
    IN RE Wilbert Mauricio HENRIQUEZ, Debtor(s). Vokshori Law Group, APLC, Plaintiff(s), v. Wilbert Mauricio Henriquez, Defendant(s).
    Case No.: 6:16-bk-11051-MW Adv. No: 6:16-ap-01072
    United States Bankruptcy Court, C.D. California, Riverside Division.
    Date: October 4, 2016, Time: 9:00 a.m., Place: 411 West Fourth Street, Court-room 6C, Santa Ana, CA 92701
    Signed October 19, 2016
    
      Nima S. Vokshori, Vokshori Law Group, Los Angeles, CA, for Plaintiff.
    Brad Weil, Law Offices of Brad Weil, Carson, CA.
   MEMORANDUM DECISION AND ORDER

Mark S. Wallace, United States Bankruptcy Judge

This adversary proceeding came on for trial on October 4, 2016 to determine whether a debt allegedly owed to plaintiff Vokshori Law Group, A Professional Law Corporation (“Plaintiff’) by defendant-debtor Wilbert Mauricio Henriquez (“De-fendant”) is excepted from discharge pur-suant to 11 U.S.C. §§ 523(a)(2)(A) and/or 523(a)(2)(C)(i)(I).

The Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 157, 1334 and General Order No. 13-05, filed July 1, 2013, of the United States District Court for the Central Dis-trict of California. This is a core proceed-ing under 28 U.S.C. § 157(b)(2)(B), (I).

On the record, each of Plaintiff and Defendant consented to this Court’s final determination of this matter under the rule of Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) and Wellness International Network, Ltd. v. Sharif, — U.S.—, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015) and waived any right to a jury trial.

FINDINGS OF FACT

This matter involves legal fees and ex-penses allegedly owed by Defendant to Plaintiff that were incurred in connection with failed efforts to modify a secured loan on real property located at 5937 Para-mount Drive, Riverside, California owned by Defendant (the “Riverside Property”). Defendant’s principal contention is that he does not owe these fees and expenses be-cause the loan modification failed and it was agreed at the outset that fees and expenses would be payable only if the loan modification was successful. Plaintiff ar-gues that the terms of the engagement clearly specified the fees and expenses were payable irrespective of whether the loan modification efforts succeeded or failed and, further, that the debt is except-ed from discharge because (1) Defendant never intended to pay the fees and ex-penses charged by Plaintiff, even though promising to do so in writing and (2) the fees and expenses constitute “consumer debts.... for luxury ... services incurred by an individual debtor on or within 90 days before the order for relief’ within the meaning of 11 U.S.C. § 523(a)(2)(C)(i)(I).

Defendant contacted Plaintiffs law office in or about February 2015 about engaging Plaintiff to obtain a loan modification with respect to the secured loan held by Bank of America on the Riverside Property. At that point in time he had not made a payment on the loan in approximately two years. Defendant testified that Plaintiffs employee Phil Alvarez told him he wouldn’t have to pay Plaintiff unless the loan modification was successful.

Plaintiff and Defendant decided to move forward with the engagement and, on February 19, 2015 at 2:01 p.m. Pacific Time, Plaintiff electronically transmitted to Defendant a 9-page Vokshori Law Group Legal Services Agreement (the “LSA”) via a software program named “DocuSign.” The DocuSign print out shows that Defendant viewed the LSA 47 minutes later at 2:48 p.m. and signed it about 90 minutes after midnight the next day, February 20, 2015, at 1:28 a.m. The DoeuSign program has a feature for initialing on each page of a legal document, and this feature was deployed by Plaintiff in its electronic transmission of the LSA to Defendant. Each and every one of the nine pages of the LSA is initialed by Defendant.

Numbered paragraph 3 of the LSA re-quired Plaintiff to provide a long list of loan modification-related services to De-fendant occupying nearly a full page of the LSA. Numbered paragraph 4 on page 3 of 9 sets forth the “TOTAL FEES” and re-quired Defendant to pay a flat fee of $2,400 plus a monthly maintenance fee of $249 per month should the representation last longer than four months.

Immediately below the two paragraphs describing the flat fee of $2,400 and the monthly maintenance fee of $249 per month are the following provisions:

The Flat Fees and Monthly Mainte-nance Fees as described above are owed to LAW FIRM irrespective of any out-come or result.

Legal Fees Are Due Upon:

(1) An approval of a loan modification by CLIENT’S lender; (2) A rejection of a loan modification by CLIENT’S lender; (3) A cancellation by CLIENT of LAW FIRM’S services; or (4) A withdrawal of representation by LAW FIRM for rea-sonable cause.

The Court regards the placement on the page of the two paragraphs quoted in full immediately above as a matter of key im-portance. Anyone presented with this LSA who wanted to see -how much he would owe under the agreement would necessarily have to look at numbered paragraph 4 on page 3 of 9 and at that point the two paragraphs quoted in full above would be clearly in the field of vision. In other words, for all practical purposes (excepting perhaps a severely visually impaired per-son) it would be quite difficult to look at the LSA. to determine how much one would owe for Plaintiffs services without also seeing the LSA provisions indicating that the fees would be owed “irrespective of any outcome or result” and, further, that the fees would be payable if the loan modification were rejected.

Defendant initialed page 3 of 9 of the LSA

As if this were not enough, numbered paragraph 7 on page 4 of 9, entitled “DIS-CLAIMER OF GUARANTEE:”, provides as follows: “Nothing in this Agreement and nothing in LAW FIRM’S, or its em-ployees’, statements to Client will be con-strued as a promise or guarantee about the outcome of this matter... Client ac-knowledges that Law Firm has made no promise or guarantees about the outcome.” Defendant also initialed this page.

On LSA page 8 of 9, numbered para-graph 15, entitled “IMPORTANT NO-TICES NOTICE REQUIRED BY LAW” sets forth in boldfaced large font text the notice specifically required by California Civil Code section 2944.6 to be provided to a borrower seeking loan modification ser-vices. This text essentially notifies a bor-rower that it is not necessary to pay a third party to arrange for loan modification or forbearance because the borrower can directly contact the lender or ask non-profit housing counseling agencies for help. Defendant also initialed page 8 of 9.

After the execution of the LSA by the client/borrower, the next step in the en-gageraent was to send the client/ borrower a list of documents to be provided to the lender in connection with a loan modification request. Plaintiffs practice was to al-low for some time to pass and for the collection of documents from the client/borrower before executing the LSA on Plaintiffs behalf. The LSA that com-prises a portion of Plaintiffs Exhibit 1 (and is also Defendant’s Exhibit D) was manually signed by N. Stephen Vokshori, Esq. on Plaintiffs behalf on June 1, 2015.

In the meantime, Plaintiff had been working to collect necessary documents from Defendant. Email correspondence be-tween Defendant and Plaintiffs employees (set forth in Defendant’s Exhibit A) show that on February 27, 2015 Plaintiff sent Defendant a list of nine types of docu-ments and requested him to “[pjlease work on these documents and send them into the office as soon as possible. The quicker we get your documents, the quicker we get to process your loan modification and the faster we get you the help you need. Please make sure to send these documents at the earliest time possible... Thank you so very much for your time.”

About one month later, on March 20, 2015, Plaintiff followed up with another email again requesting six of the nine items previously requested. Three days la-ter, on March 23, 2015, Plaintiff followed up with yet another urgent request asking Defendant to send in the itemized docu-ments listed in the February 27 email. As of July 1, '2015, after repeated additional emails, Plaintiff was still missing docu-ments that Defendant had been asked to provide over four months earlier, namely, his 2014 tax returns.

A loan modification application was transmitted via fax by Plaintiff to Bank of America on or about August 17, 2015. The application listed Defendant’s mother, Leo-nor Henriquez, as a co-borrower. An at-tachment indicated that she did not live on the Riverside Property and did not con-tribute to household expenses. Bank of America acknowledged receipt of the ap-plication by letter dated September 16, 2015.

Defendant apparently wanted to dis-tance his mother from the loan modification process. When Bank of America be-came aware of the issues, it requested that Defendant furnish a quitclaim deed taking his mother off of title to the Riverside Property.' This additional complexity creat-ed further delay in the process. Plaintiff took the position that preparing a quit-claim deed, obtaining the necessary signa-tures and notarizations and recording the instrument were not included in the ser-vices it had agreed to provide.

By early fall 2015 Defendant was becom-ing increasingly frustrated with Plaintiff. He sent an email on October 3, 2015 to Plaintiffs employee Anhel Farias that reads in relevant part as follows:

So why do I have a lawyer with you guys and going to end up paying you guys $2400 for? Basically so you can just send the lender my papers I fax to you guys ... I found someone else to do everything not just send to my lender what I sent you ... Tell your boss to take 15 mins. Of his time to help me fill this out [i.e., the quitclaim deed]. Or I’m going to hire someone else to do ev-erything for less money. After my mod-ification goes through I’m filing bankruptcy so feel free to charge me anything you want for something you guys haven’t done... [bold-faced type added by the Court],

The relationship between Plaintiff and Defendant appears to have gone from bad to worse at some point following this com-munication. There is a gap in the email record introduced into evidence in the No-vember/early December 2015 time period. On December 16, 2015, Plaintiffs employ-ee Anhel Farias sent an email to Defen-dant informing him that “the lender closed out your loan modification application for failure to provide the needed documents in a timely manner,” that Plaintiff had closed out his file and that “[a]s a friendly re-minder, you still owe VLG fees for the work performed over the past months re-garding your loan modification.”

Defendant engaged bankruptcy counsel and filed a chapter 7 petition on February 8, 2016. Indebtedness of $3,894.00 to Plain-tiff was scheduled as a disputed general unsecured claim, incurred as of February 20, 2015 (the date Defendant signed the-LSA per DocuSign). Chapter 7 Petition, Docket No. 1, filed February 8, 2016 at page 34 of 60.

Plaintiff timely commenced this adver-sary proceeding on March 22, 2016. Defen-dant answered the complaint on April 22, 2016. The pretrial conference was held on August 18, 2016.

CONCLUSIONS OF LAW

Plaintiff asks the Court to determine that Defendant’s debt to Plaintiff of $3,894.00 arising under the LSA is except-ed from discharge under 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(2)(C)(i)(I).

Defendant contends that Plaintiff should take nothing by his complaint for the fol-lowing reasons: (1) there is no debt be-cause the agreement between the parties is that Plaintiff is entitled to collect its fee only if a loan modification is successful, and the loan modification failed; (2) as-suming arguendo that a debt exists, the debt is dischargeable because Defendant always intended to pay if the loan modifi-cation was successful; (3) Plaintiff loses because Plaintiff failed to properly provide the disclosures required by California Civil Code section 2944.6; and (4) Plaintiff loses because it did not fully perform each and every service it was required to perform under California Civil Code section 2944.7—and therefore cannot legally charge Defendant because one of the ser-vices it was required to perform was ob-taining a loan modification, and this never occurred. (Regarding item (3), the Court notes that Defendant cites no authority for the proposition that a failure to comply with section 2944.6 results in a forfeiture of fees—as opposed to the imposition of criminal sanctions—but as it turns out this is not of great moment in the case).

1. Defendant’s Liability on Plaintiffs Claim.

Plaintiff and Defendant agree that (1) there was a legally-enforceable contract between them, (2) Defendant at some point in time signed the LSA, and (3) Defendant was obligated to pay Plaintiff the amount of fees and costs specified in the LSA if Plaintiff successfully obtained a loan modification for Defendant. The main point of disagreement between them is Defendant’s contention that, in view of his conversation with Plaintiffs employee Phil Alvarez, he was obligated to pay Plaintiff only if Plaintiff was successful in obtaining a loan modification. Implied, although not explicitly stated in Defendant’s argument, is the assumption that Mr. Alvarez’s promises override and take precedence over very clear explicit provisions in the. LSA that Defendant owed the fees irrespective of whether Plaintiff was successful in obtaining a loan modification.

Neither party called Mr. Alvarez as a witness at trial.

The Court regards Defendant’s testimo-ny concerning his conversation with Mr. Alvarez as not credible for the following reasons. Defendant had a copy of the LSA as of approximately mid-February 2015. The LSA clearly provided in plain non-legalese terms that (a) there were no guarantees Plaintiff would be successful in obtaining a loan modification, (b) the Plaintiffs fees and costs were payable ir-respective of whether a loan modification was obtained, and (c) in terms of the tim-ing of the required payment, payment was due upon obtaining the loan modification or upon rejection of the loan modification by the lender. Despite these clear provi-sions, Defendant did not object orally or in writing to the LSA’s terms in this regard after receiving the LSA. Instead, he signed the LSA about 12 hours after re-ceiving it (and personally initialed each and every page, including the page stating the fees and expenses were payable irre-spective of outcome). Nor did he object orally or in writing in June 2015 when a copy of the LSA signed by Mr. Vokshori on Plaintiffs behalf was sent to him. And, most persuasive of all, he did not object orally or in writing at the time of his October 3, 2015 email to Anhel Farias in which he expressed extreme dissatisfaction with the manner in which events were proceeding. These repeated failures to ob-ject to a highly material term of the LSA create a strong inference that he knew all along he had to pay even if a loan modifi-cation failed and that the purported con-versation with Mr. Alvarez is a long-after-the-fact concoction devised as part of a last-ditch effort to escape liability for fees and costs he had agreed to pay.

The Court is strengthened in this con-clusion by the highly contradictory nature of Defendant’s testimony at trial. At one point during the trial Defendant testified that he signed the LSA digitally on Febru-ary 20, 2015. A few minutes later he testi-fied he signed it on June 1, 2015. Having observed his demeanor, the Court con-cludes Defendant’s testimony concerning the statement purportedly made by Mr, Alvarez that he did not have to pay if a loan modification was not obtained simply is not credible.

Plaintiffs trial witness Nadia Sommer-eyns testified to Plaintiffs ironclad business practice of emphasizing to prospective clients that no results were guaranteed and that fees and expenses were payable irrespective of whether a loan modification was obtained or not. The Court regards this testimony as credible and concludes that it supports the conclusion that Mr. Alvarez never made the statements attrib-uted to him by Defendant to the effect that fees and expenses were payable only if a loan modification was obtained.

Defendant further contends that the LSA did not go into effect in mid-Febru-ary 2015 but instead in June 2015 when Mr. Vokshori signed it. Even if this is true, it does not alter the fact that the LSA provides that fees and expenses are payable without regard to the outcome of Plaintiffs loan modification efforts.

For these reasons, the Court concludes that the LSA controls the terms of con-tract between the parties and that no pro-vision of that contract relieves Defendant of the obligation to pay Plaintiffs fees and expenses even if loan modification efforts failed. Thus, Defendant is indebted to Plaintiff in the amount of $3,894.00 plus, if applicable, attorneys’ fees.

2. Exception to Discharge.

11 U.S.C. § 523(a)(2)(A) excepts from discharge any debt for services to the extent obtained by false pretenses, a false representation or actual fraud. The creditor bears the burden of demonstrating by a preponderance of the evidence each of the following five elements: (1) misrepresentation, fraudulent omission or deceptive conduct by the debtor; (2) knowledge of the falsity or deceptiveness of the representation or omission; (3) an intent to deceive; (4) the creditor’s justifiable reb-anee on the representation or conduct; and (5) damage to the creditor proximately caused by reliance on the debtor’s representations or conduct. Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1222 (9th Cir. 2010); Oney v. Weinberg (In re Weinberg), 410 B.R. 19, 35 (9th Cir. BAP 2009).

Numbered paragraph 4 of the LSA states “CLIENT agrees to pay a discounted flat fee of $2400 for this representation ...” and that “CLIENT shall pay an ongoing flat monthly ‘maintenance’ fee of $249” in the event the representation exceeds four months. The Court interprets these provisions as both covenants and representations. A person who enters into a contract and promises to pay the other contracting party impliedly represents that he has the present intention of paying and if he or she does not have this present intention there is a misrepresentation. Defendant was not only promising to pay, he was representing that he would pay if required to do so under the LSA’s terms. This representation was false be-cause, as discussed in greater detail below, Defendant had no intention of paying Plaintiff at the time the LSA took effect (whether in February 2015 as contended by Plaintiff or in May/June 2015 as con-tended by Defendant) in the event Plaintiff was unsuccessful in getting the Bank of America loan on the Riverside Property modified.

An alternative analysis, which the Court also adopts, is that Defendant made a fraudulent omission by not telling Plaintiff that he had no intention of paying if loan modification efforts were unsuccessful. The omission is fraudulent in view of his ex-press written promise to pay irrespective of whether loan modification efforts were successful.

Defendant strenuously argues that he intended all along to pay Plaintiff if the loan was modified and that he understood the deal to be that no payment would be due if the loan modification failed (basing this on the conversation with Mr. Alvarez). Thus, he did not know he was making a misrepresentation and, in any event, had no intent to deceive Plaintiff. The Court rejects these arguments largely for the reasons already discussed above. The facts that Defendant received a full copy of the LSA via DocuSign at about 2:00 p.m. on February 19, 2015, that he had about 12 hours to review it before signing it on February 20, 2015 at 1:28 a.m., that he initialed -each and every page, that the LSA provision requiring payment irrespec-tive of success or failure is placed immedi-ately below the LSA provisions describing the fees due (people signing contracts gen-erally look at the provisions describing how much they are required to pay, even if they look at little else), and that he never orally or in writing complained about the disparity between the, LSA’s terms and what he was supposedly promised by Mr. Alvarez even when he was extremely un-happy with Plaintiffs performance under the LSA all lead to the conclusion that he well knew at the time he signed the LSA and initialed each page that he would have to pay even if LSA was unsuccessful and that he intended to deceive Plaintiff about his intentions so that they would exert their efforts and try to get his loan modi-fied. Additionally, Defendant’s statement in the October 3, 2015 email “[a]fter my modification goes through I’m filing bank-ruptcy so feel free to charge me anything you want for something you guys haven’t done” shows that he had no intention of paying Plaintiff at that time, and this is some evidence that he likewise had no intention of paying Plaintiff at any time unless a loan modification was obtained. Accordingly, the second and third of the five requirements described above are sat-isfied.

The fourth element of fraud as an exception to discharge requires that the bankruptcy court find that the creditor justifiably relied on a debtor’s false statements or misrepresentations. Field v. Mans, 516 U.S. 59, 74-75, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). Justifiable reliance is measured on a subjective standard, which turns on a person’s knowledge un-der the particular circumstances. Citibank (South Dakota), N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1090 (9th Cir. 1996). Reliance can be presumed where the fraud primarily involves omissions. Bershadskiy v. Rodeo Realty, Inc. (In re Bershadskiy), BAP No. CC-12-1452-Ta-KuKi, 2013 WL 5630631, 2013 Bankr. LEXIS 4597 (9th Cir. BAP Oct. 15, 2013) (unpublished but cited for persuasive val-ue). Because direct proof of reliance is difficult, actual reliance may be proven by circumstantial evidence of reliance. In re, Faulk, 69 B.R. 743, 749 (Bankr. N.D. Ind. 1986).

Plaintiff justifiably relied on Defendant’s representation in the LSA that he had the intention of paying the amounts due under the LSA irrespective of whether loan mod-ification efforts were successful. The reliance was justifiable because (1) Defendant signed the LSA, (2) Defendant initialed each and every page of the LSA and (3) contemporaneous with these actions, De-fendant did not manifest, either orally or in writing, any disagreement with the LSA provision that the obligation to pay was not contingent on successfully obtaining a loan modification.

Under the Court’s alternative analysis that a fraudulent omission occurred when Defendant failed to inform Plaintiff at the time he signed the LSA that he had no intention of paying if loan modification ef-forts failed, reliance is presumed and is justifiable for the reasons discussed in the preceding paragraph.

The losses proximately caused by Defen-dant’s misrepresentation or fraudulent omission are the amounts due under the LSA. Defendant’s counsel conceded as much in closing argument. Based upon the totality of the evidence, there is no doubt that Plaintiff would not have taken this matter on if Defendant had refused to sign the LSA or, alternatively, if Defen-dant had told Plaintiff that, notwithstand-ing the LSA, he was not going to pay Plaintiff if the loan modification efforts failed.

3. Alleged Statutory Defenses.

Defendant argues that Plaintiffs alleged failure to comply with the terms of two statutory provisions, California Civil Code section 2944.6 and California Civil Code section 2944.7, fatally undermine Plaintiffs causes of action herein.

Section 2944.6 requires any person who offers to perform a loan modification to provide a specific notice to the borrower “prior to entering into any fee agreement with the borrower.” The required notice appears in numbered paragraph 15 of the LSA. Irrespective of whether the LSA was technically entered into in February 2015 or June 2015, it is clear that Plaintiff complied with section 2944.6 by providing Defendant with the required notice “prior to entering into any fee agreement.”

Section 2944.7 criminalizes any act to claim, demand, charge, collect or receive any compensation for loan modification services until after full performance of the loan modification services. Here, the- record shows that Plaintiff did not bill Defendant or attempt in any manner to collect fees from Defendant until after the loan modification request had been rejected by the lender and after full performance of services had occurred. Specifically, the first request for payment appears to have been made in the December 16, 2015 email from Anhel Farias to Defendant. By that time the lender had rejected the modification and Plaintiff- had closed out Defen-dant’s file.

.Consequently, each of Defendant’s al-leged statutory defenses fails.

CONCLUSION

For the reasons stated above, the Court determines that the indebtedness of De-fendant to Plaintiff arising from the LSA is excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A). In view of this dis-position, the Court does not reach Plain-tiffs arguments under 11 U.S.C. § 523(a)(2)(C).

Plaintiff has proven up a claim of $3,894.00. If Plaintiff believes this amount should be augmented by attorneys’ fees and expenses pursuant to numbered para-graph 10 of the LSA or under any other provision of law or statute, Plaintiff shall file a pleading supported by one or more declarations advancing such argument on or before November 15, 2016. Defendant may file a reply on or before November 29, 2016, whereupon the Court will review the pleadings and issue an order with respect to this matter.

If Plaintiff elects not to pursue attor-neys’ fees and costs, Plaintiff shall lodge a form of judgment within 14 days of the date of entry of this Memorandum Decision and Order.

IT IS SO ORDERED. 
      
      .Defendant's Exhibit B, page 1 ("For infor-mational purposes, our records indicate that the loan is paid through the March 2013 installment”).
     
      
      . Reporter’s Transcript ("RT”) at page 109, lines 22-25, page 110, line 1.
     
      
      . Plaintiff's Exhibits 1 and 4.
     
      
      . Plaintiff's Exhibit 4. It appears the signature was made by Defendant using his finger on the screen of the electronic device he used to view the LSA. RT at pages 33-34.
     
      
      , Plaintiffs Exhibit 1.
     
      
      . Defendant’s Exhibit A, page 1.
     
      
      . Defendant’s Exhibit A, page 19.
     
      
      . RT at page 98, lines 12-15.
     
      
      . RT at page 100, lines 16-17.
     
      
      .RT at page 73, lines 10-18.
     
      
      . See Arciniega v. Clark (In re Arciniega), BAP No. CC-15-1123-KiGD, 2016 WL 455428, 2016 Bankr. LEXIS 343 (9th Cir. BAP Feb. 3, 2016) (debtor's contractual promise to "take all necessary measures to pay off the existing VA loan" interpreted as a representation).
     
      
      . An alternative analysis, reaching the same end point result, is that a person who prom-ises to do x makes a fraudulent omission if, at the time he or she promises to do x, he or she has no intention of doing x. In any event, it is clear that a promise made with a positive intent not to perform or without a present intent to perform satisfies 11 U.S.C. § 523(a)(2)(A). Rubin v. West (In re Rubin), 875 F.2d 755, 759 (9th Cir. 1989).
     
      
      . The reference to "after my loan modification goes through” may be an inartful way of referring to a loan modification rejection. It also may be a reference to obtaining a loan modification by using a different loan modifi-cation services provider. Finally, it may also mean that Defendant as of October 3, 2015 had no intention of paying Plaintiff even if Plaintiff successfully obtained a loan modifi-cation for him. None of these interpretations is favorable to Defendant.
     
      
      . RT at page 32, lines 11-13.
     
      
      . RT at page 129, lines 5-6.
     
      
      . Plaintiffs Exhibit 1 at page 12.
     
      
      . Defendant’s Exhibit A, page 19.
     