In re: Avery
Filing
28
ORDER and Adminstrative Closure by Judge Wiley Y. Daniel on 06/28/13. (jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00229-WYD
IN RE: GEORGE LESTER AVERY,
Debtor,
IN RE: LARREL KENNEDY and
KORI LEIGH KENNEDY,
Debtors,
IN RE: WILLIAM T. CARR and
CATHERINE A. CARR,
Debtors.
ORDER AND ADMINISTRATIVE CLOSURE
I.
INTRODUCTION
This matter came before the Court for a status conference on June 28,
2013. By way of background, on March 23, 2012, I granted the United States
Trustee’s Motion for the Withdrawal of the Reference of this matter and
transferred consideration of further sanctions against Shariann Summerrain from
the United States Bankruptcy Court to the United States District Court. The
Bankruptcy Court issued a Report and Recommendation, which both detailed the
lengthy case history and asserted the inadequacy of civil remedies available to
that court.
The United States Trustee’s motion sought the withdrawal of the reference
for this Court’s consideration of additional sanctions, including criminal contempt,
against Shariann Summerrain for her continued violations of 11 U.S.C. § 110 and
the Bankruptcy Court’s 2007 injunction against Ms. Summerrain which, inter alia,
prohibits her from acting as a bankruptcy petition preparer.1 The Bankruptcy
Court’s Report recommended the withdrawal of the reference for this purpose.
Following my withdrawal of the reference of this matter, on April 10, 2012,
I held an initial status conference.2 Prior to entering any further orders in this
case, on April 19, 2012, I received a letter from Ms. Summerrain refuting many of
the Bankruptcy Court’s allegations contained in the Report and
Recommendation. Accordingly, I set the June 11, 2012 status conference and
ordered both a representative from the United States Trustee’s Office and Ms.
Summerrain to personally appear. All parties appeared along with Ms.
Summerrain’s husband, Todd Brewer.
II.
JUNE 11, 2012 STATUS CONFERENCE
For reasons stated on the record at the June 11, 2012 conference, I found
that Ms. Summerrain owes the United States Bankruptcy Court $7750.00 in fines
and penalties based on her violations of court orders from 2001-2011. As a
result, I ordered Ms. Summerrain to remit $100.00 on the tenth day of every
month, commencing July 10, 2012, to:
The Clerk of the United States Bankruptcy Court
721 19th Street
Denver, CO 80202
1
The course of conduct addressed by the Bankruptcy Court’s Report and Recommendation
spans a ten year period from 2001 to 2011.
2
A representative from the United States Trustee’s Office appeared at the April 10, 2012
conference, but Ms. Summerrain did not appear. However, it is unclear whether Ms. Summerrain
received notice of the April 10, 2012 status conference.
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As part of my ruling, I further ordered that should Ms. Summerrain be
unable to make a monthly payment, she shall file a pleading with the Court prior
to the monthly deadline. I also noted that after a sufficient period of time elapses,
should Ms. Summerrain make regular, timely payments to the Bankruptcy Court,
I would entertain a motion for relief or modification from future payments. I
prohibited Ms. Summerrain from preparing any bankruptcy petitions consistent
with the Bankruptcy Court’s prior orders. Finally, I ordered that any failure to
comply with my orders set forth on the record at the June 11, 2012 conference
would result in possible criminal contempt proceedings. (ECF No. 11).
III.
JUNE 28, 2013 STATUS CONFERENCE
In October, 2012, Ms. Summerrain filed her first letter requesting
forbearance of the money she owed for November, 2012. On February 13, 2013,
she filed her second letter requesting forbearance of the money she owed for
February, 2013. (ECF No. 14). On March 8, 2013, Ms. Summerrain filed a third
letter requesting that I waive the remainder of the sanctions imposed by the
United States Bankruptcy Court for the District of Colorado for her violations of
various provisions of 11 U.S.C. § 110 while acting as a bankruptcy petition
preparer in Colorado. (ECF No. 15). Upon my order, the United States Trustee
filed its response to Ms. Summerrain’s letters. After my careful review of these
filings, I held today’s status conference, where the United States Trustee
appeared in person and Ms. Summerrain appeared by telephone.
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IV.
CONCLUSION
For the reasons stated on the record at the June 28, 2013 conference, I
find that it would be inappropriate to “waive” the remaining sanctions owed by
Ms. Summerrain. However, taking Ms. Summerrain’s purported financial
situation into consideration, I will suspend Ms. Summerrain’s obligation to pay the
remaining sanctions, subject to the following conditions:
Accordingly, Ms. Summerrain is
ORDERED to submit all federal and state tax returns for 2012, with all
attachments, to the United States Trustee’s Office not later than Monday, July
15, 2013. All correspondence shall be mailed to:
U.S. Trustee's Office-Denver
c/o Leo Weiss
999 18th Street
#1551
North Tower
Denver, CO 80202-2449
Ms. Summerrain is
FURTHER ORDERED to submit all federal and state tax returns for 2013,
with all attachments, to the United States Trustee’s Office not later than April 30,
2014. Ms. Summerrain is
FURTHER ORDERED to submit all federal and state tax returns for 2014,
with all attachments, to the United States Trustee’s Office not later than April 30,
2015. Ms. Summerrain is
FURTHER ORDERED to notify the United States Trustee’s Office of any
change of address not later than twenty (20) days from the date of any
relocation. Ms. Summerrain is
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FURTHER ORDERED to supply the United States Trustee’s Office with
sufficient information as to household disposable income upon request. Ms.
Summerrain is
FURTHER ORDERED to resume payments to the United States Trustee’s
Office once her income increases to the point that she is able to resume
payments. It is
FURTHER ORDERED that on December 31, 2015, if Ms. Summerrain's
household disposable income has not risen to a level where she can resume
payments of the Bankruptcy Court's sanctions, Ms. Summerrain may renew her
request for a waiver of the remaining sanctions by filing a request to reopen the
case along with a proper motion by January 31, 2016. It is
FURTHER ORDERED that since these conditions are in effect through
early 2016, this case will be administratively closed pursuant to D.C.COLO.LCivR
41.2 with leave to be reopened for good cause shown.
Dated: June 28, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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