Attorneys Forging Debtors’ Signatures?

shamefulSometimes debtors seem puzzled when I ask them at the §341 meeting if they signed their bankruptcy petition and schedules.   They may look at their attorney for guidance in answering.   It could be poor memory or just nerves, but I have often wondered if some attorneys file petitions or schedules without first obtaining the debtors’ original signatures. Electronic filing has made this practice much harder to detect than the old fashion kind of forgery in which a signature had to be mimicked. But, forgery it is nonetheless.

Rule 1008 of the Federal Rules of Bankruptcy Procedure (“FRBP”) requires that all petitions, lists, schedules, statements and amendments be “verified” or contain an “unsworn declaration” as provided in 28 U.S.C. §1746. The official bankruptcy petition contains a declaration that meets the statutory requirement:

I declare under penalty of perjury that the information provided in this petition is true and correct.

I request relief in accordance with the chapter of title 11, United States Code, specified in this petition.

X Signature of Debtor        

The Declaration Concerning Debtor’s Schedules and the Statement of Financial Affairs contain similar language. The verification requirement of FRBP 1008 prohibits the attorney from signing the debtor’s name to the petition, schedules and SOFA. The adoption of Electronic Case Filing did not change the verification requirement. ECF merely shifted the responsibility to maintain the debtor’s original paperwork from the court to the debtor’s attorney. Pursuant to FRBP 5005, Local Rule 5005-1(a) and the Administrative Procedures for Electronic Case Filing, registered ECF users must maintain originally executed copies of signed documents for one year after the case is closed in the bankruptcy court. Placing a verified electronic signature on documents filed with the court without obtaining an original verified signature is forgery.

The electronic signature of an attorney on the bankruptcy petition is a representation by the attorney that the debtor signed the petition. FRBP 9011(b) and Miss Bankr. L. R. Rule 9011-1(a). Bankruptcy courts across the country have begun to recognize the problem of forged petitions and schedules and are imposing sanctions on attorneys who engage in the practice. See, e.g., In re: Whitehill, 514 B.R. 687 (M.D. Fla. 2014)(The debtor’s attorney filed schedules when the debtor had not reviewed or signed the documents. The court imposed sanctions, including monetary sanctions of $15,000.00.); In re: Bradley, 495 B.R. 747 (S.D. Tex. 2013) (The attorney’s actions which included forging by electronic signature defiled the “temple of justice” and were in bad faith.); In re: Stomberg, 487 B.R. 775 (S.D. Tex 2013)(The Court held that there are no circumstances that would ever justify an attorney filing the debtor’s petition or schedules without first obtaining his signature. Sanctions were imposed.); In re: Wenk, 296 B.R. 719 (E.D. Va. 2002)(A debtor’s attorney filed a “Skeletal petition” without any signature in order to get the benefit of the automatic stay. The Court found that the practice was no less egregious than filing an electronic petition without an original signature. The court imposed sanctions under a separate order.).

An attorney who files a bankruptcy petition, schedules and statements on behalf of a debtor is representing to the court that the debtor’s original signature appears on conforming copies maintained in the office. Including an electronic signature when an original was not obtained is no less forgery than attempting to mimic the debtor’s own signature. Such conduct is properly sanctionable under FRBP 9011.