Case Number(s): 11-J-10293
In the Matter of: Oscar Acevedo, Bar # 237530, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Margaret P. Warren
1149 So. Hill St.
Los Angeles, CA 90015-2299
(213) 765-1342
Bar# 108774
Counsel for Respondent: Michael E. Wine
301 N. Lake Ave., Suite 800
Pasadena, CA 91101-5113
(626) 796-6688
Bar # 58657
Submitted to: Assigned Judge, State Bar Court Clerk’s Office, Los Angeles.
<<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 July 22, 2005.
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 13 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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: costs to be paid in equal amounts prior to February 1 for the following two billing cycles following the effective date of the Supreme Court order: 2013 and 2014.. (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.
See p. 11, below.
See p. 12, below.
(Effective January 1, 2011)
Actual Suspension
Case Number(s): 11-J-10293
In the Matter of: Oscar Acevedo
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Oscar Acevedo
Date: 10/31/11
(Effective
January 1, 2011)
Nolo Contendere Plea
AGREEMENTS AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE
SECTION 6049.1.
1. Respondent’s culpability determined in the disciplinary proceeding in the United States Bankruptcy Court, Central District of California would warrant the imposition of discipline in the State of California under the laws or rules in effect in this State at the time the misconduct was committed;and
2. The proceeding in the above jurisdiction provided respondent with fundamental constitutional protection.
3. The parties waive the issuance of a Notice of Disciplinary Charges relating to the matter listed hereinabove that is the subject matter of this stipulation, and further waive a formal hearing on the
charges included in this Stipulation.
Background:
4. The instant proceeding is brought before the State Bar Court pursuant to section 6049.1 of the Cal. Bus. & Prof. Code, having arisen out of a disciplinary action brought against Respondent in the United States Bankruptcy Court for the Central District of California.
5. The parties stipulate that Respondent was admitted to the practice of law before the United States District Court for the Central District of California ("District Court") on December 18, 2007, and the United States Bankruptcy Court for the Central District of California on May 22, 2008 ("Bankruptcy Court").
6. The parties stipulate that, by the Bankruptcy Court’s Memorandum of Decision of Disciplinary Proceeding of Oscar Acevedo ("Decision") and the Order on Disciplinary Proceeding of Oscar Acevedo
("Order") entered on December 20, 2010 in the matter entitled In re the Disciplinary Proceeding of Oscar Acevedo, Case No. LAMP 10-00192, Respondent was actually suspended from practicing law before the Bankruptcy Court for a period of one (1) year, effective December 20, 2010. The Bankruptcy Court further ordered that Respondent must demonstrate to the Chief Bankruptcy Judge that he has successfully rehabilitated himself by taking classes and instruction in bankruptcy law, law office management and legal ethics before he may apply for reinstatement to practice before the Bankruptcy
Court.
7. The parties stipulate that, by Order entered on March 3, 2011, Respondent was suspended from the practice of law before the District Court, and will not be reinstated to the practice law before that court until such time as Respondent submits proof of his reinstatement as an active member in good standing with the State Bar of California.
FACTS AND CONCLUSIONS OF LAW.
Respondent pleads nolo contendere to the facts found by the bankruptcy Court, as set forth below, and to the specified violations set forth below; Respondent acknowledges that he completely understands that his plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct specified in the Stipulation:
8. Between August 8 and October 8, 2009, Respondent filed nineteen (19) chapter 7 bankruptcy cases in the United States Bankruptcy Court, Central District of California, San Femando Valley
Division. Each of these 19 cases came to Respondent via Mark Shoemaker ("Shoemaker"), the Law Offices of Mark Shoemaker ("LOMS") and Shoemaker’s company Advocate for Fair Lending ("AFFL") (collectively, the "Shoemaker Entities").
9. Shoemaker formed AFFL for the purpose of providing "econometric analysis" for mortgage loans. He was President and owner of AFFL. At.the time he formed AFFL, Shoemaker also had his own law practice, LOMS, which consisted of six attorneys who specialized in lender liability issues and foreclosure litigation.
10. Each of the 19 clients at issue in this matter initially hired and paid fees to AFFL to perform the econometric and auditing analysis of each client’s loan. These 19 clients were hoping to obtain loan modifications of their residential mortgages. AFFL was an auditing firm, however, and not a company that negotiated loan modifications. In July 2009, all 19 clients attended a meeting with AFFL, at which they were told that AFFL would no longer be in charge of their cases and that their cases would be transferred to AFFL’s "legal department," LOMS. At this meeting, the 19 clients were each asked to sign an attorney-client retainer agreement to retain LOMS, and each of the 19 clients was asked to pay $1,000 to LOMS for the retainer.
11. After retaining LOMS and paying the $1,000 fee, each of the 19 clients received a notice of trustee’s sale of that client’s property. The $1,000 retainer each client paid to LOMS was for LOMS to pursue any causes of action against the client’s lender that may have been revealed after the econometric loan analysis had been accomplished. The clients all understood that a lawsuit against their respective lender would be pursued in order to get a mortgage payment that the client could afford, and that such litigation would be a measure undertaken to prevent the client’s bankruptcy. Subsequently, AFFL advised these 19 clients that the only way they could save their home was to file for bankruptcy. AFFL then referred the 19 clients to Respondent’s office, as LOMS did not handle bankruptcy matters. LOMS
paid Respondent $799 of the $1,000 each client had paid to LOMS: $299 was for the bankruptcy filing fee; $500 was the fee paid to Respondent. The clients understood that Respondent would be paid by
AFFL for handling their bankruptcy matter, and were never charged any monies by Respondent. The 19 clients contacted Respondent’s office and spoke to an employee who asked for the client’s name,
address, telephone number, SSN, and loan information (including the name of the company doing the trustee sale). Each client was then asked to come to the office later that day to sign documents. None of
the 19 clients ever actually met with, or spoke to, Respondent.
12. On December 29, 2009, the Office of the United States Trustee ("UST") filed an application for an Order to Show Cause in each of the 19 subject bankruptcy cases filed by Respondent. The court
granted the UST’s application and issued an OSC requiring Respondent and the Shoemaker Entities to appear and explain various issues to the court. Shoemaker filed a Response and Opposition to the OSC
regarding disgorgement on behalf of the Shoemaker Entities. Respondent filed a response, indicating that he sought to take responsibility for the actions implicated in the OSC.
13. Evidentiary hearings were held by the court on March 3 and April 5, 2010. On July 20, 2010, the Bankruptcy Court ordered Respondent to disgorge $15,181.00 in legal fees he received in nineteen
(19) Chapter 7 bankruptcy matters he filed as attorney of record for the debtors. Respondent was also sanctioned by the Bankruptcy Court, in the amount of $500.00 per each of the nineteen (19) bankruptcy
filings, totaling $9,500.00. Thereafter, by Statement of Cause filed on July 30, 2010, the court initiated disciplinary proceedings against Respondent, referring the matter to the Discipline Panel ("Panel"). 1
14. Respondent filed his Statement re Disciplinary Proceedings ("Statement") on November 1, 2010; the UST filed its Notice of Appearance on October 25, 2010. A heating was held before the Panel on November 12, 2010.
15. Both in his Statement and at the Panel’s hearing, Respondent accepted responsibility for his actions and did not dispute any of findings made by the Court and the Panel. Moreover, Respondent
outlined the steps he had already taken to date to correct his actions, including delivering to the UST cashier’s checks in the amount of $799 each, made out to the 19 debtors; paying to the UST the court-ordered sanctions totaling $9500; joining the Central District Consumer Bankruptcy Attorneys’Association and attending that organization’s continuing education programs; and attending the California State Bar’s Ethics School.
Conclusions of law:
"16. Respondent’s culpability of filing nineteen (19) bankruptcy cases for the improper purpose of delaying foreclosures with no intent to proceed with the bankruptcy cases through to discharge was in violation of section 6068(c) of the Business and Professions Code, warranting the imposition of discipline in the State of California.
17. Respondent’s culpability of failing to competently perform his duties as an attorney in each of the nineteen (19) bankruptcy cases by placing his signature on the nineteen (19) bankruptcy petitions
without performing reasonable investigations into the circumstances giving rise to the documents and in violation of his duty to represent that, to the best of his knowledge, the information in the schedules filed with the petitions was correct, was in violation of rule 3-110(A) of the Rules of Professional Conduct, warranting the imposition of discipline in the State of California.
18. Respondent’ s culpability of failing to disclose that it was the Shoemaker Entities, rather than the client-debtors themselves, who paid Respondent $799 for each of the nineteen (19) bankruptcy cases
was in violation of section 6068(d) of the Business and Professions Code, warranting the imposition of discipline in the State of California.
19. Respondent’s acceptance of fees for services that were of no value to the client-debtors in each of the nineteen (19) bankruptcy cases rendered the fees he accepted unearned, and his failure to
promptly refund any portion of these unearned fees until he was ordered by the Bankruptcy Court on 1 Shoemaker was a licensed California attorney. Because he was declared ineligible to practice law by the State Bar Court in case no. 09-TE-19229 (filed 5/28/10), he was not referred to the Discipline Panel, as was Respondent; Shoemaker was,however, ordered to disgorge fees he received from the 19 clients in issue. Shoemaker was ordered disbarred by the CA
Supreme Court effective March 4, 2011.
July 20, 2010 to disgorge them was in violation of rule 3-700(D)(2) of the Rules of Professional Conduct, warranting the imposition of discipline in the State of California.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was October 27, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 provides:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Standard 2.4 (b) provides that culpability of a member of "wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of
wilfully failing to communicate with a client shall result in reproval or suspension depending on the extent of the misconduct and the degree of harm to the client."
, Standard 2.6 provides that culpability of a member of a violation of section 6068 of the Business and Professions Code "shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard
1.3 [.]"
Standard 2.10 provides:
Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
AGGRAVATING FACTORS.
The current misconduct acknowledged by Respondent evidences multiple acts of misconduct.
By filing nineteen (19) bankruptcy matters solely for the purpose of delaying creditors by stalling foreclosures on the debtors’ properties substantially increased the Bankruptcy Court’s administrative burden, increased costs to debtors and creditors, and led to delays in the resolution of the debtors’ cases.
MITIGATING FACTORS.
Respondent has no prior record of discipline. Respondent took responsibility for his actions in the Bankruptcy Court disciplinary proceedings. Respondent promptly took steps--prior to the imposition of discipline by the Bankruptcy Court’s Discipline Panel-- to deliver all funds to the Trustee that he had been ordered to disgorge; to pay the court-ordered sanctions; to attend the State Bar’s Ethics School; and to begin taking courses in California Legal Specialization Education in Bankruptcy Law.
Nine (9) individuals, including four attorneys, one medical professional, and five businesspeople, many of whom have known Respondent for many years, and who are aware of Respondent’s disciplinary issues with the Bankruptcy Court, have attested to Respondent’s good character.
Respondent cooperated with the State Bar in these proceedings; reached a stipulated disposition in this matter before any disciplinary charges were filed; and by stipulating to facts, legal conclusions and discipline has demonstrated recognition of wrongdoing. The stipulation assisted the State Bar’s prosecution by obviating the need for a trial on the merits as to culpability, and allowing the parties and the court to focus on the appropriate discipline. (In the Matter of Johnson (Review Dept. 2000) 4 Cal.
State Bar Ct. Rptr. 179, 190.) The parties submit that the protection of the public, the courts and the legal profession, and the preservation of public confidence in the legal profession, will be served by the disposition in this matter, which focuses on the rehabilitation of Respondent. The parties submit that the disposition herein is,consistent with the fundamental purpose of disciplinary proceedings, as articulated in Standard 1.3; and submit that the stipulated period of actual suspension and probationary conditions in this matter are sufficient assurance that Respondent will conform his future conduct to ethical standards and adequate protection of the public, courts and profession.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 24, 2011, the prosecution costs in this matter are $2,797.00. Respondent further acknowledges
that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 11-J-10293
In the Matter of: Oscar Acevedo
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:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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: Richard A. Honn
Date: 11-18-11
(Effective January 1, 2011)
Actual Suspension Order