Emily Connor Fort (VSB #83889) 

Mark C. Leffler (VSB #40712) 

Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230 

Telephone (804) 358-9900 

Counsel for Plaintiff

Thomas D. Domonoske (VSB # 35434) 

Consumer Litigation Associates 

281 N. Mason Street, #811 

Harrisonburg, VA 22803 

Telephone (540) 442-7706 

Counsel for Plaintiff

IN THE UNITED STATES BANKRUPTCY COURT 

Eastern District of Virginia 

Richmond Division 

 

In re: Charese Ebony Johnson

Debtor 

Case No. 16-31620-KLP

Chapter 13

Address: 5824 Westower Drive Apt B 

 Richmond, VA 23225 

Last four digits of Social Security No: xxx-xx-3576 (Debtor)

______________________________________________________________________ 

 

CHARESE EBONY JOHNSON, 

 Plaintiff, 

v. Adv. Pro. No. 16-03152-KLP 

 

NC FINANCIAL SOLUTIONS OF UTAH, LLC, 

d/b/a NETCREDIT 

 Defendant. 

______________________________________________________________________ 

NOTICE OF MOTION IN LIMINE

 The above named Debtor has filed a Motion in Limine to Have Attorney’s Fee 

Issue Bifurcated for Trials Set for January 12 and 13, 2017, in this adversary 

proceeding. 

 Your rights may be affected. You should read these papers carefully and 

discuss them with your attorney, if you have one. 

 Under Local Bankruptcy Rule Number 9013-1 of the Eastern District of 

Virginia, unless a written response to this motion is filed with Clerk of Court and 

served on the moving party within 14 days of the service of this notice objecting 

to the relief requested, the Court may deem any opposition waived, treat the 

motion in limine as conceded, and issue an order granting the requested relief 

without further notice or hearing. 

If you do not want the Court to grant the above-referenced Motion, then within 

the above time period, you or your attorney must: 

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File with the Court a written answer explaining your position at: 

 Clerk of Court 

 United States Bankruptcy Court 

 701 E. Broad Street, Suite 4000 

 Richmond, VA 23219-3515 

 If you mail your response to the Court for filing, you must mail it to the address 

listed immediately below and early enough so that the Court will receive it within the 

time period state above. 

 You must also send a copy to:

 Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230-1588 

 If you or your attorney do not take these steps, the Court may decide that you do 

not oppose the relief sought in the Motion and may enter an order granting that relief. 

Dated: December 6, 2016 BOLEMAN LAW FIRM, P.C. 

Counsel for Debtor 

 

 By: /s/ Mark C. Leffler 

Emily Connor Fort (VSB #83889) 

Mark C. Leffler (VSB #40712) 

Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230 

Telephone (804) 358-9900 

Counsel for Plaintiff 

Thomas D. Domonoske (VSB # 35434) 

Consumer Litigation Associates 

281 N. Mason Street, #811 

Harrisonburg, VA 22803 

Telephone (540) 442-7706 

Counsel for Plaintiff

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CERTIFICATE OF SERVICE 

 I certify that on December 6, 2016, I have transmitted a true copy of the 

foregoing document by CM/ECF to Corey S. Booker, Esquire, attorney for NetCredit. 

/s/ Mark C. Leffler 

Counsel for Debtor

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Emily Connor Fort (VSB #83889) 

Mark C. Leffler (VSB #40712) 

Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230 

Telephone (804) 358-9900 

Counsel for Plaintiff

Thomas D. Domonoske (VSB # 35434) 

Consumer Litigation Associates 

281 N. Mason Street, #811 

Harrisonburg, VA 22803 

Telephone (540) 442-7706 

Counsel for Plaintiff

IN THE UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

In re: Charese Ebony Johnson Case No. 16-31620-KLP 

Debtor Chapter 13 

______________________________________________________________________ 

 

CHARESE EBONY JOHNSON, 

 Plaintiff, 

v. Adv. Pro. No. 16-03152-KLP 

 

NC FINANCIAL SOLUTIONS OF UTAH, LLC, 

d/b/a NETCREDIT 

 Defendant. 

______________________________________________________________________ 

MOTION IN LIMINE TO HAVE ATTORNEY’S FEE ISSUE BIFURCATED 

FOR TRIALS SET FOR JANUARY 12 AND 13, 2017 

 Currently, six violation of stay actions are set for trial against NC Financial 

Solutions of Utah, LLC, d/b/a NetCredit (“NetCredit”) on January 12 and 13, 2017. All 

six debtors are represented by the same counsel, and NetCredit has claimed that all six 

cases were caused by the same process at NetCredit. Accordingly, the evidence in 

each case has significant overlap, and the facts of all cases are relevant to the 

determination of the egregiousness of Netcredit’s repeated violations of the bankruptcy 

stay. Debtors’ actions include a request for attorney’s fees as authorized by the 

bankruptcy rules. The process for determining those fees is not set out in the 

bankruptcy rules and this Court has the authority to establish the process by which it 

receives the evidence on fees. 

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Because of the significant overlap of the attorneys’ time and expenses in each 

case, the most efficient process for determining the attorneys’ fees will be for the Court 

to determine the fee request for all six cases at one time. Combining the fee 

determination after the Court’s decision on the merits also avoids having attorneys act 

as both witnesses and advocates in the same proceedings. As is regularly done in other 

circumstances under Rule 54(d)(2) of the Federal Rules of Civil Procedure, the 

determination of the amount of fees to be awarded in these six actions should be 

decided at one time in a subsequent motion process. 

The request for fees will include a presentation of counsels’ time and hourly 

rates, which can easily be done by written motion with briefing. It will necessarily involve 

discussion of the reason for the time devoted to the six cases, and counsels’ attempts to 

pursue them efficiently, again which can be efficiently done by motion and declarations. 

If such a detailed presentation was made during the substantive presentation during 

each of the six cases, duplicative testimony would consume this Court’s time. 

Furthermore, taking evidence that separates out the time for each case will necessarily 

cause additional time to be incurred in this process. If the fees are not bifurcated, 

Debtors’ counsel would play the role of advocate and witness at the same time, and 

about the same issues, six times in two days. 

The Virginia State Bar recognizes the inherent contradiction between a lawyer 

serving as an advocate for a client’s case and a witness at the same time. Although 

under Rule 3.7(a)(2) of the Virginia Rules of Professional Conduct a lawyer may serve 

as a witness to offer evidence about the nature and value of legal services rendered in a 

case, the general prohibition behind Rule 3.7 advises against having a lawyer offer 

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testimony when the fact finder is deciding issues of liability or damages. Comment [2] to 

Rule 3.7 discusses the confusion that can result when a lawyer acts as a witness: 

A witness is required to testify on the basis of personal knowledge, while 

an advocate is expected to explain and comment on evidence given by 

others. It may not be clear whether a statement by an advocate-witness 

should be taken as proof or as an analysis of the proof. 

As a result of presenting fees during the main trial, opposing counsel may be 

handicapped in challenging the credibility of the lawyer when the lawyer is an advocate 

in the case. Furthermore, an advocate who becomes a witness is in the unseemly and 

ineffective position of arguing her own credibility. The roles of an advocate and witness 

are inconsistent; the function of an advocate is to advance or argue the cause of 

another, while that of a witness is to state facts objectively. 

A simple way exists to avoid the inefficiencies of six separate presentations of 

fees in two days: bifurcate the fees from all six into one process after the merits 

determination. Determining the fees only after a finding of liability and damages 

resolves the inherent conflict between a lawyer needing to present detailed evidence 

about the fees while also serving as an advocate at trial. Because the interrelatedness 

of the evidence about NetCredit’s practice, such a combined process also allows the 

Court to make a fee determination after ruling on the six separate damage liabilities that 

are the basis for the fees. 

If the fee issue is taken up six times within each trial, it will necessarily require 

that debtors’ attorneys become witnesses on the reasonableness of their time in each 

case, and their testimony will involve explanation for why the case did not settle prior to 

trial. To support their testimony, counsel will need complete and detailed time records 

which simply are not available until the hearing on the merits is concluded. Thus, if not 

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bifurcated, the exhibits necessary at trial simply cannot be completed and submitted to 

the other side prior to trial. Furthermore, those time records necessarily give insight into 

debtors’ counsels’ preparation and provide an undue advantage to NetCredit. To avoid 

the unseemly and inconsistent position of serving as both advocate and witness, 

Debtors’ counsel should only make their presentation regarding fees in a subsequent 

motion procedure. All parties can then focus on the main issues of liability and 

damages, without the need for NetCredit’s counsel to attempt to challenge Debtors’ 

counsel’s credibility based on evidence it does not receive until the moment of trial. 

CONCLUSION

To provide for an efficient presentation of the fees in the six interrelated cases, 

and to avoid the conflict of lawyers serving as both witnesses and advocates at the trial 

on the merits, the issue of attorney’s fees should be taken up in a subsequent hearing 

after the Court’s liability findings. Debtors request that this Court grant this motion to 

have attorney’s fees decided by the Court in one subsequent combined motion 

procedure.

 Respectfully submitted, 

 Charese Ebony Johnson 

 By Counsel 

 By: /s/ Mark C. Leffler 

Emily Connor Fort (VSB #83889) 

Mark C. Leffler (VSB #40712) 

Boleman Law Firm, P.C. 

P.O. Box 11588 

Richmond, VA 23230 

Telephone (804) 358-9900 

Counsel for Plaintiff 

Thomas D. Domonoske (VSB # 35434) 

Consumer Litigation Associates 

281 N. Mason Street, #811 

Harrisonburg, VA 22803 

Telephone (540) 442-7706 

Counsel for Plaintiff

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CERTIFICATE OF SERVICE 

 I certify that on December 6, 2016, I have transmitted a true copy of the 

foregoing document by CM/ECF to Corey S. Booker, Esquire, attorney for NetCredit. 

 

 By: /s/ Mark C. Leffler 

 Counsel for Plaintiff

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