Bankr. No. 08-11329-SBB Chapter 13 Appeal from the United States Bankruptcy Court for the District of Colorado.
The opinion of the court was delivered by: Rasure, Bankruptcy Judge.
Before CORNISH, Chief Judge, BOHANON and RASURE, Bankruptcy Judges.
Appellants James Ronald Shattuck and Cynthia Joy Shattuck (the "Shattucks") appeal the order granting the motion to dismiss their Chapter 13 case filed by Appellee Larry Bondurant ("Mr. Bondurant"), the state court appointed receiver for Reflections Autowash, LLC, an entity in which Mr. Shattuck was the sole member (the "LLC"). After an evidentiary hearing, the bankruptcy court concluded that the Shattucks' non-contingent, liquidated, unsecured debt exceeded the statutory Chapter 13 eligibility limits provided in Section 109(e) of the Bankruptcy Code. Because we conclude that Mr. Bondurant's motion should have been stricken because Mr. Bondurant, who was acting in a representative capacity for the receivership estate of the LLC, is not licensed to practice law, we REVERSE the order of dismissal and REMAND for further proceedings.*fn2
On February 6, 2008, the Shattucks filed for relief under Chapter 13 of the Bankruptcy Code. After failing to achieve confirmation of their first plan, the Shattucks filed an Amended Chapter 13 Plan.*fn3 The bankruptcy court scheduled a confirmation hearing on the Amended Chapter 13 Plan for June 4, 2008.*fn4 On May 28, 2008, Mr. Bondurant filed (1) an Objection to Confirmation of the Chapter 13 Plan and (2) a Motion to Dismiss Chapter 13 Petition Pursuant to 11 U.S.C. 109(e).*fn5 On May 29, 2008, Prospera, LLC ("Prospera") and Integra Holdings, LLC ("Integra") filed a Joinder in Objection to Confirmation of Chapter 13 Plan Pursuant to 11 USC Sections 1322 & 1325.*fn6
On June 3, 2008, the Shattucks filed a Motion to Strike Objection ("Motion to Strike"), asserting that because Mr. Bondurant was not a licensed attorney, he had no authority to file pleadings on behalf of the LLC.*fn7 In the Motion to Strike, the Shattucks cited Rule 11.1(A) of the Local Civil Rules of the United States District Court of Colorado, which provides that "[o]nly pro se individual parties and members of this court's bar may appear or sign pleadings, motions, or other papers. Any pleading, motion, or paper listing in a signature block... by, any other person, partnership, professional corporation, limited liability company, or other entity may be stricken."*fn8
On June 4, 2008, the bankruptcy court convened the confirmation hearing. Neither Mr. Bondurant nor counsel for Prospera and Integra appeared to prosecute their objection to confirmation. The bankruptcy court held a status conference and continued the hearing to confirm the existing plan, or any subsequently filed plan, to July 23, 2008. The court also set the Shattucks' Motion to Strike and Mr. Bondurant's motion to dismiss for hearing on the same date, and required the parties to file and exchange exhibit and witness lists by July 18, 2008.*fn9
In his response to the Motion to Strike, filed on June 6, 2008, Mr. Bondurant asserted that he was appointed as receiver for the LLC by the state court, that he "was appointed to be the Receiver as an individual," and as an individual, he believed he had the authority to represent himself pro se.*fn10 He further stated that the LLC did not have funds to hire an attorney, and that if the LLC was required to obtain counsel, he requested a period of thirty days after the order granting the Motion to Strike in which to secure such counsel.*fn11
On June 19, 2008, the Shattucks filed a third amended Chapter 13 Plan,*fn12 which again drew an objection from Mr. Bondurant,*fn13 with Prospera and Integra joining in Mr. Bondurant's objection.*fn14 Mr. Bondurant also filed a fresh Motion to Dismiss Chapter 13 Petition Pursuant to 11 USC 109(e) ("Motion to Dismiss"),*fn15 which was joined by Prospera and Integra.*fn16 In the Motion to Dismiss, Mr. Bondurant asserted that the Shattucks' "unliquidated [sic] and contingent [sic] debt is in excess of $800,352.53, which exceeds the statutory limit of $336,900 for Chapter 13 relief provided under 11 USC 109(e)."*fn17 On July 18, 2008, the Shattucks and Mr. Bondurant filed witness and exhibit lists in compliance with the bankruptcy court's order.
At the hearing held on July 23, 2008, counsel for the Shattucks argued that the issue of the Shattucks' eligibility to file Chapter 13, raised by Mr. Bondurant's Motion to Dismiss, was not properly before the court because Mr. Bondurant, as a non-lawyer representative of the receivership estate of the LLC, had no authority to file the motion, a witness list, or an exhibit list, or to elicit and present evidence in support of the motion.*fn18 Although Prospera and Integra filed a joinder in Mr. Bondurant's Motion to Dismiss, their counsel had not filed a witness or exhibit list, and thus Prospera's and Integra's counsel was not prepared to offer any evidence in support of Mr. Bondurant's motion or their joinder.*fn19
At the hearing, Mr. Bondurant admitted that he was not an attorney and advised the bankruptcy court: "I am appearing pro se. I was appointed by the... Adams County District Court, individually, as a receiver for Reflections Autowash, LLC" in connection with a lawsuit filed against Mr. Shattuck and the LLC by Prospera and Integra.*fn20 After inquiring about Mr. Bondurant's background and experience, the bankruptcy court concluded that Colorado District Court Local Civil Rule 11.1(A) granted the court discretion to allow a non-lawyer to file pleadings and appear in court on behalf of an entity, and further concluded that the circumstances in this case justified permitting Mr. Bondurant to do so.*fn21
Mr. Bondurant presented an opening statement, called and examined his three witnesses, obtained the admission of six exhibits, and made a closing legal argument, all on behalf of the receivership estate of the LLC.*fn22 Counsel for Prospera and Integra presented an opening statement and closing arguments based on evidence from witnesses and exhibits ...