Opinion
Case No. 6:13-bk-10012-KSJ Adversary No. 6:13-ap-00201-KSJ
09-05-2014
In re SHANE V. GARNER, Debtor. THE STATE OF TEXAS, Plaintiff, v. SHANE V. GARNER, Defendant.
Chapter 7 FINAL JUDGMENT
This adversary proceeding came on for consideration on the Plaintiffs' Motion for Summary Judgment (Doc. No. 21). Consistent with the Memorandum Opinion entered contemporaneously, it is
ORDERED:
1. The Motion for Summary Judgment (Doc. 21) is granted.
2. Judgment is entered in favor of the Plaintiff, The State of Texas, and against the Debtor/Defendant, Shane V. Garner.
3. The Final Judgment entered by the Texas state court, a copy of which is attached, is not discharged under § 523(a)(2)(A), including the amounts assessed for attorney fees and civil penalties.
DONE AND ORDERED in Orlando, Florida, on September 5, 2014.
/s/__________
KAREN S. JENNEMANN
Chief United States Bankruptcy Judge
Cheryl Marie Brittle, Attorney for Plaintiff, is directed to serve a copy of this order on interested parties and file a proof of service within 3 days of entry of this order.
CAUSE NO. DC-13-04175
STATE OF TEXAS, Plaintiff,
v.
SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY
and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, Defendants.
IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 14th JUDICIAL DISTRICT
FINAL JUDGMENT AND PERMANENT INJUNCTION
CAME ON TO BE CONSIDERED this day the above entitled and numbered cause in which the STATE of TEXAS by and through the Attorney General of Texas, Greg Abbott and his Consumer Protection Division, is Plaintiff and SHANE V. GARNER, Individually and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, are DEFENDANTS. PLAINTIFF State of Texas appeared by and through its Attorney General GREG ABBOTT and his assistants. DEFENDANTS, for purposes of the agreed stipulations, agreed findings of fact and conclusions of law, definitions, restitution, civil penalties, attorneys' fees and costs, Credit Alliance Group, Inc., agreed permanent injunction, and other relief in Sections I. through VI. of this Final Judgment, appeared by and through their Chapter 7 Bankruptcy Trustee, Richard Webber, Esq., Zimmerman Kiser and Sutcliffe, P.A., 315 East Robinson Street, Suite 600, Orlando, FL 32801. For purposes of permanent injunctive relief, Defendant SHANE V. GARNER, is proceeding pro se. As to the agreed stipulations, findings of fact, conclusions of law, definitions, Credit Alliance Group, Inc., agreed permanent injunction, restitution, civil penalties, attorneys' fees, costs, and other relief and provisions of Sections I. through VI. of this Final Judgment, the parties each announced their agreement and consent to entry of Sections I. through Section VI. of this Final Judgment as to the claims of PLAINTIFF against DEFENDANTS, waiving the making of a further record other than this Judgment and Permanent Injunction and prior to the offering of any further testimony or evidence in this cause, jointly moved the Court enter this Sections I., II., III., IV., V. and VI. of this Judgment as a Final Judgment as against each of the defendant parties and the claims by Plaintiff.
PLAINTIFF and DEFENDANT CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, announced their agreement and consent to entry of Sections VII. and VIII., of this Final Judgment and Permanent Injunction as to the claims of PLAINTIFF against DEFENDANT CREDIT ALLIANCE GROUP, INC., waiving the making of a further record other than this Judgment and Permanent Injunction and prior to the offering of any further testimony or evidence in this cause, jointly moved the Court enter these Sections VII. and VIII. of this Judgment as a Final Judgment and Permanent Injunction as against Defendant CREDIT ALLIANCE GROUP, INC., and the claims by Plaintiff.
Plaintiff, based on each of the Parties' Agreed Stipulations, Agreed Findings of Fact and Conclusions of Law, definitions, Credit Alliance Group, Inc. agreed permanent injunction, other agreed terms of Sections I. through VI. of this Final Judgment, but without Defendant GARNER'S agreement as to the applicability of the injunctive relief in Section VII., and other relief in Section VIII., as to GARNER in his individual capacity, further moved the Court enter additional findings and an Order of Permanent Injunction against Defendant GARNER, individually, as warranted by the the Parties' Agreed Stipulations of law and fact as separately filed in the pleadings of this case, the parties' findings of fact, conclusions of law, definitions, Credit Alliance Group, Inc., agreed permanent injunction, restitution, civil penalties, attorneys' fees, costs, and other relief and provisions of Sections I. through VI. of this Final Judgment, as well as the other pleadings, findings, witness testimony and evidence in this case, and in order to prevent future deceptive trade practices and violations of law by Defendant GARNER, indivdually. The Court, having reviewed the parties' representations, agreed stipulations, agreed findings of fact and conclusions of law, and other agreed proposed terms in Sections I. through V. of this Final Judgment, as well as the CREDIT ALLIANCE GROUP, INC.'s, agreed permanent injunctive relief in Section VI. and the pleadings, witness testimony, other findings and the other evidence before the Court in this case, and Plaintiff's request for permanent injunction and further findings and relief, enters and Orders this Final Judgment and Permanent Injunction as follows:
I. AGREED STIPULATIONS
1.1 It is stipulated by and between the Parties that Plaintiff and Defendants have fully compromised and settled all of Plaintiff‘s claims against Defendants including, without limitation, all of the claims stated in Plaintiff's Original Petition for Civil Penalties and Injunctive Relief filed in this cause alleging violations of violations of the Texas Deceptive Trade Practices and Consumer Protection Act (TEX. BUS. & COMM. CODE ANN §§ 17.41 et seq.) (the "DTPA") and the standards and licensing requirements of Chapter 394 of the Texas Finance Code (the "Debt Management Services Act") and that Plaintiff and each of the Defendants agrees and stipulates to the truth of each of the allegations as alleged in Plaintiff's Orginal Petition and that no Defendant contests the entry of, and each Defendant in fact does consent and agree to the entry of this Final Judgment, without trial, further hearing, evidence, or further adjudication of any issue of fact or law.
1.2 It is specifically stipulated by and between the parties that they understand this Final Judgment, and each of its provisions and obligations, and that each of the parties is aware of the duties placed upon it, and each is desirous and capable of carrying out those duties in full.
1.3 It is specifically stipulated by and between the parties that they have had the benefit of legal counsel and that Richard Webber, as Chapter 7 Bankruptcy Trustee for Defendants SHANE V. GARNER, Individually, and CREDIT ALLIANCE GROUP, INC., has authority, on behalf of SHANE V. GARNER, Individually, and CREDIT ALLIANCE GROUP, INC., to agree to entry of the terms of Sections I. through VI. of this Final Judgment and Permanent Injunction.
1.4 It is specifically stipulated by and between the parties that this Court has jurisdiction of this matter and that venue is proper in Dallas County, Texas.
1.5 It is specifically stipulated by and between the parties that this Final Judgment shall be final and that each waives all rights to appeal this Final Judgment as to all provisions except Defendant GARNER's individual rights to appeal both the permanent injunctive relief ordered by Section VII. and the Other Relief Ordered in Section VIII. of this Final Judgment, as same apply to Defendant GARNER in his individual capacity, shall be governed by the Texas Rules of Civil Procedure because Defendant GARNER's bankruptcy trustee, Richard Webber, does not have authority on behalf of Defendant GARNER, individually, to agree to permenant injunctive relief against Defendant GARNER, individually.
1.6 It is specifically stipulated by and between all parties that each has actively participated in negotiations leading to this Final Judgment and that this agreement is freely and voluntarily made without duress.
1.7 It is specifically stipulated by and between the parties that Defendants have been and/or are engaged in "trade" and "commerce" as defined by Section 17.45(6) of the DTPA;
1.8 It is specifically stipulated by and between the parties that this Court has jurisdiction of this matter and that venue is proper in Dallas County, Texas.
1.9 It is specifically agreed by and between the parties, notwithstanding Defendant GARNER's lack of agreement in his individual capacity to the permanent injunctive relief terms of Section VII. and other relief of Section VIII., that all parties otherwise fully understand this Final Judgment and Permanent Injunction, its provisions and its obligations, and that each of the parties is aware of the duties placed upon them by this Final Judgment and Permanent Injunction and each party is desirous of carrying out those duties in full.
1.7 It is specifically stipulated by and between the parties that all conditions precedent to Plaintiff's claims for relief have been performed or have occurred and that this settlement between the parties is fair, reasonable and just; that the agreed terms of this Final Judgment and Permanent Injunction, in Sections I. through VI., are freely and voluntarily made by all parties without duress, and that this Final Judgment is entered into and agreed by the parties to settle to avoid the uncertainties and costs of litigation.
1.8 It is specifically stipulated by and between the parties that this Final Judgment is in accord with the DTPA and all applicable law and is proper in all respects.
1.9 It is specifically stipulated by and between the parties that, notwithstanding Defendant GARNER's lack of agreement in his individual capacity to the permanent injunctive relief terms of Section VII. and other relief of Section VIII., each party otherwise acknowledges receipt and acceptance of copies of this Final Judgment and Permanent Injunction, each has full notice of the terms of this Final Judgment and Permanent Injunction, and that the issuance and service of a Writ of Injunction are likewise waived.
1.10 It is specifically stipulated by and between the parties, notwithstanding Defendant GARNER's lack of agreement in his individual capacity to the permanent injunctive relief terms of Section VII. and other relief of Section VIII., that it would be in the best interest of the parties if the Court approved this settlement and render judgment accordingly and that the terms of this Final Judgment and Permanent Injunction are sufficiently detailed and specific to be enforceable by the Court pursuant to Rules 683 and 692 of the Texas Rules of Civil Procedure.
1.11 It is specifically stipulated by and between all parties that they have jointly filed Agreed Stipulations of Fact and Law, consistent with the Findings of Fact and Conclusions of Law in Section II. of this Final Judgment, as a separate pleading among the pleadings in this case prior to the Court's consideration and entry of this Final Judgment and Permanent Injunction.
1.12 It is stipulated by and between the parties that any other agreed provision of this Final Judgment notwithstanding, Defendant SHANE V. GARNER, individually, does not voluntarily agree to the permanent injunctive relief in Section VII. and other relief in Section VIII. of this Final Judgment and Permanent Injunction and reserves his rights to appeal pursuant to Chapter 51 of the Texas Civil Practice and Remedies Code.
II. AGREED FINDINGS OF FACT AND CONCLUSIONS OF LAW
2.1 Pursuant to the agreements and stipulations of the parties, as well as the pleadings,prior rulings, witness testimony and other evidence before this Court:
2.2. The Court FINDS, as agreed and stipulated by the parties, that each of the facts and allegations in Plaintiff's Original Petition, including the Exhibits a. through h. of Plaintiff's Original Petition, are true and correct and incorporated herein by reference.
2.3 The Court FINDS, as agreed and stipulated by the parties, that each of the Defendants, SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, have continuously engaged in conduct in direct violation of the Texas Consumer Debt Management Services Act, Texas Finance Code Chapter 394, by:
a. Providing debt management services in Texas without first securing the legally required registration from the Texas Consumer Credit Commissioner in violation of TEX. FIN. CODE ANN. § 394.204(a);
b. Acting in reliance on, attempting to enforce, misrepresenting the validity of customers' void contractual authorizations, and failing to disclose that the contracts were void due to Defendants' failures to obtain a registration to provide consumer debt management services in Texas in violation of TEX. FIN. CODE ANN. § 394.215(a) and TEX. FIN. CODE ANN. § 394.212(a)(9);
c. Failing to use a trust account for the management of money paid by or on behalf of a consumer and received by the provider of debt management services for disbursement to the consumer's creditors in violation of TEX. FIN. CODE ANN. § 394.211 (a) and TEX. FIN. CODE ANN. § 394.212(a)(9);
d. Commingling consumers' funds with operating funds of the provider in violation of TEX. FIN. CODE ANN. § 394.211(a) and TEX. FIN. CODE ANN. § 394.212(a)(9);
e. Failing to maintain a trust account with funds materially in balance with and reconciled to the consumers' accounts in violation of TEX. FIN. CODE ANN. § 394.211(b) and TEX. FIN. CODE ANN. § 394.212(a)(9);
f. Failing to notify the Texas Consumer Credit Commissioner that Defendants' trust
account(s) continuously did not contain sufficient money to cover the aggregate consumer balances in violation of TEX. FIN. CODE ANN. § 394.211 (c) and TEX. FIN. CODE ANN. § 394.212(a)(9); and
g. Breaching their duties to maintain a trust account with funds materially in balance with and reconciled to customer accounts at all times and their duties to ensure that client money held by the provider is managed properly at all times in violation of TEX. FIN. CODE ANN. § 394.213 and TEX. FIN. CODE ANN. § 394.212(a)(9).
2.4 The Court FINDS, as agreed and stipulated by the parties, that each of the Defendants was engaged in trade and commerce in the State of Texas at all times, and for all purposes, relevant to the conduct enumerated in the agreed facts in this Final Judgment.
2.5 The Court FINDS, as agreed and stipulated by the parties, that each Defendant, SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, has engaged in false, misleading, and deceptive acts and practices declared unlawful in sections §17.46 (a) and (b) of the DTPA as follows:
a. Failing to disclose that Defendants were illegally offering debt management services when in fact neither Defendant ever obtained an approved registration as a debt management services provider from the Texas Consumer Credit Commissioner thereby causing confusion and misunderstanding as to the affiliation, association and certification of Defendants' debt management services in violation of DTPA §17.46 (a), and §17.46(b)(3);
b. Advertising, offering and/or performing debt management services without disclosing their failure to secure the prerequisite registration legally required to provide
such services pursuant to TEX. FIN. CODE ANN. § 394.204(a), Defendants have misrepresented, or are misrepresenting themselves, and their debt management services, to have sponsorship, approval and characteristics they do not have in violation of §17.46 (b)(5) and (b)(24) of the DTPA;
c. Misrepresenting their debt management services to have characteristics or benefits which they do not have by representing Defendants typically resolved customer debts for as little as 20 percent of the outstanding balance of the debt, when such were not typical results for CAG clients in violation of §17.46 (b)(5) and (b)(9);
d. Misrepresenting their debt management services to have characteristics or benefits which they do not have by representing Credit Alliance Group, Inc., to be a "Member, FDIC" when Credit Alliance Group, Inc. was not a member of the FDIC, in violation of §17.46 (b)(5) and (b)(9);
e. Failing to disclose that Defendants were illegally offering debt management services when in fact neither Defendant ever obtained an approved registration as a debt management services provider from the Texas Consumer Credit Commissioner thereby causing confusion and misunderstanding as to the source, approval and certification of Defendants' debt management services in violation of DTPA §17.46 (a), and §17.46(b)(2);
f. Misrepresenting their debt management services to have characteristics, benefits, approvals, and certifications they did not have by representing that each customer's funds would be held in a fully insured individual Comerica savings account, solely under the customer's control, in order to induce customers to enroll, when in fact Defendants never set up such individual accounts for most clients, failed to maintain funds within the
individual customer accounts that were created, failed to maintain any trust account with a balance materially in balance and reconciled to the customers' accounts and failing to comply with client requests for refunds of such monies, in violation of §17.46 (a) and §17.46 (b)(5), (b)(7), (b)(9) and (b)(12) of the DTPA;
g. Misrepresenting their debt management services agreements to confer or involve rights, remedies, and obligations which such contracts do not have or involve, and which are prohibited by law, by to failing to disclose that clients' contracts were void as a matter of law due to Defendants' failure to obtain the prerequisite registration from the Texas Consumer Credit Commissioner in violation of §17.46 (b)(12);
h. Failing to disclose information that customers' funds were commingled within Defendants' business operating accounts, and Defendant GARNER'S personal bank accounts, and further failing to disclose that Defendant GARNER was using, and would continue to use, consumers' commingled funds for payment of his own bills, redecorating his house, paying his BMW car payments, and other personal uses, with the intent that such failures to disclose would induce consumers into transactions for debt management services from Defendants that the consumers would not have entered had the information been disclosed in violation of DTPA §17.46 (a), and §17.46(b)(24).
i. Using abusive language to discourage Defendants' customers from exercising their rights to cancel their agreements with Defendants and seek refunds in violation of DTPA §17.46 (a);
j. Using abusive language and threats to discourage Defendants' former employees from reporting Defendants' violations of the DTPA and Chapter 394 of the Texas Finance Code to the Texas Attorney General's Office and other law enforcement
authorities in violation of DTPA § 17.46 (a).
2.6 The Court FINDS, as agreed and stipulated by the parties, that the misreprsentations outlined in paragraphs 2.2 through 2.5 above were made by both Defendant GARNER, Individually, and Defendant CREDIT ALLIANCE GROUP, INC., with the intent that consumers rely on the misrepresentations, that the consumers did reasonably rely on those misrepresentations, and that the consumers were damaged by the misrepresentations.
2.7 The Court FINDS, as agreed and stipulated by all parties, that each of the Defendants, SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, paid a commission fee (also referred to as a "bounty") to LowerMyBills.com, a subsidary of Experian until October 2012, in exchange for: 1) LowerMyBills.com's providing Defendants with consumer names, addresses and other personal information; and 2) LowerMyBills.com's provision of other marketing strategies and services to assist Defendants' efforts and abilities to induce consumers to entrust their assets to Defendants'under the false pretense that Defendants would provide customers with bona fide debt management services. Defendants further provided LowerMyBills.com with customer information updates specifiying the identities of the consumers, initially referred to DEFENDANTS by LowerMyBills.com, who were successfully induced to entrust their assets DEFENDANTS based on DEFENDANTS' false promises to provide legal, successful settlement of the consumers' debts.
2.8 The Court FINDS, as agreed and stipulated by the parties, that the business records of Defendant CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, combined with the records provided within customer complaints to the Better Business Bureau and or the Texas Attorney General's Consumer Protection Division, reflect that between March 7, 2006 to February 14, 2013, Credit Alliance Group, Inc.'s over 3,000 customers entrusted a total of over TWELVE MILLION ONE HUNDRED THOUSAND DOLLARS ($12,100,000.00) to Defendants for purposes of negotiating and resolving the customers' debts and further reflect that many customers' debts were never settled by DEFENDANTS, and those customers' assets and payments were never refunded by DEFENDANTS, including the FOUR MILLION TWO HUNDRED THOUSAND DOLLARS ($4,200,000.00) of customers' funds Defendants represented would be held in trust and remain under the customers' direct control, and that the assets frozen by the Court's Temporary Injunction Order of April 26, 2013, up to these FOUR MILLION TWO HUNDRED THOUSAND DOLLARS ($4,200,000.00) are held in constructive trust on behalf of the Credit Alliance Group, Inc., customers, and only released from this Court's asset freeze on condition that Plaintif and Defendants' bankruptcy Trustee have agreed, proposed and received an order from the Bankruptcy Court providing for same funds to be used solely to return the escrow amounts owed to Defendants' customers.
2.9 The Court FINDS, as agreed and stipulated by the parties, that it has jurisdiction under the provisions of the DTPA (Tex. Bus. & Comm. Code Ann. §§17.41 et seq.), over the subject matter and over all the Parties to this action and that venue of this matter is proper in Dallas County, Texas because Defendants conducted business in Dallas County, Texas and a substantial part of the events or omissions giving rise to this lawsuit occurred in Dallas County, Texas.
2.10 The COURT FINDS that Plaintiff's Original Petition for Civil Penalties and Injunctive Relief alleges violations of the DTPA and states claims upon which relief can be granted, and that Plaintiff has the authority to seek the relief it has requested.
2.11 The Court FINDS that because of their joint and several actions of violation, Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, are each jointly, and severally, liable for the entire agreed amounts of restitution, civil penalties, attorneys' fees and costs ordered to be paid in this Final Judgment.
2.12 The COURT FINDS, having reviewed the pleadings, witness testimony and other evidence, and the parties agreed stipulations of fact and law and it appearing to the Court that the parties have all agreed to and approve entry of Sections I. through VI. of this Final Judgment and Permanent Injunction, that, despite Defendant GARNER's failure to agree, in his individual capacity, to either the findings and permenant injunctive in Section VII., or the Other Relief in Section VIII., this Final Judgment and Permanent Injunction should be entered by the Court subject to Defendant GARNER's rights, in his individual capacity, to object and appeal as to Sections VII. and/or VIII. of this Final Judgment and Permanent Injunction pursuant to Chapter 51 of the Texas Civil Practice and Remedies Code.
III. AGREED DEFINITIONS
3.1 As used in this Final Judgment words or phrases are to be given the meaning as provided by Texas Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. & COM. CODE ANN. §17.41 et seq..
3.2 As used herein, the term "parties," refers collectively to the following three parties including Plaintiff, STATE OF TEXAS, Defendant SHANE V. GARNER, Individually and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY.
IV. AGREED RESTITUTION. CIVIL PENALTIES. ATTORNEYS' FEES AND COSTS
4.1 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, the STATE OF TEXAS shall have and recover judgment against Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY as Restitution to consumers and other identifiable persons pursuant to Texas Business and Commerce Code Section 17.47(d), the sum of TWELVE MILLION ONE HUNDRED THOUSAND AND NO/100THS DOLLARS ($12,100,000.00). Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY are each jointly, and severally liable for this full restitution, penalty, attorneys' fees and costs judgment amount and shall pay and deliver said sum to the STATE OF TEXAS as set forth herein.
4.2 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, the STATE OF TEXAS shall have and recover judgment against Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, as a civil penalty, and not as compensation for actual pecuniary loss, the sum of TWENTY FOUR MILLION AND NO/100THS DOLLARS ($24,000,000.00). Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY are each jointly, and severally, liable for this full penalty judgment amount and shall pay and deliver said sum to the STATE OF TEXAS as set forth herein.
4.3 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, the STATE OF TEXAS, shall have and recover judgment against Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, as reasonable attorneys' fees, the sum of SIX HUNDRED FORTY THOUSAND AND NO/100THS DOLLARS ($640,000.00) for reimbursement of attorneys fees to the TEXAS ATTORNEY GENERAL which fees were incurred on behalf of the Plaintiff and do not constitute an antecedent debt with respect to this litigation and shall pay and deliver said sum to the TEXAS ATTORNEY GENERAL as set forth herein. Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY are each jointly and severally liable for this full attorneys' fees judgment amount and shall pay and deliver said sum to the TEXAS ATTORNEY GENERAL as set forth herein.
4.4 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, the STATE OF TEXAS shall have and recover judgment against Defendants and Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY all taxable costs of court in this cause. Defendants SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY are each jointly and severally liable for the full taxable costs of court and shall pay and deliver said sum as set forth herein.
4.5 IT IS FURTHER ORDERED ADJUDGED AND DECREED that Defendants SHANE \L GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY shall pay the aforementioned judgment for Restitution, Attorneys' Fees and Civil Penalties instanter upon entry of this Final Judgment. Payments of the judgment amounts shall be made by certified check or money order payable to the State of Texas, Office of the Attorney General, and delivered to the Office of the Texas Attorney General, Accounting Division, 300 West 15th Street, Austin, Texas, 78701, and identified for proper accounting purposes by this case Cause Number, "DC-13-04175," and also by "OAG #123356644."
4.6 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if any of the Defendants SHANE V. GARNER, INDIVIDUALLY or d/b/a CREDIT SERVICES TODAY or CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY does not fulfill, or only partially fulfills, the payment obligations set forth herein above pursuant to Section 1.1 of this Final Judgment and Permanent Injunction, the facts as alleged in the STATE OF TEXAS' Original Petition in this cause shall be taken as admitted and stipulated true by the defaulting Defendant(s) in any subsequent action filed by the STATE OF TEXAS to enforce its rights pursuant to this Final Judgment and Permanent Injunction.
4.7 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties may make a subsequent separate written agreement as to time, amounts and manner of payment of the judgment, to be filed with the Court, which shall not be deemed a material variance with the terms and conditions of the Judgment.
V. CREDIT ALLIANCE GROUP, INC., AGREED PERMANENT INJUNCTION
5.1 The Court FINDS that, based on the parties' Agreed Stipulations, Findings of Fact and Conclusions of Law, definitions, restitution, penalties and attorneys' fees and costs, as well as the pleadings, prior rulings of the Court, witness testimony, and other evidence before the Court in this Cause, and this Court's authority including pursuant to Section 17.47(d) of the Texas Business and Commerce Code, the following permanent injunctive relief is warranted to prevent future violations of the DTPA and the laws of the State of Texas.
5.1 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, as well as the agents, employees, attorneys of CREDIT ALLIANCE GROUP, INC., in their capacity as counsel for the Defendant, and all persons and other entities acting in concert with them, are hereby PERMANENTLY ENJOINED FROM:
a. Providing debt management services, or credit monitoring services, credit counseling service or otherwise conducting business in Texas as a debt management services organization or as an agent or employee of any person providing debt management services, credit counseling services or debt collection services in the State of Texas;
b. Entering into any contract with any person for purposes of the Defendant advertising, promoting, facilitating or providing debt management services, credit monitoring services, credit counseling services or debt collection services to any person.
c. Accepting any money or funds from any person for the purpose of advertising, promoting, facilitating or providing debt management services, credit monitoring services, credit counseling services or debt collection services.
d. Advertising, offering for sale, or selling any good or service without clearly and conspicuously disclosing all the material terms of that good or service prior to accepting any form of payment for that good or service.
e. Representing that a business entity, program or service affiliated with the Defendant(s) has benefits, sponsorships or affiliations which it does not have.
f. Misrepresenting the benefits received, or which may be received, by any consumer using a good or service offered for sale by the Defendant(s). This includes, but is not limited to, representing that a consumer is able to improve their personal credit rating through the use of any goods, programs or services offered by the Defendant.
g. Causing (or threatening to cause) physical, emotional or economic harm to any current or former employee of the Defendant; any current or former customer of the Defendant, or any other person, because that person either offers to provide, or is requested to provide, cooperation to any civil or criminal law enforcement authority regarding the Defendant's compliance with the terms or conditions of this Final Judgment and Permanent Injunction.
5.3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED this Final Judgment and Permanent Injunction binds DEFENDANT, CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY and any of DEFENDANT CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY'S agents, employees, attorneys of each Defendant in their capacity as counsel for the Defendant, and any persons or other entities acting in concert with them, who receive notice of this order by service or otherwise.
5.3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY shall provide written notice of this Final Judgment and Permanent Injunction to each of DEFENDANT CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY's agents, attorneys and employees existing on or after the date of entry of this Final Judgment and Permanent Injunction and to each person who requests, that DEFENDANT CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, or its owner(s), render services, or perform actions, enjoined by this Final Judgment and Permanent Injunction.
VI. OTHER AGREED RELIEF
6.1 IT IS FURTHER ORDERED, ADJUDGED AND DECREED, as stipulated and agreed by and between the parties, that Defendants, SHANE V. GARNER, INDIVIDUALLYand d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY have each received actual notice of the Agreed Stipulations,Agreed Findings of Fact and Conclusions of Law, Agreed Definitions, Agreed Restitution, Civil Penalties, Attorneys' Fees and Costs,Agreed Permanent Injunctive Relief against CREDIT ALLIANCE GROUP, INC., aka CREDIT SERVICES TODAY, Agreed Other Relief provisions (Sections I., II., III., IV.,V., and VI.) of this Final Judgment, that this Judgment is final, and that all parties hereto have waived all rights to appeal from the Agreed Stipulations, Agreed Findings of Fact and Conclusions of Law, Agreed Definitions, Agreed Restitution, Civil Penalties,Attorneys' Fees and Costs provisions and the Other Agreed Relief (Sections I., II., III., IV., V. and VI.) of this Final Judgment and Permanent Injunction.
6.2 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if any Defendant, SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY or CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, violates the terms or conditions of Sections I. through VI. of this Final Judgment and Permanent Injunction, set forth herein above, that said Defendant(s) shall be subject to damages, fines, or penalties allowed by law, to be determined by this Court, for the acts that constitute contempt of court or that otherwise constitute a violation of the terms and conditions of this Final Judgment and Permanent Injunction and that pursuant to Section 1.1 of this Final Judgment and Permanent Injunction the facts as alleged in the STATE OF TEXAS' Original Petition in this cause shall be taken as admitted and stipulated true by the defaulting DEFENDANT(s) in any subsequent action filed by the STATE OF TEXAS to enforce its rights pursuant to Agreed Sections I. through VI of this Final Judgment and Permanent Injunction.
6.3 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court retains its jurisdiction to enforce, modify, and construe this Final Judgment and Permanent Injunction.
6.4 IT IS FURTHER ORDERED ADJUDGED AND DECREED that as evidenced by the signatures below, both Defendant SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY have received actual notice of Sections I. through VI. of this Final Judgment and Permanent Injunction and that Defendant CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY has further recived actual notice of Sections VII. and VIII. of this Final Judgment and Permanent Injunction and that Mr. Richard Webber, Chapter 7 Bankruptcy Trustee for Defendants, shall provide further actual notice to Defendant SHANE V. GARNER, Individually, and CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, of the full specific terms and conditions of this Final Judgment and Permanent Injunction within ten (10) days herefrom.
6.5 IT IS FURTHER ORDERED ADJUDGED AND DECREED that the parties may make a mutual written agreement, between Plaintiff and Defendants, regarding a change of address, place, time or manner of payment of the judgment amounts adjudged herein without such being deemed a material and substantial change of the Final Judgment and Permanent Injunction.
VII. PERMANENT INJUNCTION AND FURTHER FINDINGS
AS TO SHANE V. GARNER, INDIVIDUALLY
7.1 The Court FINDS that Defendant SHANE V. GARNER, Individually, engaged in the deceptive trade practices and unlawful conduct as alleged in Plaintiff's Original Petition and further refelected in this Court's Findings as enumerated Sections I. through VI. of this Final Judgment, with the intent to mislead his consumer victims to be induced to entrust their funds to GARNER, and CREDIT ALLIANCE GROUP, INC. and agree to pay for Defendants' purported debt management services.
7.2 The Court FINDS that consumer victims of Defendants' unlawful conduct as found by this Court did reasonably rely upon the misrepresentations of SHANE V. GARNER, Individually, and were materially harmed by the misrepresentations.
7.3 The Court FINDS that Defendant SHANE V. GARNER, Individually, received actual notice, by email dated December 21, 2013, as confirmed by GARNER'S email to the Texas Attorney General's on December 23, 2013 at 10:52am Central Time. The Court further FINDS that Defendant SHANE V. GARNER failed to appear and show cause on January 23, 2014 in violation of the Court's Order to Appear and Show Cause.
7.4 The Court FINDS that Defendant SHANE V. GARNER, Individually, engaged in contemptuous conduct in violation of the Temporary Restraining Order and Temporary Injunction with Asset Freeze entered in this case, by removing and transferring his BMW SUV and computers from Texas to Florida in April 2013 after receiving actual notice of the Court's Temporary Injunction and continued to refuse to return the BMW SUV to Texas after receiving notice of the Temporary Injunction in this Cause.
7.5 The Court FINDS that, after receiving actual notice of the Court's Temporary Injunction in this Cause, Defendant SHANE V. GARNER, Individually, engaged in contemptuous conduct in violation of the Temporary Injunction with Asset Freeze, on June 26, 2013, and June 29, 2013 (one day before and two days after appearing for a hearing before this Court on June 27, 2013), by causing a lock to be cut off of his frozen Public Storage Unit at 2420 N. Haskell Ave, Dallas, Texas 75204, and removing and transferring frozen assets from that storage unit.
7.6 The Court FINDS that, based on the parties' Agreed Stipulations, Findings of Fact and Conclusions of Law, further FINDINGS by the Court as enumerated in this judgment, as well as the pleadings, prior rulings of the Court, witness testimony, and other evidence before the Court in this Cause, and this Court's authority including pursuant to Section 17.47(d) of the Texas Business and Commerce Code, the following permanent injunctive relief is warranted to prevent future violations of the DTPA and the laws of the State of Texas.
7.7 IT IS THEREFORE ORDERED that Defendant SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, as well as the agents, employees, attorneys, and all persons and other entities acting in concert with them, are hereby PERMANENTLY ENJOINED FROM:
a. Providing debt management services, or credit monitoring services, credit counseling service or otherwise conducting business in Texas as a debt management services organization or as an agent or employee of any person providing debt management services, credit counseling services or debt collection services in the State of Texas;
b. Entering into any contract with any person for purposes of the Defendant GARNER advertising, promoting, facilitating or providing debt management services, credit monitoring services, credit counseling services or debt collection services to any person.
c. Accepting any money or funds from any person for the purpose of advertising,
promoting, facilitating or providing debt management services, credit monitoring services, credit counseling services or debt collection services.
d. Advertising, offering for sale, or selling any good or service without clearly and conspicuously disclosing all the material terms of that good or service prior to accepting any form of payment for that good or service.
e. Representing that a business entity, program or service affiliated with either of the Defendant(s) has benefits, sponsorships or affiliations which it does not have.
f. Misrepresenting the benefits received, or which may be received, by any consumer using a good or service offered for sale by the Defendant(s). This includes, but is not limited to, representing that a consumer is able to improve their personal credit rating through the use of any goods, programs or services offered by the Defendant(s).
g. Causing (or threatening to cause) physical, emotional or economic harm to any current or former employee of either Defendant; any current or former customer of either Defendant, or any other person, because that person either offers to provide, or is requested to provide, cooperation to any civil or criminal law enforcement authority regarding either Defendant's compliance with the terms or conditions of this Final Judgment and Permanent Injunction.
7.8 IT IS FURTHER ORDERED ADJUDGED AND DECREED this Final Judgment and Permanent Injunction binds DEFENDANT SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, and any of DEFENDANT GARNER's agents, employees, attorneys, and any persons or other entities acting in concert with them, who receive notice of this order by service or otherwise.
7.9 IT IS FURTHER ORDERED that SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, shall provide written notice of this Final Judgment and Permanent Injunction to each of DEFENDANTS' (both Defendant GARNER, Individually, and d/b/a CREDIT SERVICES TODAY, and Defendant CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY) agents, attorneys and employees existing on or after the date of entry of this Final Judgment and Permanent Injunction and to each person who requests that either DEFENDANT SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, or Defendant CREDIT ALLIANCE GROUP, INC., a/k/a CREDIT SERVICES TODAY, or its owner(s), render services, or perform actions, enjoined by this Final Judgment and Permanent Injunction.
VIII. OTHER RELIEF
8.1 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if DEFENDANT SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY does not fulfill, or only partially fulfills, or violates, any of the terms and conditions of this Final Judgment and Permanent Injunction, including any provisions of Section VII. or Section VIII, then pursuant to Section 1.1 of this Final Judgment and Permanent Injunction, the facts as alleged in the STATE OF TEXAS' Original Petition in this cause shall be taken as admitted and stipulated true by the defaulting DEFENDANT SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY in any subsequent action filed by the STATE OF TEXAS to enforce its rights pursuant to this Final Judgment and Permanent Injunction.
8.2 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if Defendant SHANE V. GARNER, INDIVIDUALLY, violates the terms or conditions of Section VII. or Section VIII. of this Final Judgment and Permanent Injunction, set forth herein above, that said Defendant(s) shall be subject to damages, fines, or penalties allowed by law, to be determined by this Court, for the acts that constitute contempt of court or otherwise a violation of the terms and conditions of this Final Judgment and Permanent Injunction.
8.3 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Final Judgment and Permanent Injunction shall be effective immediately without the execution and filing of a bond as the State is exempt from such under Tex. Civ.Prac. & Rem. Code § 6.001.
8.4 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon request of Plaintiff, the Clerk of the Court shall Issue a Writ of Injunction.
8.5 IT IS FURTHER ORDERED, ADJUDGED AND DECREED all relief not expressly granted herein, and all other claims for relief by Plaintiff against any Defendants arising from or related to the claims in this litigation, as well as all claims by any Defendant against Plaintiff, arising from any facts related to the claims in this litigation, to the extent not expressly granted herein, is hereby denied.
8.6 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court retains its jurisdiction to enforce, modify, and construe this Final Judgment and Permanent Injunction.
8.7 IT IS FURTHER ORDERED ADJUDGED AND DECREED that Plaintiff, STATE OF TEXAS, is EXEMPT FROM A BOND under Texas Civil Practice and Remedies Code Section 6.001 and Texas Business and Commerce Code Section 17.47(b) in connection with this permanent injunction.
8.8 IT IS FURTHER ORDERED, ADJUDGED AND DECREED, pursuant to the provisions of this Court's Order of October 3, 2013, DEFENDANT SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, may be served with actual notice of the Permanent Injuntive Relief terms of Section VII. and Other Relief in Section VIII. of this Final Judgment and Permanent Injunction, by Plaintiff mailing a copy of this Final Judgment and Permanent Injunction, and Writ of Injunction, to Defendant SHANE V. GARNER, INDIVIDUALLY and d/b/a CREDIT SERVICES TODAY, by. certified, registered and/or first class mail at: P.O. Box 1134, Lady Lake, Florida, 32158.
SIGNED this 19 day of __________, 2014.
/s/__________
Hon. ERIC V. MOYE, JUDGE PRESIDING
14th JUDICIAL DISTRICT COURT
DALLAS COUNTY, TEXAS
AGREED AS TO FORM AND SUBSTANCE AS TO SECTIONS I. THROUGH VI., WITH
ENTRY REQUESTED:
FOR THE ESTATE OF DEFENDANT SHANE V. GARNER, Individually
and d/b/a CREDIT SERVICES TODAY
By: /s/__________
RICHARD WEBBER
CHAPTER 7 BANKRUPTCY TRUSTEE for SHANE V. GARNER, INDIVIDUALLY
Zimmerman Kiser and Sutcliffe, P.A.
315 East Robinson Street, Suite 600, Orlando, FL 32801
AGREED AS TO FORM AND SUBSTANCE WITH ENTRY REQUESTED:
FOR DEFENDANT CREDIT ALLIANCE GROUP, INC. a/k/a CREDIT SERVICES TODAY
By: /s/__________
RICHARD WEBBER
CHAPTER 7 BANKRUPTCY TRUSTEE FOR CREDIT ALLIANCE GROUP INC
Zimmerman Kiser and Sutcliffe, P.A.
315 East Robinson Street, Suite 600, Orlando, FL 32801
FOR PLAINTIFF, STATE OF TEXAS By: /s/__________
ROB ROBINSON-SBN: 00794545
Assistant Attorney General
Lead Attorney in Charge for Plaintiff, State of Texas
ANDREW D. LEONIE - SBN: 12216500
STEVE ROBINSON - SBN: 24046738
MADALYN WELLS - SBN: 24027430
Assistant Attorneys General
Consumer Protection Division
OFFICE OF THE ATTORNEY GENERAL
1412 Main Street, Suite 810
Dallas, Texas 75202
Tel: 214-969-7639 Fax: 214-969-7615
ATTORNEYS FOR PLAINTIFF