Trustee Blog

Electronic Signature Page Part Two

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As mentioned in the Post of October 9, 2013, the Court and the US Trutsee  and the regular Trustees like Chapter 7 Trustee Lynda Bui, that seriously the misuse of the electronic signature page.

In a recent action,The UST requests the Court, pursuant to § 329, disgorge all fees paid to Attorney because his services were of limited or no value to the Debtor. Motion 6:6-10.

On August 20, 20xx, Attorney filed another Electronic Filing Declaration signed by the Debtor and himself and dated August 1, 20xx (“EFD 3”). Docket #17. On August 28, 20xx, Attorney also filed an opposition to the UST’s Motion (the “Opposition”). The Opposition argues that the UST was unfamiliar with the chain of events, contending that EFD 3 was indeed signed by the Debtor on August 1, 2013 but it simply was not filed until August 20, 2013. Opposition 3:5-13. Attorney claims the delay in filing ECF 3 was merely “harmless error.” Opposition 3:8-9.

The UST responded to Attorney’s Opposition on September 4, 20xx (the “Reply”). The Reply points out that other courts in the Riverside Division (specifically In re Gilbert, case no. 6:11-bk-21540-MJ, In re Bunkley, case no. 6:13- bk-12364-SC, and In re Gutierrez, case no. 6:13-bk-10276-DS) have ordered disgorgement when counsel for the debtor abused electronic filing protocols. Reply ¶ 3.

Analysis: The United States trustee (“UST”) requests total disgorgement of all

compensation paid to Attorney by the Debtor.

Attorney’s Misuse of the Debtor’s Signatures

Pursuant to FRBP 5005 ” court may by local rule permit or require documents to be filed, signed, or verified by electronic means.” Fed. R. Bankr.P. 5005 (a)(2). Subject to some exceptions, the Local Rules and the Court Manual for the U.S. Bankruptcy Court, Central District of California require a debtor represented by counsel to file all documents in the case electronically. See LBR 5005-4(a); Court Manual § 3.1(b) & § 3.11.

The signature of the debtor on an electronically-filed document may be the

debtor’s original signature or be denoted by “/s/” followed by the debtor’s name. Court Manual § 3.4(b)(1). However, all petitions, lists, schedules, statements and amendments thereto must “be verified or contain an unsworn declaration as provided in 28 U.S.C. § 1746.” Fed. R. Bankr. P. 1008. Therefore, those documents that require a debtor’s signature but are electronically signed using “/s/” must be accompanied by an Electronic Filing Declaration containing the debtor’s actual signature. Court Manual § 3.4(b)(2). Counsel for the debtor must retain that original Electronic Filing Declaration for no less than five years after the closing of the case or adversary proceeding in which the document is filed. Court Manual § 3.4(b)(3).

Practice Pointer:

Do not abuse the electronic signature page or the US Trustee will file an action against you.

 

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