IN RE O’CONNOR (Bankr.D.D.C. 1-14-2011)

In re MICHAEL M. O’CONNOR and THELMA E. O’CONNOR, (Chapter 7), Debtors.

Case No. 88-00118.United States Bankruptcy Court, D. Columbia.
January 14, 2011

MEMORANDUM DECISION AND ORDER RE SECOND MOTION TO ANNULBANKRUPTCY PETITION AND REQUEST TO SCHEDULE A RELATED HEARING

S. TEEL, Bankruptcy Judge

Michael O’Connor, one of the joint debtors in this bankruptcy case, has filed a motion to annul the bankruptcy petition and request to schedule a related hearing (Dkt. No. 191).[1]

In his motion, O’Connor alleges that the bankruptcy petition

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in this case was “a complete forgery.”[2] O’Connor has attached to his motion a report prepared by Forensic Document Examiners, Inc. reporting the results of its examination and comparison of documents containing the “questioned” signature of O’Connor, with exemplars bearing the “known” signature of O’Connor. According to O’Connor, the report supports O’Connor’s contention that the signature of O’Connor appearing on the petition in this case is not genuine. The majority of the documents listed in the report as exemplars containing O’Connor’s known signature, however, are apparently documents relating to this bankruptcy case, including the petition, statement of financial affairs, estimated monthly expenses, and statement of executory contracts.[3] What the report says are forgeries are a partnership agreement and an undated and unidentified page of signatures. Assuming that the documents referenced in the report as exemplars are, in fact, documents that were filed in this case, the report does not support O’Connor’s challenge to the authenticity to his signature on the

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petition.[4]

This case is distinguishable from most cases in which a putative debtor complains that his petition was fraudulently filed. Typically, a putative debtor alleging that his case was filed without authorization asks the court to expunge the record or take similar action so that the debtor can get any record of the case removed from the putative debtor’s credit report. Consumer reporting agencies are not, however, permitted to report bankruptcy cases that were filed more than 10 years prior. See 15 U.S.C. § 1681c(a)(1). This case having been commenced more than 20 years ago, the debtor’s credit report should no longer reflect the filing of this case.

Consistent with the foregoing, the court notes that the debtor has not expressed any concern about the impact of the filing of this case on the fitness of his credit. Rather, in

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seeking annulment of this bankruptcy case, O’Connor’s principal concern appears to be the effect such an annulment would have on certain sales that occurred and settlement agreements that he asserts were entered into without his knowledge or authorization during the pendency of this case. According to O’Connor, someone executed documents on his behalf by forging his signature, and this led to the settlement of disputes and monetary payments without his knowledge or authorization. If O’Connor seeks to challenge the validity of an agreement entered into during the pendency of this bankruptcy case, however, it is not enough to have the case annulled. Instead, he would need to file a complaint seeking an adjudication as to the rights of the parties to the challenged transaction or transactions, and as to the enforceability of the documents that allegedly bear the debtor’s forged signature.

The debtor having failed to demonstrate that this case was filed without his authorization, or that, if it was filed without his authorization, an order annulling the petition would serve any purpose, it is

ORDERED that O’Connor’s Second Motion to Annul Bankruptcy Petition and Request to Schedule a Related Hearing (Dkt. No. 191) is DENIED.

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The document below is hereby signed.

Signed: January 13, 2011.

[1] Mr. O’Connor previously filed a similar motion to annul the bankruptcy petition in his sister’s bankruptcy case, In re Carmen Carolyn O’Connor, Case No. 88-00117. Mr. O’Connor now clarifies that the previous motion, filed only in his sister’s case, was intended for filing in this case as well. For that reason, O’Connor styled the instant motion as the second motion to annul, notwithstanding that it is the first such motion filed in this case.

[2] O’Connor alleges that he was incarcerated from about September 6, 1990, until approximately January 1, 1999, and that this case and the related case of Carmen Carolyn o’Connor, Case No. 88-00117, were filed during that period of incarceration. Both cases, however, were filed on February 19, 1988, more than two years prior to the debtor’s alleged period of incarceration.

[3] The report describes the documents examined, but does not actually append those documents.

[4] “A petition is a legal nullity if the signature on the petition is forged. . . .” In re Washington, 297 B.R. 662, 664
(Bankr. S.D. Fla. 2003). Although this and other courts occasionally expunge bankruptcy cases that are found to have been fraudulently filed, the remedy of expungement is an equitable remedy and is not the appropriate tool to address every instance of fraud perpetrated in the Bankruptcy Court. The instant case was filed more than two decades ago, and a discharge was issued more than 16 years ago. Moreover, O’Connor discovered the existence of this case in November 2007, yet did not bring the matter to the court’s attention until June 2010. Under the circumstances, even if the debtor could show that the signature on the petition purporting to be his is a forgery, it would serve little purpose at this late date to expunge this case from the record.