Who is O. Max Gardner III?
O. Max Gardner III
November 1, 2007
Mr. Gardner received his undergraduate degree from the University of North Carolina at
Chapel Hill in 1969 and graduated with high honors from the UNC School of Law in 1974. Among others, he was a member of the Law Review, President of the Student Bar Foundation and elected to the Order of the Coif. Following graduation, he served as the Senior Law Clerk to the Hon. William H. Bobbitt, the late Chief Justice of the North Carolina Supreme Court, and as Senior Law Clerk to the Hon. William Copeland, an Associate Justice of that Court.
Gardner worked for three years with the Smith Moore law firm in Greensboro following his Clerkships. His primary working partner at Smith Moore was the legendry McNeill Smith. Gardner later served as Treasurer in Smith’s campaign for the United States Senate.
Gardner served the Democratic Party of North Carolina as General Counsel from 1986 to 1992, during which time he worked closely with two different Governors. During this time, he also managed his law practice in Shelby, which he opened in 1977 after leaving Smith Moore. Gardner was also “Of Counsel” to the Washington, D.C., law firm of Sims Walker & Steinfeld from 1992 to 1996.
He currently limits his practice to consumer bankruptcy cases and all consumer claims arising with respect to those cases. Gardner has been widely recognized as the leading consumer attorney in America on “predatory mortgage servicing” in Chapter 13 bankruptcy cases. He has also taken the lead in pursuing the attempts of many creditors to collect debts notwithstanding the fact that the debts have been legally discharged in a bankruptcy case.
Gardner has been the lead attorney of record in many landmark cases but some of his most significant were:
Myrtle Marshall v Spindale Savings & Loan. This was the first case under the Bankruptcy Act of 1978 where a debtor was able to avoid and cancel a completed pre-filing foreclosure sale of her home by arguing that the Savings & Loan did not pay “reasonable value” for the home at the public sale. Gardner used Section 548 of the Bankruptcy Code to characterize this sale as a “fraudulent conveyance.” Before this case, almost everyone thought that once a foreclosure was completed under state law a debtor could never use a bankruptcy case to avoid the completed sale. The case sent shock waves throughout the mortgage and title insurance industries. Congress later amended the law to preclude this specific remedy.
Gerald Stark v Crestar Mortgage. In this case of first impression, the Bankruptcy Court held that the imposition of a monthly property inspection fee by a mortgage servicer on a Chapter 13 homeowner was a violation of the automatic stay and was nothing more than a “bankruptcy monitoring fee.” The Court also held that such a practice was unlawful under the mortgage note and deed of trust. Stark has been widely followed and cited and sent shock-waves through the mortgage servicing industry.
Shelby Yarn Company. This was the first reported case where a group of former employees (5 to be exact) filed an “involuntary” bankruptcy petition against their former employer. Gardner represented all of the former employees who filed the involuntary petition. One of his clients was the former Vice President of Shelby Yarn, Paul Petroff. After the filing, Gardner was appointed by the Court to represent the Committee of all 656 former employees. Gardner was also appointed as Special Counsel to the Trustee in a bankruptcy in the prosecution of a civil action against the former officers, directors and owners of Shelby Yarn. This civil action was settled for approximately $2.2 million. The case was widely reported by the media and was featured as the cover story on the September 2000 edition of Business North Carolina.
Marjorie White v Duke Medical Center. The debtor in this case had to file for Chapter 13 relief because Duke Medical Center had secured a judgment against her for less than $2,000 for unpaid medical bills. Duke was threatening to foreclose her home to collect the judgment. After the filing, the debtor filed an action against Duke and Dr. Bernard Bressler for medical negligence arising out of alleged sexual acts between Bressler and the debtor that were all instigated by Bressler, who was her psychiatrist. The case was settled for more than $1,000,000 and was widely reported nationally at the time. Myra McPherson, a Pulitzer Award Winning Reporter, wrote a lengthy series of articles in the Washington Post on the case entitled “O. Max Gardner III vs The City of Medicine (“the City of Medicine” being the moniker for Durham, NC, home of Duke).
Smith vs The Money Store. In this case of first impression, Gardner filed a Class Action against The Money Store for adding the sum of $125.00 to every proof of claim filed in a consumer bankruptcy case. The fee allegedly related to “lawyer services” in preparing the claims. Gardner established by uncontradicted evidence that an attorney played little to no role in the claims preparation process. Based on this evidence, the Court disallowed these fees as improper and held that a creditor violated the automatic stay by seeking to include attorney fees in a proof of claim. If a creditor wanted an award of any attorney fee, the court held the creditor would have to file a fee application and notice it for hearing, thereby giving the debtor the right to object and be heard. The court also held that for purposes of the vast majority of mortgages in consumer cases a fee for preparation of the proof of claim would never be appropriate. This case has been widely reported and certainly raised the level of awareness of this unlawful practice.
Gardner was named the Outstanding Consumer Lawyer of 2004 by the National Association of Consumer Bankruptcy Lawyers at their Annual Meeting in
Philadelphia. He has been elected three times as a member of the “Legal Elite” of
North Carolina lawyers by his fellow attorneys in a state-wide poll conducted by Business North Carolina. He has twice been named as a North Carolina “Super Lawyer in Consumer Bankruptcy Law” by Law & Politics and the Charlotte Magazine. His renowned “Bankruptcy Boot Camps” have been featured in the NY Times, The Wall Street Journal, The Washington Post, the Chicago Tribune, Business Week and on a one hour segment of “Your Money” on CNN. Max has also been quoted many times by all of the major print and electronic media in America. According to Robert Berner of Business Week, “Max is the go to guy on all consumer bankruptcy cases!”
Gardner is the grandson of O. Max Gardner, who was a former North Carolina Governor and United States Ambassador to Great Britain. Governor Gardner also served as Lt. Governor of North Carolina and as the Undersecretary for the United States Treasury under President Harry Truman. Gardner’s great uncle, Clyde R. Hoey, was also Governor of North Carolina and a distinguished member of the United States Senate. Governor Hoey is the only North Carolinian to have served in the State House, the State Senate, the United States House of Representatives and the United States Senate.
In January of 2007, Gardner was named as the Chief Executive Officer and Vice President of Litigation for Gardner & Botes, PLLC. Gardner & Botes is a new national law firm that Gardner has formed to prosecute violations of the Discharge in Bankruptcy by creditors and debt-buyers. Gardner has been quoted as saying these violations are “at historic levels with no end in sight.” Gardner & Botes will do business as the National
Consumer Bankruptcy Litigation Center. Its primary office will be in Shelby, North Carolina, and its technology and development center will be in Chicago, Illinois. Brad Botes, the Vice President of the firm, is from Alabama and was the former Executive Director of the National Association of Consumer Bankruptcy Attorneys. Erik Clark of
Los Angeles is the President of NCBLC.
Gardner is a long-time member of NACBA and NACA and a frequent national speaker on bankruptcy law and consumer representation.
Gardner is the father of three children, Max IV, Webb and Sarah. His son Max IV was killed in a tragic accident involving a drunk driver in April of 2005. Max and his wife, Victoria, live at Lizemere Farm, located deep in the heart of the South Mountains of
North Carolina, where they breed and show their beloved Cavalier King Charles Spaniels.
November 3rd, 2007 at 9:51 pm
king spaniels!