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IN RE JOHNSON
United States Bankruptcy Court, D. Maryland, Baltimore Division.
Filed: October 19, 2012.
b. The social security number of the bankruptcy petition preparer or, if the bankruptcy petition preparer is not an individual, the social security number of an officer, principal, responsible person, or partner of the bankruptcy petition preparer (see 11 U.S.C. § 110(c)). 61. With respect to each document the Defendants prepared for filing in the cases identified above using the name "A. Michael Scalia," the Defendants failed to comply with the requirements of 11 U.S.C. § 110(b)(1). 62. With respect to each document the Defendants prepared for filing in the cases identified above, the Defendants failed to comply with 11 U.S.C. § 110(c). 63. Section 110(e) of the Bankruptcy Code prohibits a bankruptcy petition preparer from offering legal advice. 11 U.S.C. § 110(e)(2). Additionally, § 110(k) of the Bankruptcy Code provides that nothing contained in any provision of § 110 of the Bankruptcy Code "shall be construed to permit activities that are otherwise prohibited by law, including rules and laws that prohibit the unauthorized practice of law." 11 U.S.C. § 110(k). 64. Maryland law prohibits the unauthorized practice of law. Md. Code Ann., Bus. Occ. & Prof. §§ 10-601, 10-602; Attorney Grievance Comm'n of Md. v. Tanko, 427 Md. 15, 46-47 (2012). 65. In determining whether an action constitutes the practice of law under the provisions of § 110 of the Bankruptcy Code, courts look to state law. In re Reynoso, 477 F.3d 1117, 1125 (9th Cir. 2007); Lucas v. Nickens (In re Lucas), 312 B.R. 559, 574-75 (Bankr. D. Md. 2004). Under Maryland law, an activity constitutes the practice of law if it "require[s] legal knowledge and skill in order to apply legal principles and precedent." Attorney Grievance Comm'n v. Hallmon, 343 Md. 390, 397 (1996) (quoting In re Discipio, 645 N.E.2d 906, 910 (Ill. 1994)). "[T]he preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity" constitutes the practice of law. Lukas v. Bar Ass'n of Montgomery County, Maryland, Inc., 35 Md.App. 442, 448 (1977) (citations omitted). The practice of law in Maryland also includes "drawing for others ... written instruments which require more than the most elementary knowledge of the law, or more than that which the ordinary or average laymen may be deemed to possess," in situations where "special legal knowledge and skill are required." 35 Md. App. at 448-49 (quoting 111 A.L.R. 19, 24-25 (1937)). 66. Preparing motions, such as the Motion to Reconsider, constitutes the practice of law. In re Amstutz, 427 B.R. 636, 641-42 (Bankr. N.D. Ohio 2010) (preparation by bankruptcy petition preparer for another of a document filed with the Court entitled "Motion to Set Aside Judgment" was the unauthorized practice of law); Meininger v. Burnworth (In re Landry), 268 B.R. 301, 306 n. 2 (Bankr. M.D. Fla. 2001); In re Powell, 266 B.R. 450, 452 (Bankr. N.D. Cal. 2001) (selection of motion to avoid lien form by bankruptcy petition preparer constituted the unauthorized practice of law); In re Boettcher, 262 B.R. 94, 96 (Bankr. N.D. Cal. 2001) (holding that it was the unauthorized practice of law for a bankruptcy petition preparer to prepare a "fill in the blank" motion to dismiss or motion for a continuance on behalf of the debtor); In re Gabrielson, 217 B.R. 819, 827 (Bankr. D. Ariz. 1998) ("[m]oreover, the Court concludes that preparing motions, responses to motions, objections to claims, responding to the Trustee's Recommendation, or preparing any type of pleading, versus the official forms, is the practice of law."); In re Lyvers, 179 B.R. 837, 842 (Bankr. W.D. Ky. 1995) (filing and preparation of motion to dismiss and motion to reinstate constituted the unauthorized practice of law by a bankruptcy petition preparer).
1. Congress has provided that "[t]he United States trustee may raise and may appear and be heard on any issue in any case or proceeding" under Title 11 of the United States Code (the "Bankruptcy Code"). 11 U.S.C. § 307. Additionally, various paragraphs of § 110 of the Bankruptcy Code specifically provide that the United State Trustee may bring actions to redress the misconduct alleged in this case. See, e.g., 11 U.S.C. §§ 110(i)(1), 110(J)(1).
2. The term "debtor" is defined by the Bankruptcy Code as a "person ... concerning which a case under [the Bankruptcy Code] has been commenced." 11 U.S.C. § 101(13). For purposes of these Findings, the Court applies that same definition.
3. At the hearing on this matter, the Assistant United States Trustee testified that Mancini admitted to him that the social security number listed on these documents was not Mancini's social security number but that Mancini claimed the numbers were tax identification numbers assigned to him or his businesses. However, the Assistant United States Trustee also testified that his own investigation indicated that the numbers were actually social security numbers issued to individuals living outside of Maryland. There was no evidence presented as to the identity of these individuals or that these individuals were aware that Mancini had used their social security numbers.
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