Opinion
No. 1-87-00718.
April 30, 1987.
Individual Repayment Plan — Filing — Power of Attorney. — It is permissible for a debtor's spouse to file a Chapter 13 petition on the debtor's behalf by using a power of attorney. The debtor here was in the Armed Services overseas, was faced with the foreclosure of his residence, but could not file the petition himself. The power of attorney was a general power. It would have been preferable for the spouse to have presented a specific power directly addressing bankruptcy.
See Sec. 301 at ¶ 8001.
The filing of the petition in the above matter came before the court in the nature of an ex parte application for leave to file a Chapter 13 bankruptcy petition signed by a wife on behalf of her husband using a standard power of attorney. The husband is in the United States Army, stationed in Europe. There was no time to get the husband's actual signature on the petition, as foreclosure of the family residence was imminent.
The court is somewhat dismayed by the logic in In re Raymond (Bkrtcy. E.D. Va. 1981) 12 B.R. 906, and declines to follow its ruling. In Raymond, the court found the filing of a bankruptcy petition to be too personal to allow a power of attorney to be used, likening it to enlisting in the armed services or voting. This court does not see the analogy, as the act of filing a bankruptcy petition primarily concerns the preservation of property and does not seem so personal that it cannot ever be done by proxy.
More importantly, the holding in Raymond ignores the situation of thousands of wives who struggle to keep family affairs together while their husbands are serving their country in remote parts of the world. In the absence of clear legislative direction to the contrary, this court cannot come up with a single reason for making the burden upon the "home front" spouses heavier by effectively denying the protection of the bankruptcy laws to them in emergencies. As even the court in Raymond acknowledged, spouses in the service who must leave their families for extended times employ the power of attorney in the hope of allowing the remaining spouse to conduct whatever business may arise in their absence; there is no policy reason to thwart this intent.
A better view of the allowability of a petition by power of attorney is found in In re Sullivan (Bkrtcy. E.D. Pa. 1983) 30 B.R. 781. In that case, the court would not allow a petition to be filed using a limited power of attorney, but did allow a filing pursuant to a power of attorney which specifically authorized a bankruptcy filing. As the court noted:
A few situations may, in urgency, require individual remedies. The Bankruptcy Court is still a court of equity.
30 B.R. at 782, citing In re Killett (Bkrtcy. E.D. Va. 1980) 2 B.R. 273, 275.
The power of attorney used in this case is a general power of attorney, but does not specifically mention bankruptcy. Since the debtor should be given the benefit of the doubt in these cases, and since the debtor may be estopped from denying the validity of the petition once he has knowingly accepted the benefits ( Matter of R.S. Pinellas Motel Partnership (Bkrtcy. M.D. Fla. 1980) 5 B.R. 269, 273-74),
IT IS ORDERED as follows:
1. The clerk shall accept and file the petition.
2. The clerk shall immediately mail notice to debtor RICHARD BALLARD that the petition has been filed for him using the power of attorney held by his wife.
3. These proceedings shall be dismissed as to RICHARD BALLARD only if, within a reasonable time considering the remoteness of his duty station, said debtor notifies the clerk in writing that the filing was without the scope of the power of attorney.