Hays v. Hamblen Family Irrevocable Trust (In re Hamblen)

360 B.R. 362, 2006 Bankr. LEXIS 3795
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedDecember 20, 2006
DocketBankruptcy Nos. 05-95215JB to 05-95217-JB; Adversary No. 06-6394
StatusPublished
Cited by1 cases

This text of 360 B.R. 362 (Hays v. Hamblen Family Irrevocable Trust (In re Hamblen)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hays v. Hamblen Family Irrevocable Trust (In re Hamblen), 360 B.R. 362, 2006 Bankr. LEXIS 3795 (Ga. 2006).

Opinion

ORDER

JOYCE BIHARY, Bankruptcy Judge.

This adversary proceeding involves the question of whether the defendant trusts can appear as pro se litigants. The Court concludes that they cannot.

The plaintiff Chapter 7 Trustee seeks, among other things, to avoid certain transfers and to recover three pieces of real property for the bankruptcy estate. The properties are 230 Woodward Avenue and 625 Atwood Street, both located in Atlanta, Georgia and 12230 Cumming Highway, located in Canton, Georgia. Plaintiff alleges that the real estate records reflect that interests in these properties were conveyed to 230 Woodward Trust, 625 Atwood Trust, and 12230 Cumming Highway Trust, respectively. Plaintiff names five trusts as defendants in this proceeding,1 and defendant Grant K. Gibson is named in the complaint as a defendant individually and as trustee of each of the defendant trusts. Mr. Gibson is not an attorney, but he filed a motion for a more definite statement on behalf of himself and the trusts.2 Plaintiff contends that Mr. Gibson cannot represent the defendant trusts, as trusts can only be represented in court by a licensed attorney (Docket # 20). Mr. Gibson filed a response, arguing that he as a non-lawyer is entitled to represent the defendant trusts. As best the Court can [364]*364understand, Mr. Gibson argues that these are land trusts rather than business trusts, that he holds all the legal and equitable interests in these trusts, and that these trusts are deemed natural persons rather than artificial entities such that they have the same rights under law as an individual,including that of pro se representation in court (Docket # 27).

Plaintiff argues and Mr. Gibson agrees that only a licensed attorney may represent an artificial entity such as a corporation, partnership, association, or trust in federal court. Rowland v. California Men’s Colony, 506 U.S. 194, 203, 113 S.Ct. 716, 721, 121 L.Ed.2d 656 (1993); C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir.1987); See also Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir.1985) (stating the well established rule that a fictional legal person such as a corporation must be represented by a licensed attorney even when the non-attorney seeking to represent the corporation is its president and major stockholder); Knoefler v. United Bank of Bismark, 20 F.3d 347, 348 (8th Cir.1994) (holding that a nonlawyer trustee has no right to represent a trust pro se). Mr. Gibson recognizes that “many types of entities, including LLCs, partnerships, unincorporated association [sic], clubs, guardians and even certain types of trusts,” require representation by counsel in federal court. (“Defendant Gibson’s Objection to Trustee’s Motion to Strike,” hereinafter “Mr. Gibson’s Objection,” at 4). He attempts to distinguish “Massachusetts style business trusts” from “Illinois style land trusts,” contending that business trusts are required to have counsel in court, but that land trusts may be represented by their non-attorney trustees. The law cited by Mr. Gibson does not support his position.

Mr. Gibson first distinguishes business trusts from land trusts by noting that business trusts can file for bankruptcy protection while land trusts cannot. He presents this material in both the body of his objection and in a lengthy footnote. (Mr. Gibson’s Objection at 6-7, 6 n. 1). There are several problems with Mr. Gibson’s presentation of the law. First, he refers to several cases without proper citation; he gives the names of some cases without providing the Court or opposing counsel with the name of the reporter, book number, page number,, name of court, or year of decision. In some cases, he provides the name of the case and name or location of the court, but omits any mention of the other information required for a proper citation. Second, Mr. Gibson appears to have copied most of the material on page 6 of his Objection from a 1997 article titled Off-Balance-Sheet Financing: Synthetic Leases, by John C. Murray, 32 Real Prop. Prob. & Tr. J. 193, 206-07 and nn. 17, 22 (1997), but Mr. Gibson fails to cite the article. (Mr. Gibson’s Objection at 6 n. 1). Mr. Gibson repositions some of Mr. Murray’s text, removes citations and other text which Mr. Murray includes, and renumbers Mr. Murray’s subscript footnote numbers.

Third, Mr. Gibson uses Mr. Murray’s discussion of four cases, In re Sung Soo Rim Irrevocable Intervivos Trust, 177 B.R. 673, 675-76 (Bankr.C.D.Cal.1995); Shawmut Bank Connecticut v. First Fidelity Bank (In re Secured Equip. Trust of Eastern Air Lines, Inc.), 38 F.3d 86 (2d Cir.1994); In re Medallion Realty Trust, 103 B.R. 8, 10-13 (Bankr.D.Mass.1989); and In re Gonic Realty, 50 B.R. 710, 711-12 (Bankr.N.H.1985), but none of these cases is relevant to the issue here. In each case, the issue was whether the trust debtor qualified for bankruptcy protection as a business trust pursuant to 11 U.S.C. § 101(9)(A)(v), not whether the trust could appear in court without counsel. Signifi[365]*365cantly, the trusts in these four cases were represented by counsel.

Perhaps the most remarkable part of Mr. Gibson’s Objection appears in the third paragraph of his footnote on page 6. Again, Mr. Gibson appears to have copied material from Mr. Murray’s article without citation. However, in this paragraph, he alters Mr. Murray’s text by inserting a clause about Georgia law. Specifically, Mr. Murray’s article contains the following sentence:

Florida, Hawaii, Indiana, North Dakota, and Virginia have statutes that permit land trusts, while states such as California and Kansas have permitted the creation of land trusts through court decisions.

Murray at n. 22. In his footnote, Mr. Gibson splices that sentence and adds language so that his Objection reads as follows:

Florida, Hawaii, Indiana, North Dakota, and Virginia have statutes that permit land trusts. Georgia has enacted the ‘Georgia Trust Act’ which allows Trusts to hold Land, while states such as California and Kansas have permitted the creation of land trusts through court decisions.

(emphasis added). By this insertion, Mr. Gibson intimates that Georgia law has a statute that allows land trusts. But Mr. Murray did not include Georgia in his list of states with such a statute, and the parties have not cited any authority holding that Illinois style land trusts are recognized in Georgia. More importantly, however, none of this is relevant to whether a non-lawyer trustee can represent the defendant trusts in court.

Mr. Gibson has not presented the trust instruments or identified the beneficiaries, but contends the trusts should be allowed to appear in court without counsel because they “are organized under authority of the Georgia Trust Act, as ‘Land Trusts.’ ” (Id. at 5). The Georgia Trust Act is found at O.C.G.A.

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N.D. Georgia, 2020

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Bluebook (online)
360 B.R. 362, 2006 Bankr. LEXIS 3795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hays-v-hamblen-family-irrevocable-trust-in-re-hamblen-ganb-2006.