Stapleton v. Poconos Land, LLC (In re Poconos Land, LLC)

343 B.R. 108, 2005 Bankr. LEXIS 2928
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedSeptember 23, 2005
DocketNos. 5-05-bk-50538, 5-05-bk-50372
StatusPublished
Cited by4 cases

This text of 343 B.R. 108 (Stapleton v. Poconos Land, LLC (In re Poconos Land, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stapleton v. Poconos Land, LLC (In re Poconos Land, LLC), 343 B.R. 108, 2005 Bankr. LEXIS 2928 (Pa. 2005).

Opinion

OPINION

JOHN J. THOMAS, Bankruptcy Judge.

The United States Trustee (“UST”) has moved to dismiss the above-referenced Chapter 11 cases based on her belief that an artificial entity, such as a corporation or limited liability corporation, cannot file a bankruptcy case without the aid of legal counsel. For the reasons articulated below, the UST’s motions are granted.

Statement of Facts

1. Mount Laurel Cemetery Association & Harry Samuel Dombek

A voluntary Chapter 11 Petition (Official Form 1) was filed on January 28, 2005 in the name of Mount Laurel Cemetery Association. Harry Samuel Dombek is listed as the joint debtor. In the “Information Regarding the Debtor (Check the Applicable Boxes)” section on the first page, “Chapter 11” is selected in the “Chapter or Section of the Bankruptcy Code Under Which the Petition is Filed” box. There is also a notation in the “Type of Debtor” box that the Debtor is a corporation. On the second page, the signature of “Rabbi Harry S. Dombeck” is included in the “Signature of Debtor (Corporation/Partnership)” box in the “Signatures” section as the “Authorized Individual.” In the “Signature of Attorney” box, “N/A” is typed. Exhibit C (Form Bl, Exh. C) and an “Exhibit C-l” were included with the Petition. Also included with the filing were a number of completed bankruptcy schedules.

A hearing on the UST’s motion was held on February 24, 2005. The Court heard oral argument from Rabbi Dombeck and the UST’s counsel. Rabbi Dombeck . also indicated that he is not an attorney and is not engaged in the practice of law. The matter was thereafter taken under advisement.

2. Pocono Land, LLC

A voluntary Chapter 11 Petition (Official Form 1) was filed on behalf of Poconos Land, LLC on February 8, 2005. In the “Information Regarding the Debtor (Check the Applicable Boxes)” section on the first page, “Chapter 11” is selected in [110]*110the “Chapter or Section of the Bankruptcy-Code Under Which the Petition is Filed” box. The “Chapter 11 Small Business” box contains a marking indicating that Poconos Land, LLC is a “small business as defined in 11 U.S.C. § 101.” On the petition’s second page, a signature, telephone number and date is included in the “Signature^) of Debtor(s) (Individual/Joint)” box in the form’s “Signature” section.

A hearing on the UST’s motion was held on March 10, 2005. No one appeared on behalf of Poconos Land, LLC and the Court heard oral argument from the UST’s counsel. The matter was thereafter taken under advisement.

Jurisdiction

This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A). This Court has jurisdiction under 28 U.S.C. §§ 157, 1334 and Middle District of Pennsylvania Standing Order Misc. 84-0203 to render this decision.

Conclusions op Law

Upon a review of the evidence and those arguments that may have been proffered by the parties, the pertinent issue which this Court must decide, is whether an individual, who is not a licensed attorney, may commence a bankruptcy case on behalf of an artificial business entity.

The heart of the UST’s arguments focus on a passage in the Supreme Court’s decision in Rowland v. California Men’s Colony wherein the Court noted:

It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel, [(citations omitted)]. As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save in a few aberrant cases, [(footnote omitted)] the lower courts have uniformly held that 28 U.S.C. § 1654, providing that “parties may plead and conduct their own cases personally or by counsel,” does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney, [(citations omitted)].

506 U.S. 194, 201-202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993).

The UST also directs this Court’s attention to a series of opinions for additional support: Pritchard v. Lubman (In re Tamojira, Inc.), 20 Fed.Appx. 133 (4th Cir.2001), Licht v. America West Airlines (In re America West Airlines), 40 F.3d 1058 (9th Cir.1994), Simbraw, Inc. v. United States, 367 F.2d 373 (3d Cir.1966), Move Org. v. United States Dep’t of Justice, 555 F.Supp. 684 (E.D.Pa.1983); In re Beech St. Holding Corp., 344 F.Supp. 548 (E.D.Pa.1972), and In re Buck, 219 B.R. 996 (Bankr.W.D.Tenn.1998).1 However, these cases only focus on the question of whether a non-attorney can appear in court for an artificial business entity and not the issue currently in play.

In order to resolve this query, this Court must examine the inter-relationship of certain statutory provisions and procedural rules, along with their resulting impact on a bankruptcy case. In particular, § 1654 of Title 28 of the United States Codes provides:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are [111]*111permitted to manage and conduct causes therein.

28 U.S.C. § 1654.

However, once a matter is adjudicated within the confines of a bankruptcy proceeding, a party’s actions are further controlled by Rule 9010 of the Federal Rules of Bankruptcy Procedures. The rule states, in relevant part, that:

(a) AUTHORITY TO ACT PERSONALLY OR BY ATTORNEY. A debtor, creditor, equity security holder, indenture trustee, committee or other party may (1) appear in a case under the Code and act either in the entity’s own behalf or by an attorney authorized to practice in the court, and (2) perform any act not constituting the practice of law, by an authorized agent, attorney in fact, or proxy.

Fed. R. Bankr.P. 9010(a).

The 1983 Advisory Committee Note to the rule indicates that the rule “is substantially the same as former Bankruptcy Rule 910 and does not purport to change prior holdings prohibiting a corporation from appearing pro se.” See Fed. R. Bankr.P. 9010 advisory committee’s note; see generally 10 Collier on Bankruptcy, ¶ 9010.07 (15th ed. rev.).

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Cite This Page — Counsel Stack

Bluebook (online)
343 B.R. 108, 2005 Bankr. LEXIS 2928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stapleton-v-poconos-land-llc-in-re-poconos-land-llc-pamb-2005.