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Wiggins v. Housely

United States District Court, Ninth Circuit

October 15, 2013

DAWN WIGGINS, Plaintiff,
v.
BARBARA HOUSELY, et al., Defendants.

ORDER FINDING JOINT AND SEVERAL LIABILITY AND DENYING ATTORNEY'S FEES AND REFERRING TO UNITED STATES ATTORNEYS' OFFICE

WILLIAM ALSUP, District Judge.

INTRODUCTION

This action was transferred from the bankruptcy court in order to determine whether defendants are joint and severally liable and whether broker owes borrower attorney's fees. To the extent explained below, liability is joint and several and the request for attorney's fees is DENIED.

STATEMENT

The relevant facts are laid out in the bankruptcy court's memorandum after trial (Dkt. No. 2). Defendant Barbara Housley is a licensed real estate agent. In December 2009, while working for broker Paragon Real Estate and Mortgage Services, Housley listed the property of plaintiff Dawn Wiggins for sale. The property was encumbered for more than its value and was in foreclosure, but Housley believed she could earn a commission by arranging a "short" sale. In March 2010, while the listing was still active, Housley left Paragon's employ and moved her license to broker and defendant DPPM, Inc., d/b/a Zephyr Real Estate ( ibid. ).

The foreclosure sale on plaintiff's property was set for April 28, 2010. On April 14, Housely sent Wiggins an email stating that she had identified an individual, defendant Roman Meacham, who could delay the sale of her house by one year. In exchange, he charged a fee of $300 and a filing fee of $280. Defendant Housely asked plaintiff if she were interested in such an agreement. At the time, plaintiff was on vacation in Europe on a cruise ship. On April 21, plaintiff told Housely that she would not be able to sign until April 28, too late to avoid foreclosure. Later that day, Housely responded, inquiring whether plaintiff would allow Housely to sign for her. Plaintiff agreed under the express condition that doing so was legal. Defendant Housely assured her that it was and proceeded to file a false Chapter Thirteen bankruptcy petition in plaintiff's name. Not only was the signature false, but the list of creditors falsely represented there were none other than the foreclosing secured creditor. Housely filed the false petition in April and it was dismissed in May, due to a failure to follow the Federal Rules of Bankruptcy Procedure ( ibid. ).

In September 2012, plaintiff brought a suit in bankruptcy court against defendants Housley, Meacham and Zephyr pursuant to Section 110 of the Bankruptcy Code, which provides:

If a bankruptcy petition preparer violates this section or commits any act that the court finds to be fraudulent, unfair, or deceptive, on the motion of the debtor... and after notice and a hearing, the court shall order the bankruptcy petition preparer to pay to the debtor -
(A) the debtor's actual damages;
(B) the greater of -
(i) $2, 000; or
(ii) twice the amount paid by the debtor to the bankruptcy petition preparer for the preparer's services; and
(C) reasonable attorney's fees and costs in moving for damages ...

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