Wednesday, June 23, 2010

MOTION TO ALLOW PRO SE REPRESENTATION OF CORPORATION

IN THE CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 10 - 08000


PLAINTIFF: AMERICAN EXPRESS BANK, FSB

VS.

DEFENDANTS: JOHN COCKERHAM, INDIVIDUALLY
ALL PRO ELECTRIC SERVICES, INC.


REFERENCE: Motion To Schedule Hearing for June 3, 2010 (attached)

MOTION TO ALLOW PRO SE REPRESENTATION OF ALL PRO

The DEFENDANT, ALL PRO ELECTRIC (ALL PRO), is a licensed electrical contracting business located in Hollywood, FL. I, John Cockerham am the President of ALL PRO and the corporation’s legally authorized representative in all business and legal matters. (See attached Corporate Resolution). As a result of the PLAINTIFF’s arbitrary actions to shut all operating credit to ALL PRO, the company currently has no business backlog, no pending contracts and no employees. The company continues to be marginally operational by servicing customers on an on-call basis for minor maintenance and service repairs.

Currently, ALL PRO does not have any cash-on-hand or credit resources to fund the services of legal counsel in its own defense.

ALL PRO contends that every person and every corporation has equal rights and access to justice under the Constitution of the United States and the Statutes of the State of Florida.

LEGAL ASSERTIONS AND ARGUMENTS
1. A legal Corporation under the law is defined and treated as a natural person.
2. Every person has access to justice without sale, denial or delay.
3. Every corporation has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.
4. Every person’s rights are guaranteed unless denied by statute.
5. The First Amendment of the Constitution of the United States applies to corporations -- Freedom of Religion, Press, and Expression.

Accepting these assertions for argument sake, one must conclude that a corporate being has the right to do all things necessary or convenient to carry out its business and affairs.

The corporate entity exercises this right via delegated authority to a person to speak, write and act on its behalf in all manner of business to include the making of legally binding agreements, executing promissory notes, buying and selling property and any other business action that can be exercised by that of a natural person.

Part of any personal or corporate business is acting upon one’s legal obligations and with that inherently comes the rights to dispute, to deny, to defend, and when damaged to seek a remedy. In the extreme case when a corporate being cannot afford an attorney, then “How can a corporation do what is convenient and necessary to conduct its business?”

To deny the right of a corporate person of its own defense and representation would effectively negate every legal assertion (cited above), and one could only conclude that for justice obtained, justice must be purchased. This is contradictory to the accepted legal principle and right that justice cannot be denied, bought or sold.

The 14th Amendment of the Constitution of the United States… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution of the State of Florida states Section 21. Access to courts:

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

This right is derived directly from the Magna Charta.

No right shall be sold, delayed or denied. -- Magna Charta, XXX
To none will we sell, to none will we deny, to none will we delay right or justice.
-- Magna Charta, XXIV

ARGUMENT TO THE CONTRARY
A longstanding and widely practiced rule prohibits corporations from being represented by non-attorneys; consistent with the existence of a corporation as a "person" separate and distinct from its officers and employees. This presumes that the “officers and employees” are an “artificial entity”… a person in the abstract… and therefore the corporate appointment of a non-lawyer for legal representation is an illegal act of practicing law without a license.

And, specific to Florida Case Law Precedents (Unlicensed Practice of Law):

Florida Bar v. York, 689 So. 2d 1037, 1039 (Fla. 1996) (finding that it constitutes the unlicensed practice of law for a non-attorney to threaten suit on behalf of another); Florida Bar v. Gordon, 661 So. 2d 295, 296 (Fla. 1995) (enjoining non-attorney from "[a]ppearing in any Florida court or offering to appear in any Florida court, either expressly or impliedly, as a spokesperson or representative for litigants in any court proceeding"); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985) (holding that "a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney"); Richter v. Higdon Homes, Inc., 544 So. 2d 300, 300 (Fla. 1st DCA 1989) (finding that a corporation "may not represent itself through non-lawyer employees . . . even where the non-lawyer purporting to represent the corporation is the sole shareholder of the corporation").

The logic of the separation of the corporate person from its officers and employees would no longer seem to hold true in that US Supreme Court decided on January 21, 2010, in the case of Citizens United v. Federal Election Commission that a collection or assembly of people in a corporate form has the Right of Expression as guaranteed by the First Amendment to the United States Constitution. This right is acknowledged for the collection of people (officers and employees), not an “artificial entity” that would necessarily have to employ a licensed lobbyist, lawyer or other party to speak on its behalf.

It follows that if the “collection of people” in the corporate form has First Amendment Rights, then how can it be that this same collection of people does not have First Amendment Rights in the State and Federal Courts of the United States?

Every State is consistent, similarly defining a corporation as a person or an individual, with the same rights to conduct its business. By example, the first sentence of the Code of Alabama states:

(1) Person. The word "person" includes a corporation as well as a natural person. (Code of Alabama, Para. 1-1-1, pg. 1.)

Thereafter, the CODE of ALABAMA (as in the Florida Statues) does not diminish the rights of a corporation from those of a natural person.

The Constitution of the State of Florida states Section 21. Access to courts:,

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

The Florida Statutes defines a Corporation as a Person:
Section 440.02 Definitions. (23)

"Person" means individual, partnership, association, or corporation, including any public service corporation.

Title XXXVI Florida Statues, 607.1401
Business Organizations/Corporations Definitions.--As used in this act, unless the context otherwise requires, the term:

(19.) "Person" includes individual and entity.

(11) "Entity" includes corporation and foreign corporation; unincorporated association; business trust, estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, United States, and foreign governments.

Comment: A “person” is defined as an entity and an “entity” is defined as two or more persons (i.e. a collection of people) having a joint or common economic interest.

Title XXXVI, Florida Statues, 607.0302
Business Organizations/Corporations/General powers.--Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power:

Accepting that a Legal Corporation under the law is defined and treated as a natural person and that the rights of a person are guaranteed unless certain and specific rights have been denied by statute.

The rights of a person or “collection of people” in the corporate form are not denied by Florida Statues are therefore presumed to exist. However, in Florida and most states the Bar Associations vigorously argue that the corporate person is not a collection of people, but instead a paper, imaginary or abstract entity. For this to be true every reference in State and Federal law would have to be bifurcated in its meaning and application to either the imaginary entity or the collection of people. It would seem obvious that the reference is always to the collection of people as reinforced by the aforementioned US Supreme Court ruling that recognizes a “collection of people in the corporate form” to be protected by the First Amendment. This right is clearly to the people in form of a corporation and by its own authority the corporation (of its people) has the right of expression. This begs the question, “How is it possible to have the freedom of expression everywhere but in a Court of Law?”

For sake of argument: Assuming the corporate person in the abstract is “The Corporation,” then so is any authority by resolution of the corporation the same as the corporation. “The Corporation” has no arms, legs or voice thus to speak for itself in any manner of business does so by corporate resolution of authority to a person. Provided the person acts within that delegated authority, then the person is “The Corporation”. There is no separation of the “authorized” person and “The Corporation”, by evidence that “The Corporation” can have no legal recourse against the person committing the action that “The Corporation” itself authorized by resolution. Likewise the authorized person can have no recourse against the corporation for having given the person the right to act on its behalf. In that specifically authorized act, the “person” (layperson or otherwise) is “The Corporation”. In other words, it is impossible for the Corporation to sue itself; thus the person and the Corporation are one in the same. It follows that the Corporation can then demand equal justice under the law for itself via the person (layperson or attorney) that is authorized by its own lawful corporate resolution.

By application consider the example where a corporation hires an attorney to “represent” the corporation. The attorney does “represent” the corporation in his or her contracted role; however, the person authorized by corporate resolution that hired the attorney is the corporation person itself and should rightly be able to defend itself if necessary or desirable.

Conclusion: Therefore it follows in either theory:
1. The Corporate person is an abstract person
2. The Corporation is a “collection or assembly of people” in the corporate form
that,

“The Corporation” has the right to speak for itself, to conduct its business, enter into lawful acts and contracts, execute its own contract, sue or be sued, deny false claims and accusations and prosecute those that damaged “The Corporation” so long as the authority to speak for the “The Corporation” has been lawfully delegated by corporate resolution.

DISCUSSION OF UNLAWFUL PRACTICE OF LAW
The licensed practice of law is for the protection of the public and to that extent there is no argument. There are two additional reasons, (1.) to keep the courts from being clogged with unlearned people and then, never mentioned, (2.) for protectionism and enrichment of the legal profession.

The unlicensed practice of law seems extreme in that to threaten a law suit for non-payment of debt or to give any manner of casual legal advice, even to your own grandmother, is a felony offense. And for the corporate person to be allowed to conduct every manner of legal contracting, agreement and civil action, except for the defense of its actions, seems unfair and to be unsound in logic and reason. In all cases, the corporate person must pay for justice in the defense of its own actions… except one. The corporate person may represent itself via its authorized (layperson) representative in the Small Claims Court.

This begs the question, “If corporate self-representation is acceptable for Small Claims Court, then why not a higher court?” Either the corporate person is practicing law without a license or not. It seems, however, that the law is arbitrary. When the law suit is of small value, then the corporate person may practice law, but when the stakes are higher in value the corporate person may not practice law, lest experience jail time. It seems that this bifurcated interpretation of “practicing law” exist principally for the enrichment of the legal profession.

How is it possible to conclude that in the case where a corporate being cannot afford an attorney and cannot even make an appearance to deny false accusations; that this could be in the best “public” interest… to give a judgment to the accuser without any defense by the corporation… a collection of people, indeed the “public” by definition.

I argue that the law should stand on principle instead of profit. Self representation by a corporate person is either practicing law in all courts or is not practicing law in all courts.


ADDITIONAL DISCUSSION OF CASE LAW AND PRECEDENTS
Corporate existence implies amenability to legal process. Wilson v. United States, 221 US 361, 55 L Ed 771, 31 S Ct 538. The power of a corporation to sue and be sued includes the power to refer or take any other step that an individual might take to reach a final judgment. Alexandria Canal Co. v. Swann, 46 US 83, 12 L Ed 60. (19 Am Jur 2d Sec. 2170, pg. 88).

According to some authority, an officer of a corporation who is not an attorney may not file an answer, but according to other authority, a corporation can answer a lawsuit on its own behalf through an officer. (19 C.J.S. Sec. 568, pg. 202.) Further reference is made to a Georgia case. Universal Scientific, Inc. v. Wolf, 302 S.E. 2d 616, 165 Ga. App. 752. As reported,

Appellant, through its president, filed its answer pro se, and the trial court evidently viewed that action as the unauthorized practice of law. However, this issue was specifically addressed in Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383(1), 203 S.E.2d 290, wherein this court held that a corporation could answer a lawsuit on its own behalf through its chairman.

It has been found that a corporation may, through a non-lawyer officer, prepare instruments to which the corporation is a party, and that the preparation of legal documents by a non-lawyer officer on behalf of the corporation does not constitute the unauthorized practice of law. (19 C.J.S. Sec. 568, pg. 202.). Reference is made to an Illinois case, Johnson v. Pistakee Highlands Community Assn, 390 N.E. 2d 640, 28 111. Dec. 473, 72 111. App.3d 402.

Argument: If a non-lawyer officer of a corporation (not an imaginary person) may prepare and execute legal documents by the authority of the corporate being, then the same may arguably prepare and execute a legal complaint, a legal answer, a legal appeal or any other legal document.

In the case of Knickerbocker Tax Systems, Inc. v. Texaco, Inc., 130 Ga. App. 383(1), 203 S.E.2d 290, the court held that a Georgia corporation was entitled to defend an action against it without a lawyer. From the South Eastern Reporter:

[1] 1. Dixon v. Reliable Loans, Inc., 112 GaApp. 618, 145 S.E.2d 771, held that a corporation could file suit on its own behalf without a lawyer. This ruling was based upon the language of two sections of the Annotated Code. One of these was Sec. 9-401, Ga.L.1931, pp. 191, 194; 1937, pp. 753, 754, which defines the practice of law in Georgia. There the court's opinion noted the specific provision the statute which states: Provided, however, that nothing herein contained shall prevent any corporation, voluntary association, or individual from doing any act or acts hereinabove set out, to which said persons are parties..." (emphasis in original.) The other Code section was then Code Ann. Sec. 22-1827, the pertinent portion being paragraph (b) which stated corporations had standing "To sue and be sued in any court of law or equity." When the 1968 General assembly enacted the Georgia Business Corporation Code contained in Title 22 of the Annotated Code it set forth in Sec. 22-202(a) (3)(iii) even broader language than was in the previous statute. The new statute expressly gave corporations the power "To sue and be sued, complain and defend, in all courts, and to participate in any judicial, administrative, arbitrative or other action or proceeding." As this comprehensive legislation was passed three years after the Court of Appeals decision, we deem it incumbent to adhere to the previous ruling of this court in Dixon v. Reliable Loans, Inc., 112 Ga. App.618, 145, S.E.2d 771, supra.

In Georgia, the precedent cases are specific to the core issue of "authorized representation of a corporation by a non-lawyer in any court of law". In Georgia, the issue is argued by appeal and the ruling is specific.

The Florida Statues are virtually identical, in the letter and spirit, to the Code of Georgia. Specifically challenged, the court in Georgia gave precedence to the statutes over the general rule. This was done begrudgingly in that the three judges observed, "...that the lay public would be better served and the general welfare enhanced if the legislature would pass the necessary law forbidding corporations from appearing in propria persona in the courts." Still the Georgia court did as the law demanded and allowed the corporation to be represented by a non-lawyer.

No person (corporation) shall be denied their property without due process of law.

Constitution of the State of Florida
SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

Freedom of Expression

U S Constitution, Amendment 1 - Freedom of Religion, Press, Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Constitution of the United States, Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Statues of Florida do not diminish the rights of a corporation from those of a natural person. The rights of a person are guaranteed unless certain and specific rights have been denied by statute.

As to legal authority and representation, the corporate person must perform all of it functions and activities via authorized representation. As with a natural person, the corporate person may prepare legal documents and execute these documents on its behalf. The corporate person performs all manner of legal acts in personnel matters, contracts, leases, product sales, stock sales, stockholder matters, banking and tax matters. All of these legal acts may be performed by a layperson that has been duly authorized to act on behalf of the corporation. Like the natural person, the corporate person is not considered to be practicing law because these services are being performed where the corporation has a proprietary interest. This is no different than any other licensed service that the corporate person may perform for itself but not for others.

To presume that an authorized layperson may not defend a corporation is to conclude that the people of a corporation have the legal rights to conduct all manner of legal business except the defense of their actions.

It is argued that the corporation can defend its self, but only through the employment of a licensed attorney. If this is held true, then what about the corporation that cannot afford an attorney? If the natural person, in the same situation, can defend himself, then why not the corporate person? Both the natural person and the corporate person have the same rights, but in the State of Florida it "appears" that the corporate person's right to defend itself may have been usurped by practice and the general rule. If so, the practice should be reversed and the right restored to the people. For a natural person and corporate person to conduct life and business without the legislated mandate of legal counsel, is an inherent right of a free society and guaranteed by the Constitution of the United States and in no case should justice be denied or sold.

WHEREAS, the CROSSCLAIMANT petitions the Court to give precedence to the Florida statutes and to uplift the people's right to defend themselves, individually and corporately, against wrongful prosecution, and to insure that the basic right of access to the courts is not denied to the corporate person that cannot afford to pay for counsel.

MOTION TO ALLOW PRO SE REPRESENTATION OF ALL PRO

WHEREAS John M. Cockerham is ALL PRO’s duly authorized representative, Defendants moves that the Court allow the corporate entity of ALL PRO to speak for itself, not by third party representation, but by its own duly appointed authority to voice its defense, and prosecute its claims of wrongful acts and damages against the PLAINTIFF and to allow John M. Cockerham to represent Defendants in all matters concerning this case.


Respectfully submitted this the 28th day of May, 2010.

___________________________________________
John M. Cockerham, pro se
and as,
President of All Pro Electric
5641 Atlanta Street
Hollywood, FL 33021

(954) 605-9883
Certificate of Service

The undersigned, John M. Cockerham declares and certifies that a copy of the Answer to Complaint and Counterclaim in reference to CASE NO. 09-66554 has been sent this day via the United States Postal Service to Mr. Drew Beinhaker, Esq. at the office address of Henschel & Beinhaker, P.A., 4060 Sheridan Street, Suite C, Hollywood, Florida 33021and filed with the Clerk of the Court, in the Circuit Court of Broward County, Florida.


_______________________________ ___5/28/10___________________
John M. Cockerham Date

5641 Atlanta Street
Hollywood, FL 33021

(954) 605-9883

3rd Writing 6/23/10

11 comments:

  1. This is a good brief John--contact me with an e-mail address and we can join minds with Mike Foust in Iowa how to crack this nut guarded so closely by the lawyer lobbying brigade. I'll send you my brief that got some attention in Superior Court in Seattle. but not quite enough...headed for CoA and then US District Court all the way to the Supreme Court if necessary. Maybe we should put this in a class action suit and hire a pro bono lawyer to rub salt in their wounds!! bcottringer@pssp.net

    ReplyDelete
  2. John-- This site is getting puttled up close to the top...you are onto something here. Bill Cottringer

    ReplyDelete
  3. florida adjusting services team, inc.October 29, 2010 at 9:16 PM

    this is exactly what I was looking for - please let me know if I may use the language in your motion in my own case... exactly the same situation.. i filed all my pleadings (i was a paralegal for 15 years), my answer and counter claim.. and suddenly opposing counsel files a motion to strike my pleadings because i'm not an attorney. I have a small business too and really can't afford an attorney at this time. If they would have tried this two years ago, I would have hired my attorney and buried them in paperwork. Instead I'm burying them in paperwork myself.. and now they're panicking. please let me know if you have any objections to my using the language in your motion. It's extremely well written, thought out and researched. Thanks, in advance!

    ReplyDelete
  4. Wow! This is very persuasive. I'm also on the same boat; I own a small business which is being sued as a defendant in a breach of contract case where the original company that signed the contract is now defunct. Although the new company never operated in the location, and as a result of the fact that no property was ever transfered from one to the other, I believe I have a strong case that the new company is not liable, but opposing council is forcing me to hire an attorney, which my new small business can't yet afford (I'm also the sole owner/employee of my company). Would you be amenable to me borrowing your well thought out research as well? I think that Kae should be overturned - it was 1985 and it was a foreign corporation. Where is justice for small businesses struggling to survive in 2010 in the worst recession in 80 years???

    ReplyDelete
  5. My company is being blackmailed by an ex-employee and a unscrupulous attorney. The suit over 361 dollars has reached the 15K plus my attorney fees. I feel and Identify wholly with your words and findings. I could use your leg work as I have to decide on settling or going to court on principle. The system is wrong and if we can not afford to hire expensive attorneys then our right given to us by the constitution should not be biforked and justice bought. We need to unite on this one.

    Hernan Madrid Homestead Florida. Jan, 28, 2011.

    ReplyDelete
  6. Is Drew Beinhaker even the attorney of record for American Express? Why does he not validate his claims, yet judges rules in his favor?. There is an Ari Beinhaker at Ameerican Express in New York; are they related? His affidavits of indebtedness are unsubstantiated yet the judges rule in his favor. Why?? Why do debts get sold around to 4 and 5 debt collectors and then go to Beinhaker for litigation by American Express??? Is American Express the Real Party in interest???
    Is he really the attorney for NCO Financial?? Is the deck stacked and in whose favor??? Should this be investigated by the Attorney General or the FL BAR or is that the rat watching the cheese??? I smell stink all over this.

    ReplyDelete
  7. This is same situation I'm in in an Illinois court. Could I use your findings to possibly help my defense. Thank you for all the work you did. Just a lil Guy trying to make a living and I have no means to afford a lawyer. Bankruptcy is my only recourse if I cannot defend corporation. Its sad that courts have power to deny businesses a defense. No wonder small businesses keep closing. We all don't have money just sitting around for legal aid.

    ReplyDelete
  8. I think you can win this argument but you must go after the law as unconstitutional
    You must trigger the court with the exact argument. While this brief is persuasive in the context of logic and common sense, it fails to force the court to rule on its merits.
    I would appeal the denial of the motion, which at least buys you time and forces amex to spend more money, on the grounds of conspiracy by the court and the Florida Bar to
    deny your rights under USC title 18, sec. 241, 242; the color of law rules. In effect any person could sue any struggling company who could not afford an atty., and secure an executed order of judgement to take and liquidate the company and its assets to the tune of any amount they wanted!! There are likely thousands of businesses with equipment and
    property that are barely self sustaining beyond a meager paycheck. Any person or entity could effectively make a hostile takeover by filing a frivolous lawsuit and then profit substancially from its liquidation where the business would be forced to self liquidate to defend itself, or be liquidated in default. Many would not cut there own throat to mount a defense, because it literally would take food off the table. As a matter of ,survival they might just keep going to work until the US marshals seized the company tools and thus
    destroying the business. In theory a company could have substancial losses of inventory, equipment and property literally stolen from them where the factors of litigation are not fairly ruled on in a court of law and conversely, legitimate claims would go unsatisfied by companies that plan the default and take there assets and run in anticipation of the judgement. Surely this is not a constructive law to deny Pro se representation in at least the Defense of a Corporation. Here is one case that it is better to be under sole proprietor
    status rather than corp. status which we are all told is a mechanism to protect our personal assets from suit. In reality most businesses are everything one might have. If you wish to discuss a joint effort in the attack of this law feel free to contact me at 954-599-6117. I can imagine we can effectuate legislative change to this rule at a Federal level. Imagine how this should at least be changed for NON-Profit corporations!!!! r. anthony

    ReplyDelete
  9. What if the owner of a corporation simply terminated his corp and became a sole proprietorship?

    Would that allow the individual/sole proprietorship to commence an action in federal court and still maintain the rights and remedies previously held as a corporation?

    ReplyDelete
  10. Ardco Construction Inc.June 16, 2014 at 10:15 PM

    My Corporation was taken thru District Court and represented by its Ceo and the judge took the Corporations property and gave it to the plaintiff. When the Ceo filed an appeal the appellate court struck down the appeal stating the corporation must be represented by an attorney, and would not let the ceo proceed in the appellate court in Houston Texas.

    ReplyDelete
  11. wow this is crazy. I just found out the same thing yesterday - i was trying to defend my LLC and the judge told me by MN statute it has to be represented by an attorney, therefore my LLC looses by default. this is so wrong

    ReplyDelete