Holdings v. DB Home Lending LLC et al

Filing 11

MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss Case. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE as a nullity, with the parties to bear their own fees and costs. Signed by Honorable Robert T. Dawson on November 5, 2015. (lw) Modified on 11/5/2015 to add text (lw).

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION GREGORY HOLDINGS PLAINTIFF v. CASE NO. 15-6064 DB HOME LENDING LLC; HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP., HOME EQUITY LOAN TRUST, SERIES 2007-HE5, ASSET BACKED PASS-THROUGH CERTIFICATES; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. DEFENDANTS MEMORANDUM OPINION AND ORDER Before the Court for consideration are Defendants’ motion to dismiss and supporting brief (Docs. 8, 8-1), and Plaintiff’s response in opposition (Doc. 10). below, Defendants’ Motion is For the reasons set forth GRANTED and the complaint is DISMISSED WITHOUT PREJUDICE. I. Background On May 1, 2015, a complaint was filed in the Circuit Court of Garland Holdings. County, Arkansas, on behalf of Plaintiff Gregory The complaint describes Gregory Holdings as “a TEXAS JOINT STOCK COMPANY,” and is signed by Andres A. Perdomo, who is identified as a trustee for Gregory Holdings. The complaint seeks a judicial determination of the rights and interests of the parties in and to certain real property located in Garland County, Arkansas, and a note and mortgage executed in connection with said property. On June 17, 2015, Defendants filed a notice of removal to this Court, alleging jurisdiction to be proper based upon 28 U.S.C. § 1332. On July 22, 2015, Defendants filed their motion to dismiss and supporting brief, arguing that Plaintiff is a business entity that may not act pro se in a court proceeding and cannot be represented in litigation by an officer or trustee. Andres A. Perdomo cannot represent is not Gregory an attorney, Holdings complaint is subject to dismissal. in Defendants this matter Because argue, and he the Perdomo argues in response that he, as the purported “Trustee” of Gregory Holdings, is the real party in interest and may proceed as the pro se Plaintiff in this matter. II. Applicable Law As Defendants point out, federal courts have consistently held that business entities (such as corporations, partnerships, limited liability companies, and associations) can only appear in court through licensed attorneys and may not appear via nonattorney corporate officers acting pro se. See, e.g., Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202 (1993); Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (10th Cir. 2001); Tinkers & Chance v. Zowie Intertainment, Inc., 15 F. App’x 827, 828 (Fed. Cir. 2001). Eighth Circuit case law is clear that a non-lawyer trustee may not represent a trust pro se in federal court. 2 See Joshua Bldg. Trust v. Clementi, 78 F.3d 588 (8th Cir. 1996); Knoefler v. United Bank of Bismarck, 20 F.3d 347 a lawyer (8th Cir. 1994). When an individual who is not attempts to represent the interest of other persons or entities in court, the individual engages in the unauthorized practice of law. See Jones ex rel. Jones v. Corr. Med. Servs., 401 F.3d 950, 952 (8th Cir. 2005). nullity. Any pleading filed by such an individual is a See id. In the instant case, it is clear that Plaintiff Gregory Holdings is an entity that must be represented by a licensed attorney in proceedings before this Court. There has been no contention that Perdomo is a licensed attorney, and the complaint he purported to sign on behalf of Gregory Holdings is a nullity. III. Conclusion For the reasons set forth dismiss (Doc. 8) is GRANTED. above, Defendants’ motion to Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE as a nullity, with the parties to bear their own fees and costs. IT IS SO ORDERED this 5th day of November, 2015. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge 3

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