localities. McClean controls all matters related to the business of Volks Anwalt, including overseeing all financial, marketing, and human resources activities.
16. Volks Anwalt's business plan was developed by McClean and included a marketing plan that used direct mailings targeting individuals subject to foreclosure proceedings. Volks Anwalt directly solicited the Debtor through this marketing plan.
17. Volks Anwalt searches for local attorneys through advertisements placed on a recruiting website and by searching a resume website. Targeted attorneys are then directly contacted regarding local partnerships. Volks Anwalt performs minimal (if any) due diligence prior to entering into an agreement for a local attorney to become a "partner."
18. Volks Anwalt's business plan does not require local "partners" to appear at all hearings and meetings of creditors pursuant to 11 U.S.C. § 341. McClean testified that the local "partner" assigned to a particular case does not attend between one-fourth and one-third of all hearings and meetings of creditors. Instead, Volks Anwalt pays monthly fees to an Internet service, MyMotionCalendar.com, to obtain attorney representation for its clients. Volks Anwalt does nothing to assure the suitability of a coverage attorney obtained through MyMotionCalendar.com.
19. The Debtor contacted Volks Anwalt in response to a direct mailing. The Debtor explained to Volks Anwalt that she had previously filed a bankruptcy case pro se and was planning to file another case without an attorney. Volks Anwalt's representative convinced the Debtor to retain Volks Anwalt to represent her in her bankruptcy case. The Debtor told Volks Anwalt that her primary goal was to save her home from a pending foreclosure sale. Volks Anwalt was aware of the foreclosure sale date and the 10-day upset bid period in North Carolina when the filing of a bankruptcy case will stop the completion of a foreclosure.
20. The Debtor timely supplied all of the information and documentation requested by Volks Anwalt. In fact, the Debtor often left work to scan and fax documents to Volks Anwalt.
21. Although the 10-day upset bid period expired on November 5, 2015, the Debtor's bankruptcy petition was not filed until November 6, 2015. In fact, Kosko did not obtain a login and password for this court's ECF system until after the upset bid period ended. Volks Anwalt never informed the Debtor that her bankruptcy filing did not stop the foreclosure process. After Volks Anwalt lured the Debtor by their direct advertising and convinced her to allow it to represent her, the Debtor lost the opportunity to save her house. Volks Anwalt's actions related to the timing of the filing of the petition alone are outrageous and unconscionable.
22. Volks Anwalt reminded the Debtor of the meeting of creditors in her case via first class mail and voicemail. Despite these reminders, Volks Anwalt never informed the Debtor that Kosko would not appear and that Colette Davis would represent the Debtor at the meeting. Neither Volks Anwalt nor Kosko contacted the Debtor following the meeting of creditors.
23. The Debtor continued to attempt to communicate with Volks Anwalt and Kosko throughout the case, especially when she began to receive eviction notices. The Debtor was not aware that her bankruptcy petition did not stop the foreclosure proceeding, nor was she aware of the other problems in her case caused by the incompetence of and the failure to act by both Volks Anwalt and Kosko.
24. The incompetence and irresponsibility did not end with the failure to timely file the Debtor's petition. Kosko gave Volks Anwalt his ECF login and password because "they asked" for it. In short, Kosko provided his ECF login and password to Volks Anwalt in return for the expectation of easy money for little or no effort on his part.
25. As shown by his testimony, Kosko lacks basic knowledge of and familiarity with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the Rules of Practice and Procedure ("Local Rules") of this court. Specifically:
26. Kosko knew the scheduled date for the Debtor's meeting of creditors, but he did not attend it. In fact, Kosko never planned to attend the meeting, any continued meetings, or any hearings in the Debtor's case. The clearest evidence of Kosko's intentions with respect to appearances in this case is Kosko's statement that, even with respect to the Kosko Show Cause Order wherein this court ordered him to appear, Kosko believed that Volks Anwalt would obtain counsel to appear and that he did not need to do so. Although Kosko knew Collette Davis would appear on his behalf at the § 341 meeting, he did not know if she was licensed to practice law, and he did not verify Ms. Davis's ability to properly represent the Debtor.
27. Kosko was aware of problems with the documents filed in this case but took no action to amend them. Kosko did not contact the Debtor or the Chapter 13 Trustee concerning the § 341 meeting or its outcome. Kosko failed to respond to correspondence from the Chapter 13 Trustee's office with respect to filed schedules and plans that required amendment. As referenced in the Kosko Show Cause Order, Kosko also failed to respond to communications from this court and the Debtor.
28. McClean and Volks Anwalt have failed in most, if not all, of the same respects as Kosko and not only match but exceed Kosko's incompetence and disregard for the Debtor. Volks Anwalt and McClean failed to timely prepare and file the Debtor's bankruptcy petition before the expiration of the 10-day upset bid period despite having sufficient time and being fully informed of the necessity to timely file the petition. Volks Anwalt and McClean failed to communicate with their client despite repeated attempts by the Debtor to obtain information and assistance, especially after she received eviction notices. Volks Anwalt and McClean failed to notify the Debtor that this case did not stop the pending foreclosure action because her petition was filed after the expiration of the 10-day upset bid period. Volks Anwalt received sufficient funds to pay the Debtor's filing fee to the court at the time the petition was filed but failed to timely pay the filing fee pursuant to the Order Granting Payment of Filing Fee in Installments [docket #4] that required $100 payments on December 6, 2015 and January 6, 2016.
29. Volks Anwalt and McClean failed to verify the Debtor's identity and her Social Security number prior to filing a petition with the court. Neither Volks Anwalt nor McClean obtained or retained the original signatures of the Debtor or Kosko in this case in violation of the Local Rules of this court. Numerous defective and deficient filing notices were issued by the Bankruptcy Clerk [docket #s 3, 12, 13, 14] and forwarded to Volks Anwalt by Kosko. Volks Anwalt ignored all of these notices and claims that Kosko was solely responsible for any errors or omissions in the documents filed with the court. Volks Anwalt and McClean misrepresented to Kosko the nature and scope of his representation of the Debtor. Volks Anwalt prepared and filed a document that included the Debtor's full Social Security number in violation of Rule 9037. Despite numerous opportunities, Volks Anwalt took no action to comply with Rule 9037, and the court had to seal the improper document, make the proper redactions, and re-docket the redacted document.
30. In addition, Volks Anwalt and McClean failed to propose a proper and confirmable Chapter 13 plan. The Debtor's plan [docket #s 10, 29] and amended plan [docket #11] did not propose to pay the arrearage on the mortgage, the regular mortgage payment, the car payment, the attorney's fee, or any dividend to the Debtor's unsecured creditors. Secured creditors were listed in the schedules, but no treatment was provided for these debts in the plan or the amended plan.
31. Volks Anwalt practiced law in North Carolina by advising the Debtor and by preparing and filing the Debtor's bankruptcy petition, schedules, statements, and other documents; however, no attorney licensed to practice in this jurisdiction advised the Debtor prior to the filing of her bankruptcy case, and no licensed attorney reviewed the Debtor's petition, statements, and schedules prior to filing. The Debtor hired Volks Anwalt to represent her. Without her permission, Volks Anwalt engaged Kosko and Colette Davis to represent the Debtor. Volks Anwalt, McClean, and Kosko all abandoned the Debtor.
32. This court has jurisdiction over Kosko, McClean, and Volks Anwalt. Kosko is an attorney admitted to practice in the Western District of North Carolina and, as such, is an officer of the court. Like Kosko, McClean and Volks Anwalt have voluntarily presented themselves to this bankruptcy court.
33. All federal courts, including bankruptcy courts, are vested with the power "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."
34. This court's Local Rules, the North Carolina Rules of Professional Conduct,
35. Kosko has also violated other rules of professional conduct. RPC 1.1 ("Competence") states:
Kosko readily admitted that he lacked the knowledge, skill, thoroughness, and preparation to represent the Debtor. Moreover, Kosko's reliance on McClean was unreasonable. McClean is not licensed to practice law in North Carolina and her lack of bankruptcy experience did nothing to assist Kosko in competent representation of the Debtor. RPC 1.3 ("Diligence") requires lawyers to "act with reasonable diligence and promptness in representing a client." Kosko exercised no diligence or promptness in his representation of the Debtor. With the exception of one telephone call with the Debtor concerning the filing of a tax return, Kosko entirely abdicated his representation of the Debtor to Volks Anwalt. RPC 1.4 ("Communication") states:
Kosko's inattention to and willful neglect of the Debtor resulted in violations of almost every part of this rule. While Kosko received all of the electronic notices related to the Debtor's case, he forwarded them without review to Volks Anwalt and made no attempt to communicate with the Debtor. Kosko did not inform, consult with, or explain anything to the Debtor other than the necessity of filing a tax return.
36. Kosko, Volks Anwalt, and McClean have also violated RPC 5.5 ("Unauthorized Practice of Law").
37. Volks Anwalt and McClean have violated North Carolina law by failing to obtain authority to transact business in North Carolina as required by North Carolina General Statute § 55-15-01. It is shocking to the court that McClean has caused Volks Anwalt to conduct business in 43 states without investigating each state's requirements and without any effort to comply with the laws of states where Volks Anwalt has conducted business.
38. Volks Anwalt and McClean have also violated the North Carolina law that prohibits the practice of law by persons other than members of the North Carolina State Bar. N.C. GEN. STAT. § 84-4. The penalties for such violation include criminal and civil penalties and prohibit the collection of fees for any services related to the unauthorized practice of law. N.C. GEN. STAT. § 84-8.
39. McClean's design for Volks Anwalt has some striking similarities with the law practice in
40. The Debtor's circumstances at the time of filing and during this case magnify the egregiousness of the actions of Volks Anwalt, McClean, and Kosko. At the time the Debtor contacted Volks Anwalt, her intent was to file a bankruptcy case pro se. Volks Anwalt lured her through their direct marketing and convinced her to hire the firm. The Debtor was very clear that her goal was to stop the foreclosure and save her home, where she lived with her four children and her grandchild, but the incompetence of Volks Anwalt, McClean, and Kosko prevented the Debtor from reaching her goal.
41. McClean, Volks Anwalt, and Kosko demonstrated an utter disregard for the effect of this case on the Debtor. To them this case was "business as usual," as McClean appears to have designed the Volks Anwalt business plan with the sole purpose of making money while taking no responsibility for the firm's clients and attempting to isolate the firm from any liability related to client representation by associating a local "partner." The actions (or lack thereof) of McClean, Volks Anwalt, and Kosko in this case are offensive both to the court and to the many attorneys who uphold the high standards demanded by the legal profession. Attorneys in this district should carefully consider the potential ramifications on their ability to practice law in North Carolina and in this district before associating with law firms that are not licensed to practice law or do business in this state.
It is therefore
1. Joseph M. Kosko is
2. Volks Anwalt and McClean are
3. Volks Anwalt shall disgorge and return to the Debtor all payments received in this case on or before
4. Nothwithstanding Local Rules 3015-1 and 3015-2, no distributions shall be made from the Chapter 13 Trustee to Kosko, McClean, or Volks Anwalt during the pendency of this Chapter 13 case or in the event this case is dismissed or converted to another chapter. Funds held by the Chapter 13 Trustee upon a dismissal or conversion of this case shall be distributed to the Debtor;
5. As a sanction, Kosko and Volks Anwalt shall each pay
6. Following the disbarment period for Kosko, Volks Anwalt, and any attorney associated with Volks Anwalt or any successor, a request for admission must be submitted in the form of a written application to this court. The application must include a certification by the applicant that the applicant has:
7. Volks Anwalt and McClean shall maintain all records and recordings in this case and shall turn them over upon request by the Debtor, the Bankruptcy Administrator, or any trustee serving in this case;
8. With respect to Kosko, this order shall be sent to the North Carolina State Bar for consideration of further disciplinary actions;
9. With respect to McClean and Volks Anwalt, this order shall be sent to the North Carolina State Bar, the New York State Unified Court System, and the Florida State Bar for consideration of further disciplinary actions;
10. If Volks Anwalt and Kosko do not comply with the monetary sanctions and disgorgement required by this order, McClean and Kosko shall appear before the court at a compliance hearing on