Opinion
Case No. 14-47825
05-09-2014
In re: ESTATE OF ANDREW J. McCRARY, Debtor.
Chapter 13
Judge Thomas J. Tucker
ORDER DISMISSING CASE
On May 5, 2014, Debra R. Miller, the Executor of the Estate of Andrew J. McCrary, who is not an attorney, filed a voluntary petition for relief under Chapter 13 on behalf of such estate. Andrew J. McCrary is deceased. (See Docket # 4 ("Oath of Executor").) This case must be dismissed for two reasons.
First, an estate may not be a debtor under Chapter 13, because it is not "an individual." See 11 U.S.C. § 109(e) ("Only an individual with regular income . . . may be a debtor under chapter 13 of this title."); In re Bunch, 249 B.R. 667, 668, 671 (Bankr. D. Md. 2006)(holding that "a decedent's estate is not eligible to file a Chapter 13 bankruptcy petition because it is not within the definition of an 'individual' as set forth in 11 U.S.C. § 109 for purposes of Chapter 13"); In re Estate of Roberts, No. 05-26653 ESD., 2005 WL 3108224, at *3 (Bankr. D. Md. 2005)(decedent's estate was not an "individual" and thus not eligible to file for relief under Chapter 13); Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 7.8 at ¶ 1, Sec. Rev. Mar. 4, 2009, www.Ch13online.com (footnote omitted)("The estate of a deceased individual is not an individual with regular income and is not eligible for Chapter 13."); cf. In re JAC Family Foundation, 356 B.R. 554, 757 (Bankr. N.D. Ga. 2006)(holding that a family foundation "is not eligible to be a debtor under Chapter 13 because a foundation is not an individual, and § 109(e) of the Bankruptcy Code limits Chapter 13 relief to individuals"). "Individual" means "a single human being," or "natural person," not an estate or other entity. See, e.g., In re JAC Family Foundation, 356 B.R. at 556-57. In fact, a decedent's estate is not eligible be a debtor under any chapter of the Bankruptcy Code. In re Shepherd, 490 B.R. 338, 342 (Bankr. N.D. Ind. 2013)(footnote omitted)("[I]t is universally held that a probate estate may not be a debtor."); In re Estate of Roberts, 2005 WL 3108224, at *3 (citations omitted)(explaining that "[o]ther courts addressing the question of whether an insolvent decedent's estate is a person and therefore eligible for relief under the Bankruptcy Code have uniformly found that the definition of debtor excludes insolvent decedents' estates" and holding that a decedent's estate is not eligible for relief under the Bankruptcy Code because it is not a "person" and it is not an "individual").
Second, the bankruptcy petition was not validly filed. A legal entity, such as an estate, must be represented by an attorney in a bankruptcy case. A representative of the estate, who is not herself an attorney, cannot file a bankruptcy petition on behalf of the estate, except through an attorney. See, e.g., Beyer v. North Carolina Division of Mental Health, No. 1:01CV50-T, 2001 WL 1319506, at * 1-2 (W.D.N.C. 2001)(comparing an estate to a corporation and holding that an estate cannot represent itself and that it must be represented by a licensed attorney); cf. United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969)("[A] corporation cannot appear otherwise than through an attorney."); see also In re Dick Tracy Insurance Agency, Inc., 204 B.R. 39, 39 (Bankr. W.D. Mo. 1997)("There is no dispute that a corporation must be represented by counsel in a bankruptcy proceeding and may not file a petition pro se.")
For these reasons,
IT IS ORDERED that this case is dismissed.
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Thomas J. Tucker
United States Bankruptcy Judge