In re Messier

• Decision Date: 14 September 1992
• Docket Number: 92-1077,92-1078.,92-1076,Adv. No. 92-1075,Bankruptcy No. 92-11068
• Citation: 144 BR 617
• Court: U.S. Bankruptcy Court — District of Rhode Island
• Parties: In re Dawn M. MESSIER, Debtor. Dawn M. MESSIER, Plaintiff, v. FILENE'S, G. Fox, ITT Financial Services and Sears, Roebuck & Co., Defendants.

144 B.R. 617 (1992)

In re Dawn M. MESSIER, Debtor Dawn M. MESSIER, Plaintiff, v. FILENE'S, G. Fox, ITT Financial Services and Sears, Roebuck & Co., Defendants.

Bankruptcy No. 92-11068, Adv. Nos. 92-1075, 92-1076, 92-1077, 92-1078.

United States Bankruptcy Court, D. Rhode Island.

September 14, 1992.

Christopher Lefebvre, Pawtucket, R.I., for debtor/plaintiff.

Jeffrey S. Michaelson, Michaelson & Michaelson, Providence, R.I., for defendants.

DECISION AND ORDER

ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.

Before the Court in these consolidated Adversary Proceedings is the Defendants'¹ Motion to Dismiss the Complaint(s) for failure to state a claim upon which relief can be granted. Fed.R.Bank.P. 7012(b), incorporating by reference Fed.R.Civ.P. 12(b)(6) (the "Motion to Dismiss").

I. PROCEDURAL BACKGROUND

In ruling upon a Motion to Dismiss, the Court presumes the well-pleaded allegations of the Complaint to be true, and will deny the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his her claim which would entitle him her to relief." Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In the Complaint(s) under consideration, the Plaintiff seeks to enjoin the continuation of certain alleged conduct by creditors. Of the six numbered paragraphs, four recite specific factual allegations, while the remaining two counts assert the legal basis upon which the Debtor relies in support of her request for injunctive relief. On its face, we find the Complaint to be wholly deficient in both its factual as well as legal allegations. Accordingly the Complaint is dismissed for failure to state a claim.

II. DISCUSSION

Essentially, the Debtor seeks in this action the imposition of a blanket injunction or "gag-order" against all (born and unborn, we assume) creditors from appearing at bankruptcy § 341 meetings to either examine Debtors or to attempt to negotiate reaffirmation of debt agreements. Although we find no merit whatever in the first grievance, the Debtor's second criticism could be actionable, depending on the facts, but is not sufficiently articulated in the Debtor's present Complaint to survive the Motion to Dismiss.

A. Case or Controversy

As an initial matter, we agree with the Defendants that where the alleged unlawful conduct has not yet even occurred, i.e. where no § 341 meeting had been held when the Debtor filed the instant Complaint(s), no case or controversy exists, and the Complaint must be dismissed on that ground alone. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) ("to satisfy the Art. III case-or-controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision."); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) ("judgments must resolve `a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts,'" citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)).

Here, on the Debtor's own allegations, the conduct complained of does not involve this Debtor, but rather relates to what these creditor-defendants "routinely" do, and not to what they did vis-a-vis Ms. Messier. Accordingly, there is no suggestion, let alone a factual allegation, that the Debtor "suffered actual injury" which this Court can or should redress.

Nevertheless, in order to address a subject which appears to be of growing concern among both creditors and debtors in this District, we will examine what seems to be this Debtor's real "beef."

B. Non-Attorney Examination at § 341 Meetings

In her Complaint the Debtor alleges that the four corporate Defendants "routinely send a non-attorney to the scheduled 341 meeting of creditors" (emphasis in original), and that "said representative attempts to encourage debtors into executing a reaffirmation agreement pursuant to the terms and conditions of 11 USC 524(c)". It is alleged that these actions "annoy, harass and humiliate debtors." Based upon this conduct, the Debtor argues that "the negotiation of reaffirmation agreements constitutes the Unlawful Practice of Law pursuant to Rhode Island General Laws 11-27-11 and 11-27-16," and is violative of Local Bankruptcy Rules 3 and 4. The Debtor does not, however, allege that non-lawyers' attendance or examination of debtors at § 341 meetings constitutes the unlawful practice of law within the meaning of R.I.Gen.Laws § 11-27-1 et seq. Rather, the primary thrust of her complaint appears to be that creditors are improperly using the § 341 meeting as a vehicle to extract reaffirmation agreements from debtors in bankruptcy. These are not, however, the averments of the Complaint, and this Court is not at liberty to incorporate into the Complaint statements and/or arguments subsequently made by the Debtor in her Memorandum in opposition to the Motion to Dismiss.

For future reference however, we have examined the Defendants' statutory and decisional authorities which discuss the administrative nature and scope of the § 341 meeting, the rights of creditors to inquire of the Debtor, and the Rhode Island General Laws concerning the "practice of law." Based upon this review, we conclude as a matter of law that where an agent or employee of a corporate creditor appears at a § 341 meeting, without counsel, to inquire of a debtor within the examination scope permitted under § 343² and Fed. R.Bankr.P. 2004, this does not constitute the unauthorized practice of law within the meaning of R.I.Gen.Laws § 11-27-1 et seq., and such activity (properly conducted) is permitted in this jurisdiction.

C. The Reaffirmation Process

Lastly, the Debtor appears to argue that (1) these creditors have engaged in some form of coercive or harassing behavior in attempting to obtain reaffirmation of debts; and (2) that the negotiation of a reaffirmation agreement itself constitutes the unlawful practice of law in Rhode Island.

Rather than repeat what we have just recently had to say on this subject in Jefferson v. May Department Stores (In re Jefferson), 144 B.R. 620 (Bankr.D.R.I. 1992), we refer the parties to that opinion, and conclude herein that the instant Complaint fails to state a cognizable claim that these creditors acted improperly in seeking reaffirmation of debts. Specifically, we find that the Debtor has failed to allege what particular actions these creditors took to either coerce or harass, other than her statement that they "attempted to encourage" reaffirmation....