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Simmons v. Bingham Farrer & Wilson, P.C.

United States District Court, S.D. Indiana, Indianapolis Division

September 26, 2016

DARREN LEE SIMMONS, Plaintiff,
v.
BINGHAM FARRER & WILSON, P.C., et al. Defendants.

          ORDER GRANTING SUMMARY JUDGMENT ON COUNT 2 OF THE COMPLAINT

          SARAH EVANS BARKER, JUDGE

         Defendants Bingham, Farrer & Wilson, P.C. (“BFW”) and Edward B. Hopper, II (“Hopper”) (collectively “Defendants”) seek summary judgment as to Count 2 of Plaintiff Darren Lee Simmons's (“Simmons”) Complaint. For the reasons explained below, we GRANT summary judgment in Defendants' favor, DISMISS Count 2 (which is the only basis for federal jurisdiction in this cause), and DISMISS Count 1, the legal malpractice claim, without prejudice, to permit its transfer or refiling in the Marion Superior Court.

         This lawsuit is an outgrowth of Simmons's personal bankruptcy case, filed by Defendants on his behalf pursuant to Chapter 7 of the Bankruptcy Code. Defendants were retained as his attorneys to represent Simmons in that litigation. Simmons's discharge in bankruptcy was ultimately denied by the Bankruptcy Court, which adverse ruling concluded an adversary proceeding that had been brought against Simmons by his Bank. The denial of discharge was affirmed on appeal by the District Court in the Northern District of Indiana.

         Simmons claims that the denial of his Chapter 7 discharge resulted from various errors and omissions committed by Defendants in the preparation and filing of his bankruptcy petition. He challenges these alleged failures by his attorneys under 11 U.S.C. § 526 (2010) and 11 U.S.C. § 527 (2010) of the BAPCPA. This claim provides the Court with federal question jurisdiction. See 28 U.S.C. § 1331. Simmons also asserts, in Count One of his Complaint, a supplemental state law legal malpractice claim against Defendants.

         We need not discuss in detail the specific facts underlying the legal malpractice allegations, since the focus of the pending summary judgment motion is on the two statutory provisions relied upon by Simmons as the basis for Count 2 of the Complaint. Simmons has alleged that “[d]uring the course of the Defendants' representation of [him], the Defendants were acting as a ‘debt relief agency' as that term is defined by 11 U.S.C. § 101 (12A)” and, “[b]y intentionally and/or negligently disregarding the material requirements of Title 11 and/or the Federal Rules of Bankruptcy Procedure, Defendants violated the requirements of 11 U.S.C. §§ 526 and 527 …”. (Compl. at ¶¶ 87, 88).

         Title 11 U.S.C. § 526 provides in relevant part as follows:

(a) A debt relief agency shall not-
(1) fail to perform any service that such agency informed an assisted person or prospective assisted person it would provide in connection with a case or proceeding under this title;
(2) make any statement, or counsel or advise any assisted person or prospective assisted person to make a statement in a document filed in a case or proceeding under this title, that is untrue or misleading, or that upon the exercise of reasonable care, should have been known by such agency to be untrue or misleading;
(3) misrepresent to any assisted person or prospective assisted person, directly or indirectly, affirmatively or by material omission, with respect to-
(A) the services that such agency will provide to such person; or
(B) the benefits and risks that may result if such person becomes a debtor in a case under this title; or
(4) advise an assisted person or prospective assisted person to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer a fee or charge for services performed as part of preparing for ...

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