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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
FRANKLIN COUNTY TREASURER, Case No. 22 CV 006163
Plaintiff,
v. Judge Andria Noble
JRV SEPIRA, LLC, et al.,
Defendants.
MYRON N. TERLECKY, CHAPTER 7 TRUSTEE’S MOTION TO STRIKE JOSE
VILLA VICENCIO’S MOTION TO STAY
Now comes Myron N. Terlecky, Chapter 7 Trustee for Jose R. Villavicencio (the
“Trustee”), and files this motion to strike the motion to stay filed by Jose R. Villavicencio (the
“Debtor”) in this matter on February 27, 2023 because the Debtor is not authorized to practice law
and JRV SEPIRA, LLC (“Defendant”) is not currently a debtor in bankruptcy. The reasons for this
motion are more fully set forth in the attached memorandum.
Respectfully submitted,
/s/ Loni R. Sammons
Myron N. Terlecky (0018628)
JohnW. Kennedy (0042672)
Loni R. Sammons (0102196)
Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA
575 South Third Street
Columbus, OH 43215
T: (614) 228-6345 F: (614) 228-6369
Email: mnt@columbuslawyer.net
jwk@columbusla er.net
1 columbusla er.net
Attorneys for Myron N. Terlecky, Chapter 7
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163
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MEMORANDUM
I. Introduction and Background
The present foreclosure action was filed on September 6, 2022 against the Defendant, the
owner of the subject property in this matter. A bankruptcy proceeding is currently pending against
the Debtor in the United States Bankruptcy Court, Southern District of Ohio, Eastern Division,
captioned /n re Jose R. Villavicencio, Case No. 19-52861 (the “Bankruptcy Case”).
The Debtor is the sole member of the Defendant, which operates as his self-directed
individual retirement account. As more fully set forth in the January 13, 2022 Opinion and Order
sustaining the Trustee’s objections to certain exemptions (attached hereto as Exhibit A), the
Debtor’s interest in the Defendant and all of its assets are nonexempt assets of the bankruptcy
estate. On January 27, 2023, the United States District Court for the Southern District of Ohio
affirmed the Bankruptcy Court’s decision. The Opinion and Order of the District Court is attached
hereto as Exhibit B.! While the Debtor’s interest in the Defendant is property of the Debtor’s
bankruptcy estate, the Defendant is not itself a debtor in the Bankruptcy Case, nor is the Defendant
a debtor in any other bankruptcy proceeding.
On February 27, 2023, the Debtor filed a motion titled, “Plaintiff's (sic) Motion to Stay
Foreclosure Proceedings Pending Appeal to the United States Court of Appeals for the Sixth
District” (the “Motion’”). In the Debtor’s Motion, he refers to the Defendant as “Plaintiff.” If the
Debtor has attempted to file a motion of behalf of Plaintiff, which he has never represented, the
Motion should be stricken on that basis.
II. Standard of Review
Civ.R. 12(f) provides, in pertinent part, as follows
1 A notice of appeal of this decision was filed on February 15, 2023.
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(F) Motion to strike. Upon motion made by a party before responding to a pleading,
or if no responsive pleading is permitted by these rules, upon motion made by a
party within twenty-eight days after the service of the pleading upon him or upon
the court's own initiative at any time, the court may order stricken from any
pleading an insufficient claim or defense or any redundant, immaterial, impertinent
or scandalous matter.
R.C. 4705.01 provides, in pertinent part, as follows:
No person shall be permitted to practice as an attorney and counselor at law, or to
commence, conduct, or defend any action or proceeding in which the person is not
a party concerned, either by using or subscribing the person's own name, or the
name of another person, unless the person has been admitted to the bar by order of
the supreme court in compliance with its prescribed and published rules.
Keybank Nat'l Ass’n v. Sarameh, 2013-Ohio-2576, {12 (2d Dist.). Ohio courts have sustained
motions to strike where pleadings were filed by an individual who is not a licensed attorney
authorized to practice law. See id., 45
Til. Argument
a. The Debtor is not a licensed attorney authorized to practice law.
Laypersons are not permitted to represent corporations or take legal action on behalf of a
corporation before a court in this state. Cleveland Bar Ass'n v. CompManagement, Inc., 111 Ohio
St.3d 444, 2006-Ohio-6108, § 22 (citing Union Sav. Assn. v. Home Owners Aid, Inc., 23 Ohio
St.2d 60, 64 (1970)). When a layperson attempts to file pleadings on behalf of a corporation, the
filing is deemed a nullity and the court may strike the pleading from the record. Porter v. Frutta
Del Mondo, 0th Dist. Franklin No. 0O8AP-69, 2008-Ohio-3567, §] 30 (citing Smith v. Mighty
Distributing of S.W., PA, Inc., Trumbull App. No. 2004-T-0056, 2005-Ohio-1689, J 10).
The Debtor has filed a motion on behalf of the Defendant in this matter, however, the
Debtor is not a licensed attorney authorized to practice law in this state. As such, the Motion filed
by the Debtor is a nullity and should be stricken from the record pursuant to Civ.R. 12(f).
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163
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b. The Defendant is not entitled to stay because the Defendant is not a debtor in
bankruptcy.
Even if the Debtor was a licensed attorney authorized to file the Motion in this matter, the
Defendant is not entitled to a stay in this matter because the Defendant is not a debtor in
bankruptcy.
11 U.S.C. §362(a) provides that the filing of a bankruptcy petition acts as an automatic stay
of: (1) the commencement or continuation of certain actions or proceedings against the debtor, (2)
the enforcement of a judgment against the debtor or property of the estate obtained before
commencement of the bankruptcy case, (3) acts to obtain possession or control of property of the
estate, (4) acts to create, perfect, or enforce liens against property of the estate, (5) acts to create,
perfect, or enforce against property of the debtor any lien that secures a claim that arose prior to
commencement of the bankruptcy case, (6) acts to collect, assess, or recover a claim against the
debtor that arose before the commencement of the bankruptcy case, (7) the setoff of any debt
owing to the debtor that arose before the commencement of the bankruptcy case, and (8) the
commencement or continuation of certain proceedings before the United States Tax Court.
In the Sixth Circuit, 11 U.S.C. §362(a)(1), regarding stay of acts “against the debtor” is
strictly construed. /n re Johnson, 548 B.R. 770, 787 (Bankr. $.D.Ohio 2016) (citing Jn re Cincom
iOutsource, Inc., 398 B.R. 223, 226 (Bankr. $.D. Ohio 2008)). The statute “does not automatically
give rise to a general stay of creditors’ rights to pursue nondebtor codefendants, even those with
some relationship to the debtor.” /d. (citing Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194,
1196 (6th Cir. 1983)). Rather an action against a nondebtor may be stayed under § 362(a)(1) only
where “unusual circumstances” exist and only where the debtor in the bankruptcy proceeding
requests an injunction pursuant to 11 U.S.C. § 105(a) from the bankruptcy court extending the
automatic stay to the nondebtor entities. /d. at 787-789. As stated by the Johnson court, “because
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163
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the Debtor has not sought an injunction to extend the automatic stay to TJI and the Johnsons, the
automatic stay under §362(a)(1) does not apply.” /d. at 789.
In the Motion, the Debtor has set forth no basis under 11 U.S.C. §362(a) for the stay in the
Bankruptcy Case to apply in this matter. As explained herein, the Debtor’s membership interest in
the Defendant has been deemed property of the estate in the Bankruptcy Case and this finding was
sustained on appeal. However, the Defendant is not itself a debtor in the Bankruptcy Case and is
therefore not entitled to a stay of this matter.
IV. Conclusion
Based upon the foregoing, it is respectfully requested that the Motion of Jose R.
Villavicencio to stay this case be stricken and that the Court grant such other relief as is
appropriate.
Respectfully submitted,
/s/ Loni R. Sammons
Myron N. Terlecky (0018628)
JohnW. Kennedy (0042672)
Loni R. Sammons (0102196)
Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA
575 South Third Street
Columbus, OH 43215
T: (614) 228-6345 F: (614) 228-6369
Email: mnt@columbuslawyer.net
jwk@columbusla er.net
1 columbusla er.net
Attorneys for Myron N. Terlecky, Chapter 7
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 13, 2023 a true and accurate copy of the
foregoing Myron N. Terlecky, Chapter 7 Trustee ’s Motion to Strike Jose Villavicencio’s Motion to
Stay was submitted to the Court electronically and served on the registered eFiling participants
electronically through the court’s eFiling system at the email address registered with the court.
/s/ Loni R. Sammons
Loni R. Sammons (0102196)
3 EXSENT
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This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
Vf fi
IT IS SO ORDERED.
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO FRANKLIN COUNTY TREASURER, Case No. 22 CV 006163 Plaintiff, v. Judge Andria Noble JRV SEPIRA, LLC, et al., Defendants. MYRON N. TERLECKY, CHAPTER 7 TRUSTEE’S MOTION TO STRIKE JOSE VILLA VICENCIO’S MOTION TO STAY Now comes Myron N. Terlecky, Chapter 7 Trustee for Jose R. Villavicencio (the “Trustee”), and files this motion to strike the motion to stay filed by Jose R. Villavicencio (the “Debtor”) in this matter on February 27, 2023 because the Debtor is not authorized to practice law and JRV SEPIRA, LLC (“Defendant”) is not currently a debtor in bankruptcy. The reasons for this motion are more fully set forth in the attached memorandum. Respectfully submitted, /s/ Loni R. Sammons Myron N. Terlecky (0018628) JohnW. Kennedy (0042672) Loni R. Sammons (0102196) Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA 575 South Third Street Columbus, OH 43215 T: (614) 228-6345 F: (614) 228-6369 Email: mnt@columbuslawyer.net jwk@columbusla er.net 1 columbusla er.net Attorneys for Myron N. Terlecky, Chapter 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 MEMORANDUM I. Introduction and Background The present foreclosure action was filed on September 6, 2022 against the Defendant, the owner of the subject property in this matter. A bankruptcy proceeding is currently pending against the Debtor in the United States Bankruptcy Court, Southern District of Ohio, Eastern Division, captioned /n re Jose R. Villavicencio, Case No. 19-52861 (the “Bankruptcy Case”). The Debtor is the sole member of the Defendant, which operates as his self-directed individual retirement account. As more fully set forth in the January 13, 2022 Opinion and Order sustaining the Trustee’s objections to certain exemptions (attached hereto as Exhibit A), the Debtor’s interest in the Defendant and all of its assets are nonexempt assets of the bankruptcy estate. On January 27, 2023, the United States District Court for the Southern District of Ohio affirmed the Bankruptcy Court’s decision. The Opinion and Order of the District Court is attached hereto as Exhibit B.! While the Debtor’s interest in the Defendant is property of the Debtor’s bankruptcy estate, the Defendant is not itself a debtor in the Bankruptcy Case, nor is the Defendant a debtor in any other bankruptcy proceeding. On February 27, 2023, the Debtor filed a motion titled, “Plaintiff's (sic) Motion to Stay Foreclosure Proceedings Pending Appeal to the United States Court of Appeals for the Sixth District” (the “Motion’”). In the Debtor’s Motion, he refers to the Defendant as “Plaintiff.” If the Debtor has attempted to file a motion of behalf of Plaintiff, which he has never represented, the Motion should be stricken on that basis. II. Standard of Review Civ.R. 12(f) provides, in pertinent part, as follows 1 A notice of appeal of this decision was filed on February 15, 2023. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 (F) Motion to strike. Upon motion made by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within twenty-eight days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading an insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter. R.C. 4705.01 provides, in pertinent part, as follows: No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which the person is not a party concerned, either by using or subscribing the person's own name, or the name of another person, unless the person has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules. Keybank Nat'l Ass’n v. Sarameh, 2013-Ohio-2576, {12 (2d Dist.). Ohio courts have sustained motions to strike where pleadings were filed by an individual who is not a licensed attorney authorized to practice law. See id., 45 Til. Argument a. The Debtor is not a licensed attorney authorized to practice law. Laypersons are not permitted to represent corporations or take legal action on behalf of a corporation before a court in this state. Cleveland Bar Ass'n v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, § 22 (citing Union Sav. Assn. v. Home Owners Aid, Inc., 23 Ohio St.2d 60, 64 (1970)). When a layperson attempts to file pleadings on behalf of a corporation, the filing is deemed a nullity and the court may strike the pleading from the record. Porter v. Frutta Del Mondo, 0th Dist. Franklin No. 0O8AP-69, 2008-Ohio-3567, §] 30 (citing Smith v. Mighty Distributing of S.W., PA, Inc., Trumbull App. No. 2004-T-0056, 2005-Ohio-1689, J 10). The Debtor has filed a motion on behalf of the Defendant in this matter, however, the Debtor is not a licensed attorney authorized to practice law in this state. As such, the Motion filed by the Debtor is a nullity and should be stricken from the record pursuant to Civ.R. 12(f). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 b. The Defendant is not entitled to stay because the Defendant is not a debtor in bankruptcy. Even if the Debtor was a licensed attorney authorized to file the Motion in this matter, the Defendant is not entitled to a stay in this matter because the Defendant is not a debtor in bankruptcy. 11 U.S.C. §362(a) provides that the filing of a bankruptcy petition acts as an automatic stay of: (1) the commencement or continuation of certain actions or proceedings against the debtor, (2) the enforcement of a judgment against the debtor or property of the estate obtained before commencement of the bankruptcy case, (3) acts to obtain possession or control of property of the estate, (4) acts to create, perfect, or enforce liens against property of the estate, (5) acts to create, perfect, or enforce against property of the debtor any lien that secures a claim that arose prior to commencement of the bankruptcy case, (6) acts to collect, assess, or recover a claim against the debtor that arose before the commencement of the bankruptcy case, (7) the setoff of any debt owing to the debtor that arose before the commencement of the bankruptcy case, and (8) the commencement or continuation of certain proceedings before the United States Tax Court. In the Sixth Circuit, 11 U.S.C. §362(a)(1), regarding stay of acts “against the debtor” is strictly construed. /n re Johnson, 548 B.R. 770, 787 (Bankr. $.D.Ohio 2016) (citing Jn re Cincom iOutsource, Inc., 398 B.R. 223, 226 (Bankr. $.D. Ohio 2008)). The statute “does not automatically give rise to a general stay of creditors’ rights to pursue nondebtor codefendants, even those with some relationship to the debtor.” /d. (citing Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1196 (6th Cir. 1983)). Rather an action against a nondebtor may be stayed under § 362(a)(1) only where “unusual circumstances” exist and only where the debtor in the bankruptcy proceeding requests an injunction pursuant to 11 U.S.C. § 105(a) from the bankruptcy court extending the automatic stay to the nondebtor entities. /d. at 787-789. As stated by the Johnson court, “because Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 the Debtor has not sought an injunction to extend the automatic stay to TJI and the Johnsons, the automatic stay under §362(a)(1) does not apply.” /d. at 789. In the Motion, the Debtor has set forth no basis under 11 U.S.C. §362(a) for the stay in the Bankruptcy Case to apply in this matter. As explained herein, the Debtor’s membership interest in the Defendant has been deemed property of the estate in the Bankruptcy Case and this finding was sustained on appeal. However, the Defendant is not itself a debtor in the Bankruptcy Case and is therefore not entitled to a stay of this matter. IV. Conclusion Based upon the foregoing, it is respectfully requested that the Motion of Jose R. Villavicencio to stay this case be stricken and that the Court grant such other relief as is appropriate. Respectfully submitted, /s/ Loni R. Sammons Myron N. Terlecky (0018628) JohnW. Kennedy (0042672) Loni R. Sammons (0102196) Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA 575 South Third Street Columbus, OH 43215 T: (614) 228-6345 F: (614) 228-6369 Email: mnt@columbuslawyer.net jwk@columbusla er.net 1 columbusla er.net Attorneys for Myron N. Terlecky, Chapter 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Mar 13 11:52 AM-22CV006163 0G300 - V6 CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 13, 2023 a true and accurate copy of the foregoing Myron N. Terlecky, Chapter 7 Trustee ’s Motion to Strike Jose Villavicencio’s Motion to Stay was submitted to the Court electronically and served on the registered eFiling participants electronically through the court’s eFiling system at the email address registered with the court. /s/ Loni R. Sammons Loni R. Sammons (0102196) 3 EXSENT 06300 - FapekdindGobht} 286d CleBoot TOrts oPibeclO in sie? PleaBn2e26 dad BY 2B21AM-B20N006' PDF Page 1 of 18 This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. Vf fi IT IS SO ORDERED.