Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
Boles Response to Sanctions

Boles Response to Sanctions

Ratings: (0)|Views: 86|Likes:
Published by acfield13

More info:

Published by: acfield13 on Feb 10, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

02/12/2011

pdf

text

original

 
BOLES’ RESPONSETO UST MOTION FOR SANCTIONS
UNITED STATES BANKRUPTCY COURTEASTERN DISTRICT OF LOUISIANAIN THE MATTER OF: CASE NO. 07-11862SECTION “A”RON WILSON, SR.LARHONDA WILSON CHAPTER 13DEBTORS
THE BOLES LAW FIRM, APC’S RESPONSETOTHE UNITED STATES TRUSTEE’S MOTION FOR SANCTIONSAGAINSTLENDER PROCESSING SERVICES, INC., AND THE BOLES LAW FIRM
To The Honorable Elizabeth W. Magner, United States Bankruptcy Judge:The Boles Law Firm, APC, (“Boles”) files this Response to the United States Trustee’s(“UST”) Motion for Sanctions Against Lender Processing Services, Inc., and The Boles LawFirm (“Motion for Sanctions”)
1
, and respectfully states the following:
I. Summary of Argument.
It is alleged by the UST that one attorney, D. Clay Wirtz, (“Wirtz”) then employed byBoles misrepresented relevant facts to this Court. If this Court finds the allegations of the USTare without merit, there can be no sanctions issued against Boles for the conduct of Wirtz. If thisCourt finds the allegations of the UST have merit, this Court potentially has the power tosanction Boles for the conduct of Wirtz.Regardless of the findings by this Court on the allegations of the UST raised in its Motionfor Sanctions, Boles has, since September, 2008, taken remedial steps to ensure that suchbehavior is not repeated by it or its attorneys in this Court or anywhere else and has spent______________________________________________________________________________
1
Boles does not address and takes no position regarding the portion of the UST’s Motion forsanctions against Lender Processing Services, Inc.
 
BOLES’ RESPONSETO UST MOTION FOR SANCTIONS
numerous hours and resources responding to discovery issued by the UST. These remedialactions, the time spent responding to the UST’s discovery and now this Motion for Sanctions,Boles’ record in other proceedings in this Court, Boles’ clean hands in this matter sinceSeptember, 2008, and the loss of a client demonstrate to this Court that Boles is serious when itcomes to requiring truthfulness in the representations made by its attorneys and staff and thatBoles has already been adequately penalized economically and in reputation.Therefore, even if it is determined by this Court that the allegations of the UST are trueby clear and convincing evidence, Boles should not be sanctioned any further under this Court’sinherent powers or under 11 U.S.C. 105(a).
II. Sanctions Under The Court’s Inherent Powers And Under 11 U.S.C. 105(a).A. Sanctions Under A Court’s Inherent Powers.
Bankruptcy courts have the inherent power to issue sanctions against litigants for theirbad-faith conduct.
 In re Case
937 F.2d 1014 at 1023 (5
th
Cir. 1991) (extending to bankruptcycourts the holding of 
Chambers v. NASCO, Inc.
, 501 U.S. 32, 111 S.Ct. 2123 (1991) which heldthat district courts have the inherent power to assess sanctions for bad faith litigation). Theimposition of sanctions pursuant to the courts inherent power requires a specific finding of badfaith.
Goldin v. Bartholow
, 166 F.3d 710 at 722 (5
th
Cir. 1999);
Crowe v. Smith
, 261 F.3d 558 at563 (5
th
Cir. 2001).
B. Sanctions Under 11 U.S.C. 105(a).
11 U.S.C. 105(a) provides that“[a] court may issue any order, process, or judgment that is necessary orappropriate to carry out the provisions of this title. No provision of this titleproviding for the raising of an issue by a party in interest shall be construed topreclude the court from, sua sponte, taking any action or making anydetermination necessary or appropriate to enforce or implement court orders orrules, or to prevent an abuse of process.”
 
BOLES’ RESPONSETO UST MOTION FOR SANCTIONS
It has been held by this court that because the Fifth Circuit has not explicitly ruled on theissue, it is not necessary that a bankruptcy court make a bad faith finding before exercising itssanctioning authority under section 105.
 In re Stewart 
, ___ F.Supp.2d ___, 2009 WL 2448054,*13 (E.D.La. 2009).However, a bankruptcy court in the southern district of Texas has held that, like sanctionsissued pursuant to a court’s inherent authority, sanctions issued pursuant to section 105(a)require a specific finding of bad faith.
 In re Parsley
, 384 B.R. 138 at 177-179 (Bankr. S.D.Tex.2008). That court’s reasoning is based on the holdings of several circuit courts that state that thelimits on a bankruptcy court’s power to sanction under its inherent powers and 11 U.S.C. 105(a)are essentially coterminous.
Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.)
 77 F.3d 278 at 284 (9
th
Cir. 1996) (“By providing that bankruptcy courts could issue ordersnecessary ‘to prevent an abuse of process’, Congress impliedly recognized that bankruptcycourts have the inherent power to sanction that
Chambers
recognized exists within Article IIIcourts.”);
 In re Courtesy Inns, Ltd., (Jones v. Bank of Santa Fe)
, 40 F.3d 1084 at 1089 (10
th
Cir.1994) (“We believe, and hold, that Section 105 intended to imbue the bankruptcy courts with theinherent power recognized by the Supreme Court in
Chambers
”).
C. Bad Faith.
“Bad faith is characterized as an attempt to abuse the judicial process.”
 In re Parsley
,384 B.R. 138 at 179, (Bankr. S.D.Tex. 2008), citing
 In re Gorshtein
, 285 B.R. 118 at 124(Bankr. S.D.N.Y. 2002) (citing
 In re Spectee Group, Inc.
, 185 B.R. 146 at 155 (Bankr. S.D.N.Y.1995)), or a finding that fraud has been practiced upon the Court, or that the very temple of  justice has been defiled.
 In re Parsley
, 384 B.R. 138 at 179, (Bankr. S.D.Tex. 2008), citing

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->