WONG et al v. PNC BANK, NATIONAL ASSOCIATION et al

Filing 10

OPINION. Signed by Judge Claire C. Cecchi on 2/28/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

In Re:

Civil Action No.: 16-cv-02254 (CCC)

69 NORTH FRANKLIN TURNPIKE, LLC,
Debtor

OPINION

GRACE S. WONG,
Appellant,
V.

PNC BANK, NATIONAL ASSOCIATION,
Appellee.
CECCHI, District Judge.
I.

INTRODUCTION

Appellant Grace S. Wong (“Appellant” or “Wong”), who is proceeding p Se, appeals
from the April 14, 2016 order (ECF No. 1-1) of the United States Bankruptcy Court for the District
of New Jersey (the “Bankruptcy Court”) dismissing with prejudice the Amended Complaint in her
adversary proceeding against Appellee PNC Bank, National Association (“Appellee” or “PNC”).
Before the Court is Appellee’s motion to dismiss the appeal pursuant to Federal Rule of
Bankruptcy Procedure 8013. ECF No. 3. The Court has considered the materials submitted in
support of and in opposition to the motion. ECF Nos. 3, 5, 7-9. The Court decides this matter
without oral argument pursuant to fed. R. Civ. P. 78(b))

The Court considers any new arguments not presented by the parties to be waived. See
Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir.
1991) (“It is well established that failure to raise an issue in the district court constitutes a waiver
of the argument.”).
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For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED
in part, and the parties are ordered to complete briefing the appeal.
The Court has jurisdiction pursuant to 28 U.S.C.
II.

§ 1334.

BACKGROUND

Appellant Wong claims she and her husband each owned a fifty percent share of 69 North
Franklin Turnpike, LLC (the “LLC” or “Debtor”). Amended Complaint “Compi.” ECF No. 3-2
at 1. On April 6, 2015, the LLC filed a bankruptcy petition, and on April 30, 2015, the LLC was
dissolved by a Bankruptcy Court order. jçj Wong alleges the Bankruptcy Court did not sign this
order, and therefore, it is void. Id. On May 8, 2015, Wong’s husband filed for bankruptcy, and as
a result Wong alleges she “acquired 100% of the voting rights in the LLC.” Id. On June 23, 2015,
Wong was informed that PNC sold the Debtor’s foreclosed property on June 5, 2015. [çi at 2.
Wong alleges that because the order’s voidness left the Debtor’s bankruptcy in place, and because
she did not receive proper notice that the foreclosed property was being sold while proceedings
were ongoing, the sale violated the automatic stay on the Debtor’s property. Id. at 6.
Wong filed a complaint against PNC on November 24, 20152 in New Jersey Superior
Court, Chancery Division—Equity Part in Bergen County, referring to herself in the caption as
“Grace S. Wong.” ECF No. 3-2 Ex. A. Wong filed an Amended Complaint on December 3, 2015,
referring to herself in the caption as “Grace S. Wong

—

Member.”

Ex. C. On December 7,

2015, Wong recorded a us pendens against Debtor’s property with the Bergen County Clerk. Id.

2

Wong has filed at least one previous action in Debtor’s name with this Court. On
September 9, 2015, Wong filed a notice of appeal in Debtor’s name from two Bankruptcy Court
orders. In the Appellant’s Brief, Wong alleged PNC violated the automatic stay by selling
Debtor’s property. The Court dismissed the case, finding the Debtor must be represented by a
licensed attorney, and “Mrs. Wong’ s attempt to represent Appellant before this Court constitutes
the unauthorized practice of law.” 69 N. Franklin Tpk. LLC et al v. PNC Bank, Nat. Ass’n, No.
15-07018-SDW (D.N.J. Jan. 26, 2016).
2

Ex. B. On December 21, 2015, PNC filed a Notice of Removal, and on January 14, 2016, this
Court referred the matter to the Bankruptcy Court pursuant to 22 U.S.C.

§

157. See Wong v. PNC

Bank, Nat. Ass’n, No. 15-8791 (CCC-MF) (D.N.J. Jan. 15, 2016).
The Bankruptcy Court entered an order on March 8, 2016 discharging the lis pendens, and
another order on April 14, 2016, dismissing the Amended Complaint.3 The second order is the
subject of this appeal.

In the April 14 order, the Bankruptcy Court held that dismissal was

warranted on claim and issue preclusion grounds, because the Bankruptcy Court had already ruled
that the April 30, 2015 order was not void, and that neither the sale of the Debtor’s foreclosed
property nor the lack of notice to Wong was improper because the banlcruptcy proceedings ended
before the sale took place. ECF No. 1-1 at 3-5. The Bankruptcy Court also stated that:
[T]he party with standing to assert the Alleged Stay Violations and
the Bankruptcy Notice Issues is the Debtor
Ms. Wong, as a
member of the Debtor, does not have standing to assert Alleged Stay
Violations on the Bankruptcy Notice Issues on behalf of the Debtor.
Nonetheless, the Court previously heard and considered the merits
of the arguments made by G. Wong regarding the Alleged Stay
Violations and Bankruptcy Notice Issues and determined them
adversely to the Debtors.
.

.

.

.

Id. at 5-6. The April 14 order lists Appellant in the caption as “Grace S. Wong

—

Member” and

notes that the Bankruptcy Court is using the name from the caption in Appellant’s Amended
Complaint. Id. at 1 & n.1.
On April 18, 2016, Wong filed a notice of appeal with this Court, listing herself in the
caption as “Grace S. Wong” and omitting “Member.” ECF No. 1. On April 28, 2016, PNC filed
the instant motion to dismiss. ECF No. 3. After the motion was filed, Appellant opposed the

Wong filed a second us pendens against the Debtor’s property, which was recorded on
March 11, 2016. Iç at Ex. G. The second lis pendens was discharged with prejudice in the
Bankruptcy Court’s April 14th order. ECF No. 1.
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motion, ECF Nos. 7, 9, but did not file a brief in support of the appeal, and Appeliee did not file

an opposition to the appeal separate from the motion to dismiss. Thus, the appeal itself has not yet
been briefed.
III.

DISCUSSION

Appellee moves to dismiss the instant appeal for two alternative reasons: on the one hand,
if Wong is seeking to represent the Debtor, she cannot do so because she is not an attorney, ECF
No. 3 at 11-13; or alternatively, if Wong is personally bringing the claims alleged in the Amended
Complaint, she lacks Article III standing to do so, id. at 7-10. The Court will discuss these
arguments in turn.
A.

Legal Standard

United States district courts have jurisdiction to hear appeals “from final judgments, orders,
and decrees” or “with leave of court, from other interlocutory orders and decrees” of bankruptcy
courts. 28 U.S.C.

§ 158(a). An appellee may move to dismiss an appeal from a bankruptcy court

on certain jurisdictional or procedural grounds, such as that the appellant lacks appellate standing,
see In re Fryer, 235 F. App’x 951, 953 (3d Cir. 2007), on mootness grounds, see In re Tempo
Tech. Corp., 202 B.R. 363, 374 (D. Del. 1996), for failure to prosecute, or as a sanction for failure
to comply with applicable procedural rules, çç fryer, 235 F. App’x at 953-54; In re Richardson
Indus. Contractors, Inç,, 189 F. App’x 93, 96 (3d Cir. 2006). By contrast, if an appellee wishes to
challenge a bankruptcy appeal on grounds other than the aforementioned jurisdictional or

In bankruptcy law, “[s]tanding to appeal an order of the Bankruptcy Court is limited to
‘persons aggrieved’ by the challenged decision.” In re Fryer, 235 F. App’x at 953 (citing Inre
Dykes, 10 f.3d 184, 187 (3d Cir. 1993)). This “appellate standing” is narrower than both Article
III standing and “banlcruptcy standing.” See id.; In re Glob. Indus. Techs., Inc., 645 F.3d at 209
(3d Cir. 2011) (differentiating Article III standing, “bankruptcy standing” and “appellate standing”
in the context of a banlcruptcy appeal).
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procedural defects, the appellee should do so in its opposition to the appeal, rather than in a motion
to dismiss, and it is appropriate for the district court to decide such challenges after the appeal has
been fullybriefed. See,

Karolyv. Schwab, Civil ActionNo. 3:13-132, 2013 WL 6909956, at

*3 (M.D. Pa. Dec. 31, 2013) (denying a motion to dismiss because the appellee’s arguments were
based on the merits of the bankruptcy court’s decision; ordering full briefing of the appeal).
Among the challenges to an appeal that the district court should decide after the appeal is
fully briefed—rather than on a motion to dismiss—is whether the bankruptcy court correctly
determined that a party did not have standing in the underlying action before the bankruptcy court.
See In re Glob. Indus. Techs., Inc., 645 F.3d at 209; Mt. McKinley Ins. Co. v. Pittsburgh Coming
Corp., 518 B.R. 307, 318 (W.D. Pa. 2014) (“Standing to appeal the substance of the bankruptcy
court’s decision is distinct from standing to appeal the bankruptcy court’s denial of bankruptcy
standing. A party denied standing by the bankruptcy court may appeal that decision.” (internal
quotations and citation omitted)).5
B.

Wong’s Representation of the LLC

Under 2$ U.S.C.

§ 1654, “[i]n 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
permitted to manage and conduct causes therein.” The Third Circuit has long interpreted

§ 1654

to mean that a business entity must appear in federal court through an attorney at law admitted to

A bankruptcy court’s finding that an appellant lacked standing in the underlying action
does not deprive the appellant of appellate standing before the district court. To the contrary, a
district court should not grant a motion to dismiss a bankruptcy appeal merely because the
bankruptcy court held that the appellant lacked standing in the underlying action. In re Glob.
Indus. Techs., Inc., 645 f.3d at 209 (failure to address an appeal of bankruptcy standing before
dismissing for lack of appellate standing “would risk leaving parties in interest who have been
erroneously denied banlcruptcy standing.
without legal redress for that error”; see also Inre
Pittsburgh & L. E. R. Co. Sec. & Antitrust Litig., 543 F.2d 1058, 1064 (3d Cir. 1976) (“A party
denied standing to sue, or to intervene, or to object, may obviously appeal such a determination.”).
.

.

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practice, rather than through a non-attorney representative of the entity. Simbraw, Inc. v. United
States, 367 F.2d 373, 374 (3d Cir. 1966). A filing by a non-lawyer on behalf of another person or
entity cannot be considered by the Court.

Hernandez v. Cullison, Civil Action No. 05-3038

(FLW), 2006 WL 1804579, at *6 (D.N.J. June 26, 2006) (striking and disregarding a non-lawyer’s
opposition brief on behalf of plaintiff); In re Earle Indus., Inc., 67 B.R. 822, 823 (E.D. Pa. 1926)
(denying motion to set aside a default judgment because it was filed by a non-attorney on behalf
of a corporation).
Appellee’s argument that Wong, a pç ç litigant, cannot represent the LLC on this appeal,
and that her attempt to do so effectively renders the appeal a nullity, appears to be the type of
procedural challenge that the Court may adjudicate on the present motion to dismiss.
However, it is not entirely clear whether Wong is, in fact, representing the LLC—rather
than herself—in either the underlying adversary proceeding or the present appeal. Some aspects
of this case seem to suggest that Wong is representing herself only. For example, the Amended
Complaint indicates that “Plaintiff Wong is a natural person” and alleges an injury to Wong’s own
economic interests. Compl.

¶J

1, 22. The caption in all of Appellant’s filings in the appeal

indicates “Grace S. Wong” as the Appellant. In her opposition to the present motion, Wong
indicates that “[t]he true identity of the plaintiff in this matter is an individual and not a member
of the Debtor as alleged by PNC in the United States Bankruptcy Court.” ECF No. 7 at 6. On the
other hand, there are indications to the contrary. The caption in the Amended Complaint indicates
the plaintiff is “Grace S. Wong

—

Member,” which may or may not suggest Wong is attempting to

sue on behalf of the LLC, Compl. at 1. Moreover, somewhat inconsistently, Wong’s opposition
to the motion argues “[a]s a matter of public policy, it may well be that the time has come to extend

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the right to self-representation to a small LLC such as that presently before the court” and cites
what appear to be several state law cases in support of this proposition. ECF No. 7 at 3-4.
Appellee argues that “[t]he fact that G. Wong is the named plaintiff in the Litigation does
not change the fact that the Litigation was effectively brought on behalf of the Debtor and, for that
reason, should also be dismissed with prejudice because G. Wong cannot represent the Debtor p
se.” ECF No. 3 at 11. But Appellee provides no case law to suggest that the Court should look at
the substance of the action, rather than Appellant’s name in the caption, to determine whether a
non-lawyer is “effectively” representing a business entity despite purporting to represent herself,
and the Court is aware of no such case law. Nor does Appellee provide the Court with case law
showing that “Grace S. Wong

—

Member” necessarily indicates that Appellant is suing on behalf

of the LLC.6
The Court has an obligation to

m

litigants to construe their pleadings and arguments

liberally. For this reason, the Court construes Appellant’s underlying Complaint and this appeal
as bringing all proceedings ifli in her individual capacity

on behalf of the LLC. In doing so,

the Court is guided by the Third Circuit’s decision in Brooks-McCollum v. State Farm Ins. Co.,
321 F. App’x 205 (3d Cir. 2009). There, appellant “purported to bring her suit, and purport[ed] to
appeal, both individually and on behalf of’ a company for which she was on the board of directors.
Id. at 206 & n. 1. The Third Circuit held it had jurisdiction over the appeal insofar as appellant
brought the suit and appeal on her own behalf, and dismissed the appeal only insofar as appellant

6

The only case cited even arguably on point for such a proposition is Van De Berg v.
Comm’r of Internal Revenue, 175 F. App’x 539 (3d Cir. 2006). In that case, the Third Circuit held
that an individual, Stephen M. Van De Berg, could not personally represent an entity called
“Stephen M. Van De Berg (Trust).”
at 540-41. But that case is distinguishable from this one,
because the Van De Berg trust was the named plaintiff in the action, and Van De Berg the
individual was unequivocal that the trust was the true plaintiff.
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purported to represent the company as well. j; accord Am. Corp. Soc’y v. Valley Forge Ins. Co.,
424 F. App’x 86, 87 n.1 (3d Cir. 2011) (“To the extent that [appellant] also seeks to appeal the
District Court’s order on behalf of his company.

.

.

he cannot do so because a corporation may

appear and be represented in this Court only by a licensed attorney who is also a member of this
Court’s bar. Accordingly, as to any claims against [the company], the appeal is dismissed.”
(internal citation omitted)).
As a non-lawyer, Appellant cannot represent the LLC.

Simbraw, 367 F.2d at 374.

Therefore, to the extent the appeal is brought on behalf of the LLC, it is a legal nullity that the
Court cannot adjudicate, and it must be dismissed. However, Wong can represent herself p se
in this appeal, and to the extent this appeal is brought on behalf of Wong as an individual, the
Court must analyze whether dismissal of the appeal is proper as to her.
C.

Wong’s Standing in the Underlying Adversary Proceeding

Appellee argues that dismissal of the appeal is warranted because Wong personally lacks
Article III standing to pursue the causes of action alleged in the Amended Complaint in the
underlying adversary proceeding. ECF No. 3 at 7-10.
The Bankruptcy Court appears to have dismissed the underlying adversary proceeding in
part because it determined Appellant personally lacked standing to bring claims belonging to the
Debtor. See ECF 1-1 at 5 (“Ms. Wong, as a member of the Debtor, does not have standing to
assert Alleged Stay Violations on the Banlcruptcy Notice Issues on behalf of the Debtor.”). This
Court has jurisdiction to hear an appeal of a bankruptcy court’s determination of standing in the
underlying action, and it is appropriate for the Court to wait for full briefing of the appeal before
deciding whether the Bankruptcy Court was correct. $çç supra Part III.A; In re Glob. Indus.
Techs., Inc., 645 F.3d at 209.

8

However, as of this date, the Court has not yet received the parties’ briefs in support of and
opposition to the appeal. Thus, the parties are hereby directed to file their briefs in accordance
with this Opinion and the accompanying order.
IV.

CONCLUSION

For the foregoing reasons, the motion is GRANTED IN PART AND DENIED IN PART,
and the appeal is DISMISSED insofar as it is brought on behalf of the Debtor, but not insofar as
it is brought on behalf of Wong herself.
Appellant must serve and file a brief within thirty (30) days from the date of this Opinion.
See Fed. R. Bankr. P. 8014, 8015, $018. Appellee must serve and file a brief within thirty (30)
days after service of Appellant’s brief, and Appellant may serve and file a reply brief within
fourteen (14) days after service of Appellee’s brief. Fed. R. Bankr. P. 8018.
In light of the parties’ forthcoming submissions, the appeal brought on behalf of Wong
herself is administratively terminated. The appeal shall be reinstated as of the date of filing of
Appellant’s brief.
An appropriate Order accompanies this opinion.

CLAIRE C. CECCHI, U.S.D.J.

Date: February 22, 2017

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