Opinion
No. 78-1524EG
May 22, 1979
Real Property Arrangements — Eligibility To File — Failure to Comply With State Law
A debtor's Chapter XII petition was dismissed where, on the date of the petition, the debtor had not yet complied with state law requirements for forming a partnership.
The debtor had filed its petition on October 16, 1978. A creditor moved for dismissal. The question presented was whether, on October 16, 1978, the debtor was a limited partnership with a general partner authorized to sign the petition for an arrangement on the partnership's behalf? For the answer to this question the court looked to state law.
Since the debtor's original general partner had been removed, Section 1720 of the Delaware Limited Partnership Act provides that the retirement of a general partner dissolves the partnership, and Section 1724(a) mandates that, when such dissolution occurs, the certificate evidencing the limited partnership is cancelled. Further, Section 1702(a)(2) requires that the person desiring to form a limited partnership file for record the certificate in the office of the Secretary of State.
In the instant case, the court found that the debtor's amended certificate of limited partnership was not filed in the office of the Delaware Secretary of State until more than two months after the filing of the petition. Without such filing, no limited partnership had been formed. Thus, on the date the Chapter XII petition was filed, the debtor was not a limited partnership and had no general partner authorized under state law to act for it in executing the petition. Accordingly, the debtor's petition was dismissed. See Sec. 406(6) at ¶ 3509.