Opinion
Case No. 01-13602-SSM, Adversary Proceeding No. 02-8009
February 21, 2002
Frank Bove, Esquire, Alexandria, VA, of Counsel for Plaintiff
Ms. Lisa Richardson, Washington, DC, for Defendant pro se
MEMORANDUM OPINION AND ORDER
Before the court is a letter filed by defendant Lisa Richardson on February 14, 2002, seeking the dismissal of this action as to her. Because on its face the complaint states a claim for relief against her, and because the defense she asserts would require the court to engage in fact-finding in advance of trial or a properly-supported motion for summary judgment, the motion to dismiss will be denied.
Background
The is an action by the United States Trustee seeking (a) the imposition of civil penalties against Bernard Richardson, Lisa Richardson, and the entity "Richardson Richardson" (also apparently known as "RR Bankruptcy" and "RR Consultants" for violating provisions of the Bankruptcy Code that regulate the activity of bankruptcy petition preparers and (b) to enjoin them from acting as bankruptcy petition preparers in the future. The complaint, which was filed on January 10, 2002, alleges that the defendants prepared the bankruptcy petition and schedules that were filed by the debtor, Yolanda C. Hamer, in this court on September 10, 2001, without signing the certification required by 11 U.S.C. § 110. The complaint alleges that Ms. Hamer met with Mr. Richardson after she received a flyer from "RR Bankruptcy" advertising that the company would assist her to "file bankruptcy without going bankrupt." Mr. Richardson instructed her to make the check for the $500.00 fee charged by "RR Bankruptcy" payable to Ms. Richardson.
A summons was issued by the clerk on January 14, 2002, and was thereafter served on the defendants by first-class mail on January 17, 2002. On February 14, 2002, Mrs. Richardson filed with the clerk a letter stating in relevant part:
Mr. Richardson was served at three different addresses.
My husband and I have been separated, and I am not liable for his actions. I should not be named in this suit. Therefore, I am not part of this case.
I am respectively asking the court to remove my name from this case.
The problem, of course, is that whether Mrs. Richardson "is liable" for the failure of her husband and "RR Bankruptcy" to comply with the requirements imposed on bankruptcy petition preparers by § 110, Bankruptcy Code, is the very issue to be decided in this case. As the Supreme Court has instructed,
When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. . . .[I]t is well established that, in passing on a motion to dismiss,. . . the allegations of the complaint should be construed favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if the court were inclined to exercise its discretion under Rule 12(b), Fed.R.Civ.P., as incorporated by F.R.Bankr.P. 7012, to treat the Mrs. Richardson's request for dismissal as a motion for summary judgment, the United States Trustee would certainly first be entitled to a reasonable opportunity for discovery to determine the exact nature of "RR Bankruptcy" (e.g., corporation, partnership, sole proprietorship) and the extent of Mrs. Richardson's ownership interest in, control over, or involvement in, its activities. Although the complaint does not allege any personal meetings between the debtor and Mrs. Richardson, it does allege that the $500.00 fee the debtor paid was deposited into Mrs. Richardson's bank account. Part of the relief requested is a turnover of those funds to the bankruptcy trustee or the debtor as their interests may appear. Since at this point, the court must treat the well-pleaded allegations of the complaint as true, and must construe those allegations favorably to the United States Trustee, no basis exists at this time to dismiss the complaint as to Mrs. Richardson.
This is not to say that the court has prejudged the case or that a judgment will necessarily be entered against Mrs. Richardson. It is precisely to determine contested issues of fact that we have trials. At trial, the evidence may very well show that Mrs. Richardson, as she asserts, had no involvement in the activities of "RR Bankruptcy" or the preparation and filing of the debtor's petition. But until the court is in a position, based on legal and competent evidence, to make that determination, the complaint cannot be dismissed as to Mrs. Richardson.
For the foregoing reasons, it is
ORDERED:
1. The written request filed by defendant Lisa Richardson on February 14, 2002, that the complaint be dismissed as to her is denied.
2. Defendant Lisa Richardson shall, within 10 days of notice of the entry of this order, file with the clerk, and serve on counsel for the plaintiff, an answer to the complaint. The answer must specifically admit or deny each of the numbered allegations of the complaint or state that the defendant is without knowledge or information sufficient to form a belief as to the truth of such allegation. The answer must be personally signed by the defendant, must include the defendant's mailing address, and must contain a signed certificate showing the date it was mailed and the names and addresses of the persons it was mailed to. Failure to file a timely answer may result in the granting of judgment by default for the relief requested .
3. The clerk shall mail a copy of this memorandum opinion and order to the parties listed below.