Estate of Harold G. Johnson v. Metheney

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	ANTOINETTE CYNTHIA METHENEY, 	No. 15-10408-j7
Debtor.
________________________________________________________________________
ESTATE OF HAROLD G. JOHNSON
(Co-Personal Representatives Eric C. Johnson
and Harold G. Johnson, Jr.),
Plaintiff,
v. 	Adversary No. 15-1025 J
ANTOINETTE CYNTHIA METHENEY,
Defendant.
MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
Eric C. Johnson, co-personal representative and property manager for the Estate of
Harold G. Johnson (the “Personal Representative”) initiated this adversary proceeding on March
17, 2015. See Docket No. 1. Instead of filing an answer, Defendant Antoinette Cynthia
Metheney, by and through her attorney of record, Sean Patrick Thomas, filed a Motion to
Dismiss, asserting, among other things, that the Personal Representative cannot prosecute this
adversary proceeding on behalf of the Estate of Harold G. Johnson (the “Johnson Estate”)
because he is not a licensed attorney. See Motion to Dismiss – Docket No. 4. The Court agrees.
The Court will, however, give the Personal Representative an opportunity to retain counsel to
represent the Plaintiff.
Individuals acting on behalf of their own interests may represent themselves in a court
proceeding, pro se ― such self-representation does not constitute the unauthorized practice of
Case 15-01025-j Doc 12 Filed 08/03/15 Entered 08/03/15 15:57:32 Page 1 of 5

‐2‐
law. 1 However, individuals may not represent themselves pro se in a court proceeding when
they are acting as fiduciaries for the benefit of others. Lee v. Catron, 145 N.M. 573, 574, 203
P.3d 104, 105 (Ct. App. 2008) (“Where one is acting as a fiduciary for the benefit of others, he
may not present arguments to a court pro se.”)(citation omitted). Such self-representation would
constitute the unauthorized practice of law. Id. In Catron, the New Mexico Court of Appeals
held that the trustee of a trust could not represent himself as trustee pro se before the court
because the trustee acts as a fiduciary for the benefit of others. Id. The same holds true for a
personal representative of a probate estate.
Personal representatives are fiduciaries and act for the benefit of those entitled to a
distribution from the estate. See N.M.S.A. 1978 § 45-3-703(A) (“A personal representative is a
fiduciary . . .”); Gardner v. Gholson (In re Estate of Gardner), 114 N.M. 793, 801, 845 P.2d
1247, 1255 (Ct.App. 1992)(stating that the personal representative of the probate estate has “a
duty to distribute the estate in accordance with the will and New Mexico law ‘consistent with the
best interests of the estate’ and ‘for the best interests of successors to the estate.’”)(quoting
N.M.S.A. 1978 § 45-3-703(A)). Personal representatives acting as fiduciaries for the benefit of
others may not, therefore, represent themselves pro se in a court proceeding, at least outside of
probate proceedings.2 Similarly, if the probate estate itself is the proper plaintiff, the personal
representatives may not represent the probate estate before this Court pro se.
An individual cannot represent himself in court as a fiduciary for the benefit of another,
or represent an entity, without counsel, even where a statute authorizes the individual to bring a
1See Chisholm v. Rueckhaus, 124 N.M. 255, 258, 948 P.2d 707, 710 (Ct.App. 1997)(stating that “[r]epresenting
one’s self in a legal proceeding does not constitute ‘the practice of law[,]’ . . . . [but] [r]epresenting another,
however, does.”)(citations omitted).
2 Cf. In re Marriage of Kanefsky, 260 P.3d 327, 331 (Colo.App. 2010)(observing that a conservator, executor, or
personal representative who is not licensed to practice law may not appear pro se on behalf of the estate on matters
outside of the probate proceeding)(citations omitted).
Case 15-01025-j Doc 12 Filed 08/03/15 Entered 08/03/15 15:57:32 Page 2 of 5

‐3‐
lawsuit on behalf of another. See Martinez v. Roscoe, 131 N.M. 137, 139, 33 P.3d 887, 889
(Ct.App. 2001)(explaining that the New Mexico statute allowing an authorized member of a
limited liability company to bring a suit in the company’s name “provides a mechanism for
determining who may make a decision on behalf of the company to bring a lawsuit. It does not
allow a member who is not a licensed attorney to provide legal representation for the
company.”). See also, Chisholm, 124 N.M. at 257, 948 P.2d at 709 (“The authority to represent
another as a party does not equal the authority to practice law on [that party’s] behalf.”)(citation
omitted).
The Personal Representative has not represented to the Court that he is a licensed
attorney. Further, the manner of signature on the complaint and on a document entitled Debtor’s
Joint Tenancy suggests that the Personal Representative is not an attorney. See Docket Nos. 1
and 9. He may not, therefore, represent himself as the Co-personal Representative of the
Johnson Estate, nor may he represent the Johnson Estate, pro se, to prosecute this action.
Defendant also asserted as part of her Motion to Dismiss that the complaint is deficient
inasmuch as it does not identify a Bankruptcy Code section in support of the relief requested.
The Court agrees that the complaint must specify the section or sections of the Bankruptcy Code
upon which the claims are based. Should the Personal Representative retain counsel to represent
the Plaintiff in this adversary proceeding, the Plaintiff must amend the complaint to identify the
section or sections of the Bankruptcy Code upon which the claims are based.
WHEREFORE, IT IS HEREBY ORDERED, that the Motion to Dismiss will be held in
abeyance through September 14, 2015 to give the Personal Representative an opportunity to
retain counsel to represent the Plaintiff in this adversary proceeding.
Case 15-01025-j Doc 12 Filed 08/03/15 Entered 08/03/15 15:57:32 Page 3 of 5

‐4‐
ORDERED FURTHER, that if no attorney has entered an appearance on behalf of the
Plaintiff by Monday, September 14, 2015, the Court will enter an order dismissing this
adversary proceeding without prejudice.3
ORDERED FINALLY, that if an attorney timely enters an appearance on behalf of the
Plaintiff, the deadline to file an amended complaint specifying the section or sections of the
Bankruptcy Code upon which the claims raised in this adversary proceeding are based is
Monday, September 28, 2015. The deadline for Defendant to file an answer or other responsive
pleading to a timely filed amended complaint is Thursday, October 15, 2015. If Plaintiff
otherwise seeks to amend the complaint, Plaintiff must file a motion to amend.
A continued scheduling conference will be held on Thursday, October 29, 2015 at 9:30
a.m., in the Judge’s Hearing Room, thirteenth floor, Dennis Chavez Federal Building and United
States Courthouse, 500 Gold Ave. SW, Albuquerque, New Mexico. Counsel may appear by
telephone at the scheduling conference by making arrangements with chambers by email
(jacobvitzstaff@nmcourt.fed.us) or by telephone (505-348-2545) at least one business day prior
to the date of the scheduling conference.
__________________________________________
ROBERT H. JACOBVITZ
United States Bankruptcy Judge
Date entered on docket: August 3, 2015
3 Fed.R.Bankr.P. 4004(a) and Fed.R.Bankr.P. 4007(c) fix a deadline of 60 days after the first date set for the meeting
of creditors within which to file a complaint objecting to discharge or objecting to the dischargeability of a particular
debt in connection with a debtor’s bankruptcy case. The sixty-day deadline in Defendant Antoinette Cynthia
Metheney’s bankruptcy case expired on May 29, 2015.
Case 15-01025-j Doc 12 Filed 08/03/15 Entered 08/03/15 15:57:32 Page 4 of 5

‐5‐
COPY TO:
Estate of Harold G. Johnson
c/o Eric C. Johnson
5044 Martin Place NW
Albuquerque, NM 87114
Sean Patrick Thomas
Attorney for Defendant
601 Marble Ave. NW
Albuquerque, NM 87102
Case 15-01025-j Doc 12 Filed 08/03/15 Entered 08/03/15 15:57:32 Page 5 of 5