ADVERSARY PROC. NOS.: 07-00347, 07-00620, 07-00621 (Consolidated).United States Bankruptcy Court, D. Maryland, (Baltimore Division).
March 1, 2010
STIPULATION AND CONSENT ORDER APPROVING SETTLEMENT AND ISSUING INJUNCTION
DUNCAN KEIR, Bankruptcy Judge
A. Definitions
For the purpose of this Order, the following definitions apply:
1. Adversary Proceedings. The term “Adversary Proceedings” shall mean the
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consolidated adversary proceedings captioned W. Clarkson McDow, Jr. v. Michael K. Lewis, et al., consisting of Adversary Proceeding Nos. 07-00347, 07-00620 and 07-00621, proceeding in, or having proceeded in, the United States Bankruptcy Court for the District of Maryland.
2. Debtor. The term “Debtor” shall mean a person, entity or municipality concerning which a case under Title 11 of the United States Code has been commenced and remains pending.
3. Complaint. The term “Complaints” shall mean the Amended Complaint for Fines, Disgorgement of Compensation and Injunction filed in the United States Bankruptcy Court for the District of Maryland by the United States Trustee for Region Four in Adversary Proceeding 07-00347, and the Complaint for Fines, Disgorgement of Compensation and Injunction filed in the United States Bankruptcy court for the District of Maryland by the United States Trustee in Adversary Proceedings 07-00620 and 07-00621.
4. Injunction. The term “Injunction” shall mean the injunction imposed by this Order, the terms of which are set forth in Section D below.
5. Settlement Agreement. The term “Settlement Agreement” refers to the settlement agreement between the United States Trustee and Cheryl L. Brooke dated September __, 2009, and attached as Exhibit 1 to the Motion to Approve Settlement and For Issuance of Consent Injunction filed in the Adversary Proceeding.
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B. Recitals of Stipulated Facts
1. W. Clarkson McDow, Jr., is the duly appointed United States Trustee for Region Four and the District of Maryland, which is part of Region Four (the “United States Trustee”).
2. Cheryl L. Brooke (“Ms. Brooke”) is an individual residing and conducting business in the State of Maryland.
3. The United States Trustee initiated the Adversary Proceeding against Ms. Brooke and others by filing the Complaints and alleging violations of the United States Bankruptcy Code and other laws by Ms. Brooke and others in connection with the filing of motions and other documents in the United States Bankruptcy Court for the District of Maryland.
4. Ms. Brooke answered the Complaint denying many of the United States Trustee’s allegations of fact and interposing defenses to the legal claims asserted by the United States Trustee.
5. The parties conferred regarding the Adversary Proceeding and reached an agreement resolving the claims asserted against Ms. Brooke by the United States Trustee in the Adversary Proceedings. The terms of that agreement are set forth in the Settlement Agreement and in the Injunction.
6. It is agreed and understood that the Settlement Agreement, the Injunction and the consent to this Order, represent a compromise of claims and that nothing in the Settlement Agreement, the Injunction or Ms. Brooke’s consent to this Order constitutes or
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will be construed as an admission of liability or of any wrongdoing or violation of law by Ms. Brooke.
C. Approval of Settlement and Settlement Agreement
The Court has reviewed the pleadings, motions and other documents filed in the Adversary Proceeding and finds the terms of the Settlement Agreement to be reasonable, appropriate and warranted. Therefore, upon consideration of the recitals of fact set forth above and stipulated to by the parties, it is hereby,
ORDERED, that Settlement Agreement and the settlement of the Adversary Proceeding on the terms set forth in the Settlement Agreement are hereby approved.
D. Terms and Conditions of Injunction
The Court has reviewed the pleadings, motions and other documents filed in the Adversary Proceeding and finds the terms of the Injunction to be reasonable and the issuance of the Injunction to be appropriate and warranted. Therefore, upon consideration of the recitals of fact set forth above and stipulated to by the parties, it is hereby,
ORDERED, that the Injunction shall be granted and that Ms. Brooke shall be enjoined, throughout the entire United States and all of its territories, as follows:
1. Ms. Brooke shall not act as a bankruptcy petition preparer, as defined in 11 U.S.C. § 110, and from accepting any compensation for acting as a bankruptcy petition preparer, as defined in 11 U.S.C. § 110, in connection with a case under Title 11 of the
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United States Code.
2. Ms. Brooke shall not use or direct any agent, representative, entity, corporation, partnership, association or structure of any kind or any name, fictitious or otherwise, to act as a bankruptcy petition preparer, as defined in 11 U.S.C. § 110.
3. Ms. Brooke shall not assist any person or entity in drafting or preparing any petition, schedule, motion, pleading or other document to be submitted to any court on a Debtor’s behalf, or under a Debtor’s signature. For purposes of this paragraph, the term “assist” includes, in addition to any other action that would constitute assistance under the ordinary usage of the term: (i) the gathering of information for the purpose of drafting or preparing any petition, schedule, motion, pleading or document to be filed in any court, (ii) the provision to a Debtor of a completed petition, schedule, motion, pleading or document for the purpose filing the petition, schedule motion, pleading or document in any court, and/or (iii) the provision to any person of a form petition, schedule, motion, pleading of document, obtained via the internet, form book, data bank, or other similar source.
4. Ms. Brooke shall not, by herself or through any agent or representative, advise any person to file a bankruptcy petition or recommend that any person file a bankruptcy petition.
5. Ms. Brooke shall not, by herself or through any agent or representative, provide financial advice or counseling involving the filing of bankruptcy or the use of bankruptcy laws to any person or entity.
6. Ms. Brooke shall not, by himself or through any agent or representative, advise
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any person or entity as to the effects or benefits of filing a bankruptcy petition, including but not limited to, the effect of the automatic stay, the ability to retain real property or the effect of a discharge.
7. Nothing in this Injunction shall be deemed or interpreted to prohibit, limit or otherwise abridge Ms. Brooke’s rights to proceed pro se in any legal proceeding. The restrictions of Paragraphs D.1-D.6 above shall not apply to any petition, pleading, motion, pleading or document that Ms. Brooke prepares or files in any court on her own behalf.
8. Nothing in this Injunction shall supercede, replace or amend any prior injunction entered against Ms. Brooke. To the contrary, ANY PRIOR INJUNCTION ENTERED BY ANY COURT AGAINST MS. BROOKE REMAINS IN FULL FORCE AND EFFECT TO THE SAME EXTENT AS IF THIS INJUNCTION DID NOT EXIST.
9. In addition to any sanction or remedy generally applicable to the violation of an injunction, if Ms. Brooke is determined by a court of appropriate jurisdiction to have violated any term of this Injunction, then:
a. Ms. Brooke consents to entry of a judgment imposing a fine in the amount of $1,000,000. The fine provided in this Paragraph:
(i) shall be payable to the United States Trustee;
(ii) shall be in addition to any other fines, damages, sanctions or remedies otherwise imposed or for which Ms. Brooke is found liable; and
(iii) shall not reduce any damages, fines or other amounts such Ms. Brooke is ordered to pay or for which Ms. Brooke is found liable; and
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b. The United States Trustee shall be entitled to re-open or otherwise reassert the Complaint and/or the allegations, claims and causes of action asserted in the Complaint. In the event the United States Trustee re-opens or otherwise reasserts the Complaint and/or the allegations, claims and causes of action asserted in the Complaint in accordance with this Paragraph, then the United States Trustee shall be entitled to assert, provide evidence of, and seek recovery for any cause of action stated in the Complaint which occurred prior to the date of this Injunction without regard to any applicable statute of limitations, laches or other timeliness defense.
SO ORDERED
Barry M. Tapp (Fed. Bar No. 14797), Laurel, Maryland, Attorney for Cheryl L. Brooke.
Hugh M. Bernstein, Esquire (Fed Bar No 23489), Office of the United States Trustee, United States Department of Justice, Baltimore, Maryland, Attorney for the United States Trustee.
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