127 B.R. 219 | Bankr. E.D. Mo. | 1991
In re BELLERIVE SPRINGS BUILDING CORPORATION, Debtor.
United States Bankruptcy Court, E.D. Missouri, E.D.
MEMORANDUM OPINION AND ORDER
DAVID P. McDONALD, Chief Judge.
I. JURISDICTION
This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a proceeding pursuant to 28 U.S.C. § 157(b)(1), which the Court may hear and determine.
II. BACKGROUND
On April 3, 1991, the Court received a Chapter 11 petition filed on behalf of Bellerive Springs Building Corporation, Inc. ("Bellerive") by Larry Harting ("Harting"), a non-lawyer who is the president, secretary and sole director of Bellerive. By Order issued on April 3, 1991, the Court directed the purported Debtor to show cause why the petition should not be dismissed for failure to comply with the legal requirements to proceed as a debtor under Chapter 11 of Title 11 of the United States Code.
At a hearing conducted on April 10, 1991, Harting appeared on behalf of the corporation pro se and represented that Bellerive is a corporation formed and in good standing under Missouri law. Harting acknowledged that he signed the Chapter 11 petition on behalf of Bellerive. In addition, Harting provided the Court with a copy of the written consent of the sole director authorizing the officers of the corporation to file this Chapter 11 petition. However, he offered no case law or statutory authority in support of the proposition that Bellerive may proceed under Chapter 11 of the Bankruptcy Code pro se.
Having reviewed the petition as submitted and for the reasons set forth below, the Court finds no cause shown and holds that the petition filed on behalf of Bellerive Springs Building Corporation pro se is without legal force or effect and, therefore, the same shall be stricken and the case dismissed.
III. CONCLUSIONS OF LAW
A corporation is an artificial entity created under state law, it cannot act or appear in person, but only through its agents. Property Exchange & Sales, Inc. v. Bozarth, 778 S.W.2d 1, 3 (Mo.Ct.App. 1989). In the federal courts it is settled *220 law that a corporation may be represented only by licensed counsel. Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 830, 6 L. Ed. 204 (1824); Carr Enterprises, Inc. v. United States, 698 F.2d 952, 953 (8th Cir.1983) (citations omitted). See also, In re Odessa Mfg. Corp., 97 B.R. 1000, 1001 (Bankr.W.D.Mo.1989) (a corporation may not proceed pro se); In re 1433 Corp., 75 B.R. 55, 56 (Bankr.S.D.Fla.1987) (corporate petition signed by non-attorney dismissed). Mr. Harting, the president, secretary and sole director of Bellerive, is not a licensed attorney and, as such, may not act on behalf of the purported Debtor in this Court.
Although Bankruptcy Rule 9010 permits an authorized agent of a debtor to appear and perform any act not constituting the practice of law, the Court finds that the initiation of a case under Chapter 11 clearly constitutes the practice of law. See, Advisory Committee Note (1983) to Bankruptcy Rule 9010 (citing In re Colinas Dev. Corp., 585 F.2d 7 (1st Cir.1978)). See also, In re 1433 Corp., 75 B.R. at 55. The Court notes that Harting did more than merely file the Chapter 11 petition; he completed legal forms and affixed his signature to documents submitted on behalf of the corporation. Cf., In re Bachmann, 113 B.R. 769, 773 (Bankr.S.D.Fla.1990) (preparation of Chapter 13 petitions by non-lawyer on behalf of others constitutes unauthorized practice of law). In federal court, non-lawyers may plead and conduct their own cases individually, but not those of others. 28 U.S.C. § 1654. Accordingly, it is axiomatic that a corporate Chapter 11 petition must be filed by a licensed attorney admitted to practice before the Bankruptcy Court.[1] Therefore, finding the Chapter 11 petition filed on behalf of Bellerive Springs Building Corporation to be an unauthorized act, it is
HEREBY ORDERED, ADJUDGED and DECREED that the Chapter 11 petition filed on behalf of Bellerive Springs Building Corporation is without legal force or effect and shall be and this same is STRICKEN; and
IT IS FURTHER ORDERED that the case is hereby DISMISSED without prejudice.
NOTES
[1] The Court concurs with the decision entered this date by the Honorable Barry S. Schermer wherein the court found that only an attorney can file a Chapter 11 case. In re Global Construction & Supply, Inc., 126 B.R. 573, 577 (Bankr.E.D.Mo.1991).