Dwain W. Tate

The document below is hereby signed. &. »

Signed: July 22, 2019 Med

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S. Martin Teel, Jr.

United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF COLUMBIA

In re )

)

DWAIN W. TATE ) Case No. 19-00237

) (Chapter 13)

Debtor. ) Not for publication in

) West’s Bankruptcy Reporter.

MEMORANDUM DECISION AND ORDER

DENYING MOTION TO DISQUALIFY BRIAN FELLNER

The debtor has filed a Motion to Disqualify Brian Fellner,

Esq (“Motion”) (Dkt. No. 20) wherein the debtor seeks to have

Brian Fellner, a defendant in the associated adversary proceeding

to this case (Adversary Proceeding No. 19-10009) and counsel for

other defendants in the adversary proceeding, disqualified from

representing any defendants other than himself in the adversary

proceeding. For the following reasons, the Motion will be

denied.

The debtor initiated this bankruptcy case by the filing of a

voluntary petition under chapter 13 of the Bankruptcy Code on

April 10, 2019, on the eve of a foreclosure sale of the townhouse

where the defendant resides, and which was owned by the debtor’s

now deceased mother. The debtor notified Fellner of the filing

of the bankruptcy case, but Fellner proceeded with the

foreclosure anyway. Fellner believed that the townhouse was not

property of the estate because the land records still have the

debtor’s mother as the owner of the property.

The debtor filed the associated adversary proceeding

(Adversary Proceeding No. 19-10009) on April 14, 2019, against

Fairfax Village I Condominium (“Fairfax Village”), the

condominium association that governs the townhouse and

surrounding common areas; EJF Real Estate, the managing company

for Fairfax Village; and Alex Cooper Auctioneer, to have the

foreclosure sale declared void as a violation of the automatic

stay under 11 U.S.C. § 362, and to seek damages for the

defendants violation of the automatic stay. The debtor amended

his complaint on April 19, 2019, and included Fellner as a

defendant.

Fellner represented Fairfax Village and was the foreclosure

trustee. Fellner allegedly mailed notice to the debtor’s

deceased mother, after the debtor had told Fellner that she was

deceased and that the debtor was making payments on the

townhouse. The debtor also alleges several other issues

regarding the foreclosure proceedings, but does not seek any

relief for alleged misconduct with the foreclosure proceedings in

his adversary proceeding complaint.

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The defendants filed a Motion to Dismiss (Dkt. No. 19)

wherein they stipulate to the facts alleged by the debtor and

seek to have the case dismissed under Fed. R. Civ. P. 12(b)(1),

for the debtor’s lack of standing, and Fed. R. Civ. P. 12(b)(6),

for failure to state a claim for which relief may be granted.

The debtor filed the Motion and seeks to have Fellner’s

representation limited only to himself. Fellner filed a timely

opposition.

II

When considering whether to disqualify an attorney, courts

are admonished that “unless an attorney's conduct tends to taint

the underlying trial, by disturbing the balance of the

presentations in one of the two ways indicated above, courts be

quite hesitant to disqualify an attorney.” Koller v. Richardson-

Merrell Inc., 737 F.2d 1038, 1056 (D.C. Cir. 1984) (quoting Board

of Education of New York City v. Nyquist, 590 F.2d 1241, 1246 (2d

Cir. 1979)) (internal quotes omitted) (vacated on other grounds).

The “two ways indicated above” refer to (1) where there is a

serious question of the attorney’s ability to zealously represent

the client, or (2) where the attorney is in the position to

potentially create an unfair advantage by the use of privileged

information of the other side. Nyquist, 590 F.2d at 1246.

The debtor asserts that Fellner is prohibited from

representing the other defendants under Rule 3.7(a) of the D.C.

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Rules of Professional Conduct, which provides:

A lawyer shall not act as an advocate at a trial in which

the lawyer is likely to be a necessary witness except:

(1) The testimony relates to an uncontested issue,

(2) The testimony relates to the nature and value

of legal services, or

(3) Disqualification of the lawyer would work

substantial hardship on the client.

The debtor alleges that Fellner would be required to testify to

many of the actions taken during the foreclosure of the property,

and that his interests would be adverse to the other defendants.

Fellner contends that the defendants have conceded all the

facts alleged by the debtor, and, therefore, there will be no

need for him to testify on a contested issue. Fellner also

contends that exceptions (2) and (3) apply because any testimony

he may be required to give would be related to the nature of his

legal services, and it would be a substantial hardship for

Fairfax Village to hire a new attorney who is unfamiliar with the

facts and issues of this relatively minor debt collection case.

All the defendants conceded in their Motion to Dismiss to

all the facts alleged by the debtor in his complaint. There may

be a question as to whether this concession was solely for the

purposes of the Motion to Dismiss, as is necessary for a motion

to dismiss under Rule 12(b)(6), or if the defendants conceded the

facts alleged in the complaint throughout the adversary

proceeding regardless of the court’s disposition of the Motion to

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Dismiss. However, the statement made in the Motion to Dismiss

does appear to concede the facts, without any limitation of such

concession solely to the Motion to Dismiss, and the defendants’

attorney has represented in his opposition to the Motion that the

defendants concede to the facts of the Complaint. Therefore,

there do not appear to be any contested facts to which Fellner

would be required to testify for the purposes of the adversary

proceeding.

Moreover, all the issues that the debtor alleges remain that

would necessitate Fellner’s testimony are related to the alleged

misconduct during the foreclosure proceedings. The only issue

before the court in the adversary proceeding is whether the

defendants violated the automatic stay by proceeding with the

foreclosure sale, even though the debtor had filed his bankruptcy

case the day before and the automatic stay was in place. Whether

Fellner violated any state laws in conducting the foreclosure are

not before this court in the adversary proceeding. Therefore, it

is very unlikely that Fellner will be required to testify on any

contested issues, or that Fellner’s position will be adverse to

the other defendants’ positions.

Accordingly, there does not appear to be a reason to

disqualify Fellner from representing other defendants in the

adversary proceeding. Should circumstances change, such as the

defendants contest the factual allegations in the debtor’s

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complaint, if the court denies the Motion to Dismiss, then the

court may revisit this issue at that time. For now, there is no

reason to disqualify Fellner.

III

For the aforesaid reasons, it is

ORDERED that the debtor’s Motion to Disqualify Brian

Fellner, Esq (“Motion”) (Dkt. No. 20) is DENIED.

[Signed and dated above.]

Copies to: Recipients of e-notifications of orders.

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