§ 10.9 — Petitions on Behalf of Others: Incompetents, Next Friends, Powers of Attorney and the Like

Revised: April 25, 2016

[1]

Several Bankruptcy Rules and Code sections directly or indirectly address the signing or filing of a bankruptcy petition by an individual on behalf of another. All these Rules and Code sections point in the same direction: An individual is eligible for Chapter 13 relief notwithstanding that the individual lacks competency to execute the petition by reason of age, infirmity or mental incapacity; the petition commences a Chapter 13 case notwithstanding that the signature line was executed by an individual other than the debtor when the signer’s authority can be shown, for example, by contract or court order.

[2]

All that said, there are few cases addressing Chapter 13 petitions filed on behalf of others and too many deal with fraudulent petitions rather than the appropriate use of Chapter 13 as a financial management tool for someone who can’t manage their own. No coherent analytic methodology has emerged with respect to who can file on behalf of another, when such a petition is appropriate or what must be done to make the proxy petition stick.

[3]

Prior to December 1, 2002, there was no bankruptcy rule addressing the filing of a petition for an infant or incompetent. In cases after December 1, 2002, Bankruptcy Rule 1004.1 provides:

Petition for an Infant or Incompetent Person
If an infant or incompetent person has a representative, including a general guardian, committee, conservator, or similar fiduciary, the representative may file a voluntary petition on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.1
[4]

The Advisory Committee note states that this new rule is derivative of Rule 17(c) of the Federal Rules of Civil Procedure and that the new rule “does not address the commencement of a case filed on behalf of a missing person.”2 Cases decided prior to December 1, 2002, that analyzed the filing of a Chapter 13 petition on behalf of an infant or incompetent as a question of “capacity” under Rule 17 of the Federal Rules of Civil Procedure3 may provide useful guidance with respect to new Bankruptcy Rule 1004.1 given its derivation.

[5]

Prior to December 1, 2002, it had been held that a Chapter 13 case could be commenced on behalf of a mentally incompetent individual by a “next friend” petition.4 It was not clear whether authority to file a next-friend petition was controlled by state law, by federal law or by some interaction of the two. Bankruptcy Rule 1004.1 contemplates a role for both state and federal law in the commencement of a Chapter 13 case for an infant or incompetent. 5

[6]

If the infant or incompetent already has a representative, Bankruptcy Rule 1004.1 says the representative “may” file a Chapter 13 petition. “Representative” is broadly defined by the new rule to include the sorts of fiduciaries appointed under state guardianship laws.6 But there is no mention of a “next friend” among the “similar fiduciaries.”

[7]

Perhaps unfortunately, the rule is permissive that the representative “may” file a voluntary petition. This wording implies but does not command that, if the incompetent already has a representative, only that representative may file a Chapter 13 petition.

[8]

The second sentence of the rule then authorizes the filing of a voluntary bankruptcy petition by a “next friend or guardian ad litem” on behalf of an infant or incompetent person who “does not have a duly appointed representative.” This provision raises a stronger inference that a “next friend” or a “guardian ad litem” is not considered to be a representative and that a next friend or guardian ad litem could not file a Chapter 13 petition on behalf of an infant or incompetent person who has a “duly appointed representative.”7

[9]

The final sentence of the rule instructs (using the word “shall”) the bankruptcy court8 to appoint a guardian ad litem for any infant or incompetent person “who is a debtor and is not otherwise represented.” This sentence seems to require that the infant or incompetent person must already be a debtor in a bankruptcy case before the court “shall appoint a guardian ad litem.” This tells us nothing about the authority of a bankruptcy court to appoint a representative, a next friend or a guardian ad litem to file a bankruptcy petition for an infant or incompetent in the first instance.9 One court has interpreted Bankruptcy Rule 1004.1 as authority to appoint an incompetent debtor’s spouse as next friend, with retroactive power to sign the petition and perform Chapter 13 administrative duties.10

[10]

But more curiously, how did the infant or incompetent who is “not otherwise represented” get into the bankruptcy case under Bankruptcy Rule 1004.1? Referring to the sentence immediately before the final sentence of the new rule, it could be the petition was filed by a “next friend or guardian ad litem.” But then we know that an infant or incompetent on whose behalf a voluntary petition is filed by a next friend or guardian ad litem is “not otherwise represented” for purposes of the mandate that the bankruptcy court “shall appoint a guardian ad litem.” Did the drafters intend to require the bankruptcy court to appoint a guardian ad litem for any infant or incompetent whose Chapter 13 petition was filed by a next friend or guardian ad litem—two guardians ad litem? Perhaps the disjunctive last phrase, authorizing the bankruptcy courts to “make any other order to protect the infant or incompetent debtor,” is the place to start and end this discussion of the rule.11

[11]

If not a model of clarity, Bankruptcy Rule 1004.1 at least opens the door to Chapter 13 petitions on behalf of an infant or incompetent filed by “duly appointed” representatives12 or filed by next friends or a guardian ad litem when no representative has been (duly?) appointed. Once a petition has been filed on behalf of an infant or incompetent, the bankruptcy court has a rule to cite for other orders for protection of the infant or incompetent. This is certainly progress if not a bit of a stutter step.

[12]

Bankruptcy Rule 1004.1 does not address whether a representative, next friend or guardian ad litem must comply with state law before filing a Chapter 13 petition on behalf of an infant or incompetent. If the filing of a representative or next-friend petition requires compliance with state law, the individual acting as representative or next friend may need an order from a state court authorizing the petition.13 Once a Chapter 13 petition is filed, if there is action ongoing in state court with respect to the debtor or the debtor’s representative, the automatic stay may need to be modified to permit that action to proceed.14

[13]

Prior to December 1, 2002, the U.S. Court of Appeals for the Fifth Circuit tolerated, if not embraced, the filing of a Chapter 13 case by a debtor’s legal guardian.15 One bankruptcy court refused to dismiss a Chapter 13 petition signed by an incompetent debtor and by the debtor’s daughter, who was acting under a durable power of attorney, notwithstanding that the power of attorney had been partially revoked by a state court and notwithstanding that the state court had appointed a separate guardian for the debtor’s property.16 On appeal, the U.S. Court of Appeals for the Eighth Circuit disagreed: under South Dakota law, the separate guardian had exclusive control over the debtor’s property; because bankruptcy “concern[s] the disposition of property,” only the guardian had authority to file a bankruptcy petition.17

[14]

When the debtor was competent and eligible at the filing, it has been held that the debtor continues to be eligible notwithstanding a postpetition declaration of incompetence.18 Bankruptcy Rule 1016 provides that if a Chapter 13 case is pending and the debtor becomes incompetent, “the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though . . . incompetency had not occurred.” Continued administration of the Chapter 13 case after the debtor becomes incompetent may be a very effective method of managing the finances of an incompetent individual.19

[15]

Bankruptcy Rule 1004.1 complements Rule 1016 by providing that the bankruptcy court “shall appoint a guardian ad litem” for an infant or incompetent “not otherwise represented.” This mandate would include the appointment of a guardian ad litem for a Chapter 13 debtor who becomes incompetent and is unrepresented after the case is filed. Although Rule 1004.1 is captioned “Petition for an Infant or Incompetent,” it is reasonably inferable that once appointed, the guardian ad litem would act for the debtor in furtherance of the Chapter 13 case.20

[16]

What about powers of attorney? Although not specifically listed as a “representative” in Bankruptcy Rule 1004.1, would a properly executed power of attorney create a “similar fiduciary” for purposes of filing a Chapter 13 petition? In In re Wallace,21 the bankruptcy court found that the debtor’s daughter had specific authority under a power of attorney to initiate a Chapter 13 petition. In contrast, in In re Benson,22 the Chapter 13 case was filed by an attorney-in-fact pursuant to a power of attorney executed while the debtor was competent. The bankruptcy court cited the absence of specific authority to file bankruptcy in the power of attorney as grounds to appoint a guardian ad litem under Bankruptcy Rule 1004.1 to determine the best interests of the debtor. Implicit in Benson is the conclusion that a general power of attorney does not create a “duly appointed representative” for purposes of Bankruptcy Rule 1004.1.

[17]

A related and perhaps more common problem is authority to commence a Chapter 13 case on behalf of a competent adult when the petition is actually signed and filed by someone other than the debtor. Put another way, does the debtor have to sign the petition personally, or can it be signed for the debtor?

[18]

There is nothing in the Bankruptcy Code or Rules prohibiting an authorized agent or representative from signing the debtor’s name to the petition. But failure to reveal the nature of the representative signature can be a pile of trouble for both the debtor and the agent.

[19]

For example, in In re Washington,23 the agent who signed the debtor’s signature to the Chapter 13 petition was acting under a power of attorney and had authority to sign and file the petition. However, the agent signed without indicating that the handwriting was the agent’s on behalf of the debtor. When these facts became known, the bankruptcy court concluded that the petition was a nullity and the agent was in deep yogurt:

When a case is commenced by the filing of a petition executed by an individual acting for the debtor under a Power of Attorney, certain minimum requirements must be satisfied to ensure that the petition is properly filed. In particular, the petition must be properly executed by the attorney-in-fact in a manner which reflects the representative capacity of the attorney-in-fact. . . . A petition is a legal nullity if the signature on the petition is forged, even if the party forging the signature had a Power of Attorney, if there was no indication that the document was signed in a representative capacity.24
[20]

Bankruptcy Rule 9010 has been cited as potential authority for the signing of a Chapter 13 petition by an agent.25 Bankruptcy Rule 9010(a) provides:

[21]

Rule 9010. Representation and Appearances; Powers of Attorney.

(a) Authority to Act Personally or by Attorney. A debtor, creditor, equity security holder, indenture trustee, committee or other party may (1) appear in a case under the Code and act either in the entity’s own behalf or by an attorney authorized to practice in the court, and (2) perform any act not constituting the practice of law, by an authorized agent, attorney in fact, or proxy.
[22]

Notice that Bankruptcy Rule 9010(a) ambiguously refers to “A debtor” performing “any act26 . . . by an authorized agent, attorney in fact, or proxy.”27 Use of “debtor” in Bankruptcy Rule 9010(a) could be interpreted to mean that the rule only applies to an individual who is already a “debtor”—that is, after the filing of a petition.28

[23]

More sensibly, Bankruptcy Rule 9010(a) should be read to authorize the filing of a petition by an agent, attorney-in-fact or proxy, “authorized” by the individual on whose behalf the petition is filed. Of course, the filing of a bankruptcy petition has significant legal consequences and should be clothed in the sort of legal formalities that impress this importance on every individual venturing into the process. But many important legal events are accessible with or without original wet signatures by the affected individual when there is appropriate evidence of agency or representation between the individual signing and the individual signed for. Bankruptcy courts are amply blessed with resources to assess the authority of those signing petitions and to ferret out wrongdoers who would sign a bankruptcy petition for another without authority and/or for wrongful motives.

[24]

The reported decisions support this proposition. Fake agents and other wrongdoers have fared poorly at using proxy Chapter 13 petitions in nefarious schemes. In In re David,29 the debtor was sanctioned for using a brother’s name and Social Security number to file a Chapter 13 case. In In re Mangum,30 a husband was barred from filing bankruptcy for 10 years and permanently enjoined from assisting any other individual with a bankruptcy filing when the husband filed several Chapter 13 petitions in the name of his spouse without her knowledge. Mr. Mangum was referred to the United States Attorney for a criminal investigation. Forged petitions have been rendered opaque in court records31 or expunged altogether on the right facts.32

[25]

It is a bad idea for debtors’ counsel or for anyone working in a debtor’s attorney’s office to routinely sign bankruptcy petitions on behalf of debtors. But if unusual circumstances demand a representative signature, Washington is instructive that the signing party should be identified and the nature of the representative capacity revealed. Written authority for the signature and for the filing is the least counsel should require before considering a representative signature on the petition. If filing under a power of attorney, the power should be specific enough to include authority to file bankruptcy. In Washington, the bankruptcy court ordered the Chapter 13 case dismissed, “expunged” the filing from the bankruptcy court’s records and sanctioned the debtor’s attorney and the agent who actually signed the petition. Another court used civil contempt to punish a debtor who used powers of attorney to file multiple Chapter 13 cases to stop foreclosure.33

[26]

Changes to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)34 raise new questions about signing and filing petitions on behalf of an incompetent debtor. For example, do the expanded bankruptcy petition preparer restrictions and responsibilities in § 110 apply to an attorney-in-fact who signs and files a Chapter 13 petition?35 One court has held that § 110 does not apply to a Chapter 13 petition signed and filed under a power of attorney that is broad enough to include bankruptcy filing.36

[27]

More importantly, BAPCPA added a condition for eligibility for Chapter 13 relief that the debtor must receive a prepetition briefing under § 109(h).37 Of particular importance here is this exception to the prepetition briefing requirement in § 109(h)(4):

The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and “disability” means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing required under paragraph (1).38

Notice (again) that § 109(h)(4) refers to a “debtor” unable to complete a prepetition briefing by reason of incapacity, disability or military service. Will § 109(h)(4) be interpreted to only apply to individuals who become incapacitated after filing a Chapter 13 petition? The better reading is that an incapacitated or disabled individual is eligible to file a Chapter 13 petition notwithstanding the prepetition briefing requirement in § 109(h)(1).

[28]

The obvious implication of § 109(h)(1) is that incapacitated and disabled individuals can file Chapter 13 petitions—else why would Congress grant exemption from the prepetition briefing requirement? It would not make sense for Congress to acknowledge the eligibility for Chapter 13 relief of incapacitated and disabled individuals yet not contemplate some mechanism for the filing of a petition on behalf of such an individual. Section 109(h)(4) is indirect evidence of congressional intent to permit the filing of a Chapter 13 petition on behalf of an individual who lacks the capacity to file.

[29]

In one reported decision, a debtor who suffered from dementia was found to be incapacitated for purposes of permanent relief from the prepetition briefing requirement in § 109(h)(4) and the debtor’s spouse was appointed “next friend” to sign the petition and perform administrative duties on behalf of the incapacitated individual.39


 

1  Fed. R. Bankr. P. 1004.1.

 

2  Fed. R. Bankr. P. 1004.1 advisory committee’s note.

 

3  See In re Murray, 199 B.R. 165 (Bankr. M.D. Tenn. July 31, 1996) (Lundin) (Applying Rule 17 of the Federal Rules of Civil Procedure, a next friend has capacity to file a Chapter 13 petition on behalf of an infant debtor.); Brown v. Financial Enters. Corp. (In re Hall), 188 B.R. 476 (Bankr. D. Mass. Nov. 3, 1995) (Feeney) (Bankruptcy Rule 7017 is cited as further support for the proposition that a temporary guardian for an incompetent debtor has authority to file a Chapter 13 petition even if the guardian is not specifically authorized by a court to do so.).

 

4  In re Zawisza, 73 B.R. 929 (Bankr. E.D. Pa. May 27, 1987) (Scholl). Accord In re Murray, 199 B.R. 165 (Bankr. M.D. Tenn. July 31, 1996) (Lundin) (Seven-year-old is eligible for Chapter 13 relief. Petition was signed by debtor’s mother as “next friend.” Applying Rule 17 of the Federal Rules of Civil Procedure, a next friend has capacity to file a Chapter 13 petition on behalf of an infant debtor.). See also Simione v. Nationsbank of Del., N.A. (In re Simione), 229 B.R. 329 (Bankr. W.D. Pa. Jan. 26, 1999) (Bentz) (Without discussion of eligibility, Chapter 13 petition was filed by the debtor’s cousin as “attorney-in-fact.” Bankruptcy court voided a mortgage to the cousin and ordered subordination of all claims by the cousin when it appeared that the filing was engineered to discharge all of the debtor’s unsecured debts, leaving the debtor’s assets for the cousin pursuant to a mortgage executed by the cousin on behalf of the debtor two months before the filing.).

 

5  See, e.g., In re McDonald, Nos. 8:04-BK8585-MGW, 8:04-BK-1742-MGW, 2004 WL 2931370 (Bankr. M.D. Fla. Dec. 17, 2004) (unpublished) (May) (Bankruptcy court annuls automatic stay to validate state court guardianship proceeding against 83-year-old debtor in a nursing home and to permit temporary guardian to complete state court guardianship process that began after Chapter 13 petition.).

 

6  See In re McDonald, Nos. 8:04-BK8585-MGW, 8:04-BK-1742-MGW, 2004 WL 2931370, at *3 n.5 (Bankr. M.D. Fla. Dec. 17, 2004) (unpublished) (“It appears that a guardian may administer a Chapter 13 case for the ward.”).

 

7  Unless a “representative” and a “duly appointed representative” are different fiduciary forms. Surely not.

 

8  See Fed. R. Bankr. P. 9001(4) (“‘Court’ or ‘judge’ means the judicial officer before whom a case or proceeding is pending.”).

 

9  This sentence also seems to extend the new rule beyond its caption, “Petition for an Infant or Incompetent Person.”

 

10  In re Myers, 350 B.R. 760, 764 (Bankr. N.D. Ohio Aug. 24, 2006) (Woods) (“Bankruptcy Rule 1004.1 and 11 U.S.C. § 105 provide this Court with the authority to make an appropriate order to protect Mr. Myers as an incompetent. . . . Mrs. Myers, as the spouse of Mr. Myers for 63 years, is very knowledgeable about the financial affairs of Mr. Myers. . . . [I]t appears both appropriate and necessary for Mrs. Myers to be appointed the next friend of Mr. Myers in order to aid in the administration of this case.” “[T]here is no requirement in the Bankruptcy Code for a debtor to be mentally competent.” “[T]his Court will appoint Mrs. Myers as the next friend of Mr. Myers for the limited purpose of filing the bankruptcy petition and taking all actions otherwise required by Mr. Myers as debtor, but excluding representing Mr. Myers in any adversary proceeding that may be filed against both Debtors. Because this appointment authorizes Mrs. Myers to file the petition on behalf of Mr. Myers, the appointment is nunc pro tunc to the filing date.”).

 

11  See In re Myers, 350 B.R. 760, 764 (Bankr. N.D. Ohio Aug. 24, 2006) (Woods) (“Bankruptcy Rule 1004.1 and 11 U.S.C. § 105 provide this Court with the authority to make an appropriate order to protect Mr. Myers as an incompetent[.]”).

 

12  See, e.g., In re Sapp, No. 10-20580-659, 2011 WL 2971048 (Bankr. E.D. Mo. July 20, 2011) (Surratt-States) (Husband, acting under state court papers as guardian and conservator of incapacitated wife, was authorized to execute bankruptcy petition on her behalf.).

 

13  See Wieczorek v. Woldt (In re Kjellsen), 53 F.3d 944, 946 (8th Cir. May 12, 1995) (Bowman, Wollman, Arnold) (“In general, state law determines who has authority to file a bankruptcy petition on behalf of another.”); In re Woods, 248 B.R. 322, 322 (Bankr. W.D. Tenn. May 11, 2000) (Kennedy) (“[A] guardian (or conservator) may file a voluntary bankruptcy petition for a debtor-ward, if authorized by the guardianship court (or perhaps the guardian). . . . Neither the conservator appointing court . . . nor the conservator authorized the filing of this chapter 13 case by the above-named debtor-ward. This is cause under the circumstances warranting a case dismissal.”). But see Brown v. Financial Enters. Corp. (In re Hall), 188 B.R. 476, 483 (Bankr. D. Mass. Nov. 3, 1995) (Feeney) (“A guardian may file a bankruptcy petition on behalf of an incompetent person even if the guardian is not specifically authorized by a court to do so. . . . Thus, even if Mr. Brown had not been appointed as temporary guardian, the Debtor, with assistance from her counsel, could have filed a bankruptcy petition prior to the foreclosure.”).

 

14  See In re McDonald, Nos. 8:04-BK8585-MGW, 8:04-BK-1742-MGW, 2004 WL 2931370 (Bankr. M.D. Fla. Dec. 17, 2004) (unpublished) (May) (Bankruptcy court annuls automatic stay to validate state court guardianship proceeding against 83-year-old debtor in a nursing home and to permit temporary guardian to complete state court guardianship process.).

 

15  Querner v. Querner (In re Querner), 7 F.3d 1199 (5th Cir. Nov. 26, 1993) (Sneed, Garza, Jolly) (Chapter 13 case was filed by the debtor’s daughter, who was also the debtor’s legal guardian. Debtor passed away during administration. Bankruptcy court properly exercised its discretion under Bankruptcy Rule 1016 to continue and complete the Chapter 13 case but improperly exercised jurisdiction over a probate dispute between co-executors after the Chapter 13 case was closed.).

 

16  In re Kjellsen, 155 B.R. 1013, 1018, 1021–22 (Bankr. D.S.D. June 23, 1993) (Ecker) (“Prevailing authority on the subject of who may file a voluntary bankruptcy petition for an incompetent debtor indicates court-appointed guardians may do so, so long as the court specifically authorizes the act. . . . [S]omeone fitting the broad definition of a ‘next friend’ can file a petition, since the underlying purpose of the rules of practice is to allow someone to act expeditiously in order to protect the interest of an incompetent individual. . . . [T]he existence of Debtor’s specific Guardian of the Estate did not preclude the proper filing of this petition by Debtor’s Durable Power of Attorney. . . . Debtor was protected by two fiduciary representatives: a Guardian of the Estate and a Durable Power of Attorney. . . . [S]teps were taken to revoke that portion of the Durable Power of Attorney that allowed [the debtor’s daughter] to control Debtor’s property. The revocation did not, however, affect [the debtor’s daughter’s] ability to continue acting as Debtor’s personal caretaker and to make personal decisions on Debtor’s behalf. ‘Bankruptcy is a personal action which the individual should make.’ . . . Bankruptcy Rule 9010 allows an attorney-in-fact to act on behalf of a debtor. . . . [The debtor’s daughter,] acting pursuant to an unrevoked part of an enduring power of attorney, was entitled to decide upon and to file a voluntary bankruptcy petition on Debtor’s behalf.”), rev’d, No. Civ. 93-4137, 1994 WL 904681 (D.S.D. Mar. 23, 1994) (unpublished) (Jones), aff’d, 53 F.3d 944 (8th Cir. May 12, 1995) (Bowman, Wollman, Arnold).

 

17  Wieczorek v. Woldt (In re Kjellsen), 53 F.3d 944, 946 (8th Cir. May 12, 1995) (Bowman, Wollman, Arnold) (“We agree with the District Court that [the debtor’s daughter] lacked authority to file the petition on [the debtor’s] behalf. In general, state law determines who has the authority to file a bankruptcy petition on behalf of another. . . . It is undisputed that under South Dakota law in effect at the time of the petition’s filing, the guardian of [the debtor’s] estate had exclusive control over her property. . . . As bankruptcy proceedings concern the disposition of property, . . . and as [the guardian] had exclusive control over [the debtor’s] property, [the debtor’s daughter] and [the debtor] necessarily lacked authority to file the bankruptcy petition.”).

 

18  See § 128.1  Death or Incompetency of Debtor. See, e.g., In re Jones, 97 B.R. 901 (Bankr. S.D. Ohio Mar. 6, 1989) (Perlman).

 

19  See § 128.1  Death or Incompetency of Debtor.

 

20  See In re Myers, 350 B.R. 760, 764 (Bankr. N.D. Ohio Aug. 24, 2006) (Woods) (For debtor who suffered from dementia, “this Court will appoint Mrs. Myers as the next friend of Mr. Myers for the limited purpose of filing the bankruptcy petition and taking all actions otherwise required by Mr. Myers as debtor, but excluding representing Mr. Myers in any adversary proceeding that may be filed against both Debtors.”).

 

21  No. 12-03588-8-SWH, 2012 WL 5258843 (Bankr. E.D.N.C. Oct. 24, 2012) (Humrickhouse).

 

22  No. 10-64761-PWB, 2010 WL 2016891 (Bankr. N.D. Ga. Apr. 30, 2010) (unpublished) (Bonapfel).

 

23  297 B.R. 662 (Bankr. S.D. Fla. Aug. 4, 2003) (Mark).

 

24  In re Washington, 297 B.R. at 664.

 

25  In re Estep, No. 08-62163, 2008 WL 4367841 (Bankr. N.D. Ohio Sept. 16, 2008) (unpublished) (Kendig) (Bankruptcy Rule 9010 might permit filing of bankruptcy petition by an agent or attorney-in-fact.).

 

26  “[N]ot constituting the practice of law.”

 

27  Fed. R. Bankr. P. 9010(a).

 

28  See discussion of the similar issue with respect to petitions filed on the same date as the prepetition briefing, in § 19.2  Timing of Briefing.

 

29  487 B.R. 843 (Bankr. S.D. Tex. Feb. 21, 2013) (Bohm).

 

30  No. 11-04505-8-JRL, 2012 WL 2153788 (Bankr. E.D.N.C. June 13, 2012) (Leonard).

 

31  In re Dick, No. 05-80347-BJH-13, 2006 WL 6544157 (Bankr. N.D. Tex. May 19, 2006) (Houser) (Filing with forged signature that resulted from identity theft cannot be expunged, but electronic record is flagged. Debtor did not voluntarily file when her signature was forged to petition, and she did not authorize anyone to file petition on her behalf. Suspicion was that former boyfriend filed petition to stall foreclosure. Court lacked authority to expunge court records of case, but clerk was directed to flag electronic records to indicate that filing was result of identity theft. Court also lacked authority to order credit reporting agencies to indicate that debtor had never filed bankruptcy and to delete references to case from their files, but debtor may utilize court’s identity theft order for credit reporting purposes.).

 

32  In re Doe, No. 03-04291-5-JRL, 2012 WL 401076, at *2 (Bankr. E.D.N.C. Feb. 7, 2012) (Leonard) (Petition filed by uncle on behalf of minor nephew in a manner that did not comply with Bankruptcy Rule 1004.1 is expunged from electronic records of bankruptcy court on motion of debtor. In 2003, Jones filed a bankruptcy petition on behalf of his minor nephew, John Doe. Chapter 13 trustee moved for appointment of a guardian ad litem pursuant to Bankruptcy Rule 1004.1. The case was dismissed for failure to make payments before hearing on the motion to appoint a guardian. Eight years later, debtor moved to reopen the Chapter 13 case and to dismiss on the ground that the petition was improperly filed and the record of the bankruptcy case was creating hardship for the debtor in obtaining credit. “Given the specific facts and harm suffered in this case, the court finds expunction of the record to be the more appropriate remedy. . . . The clerk is hereby ORDERED to remove all references to the filing from the electronic record, while sustaining a hard copy of the record, including this order, in a sealed file.”).

 

33  In re Sharpe, No. 07-18451, 2008 WL 151298 (Bankr. N.D. Ohio Jan. 14, 2008) (unpublished) (Morgenstern-Clarren) (Civil contempt ordered when debtor filed three cases to stop foreclosures, two of which were filed by third parties pursuant to powers of attorney.).

 

34  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

35  See § 4.2  Bankruptcy Petition Preparers for discussion of bankruptcy petition preparers after BAPCPA.

 

36  In re Rauso, No. 06-03006ELF, 2007 WL 184725, at *5–*10 (Bankr. E.D. Pa. Jan. 25, 2007) (unpublished) (Frank) (Mr. Rauso, acting pursuant to power of attorney, can file petition on behalf of Mr. Grant when power of attorney is broad enough to include filing bankruptcy petition; § 110 does not apply to attorney-in-fact who signs and files documents in a bankruptcy case on behalf of a person who has lawfully delegated requisite authority. “Bankruptcy Rule 9010 does not expressly authorize the use of a power of attorney to file a bankruptcy petition. . . . Nonetheless, based on my construction of the operative instrument Mr. Grant signed, I agree that Mr. Rauso had authority to file a bankruptcy petition on Mr. Grant’s behalf. . . . I must look to Pennsylvania law to construe the Power of Attorney at issue. . . . An examination of several provisions of the Power of Attorney leads me to conclude that Mr. Rauso had authority to file a bankruptcy petition on Mr. Grant’s behalf. . . . 11 U.S.C. § 110 was not intended to apply to an individual acting in a representative capacity, acting as a lawful attorney-in-fact, who files a bankruptcy petition on behalf of another person. . . . Mr. Rauso was not a ‘bankruptcy petition preparer’ and did not violate § 110 when he filed Mr. Grant’s fourth bankruptcy case with the Power of Attorney.”).

 

37  See 11 U.S.C. § 109(h), discussed in § 18.1  In General, § 19.1  What is a Briefing?, § 19.2  Timing of Briefing, § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b), § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request, § 20.5  Briefing after Temporary Exemption, § 21.1  In General, § 21.2  Timing, Procedure and Form, § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services and § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

38  11 U.S.C. § 109(h)(4).

 

39  In re Myers, 350 B.R. 760 (Bankr. N.D. Ohio Aug. 24, 2006) (Woods). See § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty for further discussion of the permanent exemption from the prepetition briefing requirement in 11 U.S.C. § 109(h)(4). See also In re Estep, No. 08-62163, 2008 WL 4367841 (Bankr. N.D. Ohio Sept. 16, 2008) (unpublished) (Kendig) (Although Bankruptcy Rule 9010 might permit filing of bankruptcy petition by an agent or attorney-in-fact, prepetition briefing requirement in § 109(h) is non-delegable obligation that cannot be performed by attorney-in-fact; if debtor is disabled or incapacitated, § 109(h)(4) may waive prepetition briefing requirement but otherwise the obligation is personal to the debtor.).