Center for Elder Law and Justice Volunteers and Staff Help Bring Justice to Fraud Victims in Batavia

Submitted by Amanda Warner, Esq.

Director of Pro bono Programs, Center for Elder Law & Justice

Last year, Sarah Duval, a Supervising Attorney in CELJ’s Elder Abuse Unit, in her role as Civil Legal Services provider to the Genesee County Enhanced Multi-Disciplinary Team, became aware of a fraud perpetrated on over a hundred elderly victims in the Batavia area. The subsequent investigation resulted in the summer 2020 arrest of a Batavia funeral home director, Michael Tomaszewski, on more than 200 charges originating from complaints that he mishandled deposits for funerals (known as prearrangement fees), defrauding victims out of more than $525,000 in total.

In addition to defrauding victims, Tomaszewski had filed for bankruptcy prior to his arrest, without listing any of his many victims as creditors in his initial filing. In July 2020, The Batavian published an article in which UB Law Bankruptcy Professor S. Todd Brown encouraged anyone who was defrauded by Tomaszewski to hire a bankruptcy attorney if they wished to recover lost funds, while acknowledging that “for many people in a case such as this, they haven’t lost enough money to interest an attorney taking on their case.”*

Without legal representation, Tomaszewski’s many victims were at risk of having the debts owed to them (ranging from $350 to $15,500 per family) discharged in bankruptcy. To avoid discharge, they would need to file proofs of claim as creditors in Bankruptcy Court and object to the discharge of those debts on the basis of fraud.

Seeing an opportunity to assist those in this very situation, Duval reached out to Amanda Warner, CELJ’s Director of Pro Bono Programs, and together they contacted Western New York bankruptcy attorneys last fall to see if they would be willing to represent those defrauded by Tomaszewski in filing objections, pro bono.

Graciously, attorneys Robert Feldman, Garry Graber, Terrie Benson Murray, Ruth Wiseman and Arthur Baumeister agreed to handle a number of cases pro bono through CELJ, alongside ECBA Volunteer Lawyers Project’s volunteer attorney Beth Bivona and CELJ Staff Attorney David Shapiro. Together, these attorneys provided no-cost representation to over 40 victims in the bankruptcy. Thanks in large part to their efforts, the initial Chapter 11 filing was converted to a Chapter 7 on March 17, 2021.

A Chapter 7 trustee was appointed to collect the assets of Michael Tomaszewski that were not exempt under the Bankruptcy Code, liquidate the assets, and distribute the proceeds to his creditors.

While the Chapter 7 bankruptcy matter is ongoing, thanks to these attorneys’ efforts, orders have been granted to protect these victims, ensuring

that the debts owed to them by Michael Tomaszewski are exempt from discharge, giving a voice to victims who would have otherwise been overlooked. Without their assistance, the money fraudulently mishandled by Michael Tomaszewski would likely have been discharged in a Chapter 7 bankruptcy, or drastically reduced as part of an unsecured creditor settlement.

“I am incredibly grateful to all of these attorneys for their dedication to these victims,” says Sarah Duval. “Without their efforts, these individuals who have already lost so much would stand to lose important protections as creditors in the Bankruptcy proceeding. These attorneys have brought a voice and peace of mind to victims who are struggling in the wake of this incredible violation of trust.”

Many of the attorneys who volunteered to assist Tomaszewski’s victims had not previously volunteered with CELJ. We are grateful that they each took the opportunity to use their expertise to bring dignity and justice to those whose trust has been taken advantage of.

In April 2021, Tomaszewski pled guilty to grand larceny in the third degree, scheme to defraud, offering a false instrument for filing, and untimely burial. He is facing a possible prison term as a result, and is scheduled for sentencing on October 6, 2021. To learn more about the Tomaszewski matter, you may find a compilation of articles published in The Batavian here: https://www.thebatavian.com/tags/michael-tomaszewski.

*https://www.thebatavian.com/howard-b-owens/people-who-think-they-were-defrauded-by-tomaszewski-should-hire-an-attorney-with

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