The Bill A. Fuchs Family Trust et al v. Mortgage IT, Inc. et al

Filing 49

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 2/11/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/11/2013)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 SAN FRANCISCO DIVISION 8 9 No. C 12-5528 RS ORDER OF DISMISSAL 11 For the Northern District of California United States District Court 10 THE BILL A. FUCHS FAMILY TRUST AND BILL A. FUCHS AS THE TRUSTEE Plaintiffs, 12 13 14 v. HSBC BANK et. al., Defendants. ____________________________________/ 15 16 The complaint in this case presents fifteen claims arising out of the foreclosure of a piece of 17 real property. It was filed by plaintiffs “The Bill A. Fuchs Family Trust and Bill A. Fuchs as the 18 Trustee” and signed by “Bill A. Fuchs, In Pro Se.” As discussed in the January 18, 2013, order to 19 show cause, it appears from the face of the complaint and documents attached thereto that the 20 property that is the subject of the complaint is owned by the Bill A. Fuchs Trust. “A trust, . . . must 21 be represented by an attorney.” Alpha Land Co. v. Little, 238 F.R.D. 497, 502 (E.D. Cal. 2006). It 22 is undisputed that Fuchs is not a lawyer. “A nonlawyer, such as [a] purported ‘trustee[] pro se’ has 23 no right to represent another entity, i.e., a trust, in a court of the United States.” Knoefler v. United 24 Bank of Bismark, 20 F.3d 347, 348 (8th Cir. 1994). 25 Although Fuchs may not represent the trust, he may represent himself. See 28 U.S.C. § 1654 26 (“In all courts of the United States the parties may plead and conduct their own cases personally or 27 by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes 28 therein.”). Fuchs is listed in the caption of the complaint as a plaintiff, but only in his capacity as NO. C 12-5528 RS ORDER 1 trustee of the trust. As the complaint was not clear about whether Bill A. Fuchs, as an individual, is 2 the real party in interest of any of the asserted claims, Fuchs was ordered to show cause as to why he 3 may proceed without a lawyer in this action, or, in the alternative, to retain counsel. See C.E. Pope 4 Equity Trust v. U.S., 818 F.2d 696, 697-98 (9th Cir. 1987) (“Here the record does not identify the 5 Trust[‘s] beneficiaries. Because [Fuchs] is not the actual beneficial owner of the claims being 6 asserted by the trust[] (so far as one can tell from the record), he cannot be viewed as a ‘party’ 7 conducting ‘his own case personally’ within the meaning of Section 1654.”). 8 9 In response to the order to show cause, Fuchs does not identify any claims in the complaint for which he, as an individual, is the real party in interest. Therefore, one must conclude that the For the Northern District of California United States District Court 10 complaint does not advance any claims on behalf of Fuchs as an individual, but only claims on 11 behalf of the Trust. Nor does Fuchs identify the trust’s beneficiaries. There is, accordingly, no 12 basis for determining that Fuchs is the beneficial owner of the claims being asserted by the trust. He 13 states that despite his best efforts, he has been unable to secure an attorney to represent the trust in 14 this case and is “still obligated to act in a Pro Se capacity,” which he believes “will only benefit 15 [his] case.” 16 There is no doubt that Fuchs, if permitted to represent the trust, would attempt to do so 17 diligently. Federal law, however, prohibits a non-lawyer such as Fuchs from representing another 18 entity, such as the trust, in federal court. See 28 U.S.C. § 1654. “The reciprocal relation between 19 the bar and the bench permits an exception only for a person acting personally. A federal court 20 rightly expects a lawyer to represent a litigant.” C.E. Pope Equity Trust, 818 F.2d at 698. Unable to 21 represent the trust himself, and without a lawyer willing to represent the trust, the complaint in this 22 case must be dismissed. This dismissal is without prejudice to the consideration of a new complaint 23 on the trust’s behalf filed by a licensed attorney. 24 IT IS SO ORDERED. 25 26 27 Dated: 2/11/13 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 28 NO. C 12-5528 RS ORDER 2

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