Case Number(s): 10-O-04424, 11-O-10374, 11-O-13230
In the Matter of: Emmanuel Fomukong Fobi, Bar # 210764, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey
State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1503
Bar# 183740
Counsel for Respondent: Paul J. Virgo
9909 Topanga Blvd. #282
Chatsworth, CA 91311
(310) 666-9701
Bar # 67900
Submitted to: Assigned Judge- State Bar Court Clerk’s Office Los Angeles.
Filed: October 6, 2011.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 15, 2000.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 11 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2012, 2013 (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Respondent has no prior record of discipline.
Respondent has cooperated with the State Bar in investigating and resolving these matters at an early stage.
Case Number(s): 10-O-04424, 11-O-10374, 11-O-13230
In the Matter of: Emmanuel Fomukong Fobi
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Mark Reid
Principal Amount: $2,230
Interest Accrues From: November 30, 2010
2. Payee: Raquel Rodriguez
Principal Amount: $10,000
Interest Accrues From: January 5, 2011
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable) Raquel Rodriguez
Minimum Payment Amount $2,500
Payment Frequency Quarterly
2. Payee/CSF (as applicable) Mark Reid
Minimum Payment Amount $2,230
Payment Frequency First Quarter, Interest to be paid in the Second Quarter
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
IN THE MATTER OF: Emmanuel F. Fobi, State Bar No. 210764
STATE BAR COURT CASE NUMBER: 10-O-04424; 11-O-10374; 11-O-13230
FACTS:
1. At all times relevant herein, Respondent maintained a trust checking account at Washington Mutual designated account no. xxxxxxx538 ("trust account").1 [Footnote 1: The account number has been partially redacted due to privacy concerns.]
2. At all times relevant herein, Respondent was the only authorized signatory on the trust account.
3. In March 2010, Respondent issued, or caused to be issued, several checks from his trust account for the payment office expenses, including checks to Copy Max Systems, AT&T and Explorer Insurance Services.
4. In April 2010, Respondent issued, or caused to be issued, several checks from his trust account for the payment office expenses, including checks to Attorneys To Go, RSETech and several checks to his office employees for payroll expenses.
5. In April 2010, Respondent issued, or caused to be issued, several checks from his trust account for personal expenses, including checks AT&T Mobility, Lexus Financial Services and Wells Fargo Dealer Services.
CONCLUSIONS OF LAW:
By retaining earned fees in his trust account and by using funds in his trust account to pay personal and office expenses, Respondent commingled funds belonging to Respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of Rules of Professional Conduct, rule 4-100(A).
Case No. 11-O-10374 (Complainant: Mark Reid)
FACTS:
1. On October 11, 2009, Senate Bill 94, prohibiting the collection of advanced fees for mortgage loan modification services, became operative.
2. On or about November 30, 2010, Mark Reid employed Respondent for loan modification services and paid Respondent $2,230 in advanced attorney’s fees.
3. As a result, Respondent collected advanced fees for mortgage loan modifications services for a client after October 11, 2009.
CONCLUSIONS OF LAW:
By collecting advanced fees for loan modifications after October 11, 2009, Respondent willfully violated Business and Professions Code section 6106.3.
Case No. 11-O-13230 (Complainant: Raquel Rodriguez)
FACTS:
1. On October 11, 2009, Senate Bill 94, prohibiting the collection of advanced fees for mortgage loan modification services, became operative.
2. In April 2010, Raquel Rodriguez ("Rodriguez") employed Respondent to obtain a loan modification on her behalf. Between April 2010 and May 2010, Rodriguez paid Respondent $3,000 in advanced attorney’s fees, and between October 2010 and January 2011, Rodriguez paid Respondent and additional $7,000 in advanced attorney’s fees.
3. As a result, Respondent collected advanced fees for mortgage loan modifications services for a client after October 11, 2009.
4. On November 1, 2010, Respondent filed a civil action on Rodriguez’s behalf against her lender. Respondent obtained a temporary injunction to stop the foreclosure of Rodriguez’s home but was unable to obtain a permanent injunction.
5. After employing Respondent’s services, Rodriguez communicated with Respondent’s assistants, Aurora Becerra and Hector, regarding her matter, and they informed her that the case was being handled. However, on or about March 9, 2011, Rodriguez’s condominium was sold without notice to her. Respondent later obtained an agreement from Rodriguez’s lender.
6. In April 2011, Rodriguez obtained a copy of her file from Respondent’s office. In the file, there were letters that had been submitted to Rodriguez’s lender stating that Rodriguez’s earned income from renting rooms Out of her home. Rodriguez maintains the information in the letters was not true, and she was not aware that the letters had been submitted to her lender. Respondent contends that he was not aware that the letters had been submitted to Rodriguez’s lender and any letters created and submitted by his staff were done without his consent. Respondent states that the employees in question are no longer employed in his office.
CONCLUSIONS OF LAW:
By collecting advanced fees for loan modifications after October 11, 2009, Respondent willfully violated Business and Professions Code section 6106.3.
By failing to supervise his office employees in the Rodriguez matter, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 22, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards[ for Attorney Sanctions for Professional Misconduct provide, at Standard 2.2(b), for a minimum actual suspension of three months irrespective of mitigating circumstances for the commission of a violation of rule 4-100, Rules of Professional Conduct, which does not result in the willful misappropriation of entrusted funds or property. Reported cases of discipline based on commingling include: In the Matter of Heiser (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 47 (Six months actual suspension for commingling violations and violation of Business and Professions Code, section 6106 for issuance of NSF checks); In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113 (60 days actual suspension for commingling and negligent misappropriation); In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615 (Six months actual suspension for Respondent with prior record of discipline).
Here, Respondent’s no record of discipline, his mitigating factors and his cooperation with the State Bar to resolve these matters by stipulation supports the imposition of a stayed suspension.
Case Number(s): 10-O-04424, 11-O-10374, 11-O-13230
In the Matter of: Emmanuel Fomukong Fobi
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Emmanuel Fomukong Fobi
Date: 09/22/2011
Respondent’s Counsel: Paul J. Virgo
Date: 09/22/2011
Deputy Trial Counsel: Katherine Kinsey
Date: 09/22/2011
Case Number(s): 10-O-04424, 11-O-10374, 11-O-13230
In the Matter of: Emmanuel Fomukong Fobi
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
On page 2 of the stipulation, in paragraph A.(8), which related to costs, delete the membership years, “2012, 2013.” And, in their place, insert the following membership years: “2013, 2014.”
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: DONALD F MILES
Date: 10/06/2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on October 6, 2011 , I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING STAYED SUSPENSION; NO ACTUAL SUSPENSION
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
PAUL JEAN VIRGO
9909 TOPANGA BLVD #282
CHATSWORTH, CA 91311
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KATHERINE KINSEY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 6, 2011.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court